China pressuring human rights lawyers through denial of license renewals
10:41 AM ET
Patrick Kar-wai Poon [Executive Secretary, China Human Rights Lawyers Concern Group]: "The lawyers who can't pass their annual registration will not be able to practise as lawyers at least in the coming year. Article 13 of the PRC Law on Lawyers stipulates, "a person who has not acquired a lawyer's practicing certificate shall not be engaged in legal service practices in the name of lawyer; and, except as otherwise provided for by law, shall not be engaged in a practice of representation or defense in litigation."
However, they can still represent their clients by acting as "agent ad litem" (gongmin daili). According to Article 40 of the PRC Criminal Procedure Law, for instance, "a victim in a case of public prosecution, his legal representatives or near relatives, and a party in an incidental civil action and his legal representatives shall, from the date on which the case is transferred for examination before prosecution, have the right to entrust agents ad litem." One reason why agents ad litem are recognised is that there are not enough lawyers in some parts of China. But according to a 1993 regulation of the Ministry of Justice, agent ad litem is not allowed to take fees. This means that the lawyers who cannot have their practice license renewed will not be able to receive fees for their handling of cases as mere 'agents ad litem.'
Lawyers in some other provinces, such as Shaanxi, Shandong and Guangdong, are still undergoing the annual registration process. Some of them told us that they might also face difficulities in having their practice licenses renewed this year. Some were because of being involved in joining to express their willingness to offer legal assistance to the Tibetans suspected or accused of taking part in the violence in the "Tibet Incident" in March, while some were involved in other human rights cases. So, the problem we want to point out is that the annual registration system puts undue pressure on the lawyers and there has been no clear explanation from the local Justice Bureau about how they decide if they allow a lawyer to re-register or not. It gives the Justice Bureau too much power in deciding whether the lawyers can register or not which is against the spirit of the rule of law."
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Danish plan to ban religious dress for judges at odds with tradition of freedom
1:24 AM ET
Zubair Butt Hussai [spokesperson, Muslim Council of Denmark]: "It is with great regret and indignation that it has come to our knowledge that the Danish government now wishes to intervene in the Administration of Justice Act [in Danish]. The government has chosen to disregard all reasonable arguments and traditions of freedom in Denmark under the guise of a need for neutral appearance of judges. The decision illustrates a fundamental misunderstanding of the rationale behind the dress-code among Muslim women, their integrity, and their professionalism. It also disregards the competence of resource persons in the Danish judicial system, who evaluate candidates to the office of judge.
The government’s drastic interference in the right of the Court Administration to lead a modern and inclusive personnel policy means that it finally signals that not everybody in this society is equal. In the Muslim Council of Denmark we are highly concerned that this may be the beginning of a tendency that will affect a growing number of professions. This is an extremely dangerous slippery slope that does not lead to the open and inclusive society that we wish to maintain in Denmark.
In the Muslim Council of Denmark, we can only continue to encourage men and women to pursue their educational dreams. One may expect, though, that Danish Muslims will increasingly choose professions with international potentials, if the present tendency continues."
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Fourth Circuit ruling on late-term abortion highlights women's health as priority
4:54 PM ET
Courtney E. Jones [grassroots organizer, Virginia League for Planned Parenthood]: "Planned Parenthood Advocates of Virginia welcomes the US Fourth Circuit Court of Appeals' decision to strike down Virginia's burdensome ban on late-term abortions. The Court stated that the onerous 2003 law "imposes an undue burden on a woman's right to obtain an abortion."
This is the second time Virginia has disregarded the health of women when enacting an abortion ban, and it's the second time the courts have ruled that ignoring women's health violates the Constitution. Given that the 4th Circuit Court of Appeals is one of the most conservative in the country, their decision emphasizes that protections for the woman's health must be the priority in cases like this.
In 2000, the United States Supreme Court ruling in Stenberg v. Carhart led to the reversal of Virginia's abortion ban of the late 1990s. Though last year's Supreme Court decision in Gonzales v. Planned Parenthood upheld the federal ban on late-term abortions, the Virginia ban is far more restrictive and vague. As a result, the appeals court struck down Virginia's latest abortion ban.
Virginia lawmakers can better reduce the incidence of abortion by empowering women rather than hurting them. Our legislators can do far more to prevent unintended pregnancies and abortions by increasing access to family planning, comprehensive sex education, and affordable access to contraception.
Planned Parenthood will continue to advocate at the state and federal levels for increased access to reproductive health care and for age-appropriate sexuality education that stresses abstinence and also provides birth control information."
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US pressure felt at Dublin cluster munitions conference
11:50 AM ET
Bonnie Docherty [Researcher, Human Rights Watch]: "Negotiations for a new convention banning cluster munitions are coming to a close, and perhaps the biggest remaining obstacle to achieving a strong treaty is a country not even present, the United States. The United States has applied pressure to states around the world, particularly to its NATO allies. Campaigners at the negotiating conference in Dublin have taken to referring to the United States as "the elephant not in the room."
Delegates have particularly sensed US influence in lengthy and contentious sessions dealing with "interoperability." The original draft treaty text obliges state parties involved in joint operations not to assist non-states parties with the use, production, trade, or stockpiling of cluster munitions. The weapon causes civilian casualties both during attacks because of its area effect and after because of explosive duds. Based on extensive precedent, this provision would promote the stigmatization of the weapon, a decrease in use by all states, and ultimate universalization of the treaty. US allies, led by the United Kingdom, however, have called for additional language that in essence allows them to assist in violations of the treaty in the course of their military alliances with non-states parties. In the name of protecting their soldiers from criminal liability, they demand an article that allows them intentionally to assist with the use of cluster munitions and to "host" foreign stockpiles of cluster munitions on their own soil, two provisions that undermine the humanitarian spirit of the treaty as well as existing legal precedent. US pressure seems to have a great deal to do with the hard line some states are taking.
Much of its work has been behind the scenes — a US official said the United States has communicated with at least 114 of the negotiating states, but it played its hand publicly last week. Stephen Mull, acting assistant secretary for political military affairs at the US Department of State, told reporters, "…if the convention passes in its current form, any US military ship would be technically not able to get involved in a peacekeeping operation, in providing disaster relief or humanitarian assistance as we’re doing right now in the aftermath of the earthquake in China and the typhoon in Burma, and not to mention everything that we did in Southeast Asia after the tsunami in December of 2004." This statement is simply absurd; despite similar provisions in other weapons treaties, no country has ever banned from their ports US units on a humanitarian mission because of what arms might possibly be on board. Furthermore Mull’s specific examples are disingenuous because cluster munitions are not appropriate for a humanitarian mission and neither China nor Burma are part of the cluster munitions treaty process.
The time to resolve interoperability and other outstanding issues is short. The final text is due to translators on Wednesday night. To reach the necessary agreement, negotiating states need to ignore pressure from across the ocean and focus on voices from across the room, which seek to promote the humanitarian purpose of the treaty, rather than bow to the demands of the United States."
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Egypt's extension of emergency law means continued rights violations
10:39 AM ET
Bill Van Esveld [Arthur Helton Fellow, Middle East and North Africa Division, Human Rights Watch]: "The Egyptian government has extended for two more years Law 162 of 1958 that authorizes prolonged detention without charge and severe limitations on freedom of assembly and expression. Egypt’s state of emergency, first implemented in 1967, has been continuously in force throughout President Hosni Mubarak’s 27-year rule. The emergency law has provided a dubious basis in law for the government’s systematic stifling of political opposition and violations of individual rights.
Law 162 allows the executive to indefinitely detain persons without charge, and an estimated 5,000 persons remain in long-term detention without charge or trial under the law. The law also allows authorities to refer civilians to a separate system of military or exceptional state security courts, whose composition is determined by the president and where the accused has no right of appeal, in violation of international fair trial standards. In February 2006 President Mubarak, using his authority as commander-in-chief, ordered a group of 40 senior Muslim Brotherhood members to be tried by a military court shortly after an ordinary criminal court had dismissed charges against 17 of them. The military tribunal recently sentenced 25 of the group to prison terms of up to 10 years.
The emergency law allows the government to prohibit strikes, demonstrations and public meetings. On April 6 and 7, 2008, security forces prevented textile workers from striking in the Nile delta city of Mahalla, violently dispersed protests against rising costs of food and basic goods, and detained scores, including many on-line activists who had promoted the strike. When Egypt’s prosecutor-general ordered the release of 20 detainees a week later, the Interior Ministry invoked the emergency law to re-arrest them, according to news reports.
These human rights violations have made the law widely unpopular. Opposition parties, the Muslim Brotherhood, NGOs, UN treaty-monitoring bodies, and Egypt’s government-backed National Council for Human Rights have objected to the law. Nonetheless, human rights defenders are anxious at the prospect of a counter-terrorism law that the government says is being drafted so that the state of emergency will no longer be "necessary.""
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Status-of-forces agreement with Iraq must recognize detainee rights under international law
1:44 PM ET
Joseph Logan [researcher, Middle East and North Africa Division, Human Rights Watch]: "In the debate over the Bush administration's push to wrap up a status-of-forces agreement and strategic pact with Iraq, there's a concerned party you aren't hearing about: the more than 20,000 Iraqis in US military detention.
The status-of-forces agreement now under negotiation would supersede the current U.N. Security Council resolution which expires at the end of the year and provides the Chapter VII mandate of US-led Multi-National Force-Iraq (MNF), including MNF detention in Iraq. This resolution provides the MNF authority to detain persons for “imperative reasons of security.”
The US argues that these detainees should be treated in conformity with the Fourth Geneva Convention, which is applicable during military occupations. This interpretation of the Security Council resolution ignores the shift in the legal classification of the conflict with the declared end of the occupation in Iraq in 2004. Because the conflict in Iraq no longer concerns two opposing governments nor is an occupation, but is instead a fight by governments against an insurgency, the law on non-international armed conflict applies. During such conflicts, persons apprehended are to be treated in accordance with fundamental laws of war guarantees and international human rights law, but not the Fourth Geneva Convention as the US contends. This means at a minimum that detainees should be charged with a specific offense, be brought before an independent and impartial judge, and have access to a lawyer. The current US process for detainees does not meet these basic requirements.
Iraqis negotiating the status-of-forces agreement cite the goal of transferring to their authority much of the MNF detainee population - which the MNF itself has said it hopes to trim substantially through its expedited review and release procedures. No one, however, imagines a status-of-forces agreement bringing an end to the authority of a foreign military operating in Iraq to detain. Any agreement must reflect the commitment of both parties to upholding international law, including the elements of the International Covenant on Civil and Political Rights pertaining to the rights of persons in custody.
Critics of the proposed deal in Washington warn they won't be roped into an open-ended military commitment to Iraq. They should also reject the prospect of enshrining their country's status as a jailer operating outside international law on foreign soil."
