Category Archives: Judicial corruption

Secret trial defendant pleads guilty to possessing terrorist document

Secret trial defendant pleads guilty to possessing terrorist document

The Guardian, October 9, 2014

Mounir Rarmoul-Bouhadjar was due to face charges in Old Bailey trial, much of which was to take place in secret

One of the defendants due to face charges in a partly secret trial has pleaded guilty to possessing a terrorist document.

Mounir Rarmoul-Bouhadjar, 26, entered the plea at the Old Bailey on Tuesday, but it was only reported on Thursday after reporting restrictions were lifted.

Rarmoul-Bouhadjar was due to go on trial next week with co-defendant Erol Incedal, also 26, with much of the case being heard behind closed doors.

Mr Justice Nicol had originally ruled that the trial should take place entirely in private with the identity of both defendants withheld and a permanent prohibition on reporting the case.

After media organisations challenged his “unprecedented” decision, three appeal judges overruled the ban on naming the defendants, both from London, who were previously known only as AB and CD.

They ruled in favour of the core of the trial being held “in camera”.

At the Old Bailey hearing on Tuesday the court was told that Rarmoul-Bouhadjar admitted possessing a “document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely a document entitled Bomb making”. A second charge of improperly obtaining an identity document was dropped.

Rarmoul-Bouhadjar was in court for Tuesday’s hearing, and Incedal appeared via videolink.

Incedal will now stand trial alone next week accused of an offence contrary to section 5 of the Terrorism Act 2006 (preparation of terrorist acts) and an offence contrary to section 58 of the Terrorism Act 2000 (collection of information).

Rarmoul-Bouhadjar will be sentenced after Incedal’s trial.

Discovering secret dockets

Discovering secret dockets

Reporters Committee for Freedom of the Press

Reporters check court dockets to find out what cases have been filed in courts across the country. The docket reveals the case number assigned by the court, the parties’ names, and a brief entry of each document filed or action taken in the case. Normally, all of this information is public record and can be obtained either from the court clerk’s office, the court’s public inquiry computer terminals, the court’s Web site, or through PACER, an electronic public access service where federal court docket information can be accessed for a fee. The information on the docket is evidence that a particular case exists and allows someone to track the case through the judicial system.

According to a survey by The Reporters Committee for Freedom of the Press for this guide, federal courts and many state courts allow for “super-secret” cases, which never appear on the public docket or are hidden using pseudonyms, such as “Sealed v. Sealed” or “John Doe v. Jane Doe.” Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.

Terrorism “outside the orbit”

The most recent examples of secret dockets involve cases against accused terrorists. On May 1, Iyman Faris pleaded guilty to providing material support to al Qaida, including researching ultralight airplanes, procuring lightweight sleeping bags, plane tickets and cell phones, and assisting in a plan to destroy the Brooklyn Bridge for the terrorist organization. But his arrest, indictment and, ultimately, his plea bargain with the Justice Department proceeded in absolute secrecy.

Faris’ case may have remained a secret were it not for two Newsweek reporters, Michael Isikoff and Mark Hosenball, who discovered through intelligence documents that Faris was suspected of working for key al Qaida operative Khalid Shaikh Mohammed. In a June 18, 2003 article, the reporters speculated whether Faris was on the run, had disappeared or had been captured. For individuals such as Faris, there is “a new category that seems to be evolving outside the orbit of the criminal-justice system,” the Newsweek reporters wrote.

Only after Newsweek reported on Faris did Attorney General John Ashcroft reveal that Faris had pleaded guilty to terrorist charges more than a month earlier. The Justice Department denied that the Newsweek story had anything to do with Ashcoft’s June 19 press conference in which he first announced the capture of Faris and his plea agreement.

“Our need to keep it secret had dissipated,” said Mark Corallo, a spokesperson for the Justice Department.

The Justice Department will not divulge how many other individuals are being held in secret on terrorism charges. “We have been very consistent in not discussing exact numbers,” Corallo said. “Even though it seems like innocuous information, it is not.”

Corallo claimed that providing numbers of individuals arrested on terrorism charges would “give a road map to the terrorists.” Terrorist organizations could determine how many terrorists the Justice Department has captured and monitor the government’s progress, he explained.

But the government never has explained how a terrorist operative could be in U.S. control for months and why the terrorist organization with which he is allegedly involved could not determine that its operative was missing, said Lee Gelernt, an attorney for the American Civil Liberties Union.

This debate raises the question: Is such secrecy really needed to protect national security or is it being used to protect the government from scrutiny?

It was only through a court clerk’s mistake that the Miami Daily Business Review discovered the case of Mohamed Kamel Bellahouel, who apparently filed suit in a federal court in Florida against Monica S. Wetzel, a former warden at the Federal Correctional Institution in South Miami-Dade County.

According to the Business Review, Bellahouel “was once mistakenly suspected of involvement with terrorists” and appears to have filed a petition seeking freedom from unlawful imprisonment.However, the public docket will not reveal that Bellahouel’s case even exists or why his case is pending before the U.S. Court of Appeals in Atlanta (11th Cir.).

While no one knows how many cases such as Bellahouel’s exist, secret dockets are not limited to cases involving terrorism.

Secret crimes

Attorneys for alleged Columbian drug trafficker Fabio Ochoa-Vasquez discovered an entire system of “dual docketing” in U.S. District Court in Florida that deprived them of information for their client’s defense.

Ochoa alleges that a government informant bribed him and that for $30 million he would receive no more than a five-year sentence. Ochoa also alleges that another government informant told him that a U.S. program existed in which drug traffickers could pay their way to a reduced sentence and that two traffickers, Nicholas Bergonzoli and Julio Correa, had already participated in the program.

Even though Bergonzoli pleaded guilty to importing cocaine and an attorney acknowledged representing Correa in “a cooperation agreement with the government,” the Florida federal court docket does not reflect that these cases even exist, according to attorneys for Ochoa, who in May 2003 filed a brief requesting the elimination of the “dual docketing” system and disclosure of sealed proceedings to the Eleventh Circuit.

Not only does this type of secrecy deprive Ochoa of his due process rights, it is a violation of the First Amendment and common law rights of access to judicial proceedings, Ochoa’s attorneys argued.

The use of secret dockets by the federal Southern District of Florida conflicts with a decision issued by the Eleventh Circuit ten years earlier in United States v. Valenti. In that case, the government charged criminal defense attorney Charles Corces and state prosecutor John Valenti with conspiring to obtain favorable treatment for criminal defendants who paid Valenti. After the two were indicted, the state dismissed the case; however, a secret docket prevented the public from learning about closed pretrial bench conferences and the filing of in-camera pretrial motions. A reporter from the St. Petersburg Times learned about the secret docket when he observed a closed-bench conference and sought access to the transcripts.

On appeal to the Eleventh Circuit, the court held that the “maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings.”

According to Ochoa’s attorneys, this holding “is consistent with every circuit that has decided a similar question.”

However, while the law disfavors secret dockets, they are still used by federal and state courts to hide sealed cases. When an entire case is sealed, rather than individual documents, federal courts either remove the case from the public docket or replace the parties’ names with anonymous pseudonyms such as “Sealed v. Sealed.” At least 46 U.S. district courts across the country allow for these types of secret docketing procedures. Such a system makes it virtually impossible for the public and press to know what types of cases are being sealed or to challenge the constitutionality of the sealing orders.

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The Political Trial of a Caring Man and the End of Justice in America
The Political Trial of a Caring Man and the End of Justice in America
By John Pilger

November 07, 2012 “Information Clearing House” – In 1999, I travelled to Iraq with Denis Halliday who had resigned as assistant Secretary-General of the United Nations rather than enforce a punitive UN embargo on Iraq. Devised and policed by the United States and Britain, the extreme suffering caused by these “sanctions” included, according to Unicef, the deaths of half a million Iraqi infants under the age of five.

Ten years later, in New York, I met the senior British official responsible for the imposition of sanctions. He is Carne Ross, once known in the UN as “Mr.Iraq”. I read to him a statement he made to a parliamentary select committee in 2007 : “The weight of evidence clearly indicates that sanctions caused massive human suffering among ordinary Iraqis, particularly children. We, the US and UK governments, were the primary engineers and offenders of sanctions and were well aware of this evidence at the time but we largely ignored it or blamed it on the Saddam government. [We] effectively denied the entire population a means to live.”

I said, “That’s a shocking admission.”

”Yes, I agree,” he replied, “I feel very ashamed about it … Before I went to New York, I went to the Foreign Office expecting a briefing on the vast piles of weapons that we still thought Iraq possessed, and the desk officer sort of looked at me slightly sheepishly and said, ‘Well actually, we don’t think there is anything in Iraq.’ “

That was 1997, more than five years before George W. Bush and Tony Blair invaded Iraq for reasons they knew were fabricated. The bloodshed they caused, according to recent studies, is greater than that of the Rwanda genocide.

