Competent Tribunals

by Katherine

(sixth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman's S. AMDT 2517 to bill # S. 1042.  Senator Graham's full floor speech is here.)

"What we have done at Guantanamo is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant....

What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O'Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is ``Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.'' We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant."--Senator Lindsey Graham

How do these CSRTs, which Senator Graham describes as "the Geneva Convention Protections on Steroids" and which the administration argues are enough to justify detention until the end of a war that may never end, actually work in practice?

Let's look at some examples.

The first is taken from U.S. District Judge Joyce Hens Green's opinion in In Re Guantanamo Detainees. Starting on page 46, Judge Green quotes from the CSRT hearing for Mustafa Ait Idr, one of six detainees arrested and sent to Guantanamo after the Bosnian Supreme Court ordered their release. The CSRT Recorder read a list of the charges against Idr, including the claim that "while living in Bosnia, the Detainee Associated with a known Al Qaida operative." Hilarity ensued:

Detainee: Give me his name.
Tribunal President: I do not know.
Detainee: How can I respond to this?
Tribunal President: Did you know of anyone that was a member of Al Qaeda?
Detainee: No, no.
Tribunal President: I'm sorry, what was your response?
Detainee: No.
Tribunal President: No?
Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person but not if this person was a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian, or whatever. If you tell me the name, then I can respond and defend myself against this accusation.
Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

The Recorder read a charge that Idr was involved in a plot to bomb the U.S. Embassy in Sarajevo. Further hilarity ensued:

Detainee: ...The only thing I can tell you is that I did not plan or even think of [attacking the Embassy]. Did you find any explosives with me? Any weapons? Did you find me in front of the Embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it is just very little, that proves I went to the embassy and looked like that [Detainee made a gesture with his head and neck as if he were looking into a building or window] at the embassy, then I am ready to be punished. I can just tell you I did not plan anything. Point by point, when we get to the point when I am associated with Al Qaida, but we already did that one.
Recorder: It was [the] statement that preceded the first point.
Detainee: If it was the same point, but I do not want to repeat myself. These accusations, my answer to all of them is that I did not do these things. But I do not have anything to prove this. The only thing is the citizenship. I can tell you where I was and I had the papers to prove so. But to tell me I planned to bomb, I can only tell you I did not plan.
Tribunal President: Mustafa, does that conclude your statement?
Detainee: That is it, but I was hoping that you had evidence that you could give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.
[Everyone in trial room laughs.]

Judge Green said that preventing the detainee himself from seeing the evidence against him might have been excusable, because of the interest in preventing suspected terrorists from seeing classified information. However, she thought that the detainees should at least have counsel with security clearances, who were allowed to see the evidence. Instead they were given a "personal representative" who was "neither a lawyer nor an advocate", could not speak to detainees confidentially, and had to disclose any incriminating evidence s/he found to the CSRT.

According to the The New Yorker, Hadj Boudella, one of the other five men taken from the Bosnian prison with Itr, requested that his CSRT read a copy of the Bosnian Supreme Court verdict ordering them released. The tribunal stated that it was "unable to locate a copy."

Another example: On June 15, 2005, Joseph Margulies of the University of Chicago, the attorney for several Guantanamo detainees, gave the following testimony to the Senate Judiciary Committee concerning the CSRT for Mamdouh Habib. (Unfortunately I don't have a link to the transcript except this lousy Google cache; I got it off Nexis):

You heard this morning how the CSRT operates in theory; that is, how it is written to operate. I want to talk about the reality.

I want to talk about the reality because, while my written testimony addresses the deficiencies of the CSRTs in some detail, what was absent from the discussion this morning and from the written testimony is a focus on an individual. And there are real people at Guantanamo and I'd like to turn our attention to them.

One of my clients is a man named Mamdouh Habib. Mr. Habib is Australian.

In October of 2001, he was arrested not on the battlefield, not in Afghanistan, but in Pakistan by Pakistani police. They turned him over to the United States, who, after a period of a couple of weeks, bundled him on to a U.S. military plane in Pakistan and flew him to Cairo, Egypt, where he was held for six months.

There are no disputes about the facts that I'm relating in that regard.

During that six months, Mr. Habib was subjected to ingenious tortures. I realize that you have some reservations about making this into a hearing about torture. I say this only as it bears on the CSRT proceeding however.

Let me describe just one of the techniques that was used during that six weeks.