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Ninth Circuit Sierra ruling works against saving habitat from catastrophic fire
12:47 PM ET
Mike Dubrasich [Executive Director, Western Institute for Study of the Environment]: "After eight years of a planning exercise called the Sierra Nevada Forest Plan Amendment (SNFPA) - one that involved thousands of people, hundreds of meetings, and tens of thousands of documents, studies, reviews, rehashes, monitoring, and re-monitoring - a Federal judge last week enjoined fire-preventative thinnings created under SNFPA guidance with the judgment that the planning was not "rigorous" enough to satisfy.
That suit was brought by the Wilderness Society, and in effect destroyed eight years of effort by USFS employees and an engaged public to comply with the law.
The Wilderness Society had every opportunity to participate in the Sierra Nevada Forest Plan planning exercise. There was an open process with public hearings and public involvement every step of the way. Indeed, the Wilderness Society was invited and even begged to participate, to become part of the process, to meet with local residents, and to resolve differences in an amicable and collaborative fashion.
Instead the Wilderness Society chose to shun that process and to sue to kill it, in concert with the Sierra Club, the Center For Biological Diversity, the Natural Resources Defense Council, and the Sierra Nevada Forest Protection Campaign (who recently changed their name to Sierra Forest Legacy in a marketing/branding move).
Intervening on behalf of the unsuccessful Defendants were Tuolumne County Alliance For Resources & Environment, California Forest Counties Schools Coalition, Regional Council Of Rural Counties, Western Council Of Industrial Workers, Klamath Alliance For Resources & Environment, Coarse Gold Resource Conservation District/Eastern Madera County Fire Safe Council; Tulare County Resource Conservation District, Sierra Resource Conservation District, Strawberry Property Owners’ Association, Huntington Lake Association, Huntington Lake Big Creek Historical Conservancy, California Equestrian Trails & Lands Coalition, California Forestry Association, California Licensed Foresters Association, California/Nevada Snowmobile Association, American Forest & Paper Association, American Forest Resource Council, Blueribbon Coalition, California Ski Industry Association, California Cattlemen’s Association, Quincy Library Group, and Plumas County.
Judge Noonan first compared Federal timber sales to extortion. Then he called them collusion. Then he called them bribery. Yet the Plumas timber sales are standard and common transactions following all the rules. When the judge goes down to the lumber yard and buys boards with real money drawn from his federal paycheck, is that extortion, collusion, and bribery? Are all market transactions extortion, collusion, and bribery in the eyes of Noonan? The USFS has sold material harvested in forest practice operations for over 100 years because that is what they have been charged to do by the Organic Act, the Multiple Use Sustained Yield Act, the National Forest Management Act, and various other federal laws. What does the judge think the USFS is supposed to do, give the logs away? Burn them in a heap?
The 2001 Fire Effects Information System (FEIS) includes selling timber and Possible Sale Quantities of green timber - thus the Forest Service can neatly sidestep Noonan's ridiculous tirade - and the proposed treatments include group selection harvests and DPFZs (Defensible Fuel Profile Zones: areas approximately 1/4 to 1/2 mile wide where fuel loadings are reduced, usually along roads, that would have saved hundreds of thousands of acres of Sierra forest from catastrophic fire). The timber harvest bulk of both Basin and Empire projects, sawlog-wise, are in group selection units; repackaging and selling them without the money-losing DPFZ units would ironically keep the commercial logging going, but shut down the landscape-scale strategic fuels work. That's what the 9th Circuit's order allows to be implemented.
The landscape-scale fuels work is the basis of the 2001 Framework's California Spotted Owl Conservation Strategy (Conservation Strategy for Old Forest Ecosystems and Associated Species; 2001 ROD Appendix A pp.A-1 through A-4). Look at the last sentence of the section: "The goal is to strategically treat fuels across 30 to 40 percent of each landscape with the overall objective of reducing uncharacteristically severe wildland fire effects across the entire landscape." The treatments enjoined would have saved wildlife habitat from catastrophic destruction. The recent (last week) USFWS Recovery Plan for the Northern Spotted Owl calls for exactly such treatments and is based on the professional expertise of numerous owl and forest biologists. The plaintiffs have successfully written a death warrant for the very things they purport to save."
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Arizona school vouchers ruling casts doubt on future success of programs
12:14 AM ET
Lee Stein [partner, Perkins Coie Brown & Bain] and Elizabeth Kruschek [associate, Perkins Coie Brown & Bain]: "Last week, the Arizona Court of Appeals held that two school voucher programs created by the Arizona Legislature in 2006 were unconstitutional. Those programs provided scholarships or grants of state money to the parents or guardians of foster children and students with disabilities to allow those children to attend private schools. The Court determined that the voucher programs violated Article 9, Section 10 of the Arizona Constitution, which has no federal counterpart and which prohibits "appropriation of public money made in aid of any church, or private or sectarian school."
The court's decision raises doubts about the future success of voucher programs in Arizona. Because Article 9, Section 10 of Arizona's Constitution clearly prohibits state aid to private or sectarian schools - a provision that is not found in all state constitutions - it is more difficult to craft a voucher program that does not run afoul of the constitution. Here, the legislature tried to circumvent Article 9, Section 10's prohibition on aid to private schools by issuing the grant or scholarship to the parent or guardian, who would then endorse that grant or scholarship to the private school of their choice. However, the Court quite rightly saw through the Legislature's attempt to avoid the constitutional prohibition.
Additionally, we hope that the decision will finally put to rest any further argument that the constitutional provisions at issue in this case are are tainted by religious bigotry (known as "Blaine Amendments"). Those in favor of vouchers, like the Institute for Justice in this case, have repeatedly made this assertion, and the Court of Appeals directly - and correctly - disagreed, noting that no link has ever been established between the Blaine Amendment and Arizona's Constitution."
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Ginnah Muhammed Muslim veil case highlights cultural clash
6:38 PM ET
Farzana Hassan [president, Muslim Canadian Congress]: "For those who think the veil symbolizes the oppression of Muslim women - think again. In an American court in August of 2006, the veil instead became a symbol of clear defiance to legal protocol and authority. Ginnah Muhammad, who refused to remove her face-veil to identity herself as the complainant in a petty-claims case, rejected the authority of the judge who had earlier demanded she comply with court regulations by lifting her veil. His response to her refusal was merely to dismiss the case, thereby denying Ginnah access to justice. Such incidents raise valid questions about the extent of faith accommodations in pluralistic societies, the conditions of denying justice, the clash of cultures and last but not least, the correctness or otherwise of Ginnah's extreme religious stance.
Certainly, there exists a school of thought within Islam that believes it is better to err on the side of extreme expressions of piety rather than fall short thereof. Be that is it may, often in the West, refusal to remove head gear, or in this instance the face-veil, may constitute a political statement that Orthodox Islamic precept must be upheld over and above any temporal law or authority. There is no denying her opinion represents only a fraction, albeit a growing one, of what is believed about the veiling and segregation of women. Neither does her view find substantiation in religious texts. No explicit injunctions enjoining the face-veil on Muslim women exists either in the Quran or in the oral traditions attributed to the prophet Mohammad. But what is troubling is not as much Ginnnah Muhammad's extreme religiosity. It is more the politicization of her views and those who share it. Often these uncompromising attitudes surface in situations such as the above where these parties refuse to make concessions due to rigidity of religious outlook. This is the kind of radicalization that seeks to change existing public systems and mechanisms through such refusal.
Often Islamists demand the imposition of Sharia law and excessive accommodations in public places while themselves refusing to budge an inch from their own extreme positions. This is how they are changing the world around them. Though the judges actions may be deemed excessive by some in dismissing the case, they are understandable in the interest of maintaining uniformity and transparency of the legal process. Moreover, moderate and secular Muslims who have embraced the liberalism of North American society, would most certainly welcome this decision. Its about time they stood up to the scare tactics of the Islamists and also found support for their stance from local authorities."
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Ninth Circuit Sierra ruling should shift Forest Service priorities
6:31 PM ET
Greg Loarie [attorney, Earthjustice]: "At its core, Sierra Forest Legacy v. Rey (incorrectly titled CBD v. Rey) challenges the 2004 Sierra Nevada Forest Plan Amendment (also known as the "2004 Framework"), which establishes management direction for all 11 national forests in the Sierra Nevada. The 2004 Framework replaced the original "2001 Framework," which set forth a balanced approach for conserving species and reducing the risk of wildfire and was widely regarded as the new gold standard for ecosystem-based forest management. The 2004 Framework abandoned the 2001 Framework's carefully crafted standards, and called for a drastic increase in logging of large, fire-resilient trees throughout the Sierra.
When it adopted the 2004 Framework, the Forest Service acknowledged that logging large trees does not reduce the risk of wildfire, but it claimed that such logging was necessary to finance the removal of smaller trees and brush. Quite literally, the 2004 Framework lost sight of the forest for the trees. Our clients argued, and the Ninth Circuit agreed, that the Forest Service's failure to consider any alternative options for financing fuel reduction activities violated the National Environmental Policy Act. Accordingly, the Ninth Circuit enjoined the Forest Service from carrying out aspects of three logging projects - totaling 12,000 acres - in the northern Sierra Nevada that implement the 2004 Framework and would be inconsistent with the 2001 Framework.
In our view, the Ninth Circuit's repudiation of the 2004 Framework is an important legal victory that should shift the Forest Service's attention away from the last big trees in the backcountry and back to the important fuel reduction activities that are needed around Sierra communities."
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Report from Guantanamo: Mohammed Jawad is another teen growing up in detention
6:00 PM ET
Sahr MuhammedAlly [Senior Associate, Law and Security Program, Human Rights First]: "On March 12, 2008, Mohammed Jawad - an Afghan national who was 16 or 17 years old at the time of his arrest in Kabul in December 2002 - made his first public appearance to the world when he appeared before a military judge in pre-trial military commission proceedings at Guantanamo Bay, Cuba. Jawad has been in Guantanamo for over five years – a quarter of his life. Jawad is charged with attempted murder and intent to cause serious bodily injury in violation of the laws of war. The relevant incident involved a grenade that injured two US soldiers and an Afghan interpreter in Kabul on December 17, 2002. He faces no charges of terrorism, material support, or any connection to al-Qaeda or the Taliban.
I observed Jawad at his pre-trial hearing on May 7 where Jawad consented to having defense counsel represent him, but only for the purpose of challenging the legitimacy of the military commission system. Air Force Major Reserve David Frakt, who was assigned to represent Jawad on April 28, told the court: "Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police."
According to his lawyer, Jawad lived in a refugee camp in Miran Shah, Pakistan. His father died when he was very young. His mother remarried, but Jawad was thrown out of his home by his stepfather at age 13. At his Combatant Status Review Tribunal (CSRT) on October 19, 2004, Jawad said that he was approached by some men who offered to train him to clear landmines in Afghanistan. According to Major Frakt, Jawad told him that he was aware that mine clearing was dangerous work but that the money was good.
Jawad claims that when he was taken to Afghanistan he was drugged and cannot recall many details. At his CSRT hearing, Jawad said that he was taken to a mountainous area for a few days and was given pills daily which made him "sleepy and forget [about his] family." He also stated that he was given injections on his leg that made him hallucinate. On the day of the alleged grenade attack, Jawad said that that he was given orange chewing gum, chocolate candy and a tablet. "When I took this pill I didn’t know what I did. I was out of mind I couldn’t think clearly," said Jawad at his CSRT hearing.