On 26 February 2003, one month before the invasion, Dr. Rafil Dhafir, a prominent cancer specialist in Syracuse, New York, was arrested by federal agents and interrogated about the charity he had founded, Help the Needy. Dr. Dhafir was one of many Americans, Muslims and non-Muslims, who for 13 years had raised money for food and medicines for sick and starving Iraqis who were the victims of sanctions. He had asked US officials if this humanitarian aid was legal and was assured it was — until the early morning he was hauled out of his car by federal agents as he left for his surgery. His front door was smashed down and his wife had guns pointed at her head. Today, he is serving 22 years in prison.

On the day of the arrest, Bush’s attorney-general, John Ashcroft, announced that “funders of terrorism” had been caught. The “terrorist” was a man who had devoted himself to caring for others, including cancer sufferers in his own New York community. More than $2 million was raised for his surety and several people pledged their homes; yet he was refused bail six times.

Charged under the International Emergency Economic Powers Act, Dr. Dhafir’s crime was to send food and medicine to the stricken country of his birth. He was “offered” the prospect of a lesser sentence if he pleaded guilty and he refused on principle. Plea bargaining is the iniquity of the US judicial system, giving prosecutors the powers of judge, jury and executioner. For refusing, he was punished with added charges, including defrauding the Medicare system, a “crime” based on not having filled out claim forms correctly, and money laundering and tax evasion, inflated technicalities related to the charitable status of Help the Needy.

The then Governor of New York, George Pataki, called this “money laundering to help terrorist organisations … conduct horrible acts”. He described Dr. Dhafir and the supporters of Help the Needy as “terrorists living here in New York among us … who are supporting and aiding and abetting those who would destroy our way of life and kill our friends and neighbours”. For jurors, the message was powerfully manipulative. This was America in the hysterical wake of 9/11.

The trial in 2004 and 2005 was out of Kafka. It began with the prosecution successfully petitioning the judge to prohibit “terrorism” from being mentioned. “This ruling turned into a brick wall for the defence,” says Katherine Hughes, an observer in court. “Prosecutors could hint at more serious charges, but the defence was never allowed to follow that line of questioning and demolish it. Consequently, the trial was not, in fact, what it was really about.”

It was a political show trial of Stalinist dimensions, an anti-Muslim sideshow to the “war on terror”. The jury was told darkly that Dr. Dhafir was a Salafi Muslim, as if this was sinister. Osama bin Laden was mentioned, with no relevance. That Help the Needy had openly advertised its humanitarian aims, and there were invoices and receipts for the purchase of emergency food aid was of no interest. Last February, the same judge, Norman Mordue, “re-sentenced” Dr. Dhafir to 22 years: a cruelty worthy of the Gulag.

With their “terrorist” case “won”, the prosecutors held a celebration dinner, “partying,” wrote a Syracuse lawyer to the local newspaper, “as if they had won the Super Bowl … having perpetuated a monstrous lie [against a man] who had helped thousands in Iraq suffering unjustly … the trial was a perversion”. No executive of the oil companies that did billions of dollars of illegal business with Saddam Hussein during the embargo has been prosecuted. “I am stunned by the conviction of this humanitarian,” said Denis Halliday, “especially as the US State Department breached its own sanctions to the tune of $10bn.”

During this year’s US presidential campaign, both candidates agreed on sanctions against Iran which, they claimed, posed a nuclear threat to the Middle East. Repeated over and again, this assertion evoked the lies told about Iraq and the extreme suffering of that country. Sanctions are already devastating Iran’s sick and disabled. As imported drugs become impossibly expensive, leukaemia and other cancer sufferers are the first victims. The Pentagon calls this “full spectrum dominance”.
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No Accountability for Torture

No Accountability for Torture
David Cole
The New York Review of Books    May 7, 2012

Sometimes I think being American means never having to say you’re sorry. On Wednesday, May 2, the US Court of Appeals for the Ninth Circuit, a federal appeals court in San Francisco, unanimously dismissed a lawsuit against former Justice Department lawyer John Yoo by José Padilla, the US citizen picked up at O’Hare Airport and held in military custody as an “enemy combatant” for three and a half years, during which he says he was subject to physical and psychological abuse.

As an official in the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo wrote multiple memos designed to deny “enemy combatants” legal protections that might get in the way of our holding them incommunicado, depriving them of sleep, slamming them into walls, forcing them into painful stress positions, and waterboarding them. Padilla alleged that Yoo’s memos provided the basis for his years in detention, of which twenty-one months were in incommunicado isolation, and authorized his captors to subject him to abuse. As a result, he claims, he was threatened with death and serious physical abuse; shackled in painful stress positions for hours at a time; administered psychotropic drugs; denied medical care; and exposed to extreme temperatures.

The court dismissed the case before the truth of these allegations could be tested. It reasoned that even if Padilla’s allegations were true, it was not “clearly established” that his treatment violated the Constitution, and therefore the suit must be dismissed. John Yoo could not even be sued for the nominal damages of one dollar that Padilla and his mother sought as a way of emphasizing that their desire was for vindication of their rights, not remuneration.

In closing off yet another avenue of accountability for the wrongs US officials intentionally inflicted on suspects in the “War on Terror,” the Ninth Circuit’s decision does not break new ground. After all, the Justice Department long ago decided not to investigate or prosecute Yoo and others for authorizing torture, a war crime, despite the US government’s legally binding obligation as a party to the Convention Against Torture to investigate and refer for possible prosecution all credible claims of torture against persons within our jurisdiction. A single Justice Department official reversed the recommendation of the department’s ethics office to refer Yoo and his boss, Jay Bybee, to their respective state bars for unethical behavior in writing the “torture memos.”

In January, the US Court of Appeals for the Fourth Circuit threw out a similar lawsuit by Padilla against former Defense Secretary Donald Rumsfeld. In prior years, several courts have dismissed suits by victims rendered to other countries for torture on the ground that the CIA’s rendition program is a “state secret,” so that even if it subjected individuals to torture, there can be no adjudication of that fact because the government claimed the suit would disclose information that could compromise national security. President Obama has also resisted even the appointment of a bipartisan commission to investigate and report on our descent into torture and cruel treatment; apparently he thinks such an inquiry would be too divisive.

But the Ninth Circuit’s reasoning was especially disturbing, for it found that it was not clear that “enemy combatants” had a right not to be subjected to the abuse Padilla suffered. It relied on the doctrine of “qualified immunity,” which holds government officials immune from personal liability for constitutional violations unless the violations were “clearly established” at the time. The idea is that government officials should not be held personally responsible where the law is murky and they have to make difficult judgment calls. But Padilla’s lawyers argued that it should have been clear beyond peradventure that the state cannot treat anyone, even someone convicted of the most heinous of crimes, the way it treated Padilla, who had not even been charged, much less convicted, of anything at the time. Accordingly, they argued, Yoo deserved no immunity.

For support, Padilla’s lawyers pointed to multiple precedents prohibiting mistreatment of anyone held in detention: convicted prisoners, pretrial detainees, and those held in preventive detention as sexual predators. Under these precedents, they reasoned, it was clear that if a federal prison warden had treated even a death row inmate convicted of the 9/11 terrorist attacks the way Padilla was treated, his actions would plainly violate the Eighth Amendment prohibition on cruel and unusual punishment. If a suspect in a serial murder case were subjected to similar treatment pre-trial, it would clearly violate the Fifth Amendment’s due process clause. It has long been clear that the Constitution strictly forbids the intentional infliction of physical pain on anyone in the government’s custody.

The Ninth Circuit reasoned, however, that Padilla was no ordinary criminal or pretrial detainee. He was being held as an “enemy combatant,” and the Court concluded that it was not clear in 2001-03, when Yoo wrote the memos which laid the groundwork for Padilla’s abuse, that enemy combatants—even US citizens—were entitled to the same protections as all other persons held by the state. And as we had never done this to a US citizen detained as an enemy combatant before, there was no case directly on point. So even if was crystal-clear that federal officials could not do this to anyone else, the court maintained, it was not clear they couldn’t do it to Padilla.

For this reasoning to hold up, however, there must be some arguable rationale for allowing persons held as “enemy combatants” to be mistreated in ways that we do not allow anyone else to be mistreated. Without such a rationale, the fact that Padilla was held as an “enemy combatant” was no more relevant than the fact that his name was Padilla, and no prior case involving the mistreatment of prisoners and pretrial detainees was brought by a person named Padilla.

