It's Not All Fun and Games at "Camp Justice"

 

The thing that first strikes you about Guantanamo Bay's "Camp Justice" is what an extraordinary effort was made to create something that never needed to exist. Though federal courts have been interrogating, trying and imprisoning terrorists for more than 200 years, for some reason the U.S. government believed after September 11, 2001 that it needed to create a whole new way of doing that. So it set up this sprawling military camp, complete with housing for lawyers, journalists, observers, two new courthouses, hyped-up security with endless coils of concertina wire -- all to house a few hundred guys who could have been much more efficiently and just as safely held in high-security prisons in the U.S.

If efficient justice was even part of the goal, the case of Noor Muhammed, who appeared for a hearing in the military commission today, is a great example of just how spectacularly the government has failed.

Noor Muhammed was arrested in March 2002 in Pakistan. He's been charged with helping to train Al Qaeda militants at a training camp in Afghanistan from 1996 to 2000. The only act he's charged with that occurred after September 11, 2001 is allegedly trying to evade local authorities by escaping from a safehouse in Pakistan in March 2002.

Noor denies that he was a member of al Qaeda, or an "unprivileged alien enemy belligerent" as the U.S. claims. But though he's been imprisoned at Guantanamo Bay for eight years, themilitary commission still hasn't even held a hearing to decide the answer to that question. If Noor is right, the military commissions don't even have jurisdiction over his case.

Today, Capt. Moira Modzelewski, the military commission judge presiding at the hearing, announced that the hearing on that issue won't be held until August.

Still, the government has flown several dozen prosecution and defense lawyers, observers and journalists down to a hearing at Guantanamo Bay that lasted less than two hours. The issue decided? A complicated military bureaucratic question of whether Noor's previous military defense counsel could continue to represent him now that she'd been ordered by the military to another assignment.

Noor's lead civilian defense lawyer, Howard Cabot, a volunteer New York-based attorney from the private law firm Perkins Coie, made an eloquent argument in favor of retaining the former military counsel, and ultimately convinced the judge of the importance of their ongoing attorney-client relationship. The judge concluded, however, that she can't tell the Army what to do, so could only "strongly recommend" that the lawyer be allowed to continue her representation.

Select civilian and military observers and journalists got to watch all this somewhat baffling bureaucratic wrangling through panes of bullet-proof glass in a huge courtroom built to accommodate the trials of the five September 11 suspects - trials which still have not taken place. We were only permitted to hear the proceedings several minutes after they occurred, though, since they're broadcast on a time-delayed monitor. By the time we heard the court clerk say "All rise," for example, we'd already seen the lawyers in the courtroom rise, the judge enter the room and everyone sit down minutes earlier.

Strangely, this hearing is a small sign of progress, since the military commission proceedings have been largely stalled since President Obama took office and mulled over what to do about them. Human Rights First and many others hoped the administration would terminate the military commission proceeding and try all of the Guantanamo detainees in ordinary federal courts that are experienced at trying terrorist suspects. But that's not what the administration has decided to do. Instead, it is proceeding with at least a handful of cases in these ill-fated military commissions - Noor Muhammed's among them.

That the commissions are ill-fated is demonstrated in part by the fact that in 8 years, they've held only three trials. Only two of those were contested. And both of those defendants, although convicted, have since been released. By contrast, civilian federal courts have tried more than 400 suspected terrorists since September 11, 2001. HRF has documented 195 convictions of terrorists associated with self-described jihadist or Islamist extremist groups since that time.

But the military commission trials are not even scheduled yet. Today, the judge said that Noor's trial - much of which will repeat the presentation of evidence already presented at the hearing to decide the court's jurisdiction over him - won't be held until sometime next year.

Meanwhile, the 40-something year old Sudanese national, wearing a white shirt and graying beard as he sat quietly in the courtroom observing the proceedings today, has been imprisoned on this military camp without a trial for more than 8 years.

Lately, it's become almost fashionable to claim that Gitmo isn't so bad, and is probably better than the supermax prisons where convicted terrorists would go if tried in the United States. Miss Universe, Dayana Mendoza, last year cooed about Gitmo's beautiful beaches. And a press officer on this trip told me that some of the detainees now even get to take painting classes to keep them occupied.

The military has also reportedly made signficant improvements from the original open-air cages where prisoners were completely exposed to the elements, which in Guantanamo Bay can get pretty brutal.