On December 17, 2002, there was a grenade attack on a vehicle in broad daylight. Two American soldiers and their interpreter were injured. The grenade was thrown from the back window. Jawad and another man were arrested but the Afghans released the other man.
According to Major Frakt, Jawad told him that he was taken to the police station, where Afghan police officers beat him just enough so that no marks were left. The police told him that if he confessed he would be released. They put a piece of paper in front of him to sign, but Jawad can barely read. "They made him put his thumb print on the paper. The US is calling this a confession," said Major Frakt.
Jawad spent a night with the Afghans and was handed over to the Americans. He was held in Bagram for a few weeks and then taken to Guantanamo, arriving in early 2003.
At his arraignment in March, Jawad claimed that soldiers accused him of knowing about the September 11, 2001 terrorist attacks. He said he needed to know the reason that he was being held in prison, and he needed the world to hear him because his pleas of innocence had gone no further than his cell. He asked the judge: "Is it in the US Constitution how to treat a 16-year-old with justice? I want justice and fairness."
Major Frakt was appointed counsel to Jawad a week before Jawad’s pre-trial hearing. Jawad’s previous detailed military counsel Army Colonel J. Michael Sawyers — who was at the arraignment in March, and had met with Jawad numerous times and even traveled to Afghanistan to help prepare the defense — left active duty on March 18 to return to civilian life.
Conditions in Guantanamo
Jawad has spent over five years in Guantanamo — most of it in solitary confinement. Major Frakt said that, "Jawad’s memory is shaky. Everything starts to blend together. He has no reference of time, except Ramadan. All days are the same. No change in season. He is not allowed outdoor activity except for under a covered roof." Camps 5 and 6 are maximum security prisons where detainees are confined to a 8 x 10 foot cell for 23 hours a day. There is no natural air or sunlight and artificial light is on 24 hours a day. At the hearing on May 7, Jawad corrected Major Frakt and said that once he saw a sliver of the sky — a comment indicative of someone treasuring a rare moment of seeing the blue sky.
During the proceedings I observed, Jawad appeared agitated and told the court that he had "been punished a lot." He described how he was coercively interrogated for hours on end in sealed rooms, sometimes after being woken up from sleep at 2 a.m. or 3 a.m., subjected to bright lights for 24 hours, threatened that he would spend his whole life in Guantanamo, and falsely promised that he would be able to get out. He also mentioned that he was moved from different camps and different cells and said that he could not remember how long he was in a particular camp. He seemed to have lost track of time. He told the court that he was promised books so he could study and told that he would be transferred to Camp 4, where he would be able to mingle with other detainees, but that these promises were not kept. During the hearing, he appeared confused and held his hand to his head several times while stating that he could not remember. He asked why he was in Guantanamo and kept saying that he wants to go home. He told the court that he is “a human being” and asked the court whether this was "justice."
Major Frakt is requesting a mental health evaluation for Jawad. He told me that, "Jawad has mood swings. He seems paranoid at times. For instance he says, 'that’s not what you told me before why are you changing your view now.' He never stays happy for long. He is really desperate to get out. He gets frustrated easily. He has trouble concentrating for long periods of time and is bewildered by the complexity of the legal system." But Major Frakt also said that his client is polite, appreciative and always thanks him, and that Jawad has inquired whether Major Frakt would get in trouble for helping him.
The Next Steps
Although Jawad has instructed defense counsel to challenge the validity of the military commission proceedings, there are several hurdles in the way. In April 2008, Army Col. Judge Peter Brownback, who also is the presiding judge in Jawad’s case ruled in the case of Omar Khadr — a Canadian national who was fifteen at the time of his capture by US forces — that there was no bar to subjecting child soldiers to military commission proceedings. Although children should be held accountable for their crimes, international law requires that they be treated in a manner that takes into account their particular vulnerability and relative culpability as children, and focuses primarily on rehabilitation and reintegration. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which the US is a party, explicitly prohibits the recruitment or use of children under 18 in armed conflict by non-state armed groups and requires state parties to criminalize such conduct. It regards child soldiers as victims in need of rehabilitation, not as volunteer "soldiers" capable of making an informed choice to join a military force. In the military commission system, however, US treaty obligations under the Optional Protocol have no bearing.
Notably in 2003, the United States released three children, ages 13-15, from Guantanamo to UNICEF (The United Nations Children’s Fund) to enable them to receive rehabilitation and reintegration assistance in Afghanistan. But the US government has not made any such rehabilitation assistance available to Mohammed Jawad.
Another possible challenge to the jurisdiction of the military commissions is that the application of the Military Commissions Act (MCA) to Jawad violates both constitutional and international legal principles banning ex post facto laws because the MCA was not enacted until 2006 —four years after Jawad was captured. A similar motion was filed in the Salim Hamdan case in February 2007 and a decision is pending. The prosecution in that case argued that ex post facto principles do not apply because the US Constitution does not protect aliens detained as enemy combatants at Guantanamo and international ex post facto principles are irrelevant because Congress is not bound by international law. The government is expected to take the same position in Jawad’s case.
"Jawad told me that I should not come back unless I have good news. Our next reunion will be difficult," said Major Frakt. He is probably right; there may be no good news for Jawad in the imminent future given the difficulties in challenging the jurisdiction of the military commission proceedings. "My hope is that if he understands that I am working on his behalf then he will allow me to continue representing him," added Major Frakt."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First
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US military court-martialing civilian contractor Ali while DOJ slumbers
4:46 PM ET
Kevin Lanigan [Director, Human Rights First, Law and Security Program]: "The U.S. military in Iraq is quickly moving toward its first court-martial of a civilian contractor since the Vietnam war. The case holds some promise of beginning to reign in a pervasive culture of contractor impunity, but nevertheless raises important constitutional and human rights issues. And the case begs a critical question too: Why is the Justice Department not prosecuting it?
The Ali case
Alaa "Alex" Mohammad Ali is a dual citizen of Canada and Iraq; he left Iraq for Canada after the 1990-91 Persian Gulf War, as Saddam Hussein imposed repressive measures on Iraq’s majority Shi’a Arab population. After the invasion of Iraq in 2003, Ali was hired as an interpreter and sent to Iraq by Reston, Virginia-based L-3 Communications Titan Group. Under its contract with the U.S. Army, L3 Titan provides approximately 7,000 interpreters in Iraq; according to a January 2008 L3 press release, this contract generated $738 million in "sales" in 2007.
Ali is charged with stabbing a fellow L3 Titan interpreter on February 23, 2008, following an argument on a remote U.S. military forward operating base (FOB) in al Anbar province, where both interpreters lived and worked. Six days after the incident Ali was moved to Camp Victory in Baghdad, where he remains confined in the complex of military bases adjoining Baghdad International Airport that serves as the operational headquarters of the U.S. military in Iraq.
UCMJ authority
In October 2006, Congress amended the Uniform Code of Military Justice (UCMJ) to extend the military’s authority to prosecute crimes committed by civilians "serving with or accompanying" the armed forces. Prior to this amendment, such jurisdiction existed only "in time of war." The 2006 amendment extended jurisdiction to civilians serving in a "contingency operation," see 10 U.S.C. § 802(a)(10) – the current doctrinal term for the sorts of military operation in which the United States is currently engaged in Iraq and Afghanistan.
It took nearly a year-and-a-half for the Department of Defense (DoD) to prepare initial implementing instructions for its expanded UCMJ authority. On September 25, 2007 – just over a week after the notorious Blackwater International shooting incident in Baghdad’s Nisoor Square in which 17 Iraqi civilians were killed – Deputy Secretary of Defense Gordon England issued a directive encouraging legal proceedings against contractors who violate military law, but providing no specific implementation guidance. Unsurprisingly, no UCMJ prosecutions followed. On March 10, 2008, Secretary of Defense Robert Gates issued a memorandum to senior DoD officials providing implementation guidance. The Gates memorandum was issued two weeks after Ali allegedly stabbed his colleague at the al Anbar FOB.
Initiating the prosecution
Less than a month later, on April 5, Multi-National Corps – Iraq (MNC-I) announced that Ali had been charged with aggravated assault in violation of UCMJ Article 128. Under the guidelines issued by Secretary Gates, before the military could refer court-martial charges against Ali, the combatant commander (in this case acting Central Command commander U.S. Army Lieutenant General Martin Dempsey) was required to provide formal written notice of the case to the Justice Department (DoJ). Under the Gates guidelines, such notice starts the clock on a 14-day period for DoJ to determine whether it intends to prosecute the case in civilian court, in which case the military would defer to civilian authorities. If DoJ requires more time to make its assessment, it need merely ask the Deputy Secretary of Defense and "an extension shall be granted . . . ."
Although DoJ has been publicly silent in Ali, we can safely assume that General Dempsey followed Secretary Gates’ instructions and notified DoJ of the case, but the Department presumably decided – as it almost invariably seems to do when it comes to serious contractor crime – "Not us." Thus on May 11, U.S. Army Lieutenant General Lloyd Austin, III, the MNC-I commander and the "general court-martial convening authority" in Ali, formally referred the Ali case for a general court-martial on charges of aggravated assault.
Ali’s court-martial will be held in Iraq. Its date and location have not yet been disclosed.
Whither Justice?
On the basis of the facts disclosed by the military, it seems clear there would be civilian court jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA). However, DoJ has little appetite for these cases: There has been only one private contractor ever indicted by the Department under MEJA for any sort of physically abusive or violent crime – Aaron Langston of Snowflake, Arizona, charged with assaulting a fellow contractor in Iraq with a knife. See United States v. Aaron Bridges Langston, CR-07-210-PHX (U.S. Dist. Ct., Dist. of Ariz., Indictment, Feb. 27, 2007). Langston’s case falls under MEJA jurisdiction – as presumably would Ali’s – because he is charged with a felony-level offense falling within the U.S. government’s Special Maritime and Territorial Jurisdiction (SMTJ), and because through his job with DoD contractor Kellogg, Brown and Root (KBR), Langston was "employed by the armed forces outside the United States."
But DoJ has organized its approach to MEJA cases in a way that creates significant internal disincentives to prosecute. Responsibility for initiating a MEJA prosecution is localized in individual U.S. Attorney’s offices rather than "Main Justice." U.S. Attorneys who prosecute MEJA cases are required to bear the cost out of their own budgets – and prosecuting a crime that occurred in Iraq or Afghanistan will cost far more than a comparable case in the U.S. Attorney’s home district. In Langston at least, the defendant’s permanent residence in the district provided some rationale for assuming the cost of the prosecution. With Ali, though – a dual Canadian-Iraq citizen who has never resided in the United States – the Justice Department’s approach almost ensures that no U.S. Attorney would be willing to bear the cost.