The court offered no such reason for differentiation. And there is none. If anything, those held in military custody are entitled to better treatment than those held pursuant to a criminal conviction. The authority to hold those fighting for “the enemy” in military custody is not predicated on wrongdoing, but on the state’s interest in incapacitating the enemy. But the first principle of the laws of war has long been that such detainees must be treated humanely. Padilla, as a citizen, could have been tried criminally for fighting against us, but even if he were convicted of such a crime, he could not be subjected to the mistreatment US officials inflicted upon him.

The court noted that the Supreme Court in World War II had ruled, in Ex parte Quirin, that a US citizen caught with a number of Nazi saboteurs could be tried in a military court, and need not be afforded in that military court all the procedural rights constitutionally guaranteed to criminal defendants in civilian court. But that holding is easily distinguishable. It concerned merely the choice of a forum for assessing responsibility in wartime. It did not suggest that accused war criminals could be subjected to the physical abuse that Padilla, who was not even charged with a war crime, suffered.

While there are both historical precedents and good reasons in certain situations for trying a person accused of a war crime in a military tribunal rather than a civilian court (as long as the trials are fundamentally fair), there are no precedents, and no reasons, for abusing a detainee in the way Padilla alleges he was mistreated, regardless of his status. Absent such a reason, never articulated by the court, it should have been clearly established that the federal government could not constitutionally abuse Padilla in the way he alleges it did.

John Yoo has celebrated this decision as vindication, just as he treated the Justice Department’s decision not to refer him to his state bar for disciplinary action based on his memos. But it is hardly that. The court declined to address the merits of whether the conduct Yoo authorized actually violated Padilla’s rights. Instead, it held only that the law was unclear in 2001-03 on this point. But absent any legal principle that would permit us to subject military detainees to abuse that no one else may suffer, Yoo’s advice was wrong—legally, ethically, and constitutionally.

I suspect that what may actually be going on here is that a US court is not about to award damages, even nominal damages, to someone who was allegedly seeking to fight for al-Qaeda. Padilla was eventually prosecuted and convicted for a more general attempt to provide material support to terrorism, but US officials frequently asserted that he was linked to al-Qaeda.

If that is the case, however, it only underscores the necessity for an independent commission to investigate and report on the use of torture and other forms of cruel and inhuman techniques against suspects in the “war on terror.” A commission could make findings that what was done was wrong, legally and morally, and counterproductive, without rewarding “the enemy” in doing so. We now know much about the brutal mistreatment of prisoners in secret prisons, inflicted according to specific legal guidance from Yoo and others in the Justice Department—although the Obama administration is shamefully still seeking to suppress the details, arguing that Guantanamo detainees should be barred even from discussing the facts in their public trials. But what we still lack is any form of accountability. The courts have proved unwilling not only to impose such accountability, but even to let suits seeking accountability go forward at all. We have exhausted that avenue of redress. But we have not yet said we are sorry. A commission is more urgent than ever.

May 7, 2012, 3:05 p.m.

Detainee can reduce sentence by becoming government agent

Military Commission Panel Sentences Guantanamo Detainee

By Cheryl Pellerin
American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, Feb. 18, 2011 – After deliberating for five and a half hours, a military commission panel today sentenced Sudanese detainee Noor Uthman Muhammed to 14 years of confinement at the detention center here.

But in accordance with a pretrial agreement, Noor, as he has asked to be called in court, will serve only 34 months — until December 2013 — provided he fully cooperates with the U.S. government.

“The protections afforded to Noor Uthman in this military commission are unprecedented in the history of military commissions,” Navy Capt. John Murphy, chief prosecutor for the Office of Military Commissions, told reporters after the trial.

“They’re robust and important,” he said, “and they produce results like those we saw today, where an accused admitted his guilt and has also agreed to certain provisions that will be important as we go forward.”

One such provision is an agreement by the detainee to fully cooperate with the U.S. government, Murphy said.

“Full cooperation cuts across every aspect of our work — testimony, debriefing, meeting with agents, preparing other cases, providing intelligence information, and also being fully available to assist the government in any forum,” he said, noting that potential forums include federal court, military commissions, grand juries, civil proceedings and others.

If Noor does not cooperate, Murphy added, he would face serving the original 14-year sentence.

“I’m pleased that we have a system here that will enable someone in Noor’s situation to finally bring closure to what’s been a nine-year period of confinement,” Noor’s defense attorney, Howard Cabot, told reporters. The detainee arrived at the detention center here in August 2002.

“For the first time,” Cabot said, “Noor can now have some certainty in his life.”

This is the sixth case to be resolved by military commissions since the detention center opened in 2002. Those who have been convicted here in addition to Noor include David M. Hicks of Australia, Salim Hamdan of Yemen, Ali Hamza Ahmad Suliman al Bahlul of Yemen, Ibrahim Ahmed Mahmoud al Qosi of Sudan and Omar Ahmed Khadr of Canada.

A freeze on holding new military commission trials for Guantanamo detainees has been in place since January 2009, when President Barack Obama took office. As a result, Noor’s is the last case the military commissions office is free to prosecute for now, Murphy said.

In November 2009, Attorney General Eric Holder designated three other suspected terrorists to be prosecuted in military commissions. Before it can proceed with the cases, though, the office must receive authorization from Defense Secretary Robert M. Gates.

“We have not [yet] tried the most serious detainees in terms of their conduct. We have not prosecuted any high-value detainees in commissions,” Murphy told reporters this week.

“That’s not unusual in a prosecution,” he added. “People at the lower end of a conspiracy often aren’t given the biggest sentences, but as prosecutors move up the pyramid and look at more serious individuals, of course, our calibration in that regard will change.”

Today, according to Guantanamo officials, the center holds 172 detainees from 24 countries. Of that number, the Obama administration has determined that 48 of the detainees “cannot be prosecuted [because of a lack of or tainted evidence], yet pose a clear danger to the American people,” the president said during a speech at the National Archives in Washington in May 2009.

“We are not going to release anyone if it would endanger our national security,” Obama said, “nor will we release detainees within the United States who endanger the American people.”

Calling it the “toughest single issue that we will face,” Obama said his administration would work with Congress to develop “clear, defensible and lawful standards” for those who “in effect remain at war with the United States.”

In the same speech, Obama endorsed the use of military commissions to prosecute “detainees who violate the laws of war.”

In April, Gates signed the latest edition of the Manual for Military Commissions, amended by the Military Commissions Act of 2009. The 2006 version of the act was revised, Obama said, “to bring the commissions in line with the rule of law.”

Two days after his inauguration, Obama announced that within a year he would close the detention center here, but closure has been hampered by political resistance and most recently by provisions in the 2011 Defense Authorization Bill that prevent the transfer of Guantanamo detainees to the U.S. mainland and other countries.

“Despite my strong objection to these provisions, which my administration has consistently opposed, I have signed this act because of the importance of authorizing appropriations for, among other things, our military activities in 2011,” Obama said in a Jan. 7 statement.

“Nevertheless,” he added, “my administration will work with Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

During a Feb. 17 Senate Armed Services Committee hearing, Gates confirmed that about 25 percent of detainees who are transferred out of Guantanamo are thought to re-engage in hostile actions against the United States and its allies.

As of Oct. 1, 598 detainees had been transferred out of Defense Department custody at Guantanamo, DOD spokeswoman Army Lt. Col. Tanya Bradsher told American Forces Press Service.

Of that number, the intelligence community assesses that 81 are confirmed and 69 are suspected of re-engaging in terrorist or insurgent activities after transfer, she said.

At the Senate hearing, Gates said the United States “has been very selective in terms of returning people, [but] … we’re not particularly good at predicting which returnee will be a recidivist.”

The National Defense Authorization Act of 2011 “imposes some additional restrictions on who we can release, and Congress put me in the uncomfortable position of having to certify people who get returned — that they are no longer a danger,” he added. “So … that raises the bar very high as far as I’m concerned.”

Gates said the question of where to hold high-value individuals who might be captured in the future, especially if the Guantanamo detention center is closed, is unresolved.

“If we capture them outside of areas where we are at war that are not covered by existing war authorizations, one possibility is for such a person to be put in the custody of their home government,” he said.

“Another possibility is that we bring them to the United States,” he added. “After all, we’ve brought a variety of terrorists to the United States and put them on trial in Article III courts here over the years. But it will be a challenge.”

Federal courts established under Article III of the U.S. Constitution include the Supreme Court, appellate courts, district courts and the Court of International Trade.

Gates said new detainees are not being sent to Guantanamo “at this point” and that the center is unlikely to close, at least for now.

“The prospects for closing Guantanamo, as best I can tell, are very, very low,” he said, “given very broad opposition to doing that here in the Congress.”

Justice for Lynne Stewart


Lynne Stewart received a 28-month sentence in October 2006. Her lawyers appealed, and she was out on bail until November 17, 2009, when her bail was revoked after the Second Circuit ruled on her and the government’s appeals.