In fact, for the observers privileged enough to travel here to see the military commission hearings (the general public, including relatives of the suspects imprisoned here, are not allowed to attend), it's not really so bad at all. I ate at a Taco Bell yesterday, drank beer at an Irish bar last night, am staying in an air-conditioned tent that's only a few hundred feet from relatively clean, if strangely public, women's latrines. And if you walk past the military barracks down the road to the beach, the view is positively breathtaking. There's even a diving shop where we can rent snorkeling equipment and explore the underside of the 80-degree Caribbean waters.

All that relative comfort can lull an observer into forgetting that on the other side of the military base, the side we don't get to see, men who were seized overseas, many based on statements made by wholly unreliable accusers, have been imprisoned by the United States government without trial - many even without charge - for more than 8 years.

These days, any news about Gitmo is focused mostly on the future trial of Khalid Sheikh Mohammed and his alleged 9/11 terrorist co-conspirators. Although Attorney General Eric Holder announced that trial will take place in federal court in New York, the administration has since wavered and suggested it may bow to political pressure and the irrational fears that have been whipped up to intensify that pressure, and change its mind.

Where the 9/11 trial takes place is extremely important. But it's worth remembering that there are also more than 150 other prisoners that remain here. Most have been accused of vague, unproven acts of assisting terrorism at some point years ago somewhere overseas. Almost none of them has yet received a trial and few have been charged with any crime.

 

It's Not All Fun and Games at "Camp Justice"

 

The thing that first strikes you about Guantanamo Bay's "Camp Justice" is what an extraordinary effort was made to create something that never needed to exist. Though federal courts have been interrogating, trying and imprisoning terrorists for more than 200 years, for some reason the U.S. government believed after September 11, 2001 that it needed to create a whole new way of doing that. So it set up this sprawling military camp, complete with housing for lawyers, journalists, observers, two new courthouses, hyped-up security with endless coils of concertina wire -- all to house a few hundred guys who could have been much more efficiently and just as safely held in high-security prisons in the U.S.

If efficient justice was even part of the goal, the case of Noor Muhammed, who appeared for a hearing in the military commission today, is a great example of just how spectacularly the government has failed.

Noor Muhammed was arrested in March 2002 in Pakistan. He's been charged with helping to train Al Qaeda militants at a training camp in Afghanistan from 1996 to 2000. The only act he's charged with that occurred after September 11, 2001 is allegedly trying to evade local authorities by escaping from a safehouse in Pakistan in March 2002.

Noor denies that he was a member of al Qaeda, or an "unprivileged alien enemy belligerent" as the U.S. claims. But though he's been imprisoned at Guantanamo Bay for eight years, themilitary commission still hasn't even held a hearing to decide the answer to that question. If Noor is right, the military commissions don't even have jurisdiction over his case.

Today, Capt. Moira Modzelewski, the military commission judge presiding at the hearing, announced that the hearing on that issue won't be held until August.

Still, the government has flown several dozen prosecution and defense lawyers, observers and journalists down to a hearing at Guantanamo Bay that lasted less than two hours. The issue decided? A complicated military bureaucratic question of whether Noor's previous military defense counsel could continue to represent him now that she'd been ordered by the military to another assignment.

Noor's lead civilian defense lawyer, Howard Cabot, a volunteer New York-based attorney from the private law firm Perkins Coie, made an eloquent argument in favor of retaining the former military counsel, and ultimately convinced the judge of the importance of their ongoing attorney-client relationship. The judge concluded, however, that she can't tell the Army what to do, so could only "strongly recommend" that the lawyer be allowed to continue her representation.

Select civilian and military observers and journalists got to watch all this somewhat baffling bureaucratic wrangling through panes of bullet-proof glass in a huge courtroom built to accommodate the trials of the five September 11 suspects - trials which still have not taken place. We were only permitted to hear the proceedings several minutes after they occurred, though, since they're broadcast on a time-delayed monitor. By the time we heard the court clerk say "All rise," for example, we'd already seen the lawyers in the courtroom rise, the judge enter the room and everyone sit down minutes earlier.

Strangely, this hearing is a small sign of progress, since the military commission proceedings have been largely stalled since President Obama took office and mulled over what to do about them. Human Rights First and many others hoped the administration would terminate the military commission proceeding and try all of the Guantanamo detainees in ordinary federal courts that are experienced at trying terrorist suspects. But that's not what the administration has decided to do. Instead, it is proceeding with at least a handful of cases in these ill-fated military commissions - Noor Muhammed's among them.

That the commissions are ill-fated is demonstrated in part by the fact that in 8 years, they've held only three trials. Only two of those were contested. And both of those defendants, although convicted, have since been released. By contrast, civilian federal courts have tried more than 400 suspected terrorists since September 11, 2001. HRF has documented 195 convictions of terrorists associated with self-described jihadist or Islamist extremist groups since that time.