Assuming that DoJ did take a pass on Ali, this is hardly the first time it has turned its back on contractor crime. In January 2008, Human Rights First released Private Security Contractors at War: Ending the Culture of Impunity, a groundbreaking report documenting a long series of contractor crimes and an equally long history of DoJ inaction, and setting forth a comprehensive set of recommendations for ending the impunity with which private contractors have come to operate over the last several years. To date DoJ’s only completed contractor prosecution under MEJA was the conviction in May 2007 of a DoD contractor who pled guilty to possession of child pornography in Baghdad. In the last several years – going back at least to the revelation in 2004 of contractor involvement in the Abu Ghraib abuses – more than two dozen other contractor cases reportedly have been referred for prosecution under MEJA, but DoJ has not proceeded in any of them.
At the core of Human Rights First’s recommendations is that DoJ take the lead in aggressively investigating and prosecuting cases of violent private contractor crime abroad, with MEJA and the SMTJ as its principal jurisdictional vehicles. Regrettably though, through the tenures of three Attorneys General – John Ashcroft, Alberto Gonzales and now Michael Mukasey – there has been no progress, or even apparent interest, by DoJ in stepping up to these responsibilities.
It was largely for these reasons that Human Rights First also recommended that DoD implement its expanded court-martial authority to try private contractors in appropriate, limited circumstances. However, subjecting civilians – even military contractors – to court-martial jurisdiction is controversial and carries risks of abuse, and in most cases prosecution by civilian authorities is preferred.
Legal Implications of Court-Martialing Civilians
In his court-martial, Ali will be afforded the same rights that U.S. military personnel receive, including the right to appointed military defense counsel and to a speedy trial; protection against self-incrimination; and the presumption of innocence. This may not be enough. Courts-martial of civilians raise important constitutional and human rights issues.
The U.S. Supreme Court in Reid v. Covert, 354 U.S. 1 (1957), and other cases has held (albeit in the context of peacetime courts-martial initiated against the civilian dependants of military personnel) that the Constitution prohibits the prosecution of civilians by courts-martial because it would violate the right to a fair trial, including trial by jury. Indeed, under current rules, Ali’s court-martial "jury" will be a military panel, which may convict and sentence him on the basis of a two-thirds majority vote. Notwithstanding Secretary Gates’ implementing instructions, there have been no changes to the Rules for Courts-Martial to ameliorate such concerns.
Moreover, the UN Human Rights Committee (the body charged with responsibility to monitor state compliance with the International Covenant on Civil and Political Rights, ratified by the United States in 1992) has stated that military trials of civilians should occur only in exceptional circumstances and with full due process rights. Recent events in Pakistan and elsewhere provide a timely reminder of the potential for abuse when military courts displace the regular civilian courts in trying civilians.
Thus if Ali is convicted, the military’s first prosecution of a civilian in more than thirty years inevitably will provide substantial legal arguments for an appeal. Even before the court-martial is completed – and perhaps before it is underway – the legality of Ali’s detention and prosecution by military authorities may be collaterally challenged in U.S. federal courts.
The U.S. government’s responsibility
When the U.S. (or any) government fields and directs personnel to implement national policy abroad, it is responsible for their conduct – even if they are private contractors rather than traditional military forces. When contractors commit serious violent offenses, the government is further responsible for providing effective mechanisms for criminal prosecution. This is especially true where, as in Iraq, the U.S. government officials imposed Coalition Provisional Authority Order No. 17, which confers presumptive immunity from Iraqi law upon international contractors working for Coalition government agencies or international organizations. It continues to be in force in Iraq largely because of the U.S. government’s continuing behind-the-scenes influence with the Iraqi government.
There are now more U.S. private contractors working in Iraq than U.S. soldiers, sailors, airmen and Marines deployed there. But the United States has yet to implement effective mechanisms to ensure accountability for serious contractor crimes committed against local populations, U.S. military personnel or each other.
Until now, the commission of serious crimes by private contractors in Iraq and Afghanistan has amounted – for the contractors – in almost all cases to nothing more than poor career moves. Absent Secretary Gates’ March directive, if Ali’s case had followed the typical pattern, it could be expected that Ali – whether innocent or guilty – simply would have been fired and flown home, possibly with adverse impact on his security clearance (if he has one), but nothing else. And then he might well have returned a few months later, with another company.
As with so many of its responsibilities in Iraq, in prosecuting Ali the U.S. military is doing what it has been tasked to do, trying to impose some measure of greater accountability on private contractors – even though it may not be the best-positioned or most appropriate agency for this role. But it seems for now the only agency willing to do it. We can only wait and see whether the military’s new authority survives judicial scrutiny.
If there is indeed substantial evidence to support the charges against Ali, he should of course be prosecuted. This court-martial, however, would not be occurring – indeed, it would not be necessary – if the Justice Department were doing its job with the tools it has to prosecute serious contractor crime abroad.
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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California and marriage: suspect class or suspect ruling?
12:50 PM ET
Jeffery J. Ventrella [Senior Vice President of Strategic Training, Alliance Defense Fund]: "The California Supreme Court in an innocuously titled 4-3 split decision, In re Marriage Cases, sets forth an anything but innocuous ruling that imposes same-sex "marriage" despite a valid contrary expression by the citizens in the 2000 vote - 61% to 39%. Aside from the seismic effect created by the majority’s rank judicial activism, lies the Court’s rationale for its ruling: the assertion that homosexual behavior is entitled to "strict scrutiny" because homosexuals comprise a "suspect class." This assertion is fundamentally flawed legally, empirically, biologically, and rationally. And, this is not overstatement.
In the context of the battle to preserve marriage, many bright (but erroneous) scholars have tirelessly argued for same-sex "marriage." They consistently assert that the extant marriage laws should be deemed unconstitutional because they allegedly "discriminate on the basis of sex." Advocates of this view include Dr. Andrew Koppelman of Northwestern University School of Law and Professor William Eskridge of Yale Law School. Both men have written scholarly and lengthy books attempting to make this point. The California Court, however rejected these scholars’ rationale. Instead, the California Court has boldly gone where no federal court has gone: the court concluded that homosexuals are a "suspect class" and thereby are entitled to a legal status just like race and ethnicity. It is the court’s reasoning that is suspect.
Ask this question: Just how are "members" of this supposed "suspect class" to be identified? Are they those who possess homosexual ideations? Are they those who engage in homosexual conduct? If so, how often. Does one "event" permit membership into the "suspect class?" If not, why not? Is membership simply a matter of self-assertion, a product of self-serving autonomy? What if one "identifies" as being heterosexual, but engages in homosexual behavior for pay as a prostitute? What if one "identifies" as being homosexual, but engages in heterosexual behavior for pay as prostitute? What if one "identifies" as heterosexual, but has a moral lapse, ala Ted Haggard? Here is the deep analytic flaw in the court’s assertion: behavior (ethics) is being confused with status (metaphysics).
Moreover, those who contend that sexual behavior is legally "like race" crash upon the shores of scientific reality: race and ethnicity are genetic; sexual behavior is not. But, what about the so-called "gay gene?" Well, hear the actual words of the actual genetic researcher, Simon LeVay: "I did not prove that homosexuality is genetic, or find a genetic cause for being gay. I didn’t show that gay men are born that way—the most common mistake people make in interpreting my work. Nor did I locate a gay center in the brain." But, hey, let’s not confuse the law with the facts.
And, in any event, even if homosexual behavior were to be shown to be like race, it would be irrelevant to the legal question at hand. This is because the marriage laws do not inquire about "sexual orientation." No DOMA bars practitioners of homosexual behavior from marrying. And, no marriage license application inquires about intimate sexual practices. The law is utterly neutral as to "sexual orientation," and therefore, "sexual orientation" is legally irrelevant. Consequently, it is the California court’s ruling that is suspect . . . and manifestly so. California’s citizens should divorce themselves from their court’s extreme deviation from rational jurisprudence."
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US practice of forcibly drugging deportees is torture
12:39 PM ET
Ahilan Arulanantham [staff attorney, ACLU of Southern California]: "I need to start with two caveats. First, I am no expert in either international or comparative law, and I know almost nothing about the law of Belgium or France. Second, in the interest of full disclosure, I was lead counsel (along with Brad Phillips from Munger, Tolles, and Olson in Los Angeles) in the nationwide class action challenging the government's forcible drugging policy in Diouf v. Chertoff. We settled that case after the government agreed to change its policy to never forcibly drug someone for deportation purposes without first obtaining an order from a federal court authorizing the drugging.
That being said, I'm not at all surprised that other countries objected to our government's shocking practice of forcibly injecting people with powerful antipsychotic drugs in order to deport them. Article 1 of the Convention Against Torture explicitly defines torture to include "severe pain or suffering, whether physical or mental," and our own legislation implementing the Convention Against Torture defines torture to include "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." 18 U.S.C. 2340. (In fact, under federal law, committing such acts outside of the United States is a very serious crime punishable by up to 20 years in prison. 18 USC 2340A).
I would like to know whether the officials in Belgium, France, or any other country ever put their objections to our practice in writing, but because the federal government has provided almost no documents in response to the ACLU's FOIA request on the subject, I can only speculate as to whether the officials objected to the practice because they thought it was torture.
As for our suit, we focused our objection to the policy on the Due Process Clause because it was such an obvious violation under the controlling cases. As we explained in our preliminary injunction papers, it's crystal clear that the government cannot give antipsychotic drugs to people who are not mentally ill under Washington v. Harper, Riggins v. Nevada, Sell v. United States, and every circuit that has addressed those Supreme Court cases. I think it was very telling that the government chose to settle rather than attempting to defend the legality of its practice. After the District Court rejected the government's motion to dismiss on jurisdictional grounds, the government changed the policy.
It's also important to note that although the government uses the term "sedation" to describe the government practice, in fact the government was not using just sedatives, but also a powerful antipsychotic drug known as haldol (the technical name is haloperidol). As several prominent psychiatrists (including our expert Dr. Mark Mills, whom the government had used as an expert in several other cases) have noted, antipsychotics are far more dangerous and profoundly disturbing when given to sane people than are sedatives. That is why we try to refer to the practice as "forcible drugging" rather than "forcible sedation."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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California same-sex marriage decision an abuse of judicial authority
11:23 AM ET
Mathew D. Staver [Founder of Liberty Counsel; Dean and Professor of Law, Liberty University School of Law]: "Yesterday's California Supreme Court decision represents a raw abuse of judicial authority. In 2000, California voters overwhelmingly passed Proposition 22, defining marriage as the union of one man and one woman. The California Supreme Court overturned the will of the people by declaring Proposition 22 unconstitutional. In its decision, the court held what no other court had yet done – that sexual orientation is a suspect classification, requiring application of a strict scrutiny analysis.
For those states considering whether to reach a "compromise" on the issue of same-sex marriage by giving same-sex couples some benefits of marriage, yesterday’s decision represents a warning bell. The court explained that because the state had gradually given more benefits to same-sex couples, the state constitution now required the state to confer the right of marriage.