Radical human rights attorney Lynne Stewart has been falsely accused of helping terrorists. On Tuesday, April 9, 2002, she was arrested and agents searched her Manhattan office for documents. She was arraigned before Manhattan federal Judge John Koeltl. This is an obvious attempt by the U.S. government to silence dissent, curtail vigorous defense lawyers, and install fear in those who would fight against the U.S. government’s racism, seek to help Arabs and Muslims being prosecuted for free speech and defend the rights of all oppressed people.

Lynne’s bail has been revoked, and she is now being held in jail after the Second Circuit ruled on her and the government’s appeals on Tuesady, November 17, 2009. You can read the opinion and other motions to stay below.



Judge sentences US civil liberties lawyer Lynne Stewart to 10 years

Judge sentences US civil liberties lawyer Lynne Stewart to 10 years

By Peter Daniels 

WSWS, 17 July 2010

In a new and vicious attack on Lynne Stewart, on July 15, Federal District Judge John G. Koeltl resentenced the disbarred civil liberties attorney to 10 years in prison on trumped-up charges of assisting terrorism. The charges arise out of her representation of a client in a terror-related case that dates back to 1995.

Stewart, now 70 years old, was indicted in 2002, convicted in 2005 after a seven-month trial, and originally sentenced by Judge Koeltl in 2006 to a term of 28 months in prison. Koeltl’s sentencing statement four years ago amounted to a partial rebuke of the government, which had demanded a 30-year jail term for the attorney.

Her only crime was the violation of administrative guidelines that prohibited her from communicating between her client, Sheik Omar Abdul Rahman, and the outside world, a mistake of the sort that previously would have led to nothing more than a reprimand at most. Stewart, who later confessed to naiveté and misjudgment, had during her appeal of Rahman’s conviction openly transmitted to the media a press statement from her client, who was convicted of seditious conspiracy in 1995.

In November 2009, a three-judge panel of the US Court of Appeals for the Second Circuit upheld the conviction of Stewart, but went further, overturning the original sentence and ordering the lower court to reconsider the punishment. The appellate decision amounted to a virtual order for a longer sentence. At the same time, the judges also revoked Stewart’s bail and ordered her to report to prison.

These unprecedented steps indicated anger at the highest levels of the state apparatus and a determination to make an example of this defendant.

Judge Koeltl apparently got the message. Speaking in the courtroom for about 45 minutes on July 15 on the facts of the case and the sentencing guidelines, he repeated his praise of Stewart’s work in representing the poor and unpopular over many decades and acknowledged having received more than 400 letters supporting her. But he ruled that she had perjured herself and shown “a lack of remorse” that meant “the original sentence was not sufficient.”

One of the letters sent to Judge Koeltl came from the Society of American Law Teachers, an organization of law faculty, deans and administrators with members at more than 170 law schools across the US. It pointed out what was already well known to the court, that Stewart “did not subscribe to the beliefs of her client, did not advocate terrorism, and did not engage in any action which resulted in violence.”

The letter continued: “Ms. Stewart devoted her life to obtaining justice for clients often considered ‘undesirable,’ perhaps because of their race, socioeconomic status, or political beliefs. As law professors, we are acutely aware that the legitimacy of the criminal justice system rests on the availability of defense lawyers willing to represent unpopular clients. We are concerned that both the prosecution of Ms. Stewart and the lengthy sentence recommended by the government in this case have already had a chilling effect on lawyers who might otherwise be willing to represent those charged with terrorism-related offenses.”

It is clearer than ever that this “chilling effect” was precisely the government’s aim in prosecuting Stewart. The prosecution, indeed persecution, of the civil liberties lawyer for nearly a decade, has been bound up from the beginning with the government’s “war on terrorism,” which was launched in the immediate aftermath of the attacks of September 11, 2001. Stewart’s indictment was announced with great fanfare at a press conference held by then-Attorney General Ashcroft. The government spent millions of dollars on the seven-month trial, which ended with a conviction after 13 days of jury deliberation, and amid indications that one or more jurors had been worn down into going along with a verdict they opposed.

The purpose of this case has been to buttress the bipartisan campaign to use the fear of terrorism to attack long-established civil liberties and legal protections, including the right to a legal defense itself. Lynne Stewart became a victim of this campaign because her long record of political radicalism and outspokenness made her the object of hatred in official circles, and, in the eyes of the authorities, she was particularly vulnerable to attack.

Stewart’s husband, Ralph Poynter, pointed out recently on the web site that some of the attorneys working pro bono for detainees at Guantanamo have been accused of administrative violations similar to those for which Stewart was tried. While making it clear that he completely defends these attorneys’ “zealous” defense of their clients in Guantanamo, Poynter points out that, because they were employed by some of the most powerful corporate law firms in the country, they have not faced prosecution, despite attacks from the Wall Street Journal and others.

Stewart says she will continue to fight, telling the court that “we will continue to struggle on to take all available options to do what we need to do to change this.” Stewart was diagnosed with breast cancer about five years ago, but is now reportedly cancer-free. She is over 70, however.

Outside of the courtroom, her husband described the judge’s new sentence as “a death sentence.” According to her daughter, Stewart “rarely goes outdoors for recreation…. The worst part of it is the deprivation of friends and family and arbitrary and capricious treatment. For example, they take her to hospital for tests only on the one day of the week she has a family visit. It has happened two or three times. Her hands and feet are shackled to and from and at the hospital.”

The brutal vendetta against Lynne Stewart, begun under the Bush administration and continuing under Obama, demonstrates the bipartisan character of the attacks on civil rights and liberties. The White House recently announced its backing for legislation that would deny Miranda rights to those accused of terrorism. It has long since discarded its pledge to close Guantanamo, unable even to make cosmetic gestures to appease the worldwide anger over the indefinite detention and torture of those imprisoned there.

The latest victimization of Stewart is not only a blatant government attempt to intimidate lawyers who choose to defend those charged as terrorists by the US government. It represents a frontal assault on the Bill of Rights and the turn, which is escalating under the Obama administration, toward methods commonly associated with a police state.

Is Plea Bargaining a Cop-Out?

Is Plea Bargaining a Cop-Out?

Time Magazine, 28 August 1978

Critics say yes, but efforts to ban it bring mixed results

Ideally anyone charged with a crime in the U.S. is entitled to his day in court. The litany of rights is familiar: the state must prove guilt beyond a reasonable doubt, the accused has the right to be tried by a jury of his peers, and an impartial judge must carefully weigh the facts before handing down a sentence.


The reality, as anyone involved with criminal justice can attest to, is far different. In the vast majority of cases, the accused has no trial. His “day” in court is the few minutes it takes him to plead guilty. “Here we have an elaborate jury trial system, and only 10% of the accused get to use it,” says Colorado Law School Professor Albert H. Alschuler. “That’s like solving America’s transportation problems by giving | 10% Cadillacs and making the rest go barefoot.” For most defendants, justice is done by way of a deal: a guilty plea in exchange for the promise of reduced charges or a lighter sentence. Bargains are generally struck with the prosecutor; the judge usually rubber-stamps them.


Plea bargaining is as widely criticized as it is prevalent. Defendants claim they are railroaded into abandoning their right to a fair trial by zealous prosecutors who “overcharge” them and then agree to reduce the charge in exchange for a guilty plea. The public, on the other hand, complains that criminal defendants get off too lightly. In plea bargaining, armed robbery often becomes unarmed robbery (this is known as “swallowing the gun”), and burglaries by night miraculously become the lesser crime of burglary by day.


Many lawyers and prosecutors defend plea bargaining as “flexible,” claiming that bargaining can shape the sentence to the individual defendant. What is more, says Maricopa County (Ariz.) Attorney Charles Hyder, it is “the greatest weapon a prosecutor has. The prosecutor is in the driver’s seat. Usually the defendant is not aware of any weaknesses in a case.”


The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President’s Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court as “essential.” It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.


Increasingly, however, the justification for plea bargaining as a necessary evil is being questioned. Most observers agree that certain overburdened urban jurisdictions would grind to a halt without it. But in two fair-sized cities, Portland, Ore., and New Orleans, district attorneys claim that they have been able to get stiffer sentences without backlogging the court docket by cutting down on plea bargaining. According to New Orleans District Attorney Harry Connick, when he limited plea bargaining, the city’s criminal court judges complained that “they would have to spend a lot of time on the bench trying cases. My feeling was that they were getting paid full-time salaries, and they could damn well work full time.”

