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Eugene R. Fidell, president of the Washington-based National Institute of Military Justice, says the US is skirting its obligations under the Geneva Conventions. “These are not a meaningful substitute for the competent tribunals required under the Geneva Conventions,” he says. The tribunals, he argues, should have been held in Afghanistan and Pakistan just after the detainees were captured, when evidence and witnesses were still easily obtainable. Commenting on the 104 cases so far reviewed by the tribunal—only one of which resulted in a detainee being released—Fidell sneers: “That’s a great battling average, isn’t it? They’re pitching a nearly perfect game.” (Serrano 11/7/2004)
At hearings in Guantanamo Bay in spring 2007 to determine whether they are “enemy combatants” (see March 9-April 28, 2007), several alleged top al-Qaeda leaders complain of being tortured in US custody:
Alleged al-Qaeda logistics manager Abu Zubaida says he is ill in Guantanamo Bay and has had around 40 seizures that temporarily affect his ability to speak and write properly, as well as his memory; apparently they are originally the result of a 1992 injury from which he still has shrapnel in his head. He says that the seizures are brought on by broken promises to return his diary, which he describes as “another form of torture,” as he is emotionally attached to it. He also says he was tortured after being captured (see Mid-May 2002 and After), when he was “half die”, due to a gunshot wound received when he was taken, and that he lied under torture. However, the passage in which he describes his treatment at this time is redacted. He has many other injuries, has lost a testicle, and also complains the Guantanamo authorities refuse to give him socks for his cold feet. He has to use his prayer hat to keep his feet warm and does so during the hearing. (US Department of Defense 3/27/2007 )
9/11 mastermind Khalid Shaikh Mohammed remarks that, “I know American people are torturing us from seventies.” However, the next section of the transcript is redacted. He also says his children were abused in US custody. (US Department of Defense 3/10/2007 )
Alleged travel facilitator Majid Khan submits a 12-page “written statement of torture.” Khan’s father also gives an account of the torture he says his son was subjected to: he was tied tightly to a chair in stress positions; hooded, which caused him difficulty breathing; beaten repeatedly; deprived of sleep; and kept in a mosquito-infested cell too small for him to lie down in. His father also says Khalid Shaikh Mohammed’s children, aged about 6 and 8, were held in the same building and were tortured by having insects placed on their legs to make them disclose their father’s location. (US department of Defense 4/15/2007 )
Alleged al-Qaeda manager Abd al-Rahim al-Nashiri says he was tortured into confessing the details of plots he invented. He claims that “he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him… [and] he made up stories during the torture in order to get it to stop.” Many of the details of the torture are redacted, but he says in one unredacted comment, “One time they tortured me one way and another time they tortured me in a different way.” (US department of Defense 3/14/2007 )
Eugene Fidell, president of the National Institute of Military Justice, says that the claims of torture could undermine the legitimacy of future military commissions: “Someone has got to get to the bottom of these allegations… If there is something there, they are going to need to address it.” The Pentagon promises to investigate the allegations, but Amnesty International comments, “Given the Bush administration record so far on these matters, it strains credulity that any such investigation would be anything other than substandard, or [that] those responsible would be held accountable.” (Meyer 3/31/2007)
Navy Lieutenant Commander Brian Mizer, the lawyer for Guantanamo detainee Salim Hamdan, says that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 presidential campaign. In a court brief filed on this day, Mizer describes a September 29, 2006 meeting at the Pentagon where Deputy Defense Secretary Gordon England asked lawyers to consider 9/11-related prosecutions in light of the upcoming presidential campaign. “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,” England is quoted as saying (see September 29, 2006). Pentagon spokesman Bryan Whitman refuses to discuss specifics of the case, but says that the Pentagon “has always been extraordinarily careful to guard against any unlawful command influence” in upcoming military commissions trials. Mizer says that because of England’s instructions, and other examples of alleged political interference, his client cannot get a fair trial. Three weeks before England’s observation about the “strategic political value” of the trials, President Bush disclosed that he had ordered the CIA to transfer “high-value detainees” from years of secret custody to Guantanamo for trial.