Addressing our argument that permitting same-sex couples to marry would sever the link between procreation and child-rearing and send a message to the next generation that children do not need a mom and dad, the court inexplicably concluded that it would not. But when California puts its stamp of approval on a relationship between two people of the same-sex, who by definition cannot procreate, and instructs our children in public schools that a family with two moms or two dads is just as normal and acceptable as a marriage between a man and a woman (which has happened in Massachusetts through mandated family diversity training), it necessarily sends the message to our children that moms and dads do not matter.
While saddened by yesterday’s decision, we are confident that the legal impact of this decision will spur voters in California to pass a state constitutional amendment and reinvigorate the national efforts for a federal constitutional amendment."
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Afghanistan: weak criminal justice system needs support
11:07 AM ET
Sahr MuhammedAlly [Senior Associate,Human Rights First, Law & Security Program]: "The recent events about a week-long hunger strike[JURIST report, AP] by hundreds of jailed men in Kandahar should be of concern to the international community. Their complaints are about unfair trials, indefinite detention, and lack of counsel.
The Afghan criminal justice system needs help. After thirty years of conflict, the formal Afghan justice sector is weak and faces serious difficulties including, lack of professional capacity and resources for judges, lawyers, police and prison officers; physical infrastructure devastated by years of war; and institutionalized corruption. According to the 2007 United Nations Human Development Report little more than half of the judges in Afghanistan have the relevant formal higher education and have completed the requisite one-year period of judicial training. The remaining judges are graduates of madrassas or faculties other than law, with 20 percent having no university education at all. In addition, 36 percent of judges have no access to statutes, 54 percent have no access to legal textbooks, and 82 percent have no access to decisions of the Afghan Supreme Court [UNDP report].
Afghan criminal procedure law does on its face meet international fair trial standards, but the problem lies in its application. For instance, the law allows pre-trial detention without charge up to one month. The 2004 Interim Criminal Procedure Code states that a detainee upon arrest must be charged within 72 hours and that within fifteen days of the arrest, the prosecutor must write up an indictment. An extension for detention may be granted for an additional 15 days. Defense lawyers in Afghanistan, however, have told Human Rights First that "in reality these timelines are not followed," and further that there is no recourse for persons who are in detention for violation of the pre-trial detention period.
Another common problem in criminal trials is the use of coerced evidence. Confessions are barred under Afghan law unless conducted before a judge. Yet, the reliance of confessions derived largely as a result of ill-treatment is common practice. Similarly, the right to counsel and legal aid for indigent defendants is provided for in the law but there are very few defense lawyers in Afghanistan. Thus many defendants are tried without counsel. Many trials are also conducted without any prosecution witnesses, thereby denying a defendant the right to confrontation [Human Rights First report].
Modest progress in justice sector development has been made since the December 2001 Bonn Agreement. Donor governments have been involved in professional training and capacity building programs, the distribution of legal textbooks and materials, rebuilding of courts and prisons, and the adoption of new laws. Experts on rule of law reform in Afghanistan, however, say that there is a lack of strategic vision for rebuilding the justice system and a lack of effective coordination among donors and Afghan justice institutions, which has complicated reform efforts. But the responsibility also lies with the Afghans. Afghan officials must be committed to be bound by the rule of law otherwise reform efforts will likely fail."
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APA strategy of engagement in interrogations has served its purpose
2:11 PM ET
Stephen Behnke [Director of Ethics, American Psychological Association]: "The American Psychological Association commends the American Civil Liberties Union for its commitment to uncovering details surrounding the treatment of detainees at facilities run by the US government. APA shares the ACLU's resolve to ensure that human rights are protected in all settings throughout the world.
Having read the government documents recently obtained by the ACLU under the Freedom of Information Act, we find what they reveal about abuse to be abhorrent. The position of the American Psychological Association is clear and unequivocal: There is never a justification for torture or abuse. In carefully reviewing the documents, we note they show that psychologists supporting interrogations "emphasized their separation from detainee medical care," and that a psychologist who suspected abuse "recommended the interrogation not proceed and brought in medical personnel to evaluate the detainee." Based on the information in these documents, APA’s strategy of engagement — of having psychologists involved in interrogation processes — served its intended purpose: to stop interrogations that cross the bounds of ethical propriety. According to these documents, non-psychologist health care providers also took action to prevent abuse and protect detainees.
The Washington Post called APA's August 2007 resolution a "rebuke" of the Bush Administration's interrogation policies, by virtue of APA's having condemned and prohibited specific techniques associated with "harsh" interrogations.
For more than two decades, APA has been committed to promoting the humane treatment of detainees. We will adjudicate any allegation that an APA member has engaged in unethical conduct. APA asks that any individual having information that a psychologist has engaged in torture bring this information to the attention of the APA's Ethics Office."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Guantanamo detainee transfers put US in tight spot
10:39 AM ET
Ashley Deeks [International Affairs Fellow, Council on Foreign Relations, and Visiting Fellow, Center for Strategic and International Studies]: "Last week the Department of Defense confirmed that Abdullah Saleh Ali al Ajmi, a former Guantanamo detainee, was one of the people responsible for three suicide bombings in Mosul in April, which reportedly killed seven members of the Iraqi security forces. While this event is, for several reasons, unlikely to cause significant changes to the U.S. government’s policies on transferring detainees out of Guantanamo, it may prompt debate about how best to address the real risks involved in those decisions.
The al-Ajmi case highlights just how tightly the U.S. government is wedged between a rock and a hard place when it comes to closing Guantanamo, whether one believes that the U.S. government finds itself in this situation for the right reasons or the wrong ones. On the one hand, the government faces huge pressure not to detain people at Guantanamo indefinitely; on the other, it must grapple with proven concerns about releasing people who will take up arms and possibly injure U.S. and allied forces and innocent civilians. The government must look for a balance that’s neither too restrictive nor too lenient -- an exercise that will be impossible to get right every time.
Al Ajmi’s decision to become a suicide bomber in Iraq is an unfortunate illustration of how hard it is to assess the risk that someone poses if released from Guantanamo. Consider the facts that were before the government when it weighed al Ajmi’s transfer: al Ajmi, a Kuwaiti citizen who admitted that he fought with the Taliban in Afghanistan for at least eight months, seemed to be an average Taliban foot soldier (albeit a foreign fighter). Further, Kuwaitis are not known for undertaking suicide bombings. While it’s not clear what kind of "security assurances" the government of Kuwait gave the United States about steps Kuwait might take to ensure that it would mitigate any remaining threat posed by al Ajmi, presumably the Kuwaitis offered some comfort. Whatever the Kuwaitis may have said, it either proved insufficient or they didn’t see their assurances through. The Kuwaiti government was unable to convict al Ajmi on charges of being a member of and raising money for al Qaeda; Kuwait then issued him a passport, facilitating his ability to travel to Syria and onward to Mosul.
The al Ajmi bombing raises the question of whether the U.S. government should begin to pursue two avenues more aggressively. First, if it is not doing so already, the government might start to follow up systematically with the countries that have given it security assurances related to the detainees the United States transfers from Guantanamo. Just as the United States monitors certain promises by foreign governments to treat transferred detainees humanely, the U.S. government should be in close contact with receiving governments to determine if the latter know where the ex-detainees are and what they are doing. The United States would need to be careful not to be seen as urging foreign governments to take steps that are inconsistent with human rights or the rule of law, or to suggest that the former detainees be held at the behest of the United States.
Second, the United States might increase its efforts to find ways to replicate the success of programs such as the Saudi government’s program to de-radicalize (or disengage) and rehabilitate terror suspects. This program, like others in Egypt, Indonesia, and even Iraq, is in its early stages but seems to have had some successes. The U.S. government might explore whether there are ways to encourage other states receiving Guantanamo detainees to pursue similar paths, or even whether some elements of those programs could be replicated at Guantanamo itself. Some factors that have made the Saudi program a success will not be easy to replicate, but it is worth considering whether certain parts of it can be replicated elsewhere.
Aside from the possible changes in approach discussed above, it seems unlikely that the al Ajmi case will have a drastic impact on U.S. decision-making on transferring other detainees from Guantanamo. In particular, it seems unlikely that the U.S. government will reconsider its charging decisions in military commissions and try to prosecute a greater number of people. It will be hard enough for the government to try the forty to eighty detainees currently designated for the commissions, given the myriad problems commissions have faced; it therefore seems unlikely that the United States will try to add to the charging pool people against whom it will be even more difficult to make a case. The U.S. government could go back through its files on al Ajmi to see if it missed something in approving his transfer, but such a step is unlikely to be of much help, given how different each transfer case is. Considering that the United States has continued to conduct transfers despite learning of other detainees who engaged in hostilities after being held at Guantanamo, it is doubtful that al Ajmi’s case will prompt the government to reduce significantly its tolerance for risk when weighing whether to transfer or release people. (The government may be more reluctant to transfer detainees to Kuwait, though.)
Will acts like al Ajmi’s – and similar acts committed by others released from Guantanamo – deter people (including all three presidential candidates) from continuing to call for Guantanamo’s close? Almost certainly not. One of the arguments offered by those who seek to close Guantanamo and transfer, release, or prosecute all of the detainees is that there are hundreds or thousands of people free in the world right now who wish to do the United States grievous harm. According to this argument, if al Ajmi hadn’t been one of the Mosul bombers, someone else would have taken his place – and the symbolism of Guantanamo makes it more likely that someone else would be willing to do so. Whether or not that’s true, al Ajmi’s case -- and others like it -- illustrate in sharp relief that a decision to close Guantanamo and transfer or release those detainees the United States cannot prosecute will not be without costs.
The views expressed herein are the author’s alone, and not those of the U.S. Department of State or the U.S. Government."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Releasing OLC memo would further expose Bush torture policies
10:12 PM ET
Amrit Singh [Staff attorney, ACLU]: "For almost four years now, the ACLU has been litigating under the Freedom of Information Act for the disclosure of government documents relating to the torture of prisoners held in U.S. custody abroad since September 11, 2001. The Bush administration, however, continues to fight tooth and nail to withhold key policy documents authorizing the torture of prisoners. One such key policy document being withheld is an August 2002 Office of Legal Counsel (OLC) memo specifying for CIA use numerous abusive interrogation techniques, reportedly including waterboarding. (This document was issued at about the same time as the infamous "torture memo" in which then Assistant Attorney General Jay Bybee took the position that abuse does not rise to the level of torture under U.S. law unless it inflicts pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"). In a significant ruling issued on May 8, 2008, Judge Alvin K. Hellerstein ordered the CIA to produce the August 2002 OLC memo in court for in camera review.
At a hearing in January, the judge initially bought the government’s argument that the August 2002 OLC memo could be withheld on grounds of the attorney client privilege, and declined at that time to conduct an in camera review of that document. He however reconsidered that decision in light of the ACLU’s argument that the document could not be withheld under the attorney-client privilege because it had been adopted as official government policy. Indeed, on February 7, 2008, in an oversight hearing before the House Judiciary Committee, Attorney General Michael Mukasey specifically acknowledged that the OLC had issued an opinion "authorizing" the CIA to use a number of interrogation methods including waterboarding, and that the Justice Department could not therefore criminally investigate the CIA for using that method.