In scattered jurisdictions around the country, other prosecutors and judges have also tried to reduce deal making. Results are mixed; Boulder, Colo., for instance, reports trouble keeping up with its docket without tradeoffs. And some doubt that district attorneys who grandly announce plea-bargain bans really enforce them. Still, it is difficult to understand why some jurisdictions manage to hold down plea bargaining, while others with comparable case loads bargain almost every time. Critics like Harvard Law School Professor Alan Dershowitz argue that bargaining is often born not of necessity but of “laziness”—or of judges competing for the cleanest docket, prosecutors aiming for high conviction rates or defense lawyers who find it more profitable to make quick deals than go through long trials.


The most thoroughgoing—and thoroughly studied—ban on plea bargaining went into effect in Alaska in August 1975. A computer study released by the Alaska Judicial Council this summer found that in its first year, the ban was widely heeded by prosecutors. The result: longer sentences, as some hoped for, but no backlogs in criminal cases, as had been feared. In fact, such cases were disposed of faster after the ban went into effect (although, at the same time, a backlog began to develop in civil cases).


How did Alaska keep its courts from being swamped by criminal trials without the supposedly essential practice of plea bargaining? Unlike urban courts already streamlined to cope with heavy case loads, Alaska courts had sufficient slack to absorb more trials. Efficiency techniques instituted 16 months before the ban continued to whittle down court delay. More careful screening out of weak cases also helped. But the main reason Alaska’s courts could keep up is that defendants continued to plead guilty in droves. The percentage of accused choosing to exercise their right to trial increased only from 6.7% to 9.6%. Why? “Because defendants know they have nothing to gain by going to trial,” says Stevens Clarke, a University of North Carolina professor of public law and government who monitored the study. Making a judge sit through several days of trial, especially if the defendant has perjured himself, can only bring down a harsher sentence than if the defendant had just pleaded guilty to begin with. “To me, that’s still plea bargaining,” says Colorado’s Alschuler. “That’s the loophole in the Alaska ban.”


Another problem concerns the length of sentences. Alaska Attorney General Avrum Gross says his decision to abolish plea bargaining was strongly influenced by a 1975 case in which a “violent killer” plea-bargained a murder charge into manslaughter and was promptly released, since he had already served 18 months while awaiting trial. Instead of violent criminals getting tougher sentences under the ban, only drug offenders and people accused of minor property crimes ended up going to jail, more frequently or for longer terms. “The ones who really got socked were the low-risk offenders,” says Clarke, “the ones with no prior record or whose crimes were not aggravated.”

In short, acknowledged Clarke, the Alaska ban did not change the status quo all that much, and the merits of what it did change are open to debate. But the Alaska experience does underscore a blunt reality of criminal justice. As Chicago Law School Dean Norval Morris puts it, “Most defendants plead guilty because they are guilty.” And if that is so, say Morris and others, perhaps the real question is not so much whether plea bargaining deprives the accused of his right to a jury trial, but whether he gets a fair and rational sentence.

Presumably, judges should decide sentences. “After all, they are the impartial figures in the System,” says Yale Law School Professor Abraham Goldstein. But in plea bargaining it is generally the prosecutor and not the judge who in effect decides whether and for how long a defendant is going to jail. Indeed, American Bar Association standards forbid judges to participate in bargaining, because the defendant would feel coerced to accept the judge’s recommendation. Whether judges do participate varies from jurisdiction to jurisdiction. Often, says Alschuler, they do it implicitly, with veiled threats, cajolery, hints, nods and winks.


Reformers like Alschuler and Morris think that judges should be involved in plea bargaining. Rather than prosecutors making deals based on a “rap sheet” and an arrest report, negotiations should be done out in the open, with the defendant present and with more thorough pre-sentence investigation. Others question whether judges are any less arbitrary than prosecutors and look to mandatory sentences fixed by legislatures as the answer.


No matter who decides sentencing, says Richard Kuh, former New York County D.A., the focus of plea bargaining should not be on “spinning the revolving doors of the courthouse.” It should be on “the defendant’s rehabilitation or the public’s protection.” Says Chicago Law School Professor Franklin Zimring: “Because of plea bargaining, I guess we can say, ‘Gee, the trains run on time.’ But do we like where they’re going?”

Criminal prosecution in sheep’s clothing: the punitive effects of OFAC freezing sanctions

Criminal prosecution in sheep’s clothing: the punitive effects of OFAC freezing sanctions

by Vanessa Ortblad, in Journal of Criminal Law and Criminology, Summer 2008


The first response to the September 11, 2001 terrorist attacks on New York and Washington D.C. (9/11) was the financial war on terror. On September 23, 2001, President Bush exercised his authority pursuant to the International Emergency Economic Powers Act (IEEPA) (1) to issue Executive Order 13,224 (2) in which he declared a national emergency and drastically expanded his abilities to freeze assets in order to cut off funding that would support terrorist activity. The Bush Administration used its expanded powers liberally to achieve quick results in its war on terror. While it is not uncommon to hear criticism of the United States’ war against terrorism in Afghanistan or Iraq, the United States’ financial war on terror has not received much scrutiny. A lack of oversight in the financial war has resulted in the government freezing assets of individuals and entities with minimal supporting evidence, without notice, and without due process.

Prior to 9/11, the IEEPA gave the President authority to designate a person or entity he considered a national security threat, freeze their assets, and block transactions between them and U.S. persons. (3) Executive Order 13,224 and later the USA PATRIOT Act expanded Presidential powers such that the executive branch can freeze assets of persons or entities that supported or otherwise associated with terrorists; the executive branch can submit classified evidence in camera and ex parte; and the executive branch can block assets during the pendency of an investigation. (4) The effects of this expansion of power have been unfairly punitive.

This is not to say that freezing assets is not effective against terrorist funding. This tool can be very effective because it can be quickly deployed without warning. Furthermore, the administration views asset freezing as a preventive measure rather than a punitive measure. (5) Richard Newcomb, OFAC’s Director, has stated that “[e]conomic sanctions are intended to deprive the target of the use of its assets and deny the target access to the U.S. financial system and the benefits of trade, transactions and services involving U.S. markets.” (6) Once OFAC freezes an entity’s or individual’s assets, they are no longer accessible for use for any purpose, terrorist or otherwise. In effect, the freezing of assets is immediately punitive to the designated person, entity, or individual or individuals employed by the sanctioned entity.

The punitive effects would not be so controversial if every entity or individual that OFAC sanctioned had demonstrably been shown to be a terrorist or terrorist entity or to be otherwise intentionally financing a terrorist group. However, OFAC has frozen the assets of at least one entity that was later deemed to have no direct link to any terrorist group, a finding made in a monograph on terrorist financing prepared by the staff of the National Commission on Terrorist Attacks Upon the United States (hereinafter 9/11 Commission Financing Monograph). (7) Furthermore, as of this writing the United States has failed to convict any of the individuals targeted in post-9/11 freezing actions of actually financing terrorism. On October 24, 2007, the government’s latest criminal prosecution against the largest Islamic charity in the United States, the Holy Land Foundation, resulted in a mistrial. (8) Remarkably, the government’s goals may not include winning trials. In response to the Holy Land Foundation trial outcome, former United States Attorney for the Eastern District of Texas Matthew D. Orwig said, “I think the government won when it froze the assets and shut down the organization.” (9) Mr. Orwig may be right about the irrelevance of a trial verdict because of the difficulty in reversing an OFAC designation and asset-freeze.

Although a designee may appeal his case by writing to OFAC, he has no access to the information OFAC has used as a basis for freezing and, therefore, no ability to rebut this evidence. (10) Moreover, if a designee appeals his case in court, OFAC’s actions are afforded extremely high deference under both the Administrative Procedure Act (APA) and executive decision-making procedures regarding foreign policy and national security. (11) Furthermore, any evidence the prosecution may have is only presented ex parte and in camera. (12) Any semblance of a fair trial in this instance appears to be illusory.

What is most troubling about OFAC’s power is that it may freeze an entity’s assets with extremely little evidence. OFAC may freeze an entity’s or individual’s assets even when the supposed financier is merely under investigation for potentially financing terrorists. (13) When an individual or entity is under investigation, this means that OFAC does not have enough evidence to designate an entity or individual as a financier of terrorism. Nevertheless, OFAC may freeze assets based on suspicion alone. (14)

This Comment will focus on the evidentiary standard OFAC uses in freezing assets. Although OFAC does not publish its evidentiary standard, the standard may be inferred through several recent cases. This Comment will discuss: (1) the implications of using a minimal evidentiary standard in OFAC’s freezing process, through several case studies; (2) the punitive effects of the freezing process on individuals whose assets have been frozen or who are collaterally affected; and (3) the effectiveness of the freezing process as a whole. The Comment argues that OFAC lacks adequate evidentiary criteria for establishing that an individual or entity should be sanctioned, and proposes that this failure can be remedied through implementation by Congress of a clear evidentiary standard and of reporting requirements.