Mr. Habib's captors would bring him to a small, windowless room. He was brought there handcuffed behind his back. The room was dark. And water starts to pour into the room. And he watches as the water rises up past his knees, past his waist, rising above his chest, past his shoulders, finally past his neck. Mr. Habib held there, has no idea when or if this water will stop. When it finally stops, it is past his chin, and Mr. Habib can keep his mouth above the water only if he stands on the tips of his toes. And his Egyptian captors left him there for hours.

Other tortures that Mr. Habib endured were considerably less creative: They beat him, they kicked him, they shocked him with something that would be fairly described as a cattle prod.

Over the course of six months, Mr. Habib, as any of us would have expected, confessed to all manner of allegations. He told me he signed everything -- and I learned this from him when I went down to talk to him at Guantanamo. He told me he signed everything that they put in front of him. Some of the papers he signed were, in fact, blank. He has no idea what was later written down on them.

The United States government, Senators, has never denied Mr. Habib's allegations in this regard, which are now a matter of public record. In fact, quite the contrary, the State Department has protested repeatedly and for years, including post-9/11, against state-sponsored torture in Egypt. And many of the things that happened to Mr. Habib have been documented to have happened to other people as well.

Senators, my point is simply this: The CSRT relied on Mr. Habib's statements given in Egypt to support its conclusion that he was an enemy combatant.

In fact, I have reviewed the allegations against Mr. Habib, and as far as I can tell, and as far as the government has disclosed in court, the CSRT had nothing except Mr. Habib's own uncorroborated statements made during interrogations.

The Geneva Convention on steroids, ladies and gentlemen.

Comments

[am]

Every single detainee is going to claim that he was tortured.

Habib's claim to have been tortured conveys no information.

This is all very obvious. Those who credulously regurgitate these claims as if they were settled fact do so for partisan political reasons and bring considerable discredit upon themselves in the process.

[Jackmormon]

Those who credulously regurgitate these claims as if they were settled fact do so for partisan political reasons and bring considerable discredit upon themselves in the process.

We know almost nothing about what the detainees' lives are really like, about what abuses they may have suffered, or about what justification there might be for holding them. All of this information has been classified. Aren't you even a little curious about it? Don't you wonder sometimes whether things mightn't've gotten out of hand? Don't you hope that someday everything will be made clear? Wouldn't it be nicer if when everything came out into the open, our country had behaved honorably?

Two words: civilian oversight. There's a reason (many, more like) the founders mistrusted an unlimited executive power.

[Jesurgislac]

Who is more credulous:

A: Those who believe the patently untrue "All the prisoners in Guantanamo Bay were captured on the battlefield, and none of them have been tortured!" because they have been told it's true by people in authority, and they believe what they have been told rather than public evidence;

B: Those who want the prisoners to be brought before a court and the court to find whether or not their detention is legal?

Habeas corpus ad subjiciendum.... is an ancient law, and it was not instituted because the Brits are an especially credulous nation.

[Jackmormon]

For what it's worth, I've just now written my senators Schumer and Clinton and urged them to take active roles in supporting the Bingaman amendment. Would it just be weird to write swing Senators if I don't live in their states?

[dutchmarbel]

Every single detainee is going to claim that he was tortured.

From the evidence so far most of them will be right.

[Jasper Milvain]

But not every detainee is going to be held solely on the evidence of uncorroborated confessions made in a country with a long record of torture. At least, you'd hope not.

[forgotten]

Habib was released and returned to Australia to avoid the subject of extra-ordinary rendition in US courts. He supposedly confessed to helping train those who carried out 911 but was released.

[CharleyCarp]

Every single detainee is going to claim that he was tortured.

This, I can state as a fact, is untrue.

[Katherine]

I have looked into the allegations of torture after rendition extensively. And I mean extensively. Habib's allegations are supported by:

1) Egypt's long and glorious history of torturing prisoners, including prisoners sent there by the United States.

2) Habib giving descriptions of his rendition to and torture in Egypt which had notable similarities to other accounts from prisoners rendered to Egypt. Habib first made these allegations while detained incommunicado at Guantanamo Bay, and these other prisoners were never held at Guantanamo, so there is no possibility of collusion.

3) The following other descriptions of Habib's treatment by other detainees at Guantanamo.

From Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed:
"Habib himself was in catastrophic shape - mental and physical. As a result of his having been tortured in Egypt he used to bleed from his nose, mouth and ears when he was asleep."