The memo was reviewed in camera by Judge Hellerstein on May 12, 2008. That review should only confirm that the memo should be released so that the administration’s illegal and immoral torture policies can be fully exposed."
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Federal judge dodged veil issue by dismissing Ginnah Muhammad's case
1:39 PM ET
Lane Dilg [staff attorney, ACLU Program on Freedom of Religion and Belief]: "In 2006, Ginnah Muhammad went to Michigan small claims court to recover $3000 from a rental-car company that she believed unfairly charged her for repairs. A state judge gave her a choice: remove the niqab she wore as a matter of religious practice before testifying, or he would dismiss her claim. As her beliefs did not permit her to remove her veil, her claim was dismissed. This decision may surprise people, and it should.
On Monday, a federal court declined to hold that Muhammad's rights of access to the courts and religious freedom were violated. The federal judge's decision relies on a number of procedural doctrines intended to protect state courts from undue federal intervention. It was not, in other words, a decision on the merits under federal or state law.
Should the merits be addressed, Muhammad's case would be far more difficult. The state judge declared he could not determine Muhammad's credibility without seeing her entire face, but judges frequently surmount such difficulties. Witnesses may be distraught, may be unavailable to testify in person, may have relevant disabilities, or may have professional practice as, for example, actors or poker players. Further, judges themselves may have limited or impaired eyesight. In all of those situations, a judge must simply rely on other indicators to determine whether a witness is, or is not credible; this case is no different. Throwing Muhammad's claim out was a drastic and unnecessary solution to a common problem. Principles of fairness, access to courts, and religious freedom demand better."
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Constitution referendum amid cyclone exposes illegitimacy of Burma junta
9:49 AM ET
Awzar Thi [member, Asian Human Rights Commission, Hong Kong]: "May 10 was supposed to be a big day for Burma’s military, the day that it legitimated itself through the ballot box. On that day, millions of eligible voters were supposed to come and freely express their approval of a constitution that would guarantee the army a quarter of seats in parliament and reaffirm its role as the leading state agency in a “discipline-flourishing” democracy, with a constitution of the generals, by the generals, for the generals.
That was the plan. In reality, the military’s legitimacy has been decided upon by something else entirely. Cyclone Nargis not only obliterated hundreds of coastal villages and with them prospects for a trouble-free poll, but also any chance that the regime can now or at any time in the future obtain the credibility at home or abroad that the referendum was intended to secure for it. Never mind the widespread claims of vote rigging, bullying and miscounting. That the referendum was held at all, that almost two weeks on cyclone victims have received no help and are dying in makeshift huts of cholera, that rivers and fields are still full of bloated corpses and that officials are selling or hoarding relief supplies delivered from well-meaning donors abroad all speak to the regime’s barbarity and its absolute want of legitimacy.
The junta’s store of legitimacy, to the extent that it existed at all, was already greatly diminished by the events of September 2007. The putting down of the latest popular uprising was in some respects even more shocking than the crushing of protests in 1988, albeit less bloody, because this time around Buddhist monks were in the forefront of rallies. Not only do the majority of people in Burma venerate the monks but the generals too, in the absence of any singular unifying ideology of old, have used them as a central plank in the platform upon which they have stood for the last two decades. By pressing on since then and presenting themselves as pious leaders on a righteous path, the army leaders have instead consistently reminded the public of their sins rather than of any advertised virtues.
The other main element in the propaganda, leaving aside the state stability humbug, has been national development. New roads, bridges, dams, weirs, universities, schools, hospitals and crops are the stuff from which the military has sought to build a legacy. People can travel more easily, grow more plants more often, study harder and get better medical treatment than ever before. Or so the story goes, thanks to the government’s benevolence. It is a story that was never true, but in the aftermath of the cyclone has been shown to be so horribly wrong that even the most skeptical of citizens has been shocked that the regime would stoop to the point of blocking international aid from starving villagers and stealing from the small amounts that it has allowed in. Even the most cynical of observers has been alarmed that boxes of supplies from Thailand have had the names of senior officers plastered over the top of the kingdom’s labels, only to be taken back from dazed ostensible recipients anyhow after the television cameras had been turned off. And that is just a little of what has happened in the past week and a half, a week and a half in which the ruling clique has really shown its true colours, their unsurpassed ugliness.
The ballot boxes from May 10, and those from the remaining 47 townships where the vote was postponed to May 24, will be both full and empty: full of little papers that will one way or another be taken as an endorsement of the army’s continued rule, but empty of substance and devoid of meaning. The referendum was not a sham, as so many commentators and political opponents have said so many times in recent weeks. It just wasn’t anything at all. Whatever it was supposed to be it was not; whatever it was supposed to decide has been decided elsewhere: a great cost for absolutely nothing."
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US offloading Guantanamo detainees to face uncertain justice in Afghanistan
9:48 AM ET
Khalid Sekander [former legal advisor to USAID]: "The U.S. Supreme Court said in 2006 that military commissions to try Guantanamo detainees were unconstitutional because they violated Common Article 3, Geneva Conventions, which states that detainees must be treated humanely and be afforded the same judicial guarantees "which are recognized as indispensable by civilized people." So earlier this month the U.S. shipped five of the Afghan-based Guantanamo detainees to Afghanistan so that the Afghan legal system can try to treat them humanely and afford them those judicial guarantees recognized by civilized peoples.
The U.S. has high hopes the Afghan legal system can dispense justice in spite of possessing specific knowledge the Afghan legal system is still not functional after 30 years of war and despite law reform efforts capably led by the Italian government. No doubt the detainees are expected to defend against a system unequipped to satisfy international legal standards, including those protections recognized by civilized peoples, such as evidentiary standards, the right to defense attorneys, and a meaningful opportunity to cross-exam witnesses, among many others.
At least the U.S. is off the hook."
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Australian legislation on same-sex couples helpful, but not enough
9:34 AM ET
Stephen Page [partner, Harrington Family Lawyers]: "Australia, like the USA, has a two party system. On the left side of the fence is the Australian Labor Party and on the right the Liberal/National coalition. Australia is now at an historic point because for the first time in its history, with the election of Kevin Rudd as Prime Minister, there are Labor governments in every State and Territory and at the Federal level.
Labor policy is to oppose same-sex marriage, but to remove other discrimination against same-sex couples, and to allow for State based relationship registers for same-sex and de facto couples along the Tasmanian model. So far this year both Victoria and the Australian Capital Territory have passed (or are about to pass) legislation for relationship registers. Similarly, the Rudd Government has announced legislation to remove discrimination against same-sex couples in 100 pieces of Federal legislation (except for the Marriage Act, which remains one man and one woman).
The Rudd Government, like the Howard Government before it, indicated that it would veto legislation from the ACT that would allow civil unions, because they "mimic" marriage, which it is argued can only be between a man and a woman. The argument between the two governments got down to the nature of the ceremony! Instead the ACT government has now allowed for its Registrar of Births, Deaths and Marriages to preside over "non-legal" ceremonies for de facto and same-sex couples, whatever that might mean. It’s not what the ACT wants, but what it’s stuck with.
The words of the President of the Law Council of Australia Ross Ray QC are apt: "Any step towards eliminating discrimination brings us closer to meeting our international human rights obligations, makes us a fairer, more just community and ought to be greeted with strong approval"; but "as long as the Government remains intent on preserving a special class of state-sanctioned relationship which is closed to same-sex couples, discrimination will persist."
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Medellín execution violates ICJ decision in Avena
10:35 PM ET
Rick Kirgis [Secretary, American Society of International Law]: "If the state of Texas goes ahead with the planned execution of José Ernesto Medellín without allowing him any judicial reconsideration of his murder conviction and his death sentence (to determine whether he was prejudiced by the Texas authorities’ failure to notify him of his right to contact the Mexican consulate after he was arrested), the United States will breach its obligation under the United Nations Charter and the Statute of the International Court of Justice (ICJ) to comply with the decision of the ICJ against the United States in the Avena case. In that case the ICJ held that the failure to provide review and reconsideration for Medellín and similarly-situated Mexican nationals convicted of murder in the United States was a violation of the Vienna Convention on Consular Relations (the Vienna Convention). Under the UN Charter and ICJ Statute, the ICJ decision is final and binding on the United States.
The ICJ in the Avena case said that the availability of a clemency process (in this instance, potentially by the governor of Texas) would not qualify as an appropriate means of undertaking the review and reconsideration. According to the ICJ, a judicial process is required.
It is immaterial for international law purposes that it is the state of Texas, rather than the federal government of the United States, that has failed to provide the required review and reconsideration. The ICJ made that clear in the LaGrand case, which also involved state courts’ failure to comply with the Vienna Convention. The International Law Commission’s widely-accepted Articles on State Responsibility also make it clear that the conduct of a territorial unit of a federal State is considered an act of the federal State under international law. The fact that President Bush made an effort to get Texas and other states to comply with the ICJ judgment would be no excuse because the United States Supreme Court held not only that the judgment was not directly enforceable in American courts, but also that the President did not have the authority under federal law to determine that state courts must give effect to the judgment.
The ICJ in the Avena case made the point that the U.S. obligation under the Vienna Convention exists irrespective of due process principles under U.S. constitutional law. Consequently, even if the execution of Medellín is permissible under the U.S. Constitution without any further judicial review, there still would be a violation not only of the international law consular-assistance rules in the Vienna Convention, but also of the rules in the UN Charter and ICJ Statute relating to compliance with ICJ judgments.
Subjecting Medellín to the death penalty would not, of itself, be a failure to comply with the Avena decision. The ICJ did not address the international legality of the death penalty, as such, in the United States or elsewhere."
The views expressed are those of the author, not of ASIL
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Georgia lethal injection procedures still flawed despite post-Baze ruling
6:51 PM ET
Michael Siem [lawyer for Jack Alderman, Clifford Chance]: "In applying the US Supreme Court's holding in Baze v. Rees [last week], Judge Martin found the Georgia Lethal Injection Procedures constitutional despite the Procedures' failure to provide the safeguards required by the plurality opinion. Accordingly, Mr. Alderman intends to appeal.
Specifically, Georgia's Procedures are flawed even after Baze because they do not require the following safeguards: there are no assurances that the inmate is properly anesthetized prior to the injection of the two painful drugs: pancuronium bromide and potassium chloride; no confirmation of unconsciousness; no requirement that the team practices prior to an execution, and no specified minimum qualifications for those involved in the executions. Furthermore, Georgia uses one less gram of sodium pentothal and a longer tube than Kentucky. Despite the shortcomings, Judge Martin upheld the constitutionality of the Georgia Procedures based on the State's assurances that while these requirement are not present in the Procedures, in practice they perform some of these safeguards. Judge Martin, ruling on Defendants' Motion for Summary Judgment, resolved the material facts regarding the evidence that the individuals involved in the executions are untrained, unqualified, do not check for unconsciousness, and cannot distinguish between unconsciousness and merely being asleep in Defendants favor.