Read on


Serious attempt to intimidate Gitmo defense lawyers

Pentagon wishes to investigate Guantanamo defense lawyers

By Mike Lee, 26 May 2010

There’s a Defense Department bill now before the Congress. It contains a provision authorizing the Pentagon’s Inspector General to investigate the lawyers who have defended detainees at Guantanamo Bay. The bill would give power to the Pentagon to open investigations of the defense lawyersbased on “reasonable suspicion.” What exactly is that? “Suspicion” of what? The law would make any “reasonable suspicion” that a lawyer had generated what’s called, “any material risk” to a member of the military – or somehow violated the Inspector General’s “exclusive jurisdiction” or “interfered with the operations” of the world’s most secure lock-up, the US military prison facility at Guantanamo, subject to investigation. Can’t you see the fear in the Marine’s eyes that must have inspired this legislation? “Watch out guys, the lawyers are coming!”

Talk about overly broad and vague possibilities for prosecution – they can’t get any broader, any more vague than these. The authorization to open unfocused, unlimited, unending, unbudgeted – not to mention unconstitutional – investigations of lawyers who defend clients held by the US government must be denied by our citizen Congress. If Congress grants the Pentagon this power, who is to say what other tentacles of government will seize it next? As Arizona has simply grabbed federal jurisdiction onimmigration, which states will follow the Pentagon’s new powers by investigating those who dare come into their state courts representing criminal defendants? Where does it end? You don’t want to know.

When they began searching us at airports, frisking us, touching us in a way we would have found intolerable before, We The People did not stand up and say, “Stop! This is un-American.” Whether or not it was necessary and effective never entered our minds. 9/11! 9/11!

When they tapped our telephones and hacked our computers, put microphones in our homes and cameras everywhere – all without warrants – We The People did not rise up and demand our constitutional rights be observed. We didn’t even ask, “Why?” 9/11! 9/11!

When they arrested and detained people – without charges and with no end to detention – We The People failed to cry out, “Wait a minute. This is America. You can’t do that here.” Habeas corpus? Who knows what that is? Who gives a damn? 9/11! 9/11!

When our federal government decided to quite literally capture people, take them from their lives and families, suddenly and silently sending them to places most of us have never heard of, there to be tortured by methods most of us don’t want to think about – We The People didn’t make a sound. Not a peep. 9/11! 9/11!

When our new, “Change” administration openly authorized the murder of American citizens anywhere in the world, “labeling” them terrorists – with no trial – We The People said nothing. Murder? Sure. They’re terrorists aren’t they? 9/11! 9/11!

When a US Senator who nearly became our Vice President advocated stripping away an American’s citizenship – without due process – because the senator thinks the citizen is a terrorist, We The People expressed no reservations. No, we don’t even want to think about these things anymore. 9/11 was so long ago. We’re tired.

So, now when they’re coming for the last line of defense for the common man, the barricade standing between us and an outlaw government – thedefense lawyers – is it any surprise that We The People are nowhere to be found? Where is the outrage when we’re losing our freedom? Where are the freedom lovers – the Tea Party people – the leftists, the students? Anybody?

You don’t lose freedom in a flashpoint. It doesn’t disappear with a single cataclysmic event. Not even in a blitzkrieg, or with airplanes flying into the biggest buildings in your biggest city. You don’t have freedom one day and see it vanish the next. The imposition of the Omnipotent State is a slow, steady affair, and when done with the greatest skill, almost unnoticeable. Worst of all, this march toward tyranny may even be welcomed by many eager to mistake it for safety and security.

Freedom in America is the history of brave, independent defense lawyersready and willing to appear on the side of the individual, and when pitted against the enormous resources of the state, to wield in their defense the heavy weight of our Constitution. From John Adams’ defense of the Boston Massacre defendants, before our republic, and Edmund Randolph representing Aaron Burr, to John Quincy Adams, William Foster and Clarence Darrow, through Samuel Liebowitz defending the Scottsboro Boys, and all the way to the modern legal celebrities like Johnnie Cochran, Alan Dershowitz, Barry Scheck and Gerry Spence, we have respected the separation between attorney and client, lawyer and defendant. No lawyer providing a defense for the accused has ever needed to fear for his own safety or liberty as a result of that defense.

That is -until now. That slow and steady encroachment approaches the tipping point.

When you’ve lost your freedom, you’ll find your safety sorely gone with it. When you can no longer find a defense attorney, because there aren’t any – for fear they too will be prosecuted – what defense will you have against the Omnipotent State? Should Congress pass this defense bill, as is, none of us may be free or safe.

Secret evidence undermines right to fair trial

Secret evidence undermines right to fair trial

by David Mery,  

The right to a fair trial, an essential principle of the legal system enshrined in both domestic and international law, is limited by the use of secret evidence in judicial proceedings. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing.

The use of secret evidence has become all too common in deportation and terrorism cases. The Special Immigration Appeals Commission (SIAC) deals with appeal hearings against decisions made by the Home Office to deport someone on grounds of national security. When the government deems that the publication of some evidence could pose a risk to national security, appellants, and their counsel, are denied access to the full evidence against them. They cannot properly prepare a defence. To mitigate this situation, special advocates – state-appointed barristers who represent the detainees in closed sessions – are given access to the secret evidence. However they are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers.

This closed court process does not give confidence that the evidence can be properly examined or that it has been obtained in a wholly legal manner. Former Special Advocate, Dinah Rose QC describes the great difficulties she encountered taking evidence in closed sessions when the Home Office had applied to revoke a detainee’s bail on the basis of secret evidence: “I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.” [1]

The reliability of secret evidence is questionable; it may consist of hearsay evidence possibly obtained though bribery or coercion or even from torture. Information received from friendly countries, such as Pakistan, Algeria and the United Arab Emirates, as well as from Guantánamo Bay, likely to have been obtained through the torture of alleged terror suspects cannot be used in an open court in the UK. However, it can and has been passed as secret evidence. On the basis of secret evidence concealed from them, individuals – sometimes not even charged – have been detained in high-security prison units for years without ever knowing what they are accused of. Around 20 individuals are currently waiting for SIAC to hear their appeals against deportation, and several dozen have passed through SIAC since 2001. Some have been deported. Some are let out of prison, but given bail conditions so restrictive that they choose to risk torture instead by seeking ‘voluntary’ return to their countries.

Like SIAC proceedings, control orders – and the state’s defence against appeals to end or modify them – may invoke secret evidence. Forty [2], or more, have had to live under the severe conditions of the control-order regime (a breach of which becomes crime). With restrictions on visitors, use of phones or internet, these orders affect their families as well. They can have their property confiscated, bank account frozen, face travel restrictions and curfews of up to 16 hours per day. Their movement outside the home may be limited to a few streets. These conditions, continuing for years, have led some to contemplate suicide. Control orders can be imposed indefinitely, although they are renewed every 12 months. Seventeen such orders are currently in force [3].

When the government invokes national security as a ground to introduce the use of secret evidence, the accused has no chance. There is no way to challenge either the evidence or the decision to use it, whether it is justified or whether it is a politically motivated catch-all excuse. Gareth Peirce explains: “‘Security’ is such a dramatic yet ill-defined concept that those in power are able to curb criticism and shut down debate by invoking it and by claiming to possess vital knowledge (which cannot, of course, be safely revealed) to support their actions or policies. Those in power draw on traditions of deference and non-partisanship when it comes to security, making it unnecessary for governments to provide reasoned justification when security is said to be at stake. There is therefore a dangerous circularity to the entire process. Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is indispensable. The public receives only the barest of justifications, which it is supposed to take on trust, while the government machine ignores or short-circuits normal democratic processes.” [4] As the role of the UK in complicity with torture is being revealed little by little, we discover that “national security” is a convenient excuse to hide possible culpability by agents of the government.

SIAC is not the only form of legal proceedings to make use of secret evidence. Foreign Secretary David Miliband has repeatedly tried to stop the High Court from disclosing information about what Britain’s security and intelligence agencies knew of the torture of Binyam Mohamed. This case was only brought after the government refused a request by the lawyers to make public “secret evidence” that could exculpate Mr. Mohamed in an American case. Miliband has argued that publication would cause irreparable harm to Britain’s relationship with America.

A government proposal, in the Coroners and Justice Bill, to hold some inquests in secret where issues of national security were involved was dropped in May 2009, only after vociferous campaigning by CAMPACC, Inquest and other organisations. However, the government can also use powers under the Inquiries Act 2005 to substitute an inquiry for an inquest and to hold part of the inquiry in secret in inquests involving the military or, again, when questions of national security arise. Solicitor Louise Christian adds “Rule 54 of the employment tribunal procedures allows an order for secret evidence and “special advocates” even in employment cases. Government employees such as immigration or customs and excise officers from whom security clearance is withdrawn – all of whom just happen to be Muslims – are not told the reasons they have lost their jobs. Instead they are faced with secret evidence and orders for “special advocates” in their race discrimination claims.” [5] Secret evidence can also be used to refuse or revoke British citizenship – those affected have no right to know the reasons for these actions.