But the military commission trials are not even scheduled yet. Today, the judge said that Noor's trial - much of which will repeat the presentation of evidence already presented at the hearing to decide the court's jurisdiction over him - won't be held until sometime next year.

Meanwhile, the 40-something year old Sudanese national, wearing a white shirt and graying beard as he sat quietly in the courtroom observing the proceedings today, has been imprisoned on this military camp without a trial for more than 8 years.

Lately, it's become almost fashionable to claim that Gitmo isn't so bad, and is probably better than the supermax prisons where convicted terrorists would go if tried in the United States. Miss Universe, Dayana Mendoza, last year cooed about Gitmo's beautiful beaches. And a press officer on this trip told me that some of the detainees now even get to take painting classes to keep them occupied.

The military has also reportedly made signficant improvements from the original open-air cages where prisoners were completely exposed to the elements, which in Guantanamo Bay can get pretty brutal.

In fact, for the observers privileged enough to travel here to see the military commission hearings (the general public, including relatives of the suspects imprisoned here, are not allowed to attend), it's not really so bad at all. I ate at a Taco Bell yesterday, drank beer at an Irish bar last night, am staying in an air-conditioned tent that's only a few hundred feet from relatively clean, if strangely public, women's latrines. And if you walk past the military barracks down the road to the beach, the view is positively breathtaking. There's even a diving shop where we can rent snorkeling equipment and explore the underside of the 80-degree Caribbean waters.

All that relative comfort can lull an observer into forgetting that on the other side of the military base, the side we don't get to see, men who were seized overseas, many based on statements made by wholly unreliable accusers, have been imprisoned by the United States government without trial - many even without charge - for more than 8 years.

These days, any news about Gitmo is focused mostly on the future trial of Khalid Sheikh Mohammed and his alleged 9/11 terrorist co-conspirators. Although Attorney General Eric Holder announced that trial will take place in federal court in New York, the administration has since wavered and suggested it may bow to political pressure and the irrational fears that have been whipped up to intensify that pressure, and change its mind.

Where the 9/11 trial takes place is extremely important. But it's worth remembering that there are also more than 150 other prisoners that remain here. Most have been accused of vague, unproven acts of assisting terrorism at some point years ago somewhere overseas. Almost none of them has yet received a trial and few have been charged with any crime.

 

State Dept Promises To Produce Legal Justification for Drone Attacks

State Department Legal Adviser Harold Koh has promised to produce the Obama administration's legal justification for its increased use of drone strikes to kill suspected terrorists, reports Shane Harris of the National Journal.

"I have studied this question," Koh told the audience at an American Bar Association breakfast yesterday. "I think that the legal objections that are being put on the table are ones that we are taking into account. I am comfortable with the legal position of the administration, and at an appropriate moment we will set forth that in some detail."

Let's hope that "appropriate moment" comes pretty soon, because controversy over the drone attacks is heating up. The ACLU in January filed a FOIA request asking the government to turn over that legal justification, as well as the facts underlying it. Then this week, after receiving a response from the CIA that it can neither confirm nor deny the existence of any relevant documents, the ACLU filed a lawsuit.

Meanwhile, as Adam Serwer points out at The American Prospect, a New America Foundation study raises concerns that about a third of the victims of drone attacks have been civilians, and international lawyers have been debating for months now whether the targeted killings violate international law. (Jane Mayer's story on drone attacks in The New Yorker last October does an excellent job of laying out the controversy.)

Such an eminent legal expert as Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, has said that the drone attacks, despite their obvious appeal to the U.S. and the U.K., raise serious legal concerns.

As he explained in a recent article in The Guardian with Hina Shamsi, "Drones may only be used to kill in an armed conflict. The killing must fulfill a military need, and no alternative should be reasonably possible." In Afghanistan, where U.S. forces are fighting armed militants but not the troops of another country, "the target must have a direct connection to the combat, either as a Taliban or al-Qaida 'fighter', or as a civilian who is 'directly participating in hostilities'. The use of force must be proportionate, meaning that commanders must weigh any expected military advantage against possible harm to civilians." Violating these requirements could constitute a war crime.

Given the secrecy of the United States' drone program, it's impossible to know whether the government has met these legal requirements. That's left the administration open to critics' suggestions that it has not, and may well be fomenting anger among the residents of areas being targeted.

General Stanley McChrystal has said that reducing civilian casualties in Afghanistan is critical to a key part of his counterinsurgency strategy -- winning the "hearts and minds" of the Afghan people. Revealing the facts about how the United States is using its expanded and now well-known drone program must be a critical component of that strategy.

Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


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