Further undermining the assurance that executions will be carried out in a constitutional manner is the 11th Circuit's decision in McNair et al., v. Allen, et al., __ F.3d___, 2008 U.S. App. Lexis 1919 (11th Circuit January 29, 2008). The 11th Circuit held that the statute of limitations on § 1983 method of execution claims begin to run when an inmate completes his direct appeal. According to the 11th Circuit, a condemned inmate will have to file a method of execution challenge simultaneous with his habeas petition. This means that an inmate is forced to challenge the method of his potential execution before knowing whether his sentence of death will be upheld upon federal review. This decisions is even more disturbing when put in context. Mr. Alderman was precluded from bringing his claim prior to 2006 because the 11th Circuit barred § 1983 method of execution claims until the Supreme Court's decision in Hill v. McDonough, 547 U.S. 573 (2006). Thus, the 11th Circuit has made is procedurally impossible for Mr. Alderman to challenge the method of execution in Georgia.
There continue to be significant risks with the lethal injection procedures around the country. States are in the best position to determine whether the inmate is properly anesthetized by merely drawing samples (of the inmate's blood) within one hour after death, yet they refuse to take this step because they are concerned what the results might reveal. Furthermore, states prefer to rely on procedural bars instead of drafting procedures that ameliorate the substantial risks of pain and suffering."
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Pakistan: when and how will the ousted judges be restored?
10:20 PM ET
Faisal Naseem Chaudhry [advocate, Lahore High Court; Lahore, Pakistan]: "The Dubai deliberations are over. In a Friday press conference, Mian Nawaz Sharif (MNS) announced that a Resolution restoring Pakistan's ousted judges shall be tabled before the National Assembly on May 12; shall be passed by a simple majority of the House and the executive authority (Prime Minister) shall honour the resolution by passing an Executive Order reinstating the Nov 3 deposed judges. MNS also mentioned the establishment of a committee that will finalize the modalities of restoration including, but not limited to, the language of the Draft Resolution.
Shortly after the above-noted press conference as of May 01, Pakistan People's Party leader Asif Ali Zardari (AAZ) clarified that yet a 'formula' is required for the restoration and the 'committee' shall decide the fate of the deposed judges.
AAZ's Federal Law Minister Mr. Farooq Naik further clarified that the 'committee' has been given an assignment which can only be accomplished with consensus. In case of divergent views, even the slightest, the matter shall again be forwarded to the leadership of both the main political parties, i.e. AAZ and MNS. Most importantly, Mr. Naik said 'yes' to the possibility that restoration may not take place on 12 May if the committee fails in its deliberations and consensus.
MNS categorically stated that the Resolution shall not be directly linked with any Constitutional Package; yet Mr. Naik rebutted the same, reiterating that both shall be tabled on the same day. He said 'the same day'; he did not say 'on 12 May'.
MNS in his press conference accepted the continuity of PCO judges in the Supreme as well as all the 04 High Courts. On Saturday the Pakistan Bar Council in its afternoon Resolution restated that the lawyers' fraternity shall not accept the PCO judges. It further stated that in case nothing happens on 12 May, a convention of Pakistan Bar shall be convened on 16 May.
All this makes one wonder if in fact the deposed judges will be restored May 12. I fear not, for the following reasons:
Notwithstanding whether Chief Justice Chaudhry's position is made tenure-based, both the political parties had divergent views vis-à-vis the modalities of restoration. The very first difference of opinion was that MNS preferred a Simple Majority Resolution whereas AAZ had been advocating a Constitutional Amendment through a Composite Constitutional Package. The difference between the two is obvious:a. A Simple Majority Resolution is not of a binding nature; rather, under the rules and procedures of the National Assembly, it is regarded as a request to the Executive which alone is competent to decide how to honour it i.e. either through an Executive Order or by an Act of Parliament. The Executive can also put the matter in limbo. Our constitutional history is replete with such examples of 'Simple Majority Resolutions' which have never been acted upon.
b. A constitutional Amendment passed by a two-thirds majority of both houses of parliament (the National Assembly & the Senate) is not only of a binding nature, but it also amends the constitution. The parliament is the supreme legislative body and it can make any law whatsoever not in conflict with humanity, decency, federation of Pakistan (it can not make Pakistan a Confederation), and the independence of judiciary etc.
c. MNS is of the view that if you bring a constitutional amendment for the restoration of the deposed judges, that would mean you accept not only the Nov 3 PCO but also subsequent extra-constitutional alterations in the Constitution incorporated by President Musharraf.
d. But MNS does not realize that a Supreme Court headed by current PCO Chief Justice Abdul Hameed Dogar cannot issue an injunction preventing parliament from amending the constitution. The same court can, however, issue an injunction preventing the Executive Authority from honouring a Simple Majority Resolution. An Executive headed by a PPP's Prime Minster is not likely to disobey Justice Dogar. What will happen in this case? A few demonstrations, another few rallies, some tele-programmes. The clock will continue ticking. AAZ has played this situation smartly, cleverly, and rather cunningly. By having the dialogues at Dubai, he has successfully avoided public as well as lawyers' pressure. If the dialogues had been conducted even in the remotest part of Pakistan, there would had been crowds standing out on the road and some lawyers too, holding black flags. AAZ may have some real 'family engagements' in Dubai but equally surprising is the fact that he was back to Pakistan on May 02.
AAZ has also undermined the PML(N) while inducing them to accept Federal Ministries on the sole condition that judiciary shall be restored to Nov 3 position. Once they accepted the portfolios literally half-heartedly, AAZ was saying on 29 April, "Muree Declaration was a political statement'.
I have every good reason to wonder how AAZ will live with Chief Justice Chaudhry even till June 2010 once AAZ has openly spoken against him with BBC's correspondent. You may curtail his powers even by a constitutional amendment, yet a man occupying such a powerful seat can be dangerous for AAZ. This is Pakistan, where you will find conflicting judgements on every proposition of law and I will not be surprised if a petition challenging the curtailment of administrative powers is filed before Chief Justice Chaudhry. He will issue notice and may suspend the amendment. Again what will happen? The Executive will have to contest the petition even if the injunctive order was wrong and during the entire cushion period, Chief Justice Chaudhry will continue exercising his previously taken-away administrative powers. Will such a possibility be acceptable to AAZ?
Our constitution is silent on the number of judges to be present in the Supreme Court. The 1997 Judges Act requires the Supreme Court not to exceed 17 judges, including the Chief Justice. On Nov 3, 13 were deposed. Justice Bhagwandas retired at the age of 65 leaving behind 12. The present Supreme Court is composed of 16 PCO judges including Justice Dogar. Adding another 12 will make it the largest Supreme Court in this world. But most importantly, even if an Executive Order is passed on the evening of 12 May, how can these 28 work together once the 1997 Judges Act does not allow more than 17 judges. Hence, technically speaking, before an Executive Order is passed, an amendment shall be required to modify the 1997 Judges Act. A bill shall be required by simple majority requiring assent of the President, to make the Bill an Act of Parliament thereby raising the upper limit to 28 judges. Can all this exercise take place on the afternoon of 12 May?
Following the statement of Mr. Naik, the Federal Law Minster, that the Resolution and Constitutional Amendment shall be tabled on the same day, again all this exercise cannot for all practical reasons take place on the same day. If the instruments are not tabled the same day, I am 100% sure the judges shall not be restored. The reason why is simple. AAZ will not accept an all-powerful Chief Justice Chaudhry.
One should not forget which type of working relationship there will be among the deposed and the PCO judges. One shall not be surprised if there are little altercations between the two groups reported in press.
If PCO judges continue as even accepted by MNS, the lawyers' community shall protest. The Pakistan Bar Council is not that concerned about the PCO judges who took oaths on the evening of Nov 3. Eyebrows are raised in respect of those subsequent appointments where the 'consultation' for this purpose took place between Justice Dogar and President Musharraf. The lawyers regard Justice Dogar as an illegal de facto Chief Justice of Pakistan and hold the view that the mandatory 'consultation' as required by the constitution was erroneous. Hence, all the subsequent appointments to the Supreme Court and the Provincial High Courts are void.
President Musharraf's reaction cannot be ignored. Friday, two news items caught my attention. Firstly that he would not oppose the reinstatement; secondly that he is ready to live without Article 58(2)(b) of the Constitution (giving him draconian powers to dissolve the National Assembly and the Government).
I believe the first was incorrect. If President Musharraf asks AAZ not to reinstate the deposed judges and in return AAZ make take away the above mentioned draconian powers ensuring 05 years uninterrupted rule to AAZ, what would be his reaction? AAZ would accept the proposal. For President Musharraf, the reinstatement of deposed judges is more than a nightmare. He was scared of and uncomfortable with one Iftikhar Chaudhry; now there are 60 of him. So, the Presidency will not keep silent on reinstatement particularly when Justice Dogar would also not like to remain indolent on 12 May and thereafter. For the last 6 months, he has been enjoying the trappings of a Chief Justice. If he has decided to live with those trappings, he can offer anything to AAZ. Two attractive proposals from two pillars of state. AAZ cannot ask for more.
Six months have passed since Nov 3 and every passing day had been adding more complexities to this already so tricky situation. So much is up for discussion; a de facto Supreme Court, a de jure Supreme Court, a de facto Chief Justice, a de jure Chief Justice, an injunction against the Executive Order, the legality of an Executive Order, the non-binding nature of a Simple Majority Resolution, the total number of judges in the Supreme Court, the fate of Justice Dogar's judgment legalizing the Nov 3 PCO and so on and so forth.
I sincerely hope my assessment proves wrong and that the deposed judges shall be restored on 12 May. The fate of Chief Justice Chaudhry is also unclear. It does not matter what MNS says. What matters are the words coming from the mouth of AAZ."
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Report from Guantanamo: military commissions continue to fail Hamdan
9:45 PM ET
Deborah Colson [Senior Associate, Human Rights First]: " 'America tells the whole world that it has freedom and justice. I do not see that...You do not give us the least bit of humanity…Give me a just court…Try me with a just law.'
Those were the words of Salim Ahmed Hamdan at his military commission proceeding in Guantanamo Bay this week. Mr. Hamdan interrupted a pretrial hearing during which the lawyers were mired in technical legal arguments to question why the government is trying him in a made-up system pursuant to made-up rules, and to observe that he always loses—even when he wins—because the government repeatedly changes the rules midstream.
Mr. Hamdan, a 36-year old Yemeni citizen, was captured in Afghanistan in November 2001 and has been detained at Guantanamo for nearly six years. He is accused of working as Osama bin Laden’s personal driver and armed bodyguard and transporting missiles for use against American soldiers. Mr. Hamdan’s lawyers acknowledge that he worked as bin Laden’s driver, but they say he was never a member of al Qaeda and never conspired to engage in any terrorist acts.
On Tuesday, Mr. Hamdan became the fourth Guantanamo prisoner to boycott the military commission system. After a 20-minute exchange with the judge, Navy Capt. Keith Allred, Mr. Hamdan announced his refusal to participate in any future proceedings, and he forbade his attorneys from speaking on his behalf without him there.