In February, the European Court of Human Rights ruled that when the open evidence is insubstantial and that the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. [6] This constitutes a violation of Article 5(4) of the European Convention on Human Rights, which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Earlier this month, the House of Lords ruled unanimously that the use of secret evidence to impose control orders on individuals in situations was a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights), that “everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.” [7] This reliance upon secret evidence by the United Kingdom has also been condemned by other international bodies including “the Eminent Jurists Panel” of the International Committee of Jurists, the UN Committee on Human Rights, the UN Special Rapporteur on Human Rights, the European Committee for the Prevention of Torture and the European Commissioner for Human Rights.

[1] Britain’s Guantánamo: Calling For An End To Secret Evidence; Andy Worthington.

[2] The United Kingdom’s Strategy for Countering International Terrorism

[3] Home Office rejects control order time limit; Alan Travis

[4] ‘Make sure you say that you were treated properly’ Gareth Peirce;

[5] Secret inquests, secret evidence; Louise Christian

[6] A and Others v. the UK [2009] ECHR 301

[7] Secretary of State for the Home Department v AF & Anor [2009] UKHL 28

Secret Evidence House of Commons Briefing

Secret Evidence House of Commons Briefing

By Frances Webber, 27 April 2009

A recent meeting in the House of Commons gave a fillip to the campaign against secret evidence in terrorism cases. In a packed committee room in the House of Commons, on 30 March 2009, MPs, lawyers, journalists, human rights campaigners and activists listened to testimonies (read by actors) from five men whose lives have been terribly changed and damaged by secret evidence. The five, from Algeria and Jordan, described how ordinary life ended when they were arrested, on suspicion of being terrorists, and taken to high security prisons, and how on their release their private and family lives were destroyed by requirements to stay indoors for up to 24 hours, to do without mobile phones or access to computers, to have their home searched at all hours of the day or night, to report to police and monitors several times a day, to have all visitors vetted, and to wear electronic tags. These conditions continue, and one man has been returned to detention, so the men could not be physically present at the meeting. Although all of the men had had hearings, none had been able to challenge most of the evidence against them, since neither they nor their lawyers had been allowed to see it.

The Special Immigration Appeals Commission (SIAC), where the Attorney General appoints ‘special advocates’ to hear evidence deemed too sensitive for the appellant or his lawyers to hear, is at the heart of the burgeoning system of secret evidence which hides collusion with torture or worse. Diane Abbott MP chaired the meeting, organised by a coalition of groups including CagePrisoners, Peace and Justice in East London, the Campaign Against Criminalising Communities (CAMPACC), the Muslim Prisoner Support Group, the Association of Muslim Lawyers and others. Liberty director Shami Chakrabarti gave a brief history of anti-terrorist legislation and called on MPs to reject a ‘British Bill of Rights’ which, she feared, would water down existing rights and remove rights from unpopular groups such as terror suspects.

Gareth Peirce, solicitor, pointed out that the twin evils of secrecy, and the torture that it covers, are disguised and buried behind the facade of national security, and contrasted the appetite for secrecy of UK state institutions with the openness of the US government in dressing suspects in orange, shackling and caging them – blatant actions producing visual images of cruelty and degradation which provide a clear focus for campaigners. Without such clear visual signs of cruelty, the secrecy and the complicity it hides embed themselves and grow, she said. Deference to government was positively dangerous, she added, and the government’s proposal for a secret inquiry into the allegations of complicity revealed by Binyan Mohammed and others was simply unacceptable.

Ben Ward, representing Human Rights Watch, reminded the meeting of the way so-called exceptional measures, supposedly designed for a particular one-off purpose, bleed into other areas. He urged MPs to strike down clauses of the Coroners and Justice Bill which allow inquests into deaths caused by state officials to be held in secret, away from juries and family members, and not only where there are national security issues but also where the evidence might be diplomatically harmful or for other so-called ‘public interest’ reasons.

Dinah Rose QC is a senior barrister with vast experience of SIAC, and her condemnation of SIAC as a place which is ‘not a court, if a court is a place where evidence is tested so that the truth can be discovered’, carried authority. She told a chilling story of how a mistake by the security services was behind control orders against two men. They (secretly) accused two different men of simultaneously using the same false passport to travel abroad in two separate cases. The mistake was only discovered by the coincidence that the special advocate was the same person in both cases; it would never have come to light otherwise. But even then, the security services denied that such a mistake was possible. She also described how the Secretary of State illegally detained the men after SIAC declined to revoke their bail, on the basis that she ‘disagreed’ with SIAC’s decision.

A fair sprinkling of MPs and peers attended the meeting, including veteran campaigner Lord Avebury and Tory shadow home minister David Davis. The lines were drawn to take the campaign forward. A serious challenge to SIAC and its secrecy, about which the Bar Council expressed concern in 1997, is clearly on the cards, and campaigners will expect to see renewed parliamentary opposition to the secret inquest provisions of the Coroners and Justice Bill. And the inquiry into complicity with torture must not be allowed to take place in secret. A thorough and public investigation into the uses of secrecy is called for if the rule of law is to be preserved in the country still lauded as the model for fair and open justice.

Frances Webber’s commentary was orginally titled ‘Campaign against secret hearings’ and first pubished on 2 April 2009 by the Institute of Race Relation’s news service. We are grateful to the IRR for permission to reproduce this article.

JUSTICE release daming report on secret evidence

JUSTICE release daming report on secret evidence

14 June 2009

Justice, an independent legal human rights organisation founded in 1957 have recently released their report on the use of secret evidence in the judicial system.  An Executive Summary the report details the following concerns;

• It is a basic principle of a fair hearing that a person must know the evidence against him.

• This core principle of British justice has been undermined as the use of secret evidence in UK courts has grown dramatically in the past 10 years.

• Secret evidence can now be used in a wide range of cases including deportations hearings, control orders proceedings, parole board cases, asset-freezing applications, pre-charge detention hearings in terrorism cases, employment tribunals and even planning tribunals.

• Defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in hundreds of criminal trials and is widespread in ASBO hearings.

• Since they were first introduced in 1997, almost 100 special advocates – lawyers prohibited from communicating with those they represent – have been appointed. Indeed, the government itself does not know how many special advocates have been appointed.

• This report calls for an end to the use of secret evidence. Secret evidence is unreliable, unfair, undemocratic, unnecessary and damaging to both national security and the integrity of Britain’s courts.

• In its place, this report sets out a series of recommendations that include the strengthening current disclosure procedures by the creation of public interest advocates to replace special advocates in PII claims; increasing the transparency of existing court procedures; and ending reliance on ‘reasonable suspicion’ in such proceedings as deportation and control orders.

For further information contact Eric Metcalfe, Director of Human Rights Policy,, direct line: 020 7762 6415

59 Carter Lane
London EC4V 5AQ
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Coalition Against Secret Evidence

Coalition Against Secret Evidence 

The use of secret evidence is another crucial matter upon which you may want to question the candidate at your door.  What answers will you get if you ask the person seeking to speak and act in your name:

  • Do you support indefinite curtailment of an individual’s liberty and family life without that individual (or their freely appointed legal representative) being made aware of the nature and extent of the evidence upon which their liberty has been curtailed and to challenge such interference.
  • Do you support the deportation of an individual to a country they have already been granted asylum from or where it can be shown that torture is systemic and carried out directly or indirectly by its government.
  • Do you agree with the conclusions of the parliamentary Joint Committee on Human Rights (JCHR) March 2010 report on the effectiveness and abuse of current anti-terrorism legislation.
  • To what extent do you believe that a Memorandum of Understanding between the UK and the national governments of Algeria, Egypt, Ethiopia and Jordan meet the UK’s obligations to protect the fundamental human rights of an individual that is to be deported to one of these countries
  • Do you believe that the use of secret evidence has a role in employment tribunals, parole hearings, anti-social behavior proceedings, planning applications, enforcement of local by-laws concerning litter, noise and other environmental concerns.

Write to the election campaign office of the person or the local constituency office if they are already an MP, the address  should be on any election material they send you.   Ask these questions of the people helping to run the candidate’s election campaign, they too should know the views of the person who wishes to speak and act in your name.


The presumption of innocence is dead

The presumption of guilt

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. The presumption has been traced by some to Deuteronomy and there is evidence that it was embodied in the laws of Athens and Sparta. “Better than 10 guilty persons escape than that one innocent suffer“, says Blackstone [see here for a summary of the history of the presumption].