Issues 'Scrambled' - Attorney Eugene Fidell, president of the National Institute of Military Justice, says the Hamdan motion exposes the problem of Pentagon appointees’ supervisory relationship to the war court. “It scrambles relationships that ought to be kept clear,” he says. England’s statement, says Fidell, is “enough that you’d want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.” Susan Crawford is the White House-appointed supervisor for the court proceedings; England is a two-term White House appointee who has supervised the prison camps’ administrative processes. Crawford, England, and other White House officials have crossed the legal barriers that separate various functions of a military court, Mizer argues. Mizer plans to call the former chief prosecutor for the Guantanamo trials, Morris Davis (see October 4, 2007), who first brought the England remark to light. Davis resigned his position after contending that political influence was interfering with the proper legal procedures surrounding the prosecution of accused war criminals.
Motion for Dismissal - Mizer’s motion asks the judge, Navy Captain Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration officials have exerted “unlawful command influence.” Hamdan is a former driver for Osama bin Laden whose lawyers successfully challenged an earlier war court format (see June 30, 2006). Hamdan’s case is on track to be the first full-scale US war crimes tribunal since World War II. (Rosenberg 3/28/2008)
Legal experts and media observers react with shock and anger at former Justice Department lawyer John Yoo’s defense of his March 2003 torture defense (see April 2, 2008). Eugene Fidell, who teaches military justice at Yale and American University, says: “This is a monument to executive supremacy and the imperial presidency. It’s also a road map for the Pentagon for fending off any prosecutions.” (Mazzetti 4/2/2008) Thomas J. Romig, the Army’s judge advocate general at the time the memo was issued, says that Yoo’s memo seems to argue that there are no rules in a time of war, an argument Romig finds “downright offensive.” (Eggen and White 4/2/2008) Retired Air Force General Richard B. Myers, chairman of the Joint Chiefs of Staff when the memo was written, says that he never saw the document authorizing harsh military interrogations and that its narrow definition of torture is “absolutely ludicrous.” Myers adds: “I frankly don’t know anyone in the military who bought into that as a good definition of when you cross the line. In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us.” (Eggen and White 4/4/2008) Legal experts (see April 2-6, 2008) and media observers (see April 4, 2008) join in criticizing Yoo’s rationale for the torture memo.
President Obama says alleged WikiLeaks whistleblower Bradley Manning “broke the law.” The remarks are made at a California fundraiser after Obama is interrupted by a group of protesters, who sing a song pleading for Manning’s release. Manning is currently in jail, but has not been found guilty. “I have to abide by certain classified information,” says Obama. “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.… We’re a nation of laws. We don’t individually make our own decisions about how the laws operate.… He broke the law.” Steven Aftergood, a classified information expert at the Federation of American Scientists, will criticize Obama’s statement. “The comment was not appropriate because it assumes that Manning is guilty,” says Aftergood. “The president got carried away and misspoke. No one should mistake a charge for a conviction—especially the nation’s highest official.” President of the National Institute of Military Justice and military law expert Eugene Fidell adds, “Commenting on Manning’s conditions of confinement is one thing—I would have strongly advised him to not comment about Manning’s guilt.” However, White House spokesman Tommy Vietor will say that Obama was in fact making a general statement that did not go specifically to the charges against Manning. “The president was emphasizing that, in general, the unauthorized release of classified information is not a lawful act,” he will say. “He was not expressing a view as to the guilt or innocence of Pfc. Manning specifically.” In addition, Aftergood and Fidell will agree that Obama’s remarks will probably not affect whether Manning receives a fair trial. “It’s not that hard to ensure that unlawful command influence hasn’t in fact prejudiced the right to a fair trial,” says Fidell. “If the case goes to a court marshal, the military court will have to make sure that none of the members of the military jury have been influenced by the president’s stated belief that Manning broke the law.” (Lee and Phillip 4/22/2011) The remarks will be echoed by Chairman of the Joint Chiefs of Staff Martin Dempsey the next year (see March 10, 2012).
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