Jamal al-Harith also described Habib bleeding from his nose and ears, stating further that he "said that he had been in Egypt for about six months, and they had injected him with drugs, and hung him from the ceiling, and beaten him very, very badly. He seemed to be in pain. He was haggard-looking. I never saw him walk. He always had to be held."

Tarek Dergoul described Habib as:

Very confused, dizzy. Dazed. Weak. Slow - he spoke very slow - he spoke in riddles. I couldn’t really make out, I mean, like he was telling me stuff about Egypt, he’d been taken to Egypt…He told me he’d been electrocuted, put in water, electrocuted, he’d been stripped, been punched, kicked and punched, used as a punching bag. He said something about a dog being put on him as he was naked. Cigars put out on his body. Blindfolded.

4) This report, certainly hearsay evidence but not entirely irrelevant, from Qatar's former minister of justice:

"Dr. Hajib al-Naumi, Qatar’s former justice minister, told Dateline that according to reports from contacts of his in Egypt, Habib "was in fact tortured. He was interrogated in a way which a human cannot stand up…We were told that he -- they rang the bell that he will die and somebody had to help him.""

5) The fact that Habib, who was initially charged with being a high ranking member of Al Qaeda, was released to Australia very soon after his torture allegations became public, and before discovery on his medical records could proceed in his court case.

[Katherine]

am has actually inadvertantly made another point for me, though. Graham's bill says that the regulations the DoD writes for proceedings at Guantanamo must prevent the use of evidence that a prisoner can prove by a preponderance was produced through "undue coercion." But the DoD will always argue that a prisoner who alleges that his confessions were produced under torture is lying. Without a lawyer, without being able to see the evidence against him, without being able to force the court to look at his medical records, without a truly independent decisionmaker, how on earth is a prisoner going to be able to prove that by a preponderance?

[Dr Zen]

Surely it doesn't matter whether Habib was tortured or otherwise. The bottom line is that the only evidence that he is a terrorist is his own confession, which he says was coerced. If he stands in front of the tribunal and says no, I'm not a terrorist, then what? The tribunal says he is a liar now, but when he was in the hands of the Egyptians he was telling the truth?

Yes, most detainees will say they were tortured. I should think that all the ones rendered to Egypt were. But whatever they say, you surely cannot think it is right that they are detained solely on the evidence of "confessions" made in Egypt, entirely unsupported by any other evidence. Would you accept that standard for yourself?

[Don]

Having defended an American serviceman [who just happened to be Arab-American & Muslim] who was accused of "conspiring" with former Army Chaplain James Yee, to commit espionage at Guantanamo Bay's Camp Delta, I had access to much of the "classified" [most improperly and illegally by the way] information. We knew [but it was then still "classified"] about the Koran abuses; and much more that remains classified simply to protect the "powers that be." There was absolutely no attempt made in many cases to "screen" prisoners captured in Afghanistan, before they were sent to GTMO, and so, the CSRT's are a due process decoy - a farce with a procedure, but no substantive effect. We found that most of the Guards and prison staff would not drink the water that was given to the prisoners because it was so foul - warm, desalinated ocean water. We - a team of experienced lawyers, all with security clearances - were denied access to key evidence, prompting the dismissal of various charges [which were bogus in the first place so the evidence that was "classified" probably was BS or didn't exist]; we were denied access to relevant witnesses, e.g., one of the charges against our client involved Australian David Hicks, yet we were denied access to the so-called "source material" for the charge, and we were denied access to him "for security reasons" to interview him about the charge, which was withdrawn before we could file our motions. The situation was so bad that three of the PROSECUTORS for the GTMO "Commissions" quit in disgust - they were afraid for their law licenses. So, giving "counsel" to a CSRT Respondent, while a start [but it's not going to happen on Rumsfeld's watch, that I guarantee you - they'll move all the GTMO prisoners to the Black Hole on Diego Garcia], the right to counsel will be thwarted at every turn. It took us over 6 months of litigation, 3 experienced lawyers, one a former military intelligence officer, to either get access to or declassify relevant material, and we were litigating this in California, not Cuba.

Lindsey Graham knows all of this - there was a reason that Bush promoted him to full Colonel in the Air Force Reserves - and no one gave a damn about the Incompatibility Clause or any other part of the Constitution.

What about the "enemy combatants" held here in the US - not GTMO, e.g., Al-Marri? Is his habeas case presently being litigated in USDC in SC going to be quashed also?

The Senate got hood-winked well and good, and the House is about to goose-step in line, just like the Japanese internment cases in WW II, all based on total lies, hence the successful coram nobis petitions years later.