It is difficult to know why Mr. Hamdan finally gave up on the system this week after having cooperated with his attorneys and the court for so long. One of his lawyers suggested at a press conference that seven years of confinement and several rounds of wins and losses have left Mr. Hamdan feeling increasingly frustrated and depressed.
And no wonder. Up to this point, victory has done Mr. Hamdan virtually no good.
His challenge to the first military commission system established by President Bush made it all the way to the Supreme Court, where he won. In 2006, the Supreme Court held that President Bush's system violated international and U.S. military law. Following the Supreme Court’s holding, however, Congress established a new military commission system under the Military Commissions Act of 2006 ("MCA"), shortly after which Mr. Hamdan was re-charged. In December 2006, he was also transferred—with no explanation—from a medium security facility at Guantanamo to solitary confinement. For the past sixteen months, Mr. Hamdan has had practically no human contact and little access to natural light and air. So when Judge Allred told Mr. Hamdan on Tuesday that his victory before the Supreme Court should inspire "great faith in America law," it was only fitting when Mr. Hamdan responded: "I didn't win the case."
Mr. Hamdan's critique was not the only indictment of the military commission system we heard this week. On Monday, Air Force Col. Morris Davis, the former chief prosecutor at Guantanamo, testified on behalf of Mr. Hamdan. Col. Davis has spoken publicly about the flaws in the system many times since his resignation in October 2007, and most of what he said on the witness stand had already been reported in the press.
But his testimony was remarkable nonetheless. Until several months before he resigned, Col. Davis was a staunch defender of the military commissions. In fact, in June 2007, he published an op-ed in the New York Times in which he stated that "the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes.” Col. Davis also has no qualms about the case against Mr. Hamdan. He testified on Monday that he believes the charges against Mr. Hamdan are “warranted by the evidence."
And yet this former chief prosecutor agreed to testify for the defense. He subjected himself to cross-examination by the new chief prosecutor; he endured questions about his prior conversations with two former employees who were sitting in the courtroom and continue to work on the Hamdan case; and he opened himself to public scrutiny and the judgment of the court.
He did this because he believes the military commission system will never achieve just results. His concerns are twofold: Col. Davis criticizes the government’s willingness to rely on coerced evidence, and he asserts that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and members of his staff. He spoke of the pressure he received to charge "sexy cases" and to file charges against the high-value prisoners before the next presidential election because, once he "g[ot] the train rolling," "it would be hard for the next president to stop the process."
Col. Davis is not the only Guantanamo prosecutor to have resigned. In fact, four others — Major Robert Preston, Captain John Carr, Captain Carrie Wolf, and Lieutenant Colonel Stuart Couch — preceded him and made similar allegations of political interference and pressure to rely on coerced evidence. It is widely believed that additional prosecutors have also raised the prospect of resignation.
Public confidence in Guantanamo is already at an all-time low. But it is bound to sink even lower if more defendants boycott, and the prosecutors who remain end up trying a series of empty chairs."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.
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ICTY appeals judgment in Hadzihasanovic & Kubura case striking
11:40 AM ET
Aleksandar Momirov [Lecturer, Erasmus University of Rotterdam]: "If the recent acquittal of Ramush Haradinaj by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) had all the characteristics of a judicial earthquake, then it is only fair to say that the subsequent Appeals Chamber's Judgment in the case against Enver Hadzihasanovic and Amir Kubura, rendered on 22 April 2008, had the impact of a significant aftershock.
The case covers the activities of the Army of Bosnia and Herzegovina (commonly known as ‘ABiH’ and considered by many to merely have been the military wing of the Bosnian Muslim political party, the SDA), defending the interests of the Sarajevo based Muslim government of Bosnia during 1993 and 1994. During the fighting against the other warring factions in the divided state, Hadžihasanović was Commander of the ABiH 3rd Corps, later becoming Chief of the Supreme Command Staff of ABiH. Kubura was Chief of Staff of the 7th Muslim Mountain Brigade of the ABiH 3rd Corps. In 2006 both men were convicted, based exclusively on Article 7 (3) of the ICTY Statute (superior criminal responsibility) for violations of laws or customs of war, having failed to prevent or punish the crimes committed under their command. Hadžihasanović was sentenced to five years of imprisonment. Kubura received a sentence of two and a half years and was granted early release less than one month after his conviction. Upholding the Trial Chamber’s judgment in part, partially granting the appeal of the Defense and dismissing all points of appeal coming from the Prosecution, the Appeals Chamber reversed several points of conviction and reduced Hadžihasanović’s sentence to 3 years and 6 months. Kubura saw his sentence drop to 2 years.
At best, the Hadžihasanović and Kubura case deserves the epithet of ‘striking’; an epithet justified by substance, proceedings and final outcome alike. Some noteworthy tidbits are illustrative.
The Hadžihasanović case is remarkable for it is the Tribunal’s principal case where the presence and infamous conduct of the Mujahedin in Bosnia is considered in some depth. Often euphemistically referred to as ‘foreign combatants’, the Mujahedin were comprised of men from the Middle East, Northern Africa and local Muslim fighters and were notorious for their ‘fighting tactics’ throughout central Bosnia. The Mujahedin had training camps all across territory held by the ABiH. Their combat related conduct, including practices such as ritual decapitation of hostage-taken Serbs and Croats, as well as their demeanor in general was widely deemed repugnant. While under-reported during the war and at times even dismissed as an imaginary product of the Serbian propaganda machinery, elements of the Mujahedin and controversies surrounding their naturalization have remained embedded in Bosnia up until today. (for a fascinating read see OTP expert witness in Delić, Evan F. Kohlmann: Al-Qaida’s Jihad in Europe: The Afghan-Bosnian Network)
Going beyond factual substance, the current case dealt with the question of whether the activities of the Mujahedin could be linked to the ABiH, and more specifically to the ABiH 3rd Corps which was under the command of Hadžihasanović. While the Trial Chamber had found that Hadžihasanović indeed had effective command and control over the El Mujahedin unit, the Appeals Chamber reversed this finding. Some of the Mujahedin were simultaneously members of the ABiH. Above all, the El Mujahedin detachment came de jure under the authority of Hadžihasanović. The Appeals Chamber, however, reaffirmed that de jure authority – in and of itself - does not axiomatically imply effective command and control: de jure or de facto authority are merely indicators helpful in determining whether a relationship including effective command and control exists. Thus, the Appeals Chamber concluded that while de jure or de facto authority justifies a prima facie assumption of effective command and control, the burden of proof beyond reasonable doubt that effective command and control exists remains with the Prosecution. Three distinct elements remain crucial in the establishment thereof:
1. The power to give orders and have them executed.
During trial, the Chamber relied heavily on numerous re-subordination orders concerning the El Mujahedin detachment in dealing with this initial criterion. Previously, re-subordination orders have been considered essential in other cases where the link needed to be established between separate units such as police units on the one side and military units on the other. However, the Appeals Chamber sets these orders aside as insufficient, arguing that some of these orders were not followed by the Mujahedin. Indeed, several incidental refusals were not considered a matter of internal disobedience but were taken as indicative of the independence of the Mujahedin.
2. The conduct of joint military operations.
Again the Appeals Chamber dismissed the way in which the Trial Chamber interpreted and applied this criterion. In essence, cooperation during military missions does not indicate effective control. Numerous joint missions were conducted and exhibits showed that the ABiH, in planning certain operations, counted on the engagement of the El Mujahedin detachment. In practice it seems that, however, the El Mujahedin unit often acted recklessly and beyond the requirements of the ABiH. Nevertheless, the Appeals Chamber applied a similar reasoning as regarding the first criterion and argued that such conduct illustrated the independence of the unit. Again, recalcitrant and excessive behavior, sometimes even resulting to outright hostility, was considered to indicate independence rather than turmoil within an otherwise cooperative, often mutually dependent and generally hierarchical constellation.
3. The absence of any other authority.
Finally, the Appeals Chamber made it clear that this third criterion was not to be seen as a tool through which, by way of elimination, effective command and control could be established. While the support of certain Sarajevo based state organs and high-ranking clergymen remained undisputed, the absence of real control by others was not sufficient to indicate effective command and control.
Consequently, Hadžihasanović was acquitted of any responsibility for the conduct of the Mujahedin or the failure to prevent and punish their activities – - even though the facts indisputably demonstrate that the ABiH 3rd Corps, at a minimum, coordinated with and relied on the Mujahedin in carrying out operations. The test itself, as fine-tuned throughout the case, seems not objectionable. However, it remains worrying that the Appeals Chamber in fact engaged in second-guessing the Trial Chamber’s discretionary assessment of adduced evidence, witness testimonies and in essence the facts, to the extent that it completely overturned the findings. Probably being aware of the heavy-handedness thereof and the arguable inconsistency regarding the application of the effective command and control criteria between the current and some previous judgments, the Appeals Chamber reiterated that the probative value of existing indicators will have to be assessed on a case-to-case basis; a part of the Appeals judgment which most likely will be endorsed by a majority of the former Yugoslav communities. Albeit, rather as a potential sign of bias than of judicial caution.
Sticking to alleged bias, from a procedural point of view, the Appeals Chamber devoted considerable attention to the claims made by the Hadžihasanović Defense that the Trial Chamber at times showed unacceptable signs of animosity and outright offensive behavior toward defense witnesses. Despite unusual generosity towards the Defense coming from the Trial Chamber in terms of time allocation and approval of witnesses, the Hadžihasanović Defense argued that on several occasions the Trial Chamber failed to use its discretionary power in a neutral manner. The Defense gave examples of the bench questioning, virtually cross-examining, a defense witness for eight hours (though the Defense was informed in advance), and treating several others in an intimidating manner. The Appeals Chamber dismissed these allegations. Leaving aside the accuracy of the Defense allegations and the Appeals Chamber’s findings, the current judgment clearly demonstrates an issue which remains intricate: the position of the bench in criminal proceedings before the ICTY. It reflects the uncertainty with which parties and witnesses are confronted in a legally hybrid system and institution, where the limits of the judges’ discretionary powers are determined mostly by their personal habits (considering that in an international legal institution, parties and judges to a large extent remain hostages of their original jurisdictions) instead of statutory standards. As long as the current scope of the judges’ discretionary powers is left undefined, the risk remains that despite assumed neutrality and benevolence, the conduct of judges throughout a specific case may at the end of the road be perceived as unfair and biased, consequently frustrating the process and ultimately compromising the legitimacy of the trial and its final outcome. This issue remains troublesome and continues to play a crucial role in ongoing proceedings before the ICTY.
Concluding, both substantive and procedural elements determine the way in which this latest ICTY judgment will be assessed in the following period. The reversals of the Appeals Chamber were accompanied with the lowering of already confounding and inconsequential sentences. Bearing in mind cases such as Halilović, Orić, Limaj et al. and Haradinaj et al., and in considering the final findings and sentences in light of the rank of both individuals as well as the factual underpinnings of the case, this de facto acquittal again leaves many with the question of how justice is done and whether it, when done in such a manner, furthers the individualization of guilt and strengthens reconciliation."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Comments from JURIST - Hotline: May 2008