It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. I’ve often employed Emperor Julian’s response, reproduced above, in answering the cocktail party question.

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.

22tweets, a creation of  Lance Godard, asked those who were featured in last week’s Blawg Review one question on twitter. Mine was: “What would you say is the most difficult aspect of being a public defender?”*

As I pondered that past the deadline for a response, I cycled through the regular ills of a pd system: a lack of funding, crushing caseloads. But that’s not difficult. It’s a burden, to be sure, and an impediment, but one that can be overcome.

The most difficult aspect for me, then, is this. This wretched presumption that hampers and stymies and confounds at every step of the way. This presumption that takes what would be an obvious case of injustice and turns it into a fight for a dismissal.

Take it a step at a time: the State (or prosecution, if you prefer) has already made up its mind about the defendant’s guilt. They’re initiating a criminal prosecution. In their mind, they’ve already convicted the defendant. That’s the hand they’re playing from.  “Why should I believe your client?” “You think a jury’s going to buy that?” “Oh, that’s his alibi?”

Skepticism and disbelief reign supreme. We have to prove to them that their initial assessment of the defendant’s guilt is incorrect. The burden is shifting.

The media coverage, if any, is almost always slanted toward the prosecution. Unbiased, non-sensationalist reporting is almost non-existent. The press plays a subtle role in shaping the opinions of the jury pool.

But there’s always the trial, you say. A determination of guilt or not-guilt to be made by a jury of “peers”. All 6 or 12 of them are indoctrinated about the presumption of innocence and all vow to uphold the State to its burden.

I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They’ve also been reading the same newspapers and watching the same news. There’s still this cultural divide between “them” the defendants, and “us” the jurors. Someone’s been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?

The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well…

If you had a client in whose case you believed the State’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?

I have this belief – it may be a naive belief – that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.

It is human nature to want to hear both sides of a story and then decide which one is more believable. To force the jurors to perform their duty in a manner that is contrary to this human need is merely wishful thinking, no matter how forceful the instruction from the judge.**

The presumption of innocence exists in name only; a lofty ideal that we can thump our chests about and shout from rooftops. Look at this fine example of how just we are as a society.

The real truth, hidden in the backrooms of courthouses and in the ugly, dirty trenches of everyday warfare is quite different. Every morning, the defendant and the defense lawyer face a nearly unsurmountable task: overcome the fact that almost everyone but you thinks your client is guilty.

[*If you have a better response to that question, leave it in a comment. I’d be glad to hear and discuss it.]

[**Maybe, must maybe times are changing with the proliferation of DNA exonerations and wrongful convictions. But I’m not yet convinced. And DNA evidence is surely a double-edged sword for the defendant. Somewhat akin to Rule 34 is the Rule of DNA: If there is DNA, he is guilty. Oh, and Google Rule 34 at your own risk.]

Canada: CSIS probe will affect Crown’s terrorist case against Harkat

Canada: CSIS probe will affect Crown’s terrorist case against Harkat

Andrew Duffy
Ottawa Citizen, 6 June 2009 

A government lawyer conceded Tuesday that the terrorism case against Mohamed Harkat could be narrowed by a Federal Court probe into the mishandling of evidence by Canada’s spy agency. 

That process begins Thursday when Justice Simon Noël will hear arguments in camera about how to conduct his inquiry. 

Noël said he wants to “get to the bottom” of how and why the Canadian Security Intelligence Service failed to disclose “significant evidence” about a key informant in the Harkat case. 

The public phase of Harkat’s terrorism case was supposed to begin this week, but is now on hold pending the outcome of Noël’s secret inquiry. 

Government lawyer David Tyndale said expert witnesses, scheduled as part of the public phase, could go ahead with their testimony. But he cautioned that their evidence could be influenced by the findings of Noël’s inquiry. 

“It may be the allegations against Mr. Harkat look a little different after we’re finished with the closed hearing,” Tyndale told court. 

Harkat lawyer Norm Boxall said he wants to know more about what’s at stake in the secret hearing, but he believes some allegations may be withdrawn against his client because of CSIS’s conduct. “This is going to help Mr. Harkat for sure,” he said. 

Last week, in a written order, Noël slammed the agency for failing to disclose evidence about the reliability of an informant in the case. That evidence, some of which dates to 2002, had not been presented to the judge, even though he had asked specifically about the source’s reliability. 

Noël began hearing secret evidence in the Harkat case last September. 

CSIS is conducting an internal review to determine how the incident occurred. 

Noël, meanwhile, has said he will recall several CSIS witnesses as part of a full review of the Harkat case to determine if other steps have to be taken to preserve the court’s integrity. 

“The integrity of the process, that is a deep concern of mine,” Noël said Tuesday, “not only for the case that is proceeding in front of us but also for the institutions at play: the judicial system and CSIS.” 

The judge said he does not have the power to review the conduct of CSIS during Harkat’s first security-certificate hearing. 

In that case, Justice Eleanor Dawson found it reasonable for the government to conclude Harkat was an al-Qaeda sleeper agent. But the 2005 finding was later overturned by a Supreme Court ruling that deemed the process unfair. 

Noël invited lawyers to suggest other ways to probe the spy agency’s conduct before Dawson. He noted that both the Security Intelligence Review Committee or CSIS’s Inspector-General could be asked to examine the matter. 

“I just don’t want to leave this aside,” the judge said. 

CSIS lawyer André Seguin suggested that Noël include the matter as part of his own legal inquiry. He said CSIS would “co-operate fully” in that process. 

Noël also heard evidence Tuesday related to last month’s Canada Border Services Agency raid on the Harkats’ home. 

In that raid, the agency used 13 border agents, three police officers and three sniffer dogs to search for evidence that Harkat violated his bail. One dog was capable of detecting explosives, another was sensitive to firearms and another was able to sniff out caches of money. 

Agents seized 12 boxes of material, including a home computer, more than 200 floppy disks, 29 videotapes, a family photo album, a newspaper article, a birth certificate and three of Sophie Harkat’s personal agendas. 

The raid was launched, court heard, with Sophie Harkat still in the shower. 

“Mr. Harkat was very co-operative,” Jasmine Richard, a supervisor with the border agency, testified. “Sophie Harkat, at the beginning, had to be calmed down.” 

Richard said she used 16 officers in order to conduct a thorough and efficient search. It lasted almost six hours. 

The search was launched, she said, to test whether Harkat was abiding by bail conditions, which among other things, prohibit him from using a computer, communicating with jihadists, or possessing weapons or explosives. 

Outside court, Harkat defence lawyer Matthew Webber said he believes the search was illegal. 

Under terms of Harkat’s original bail order, border agents had the right to enter and search his home without notice. Webber said such a widespread search should have been authorized by a judge. 

The hearing continues today. 

UPDATE – June 5 

Canada’s spy agency failed to tell a Federal Court judge that a key informant in the Mohamed Harkat terrorism case flunked a lie detector test in 2002. 

That revelation is contained in a top secret letter made public Friday by Federal Court Judge Simon Noel, who is conducting a closed-door inquiry into the Canadian Security Intelligence Service’s handling of the matter. 

The letter, written by CSIS lawyer André Seguin, was delivered to Noel last week. In it, Seguin revealed that the CSIS informant underwent an agency-ordered polygraph because of concerns that he was “involved” with other intelligence agencies and militant organziations. 

The source told the truth when he denied working for anyone else – information that was conveyed to the Federal Court. But the source was asked other “relevant questions and the polygraph examiner determined that (redacted) had been untruthful on these questions.” 

CSIS sent the same polygraph results for a second assessment in 2008. None of that information was conveyed to the court, even though Noel asked a CSIS witnesses direct questions about the source’s credibility. 

Noel has been hearing evidence in camera since last September in the Harkat security certificate case. 

The federal government alleges the Algerian-born Harkat is a member of al-Qaeda. Noel announced Friday that he will be recalling three CSIS witnesses who have previously testified as he investigates the spy agency’s conduct. 

Meanwhile, CSIS announced the agency is conducting an “exhaustive review” of all of the court material it has filed about its informants in Canada’s five security certificate cases. 

The spy agency must file a matrix about each informant it relies upon during in-camera court hearings. Each matrix is supposed to include all relevant information about the source so that a judge can determine whether the individual’s evidence is reliable. 

“The failure to include relevant information in the source matrix was inexcusable and is a matter of profound concern to the service,” CSIS lawyer Michael Duffy wrote in a letter to the chief justice of the federal court. 

Duffy said CSIS recognizes the omission in the Harkat case “may give rise to concern about the integrity of other source matrices” filed in the other security certificate cases. 

Harkat’s lawyer, Norm Boxall, said the latest revelation “puts the integrity of the whole process in serious doubt.” 

Harkat’s defence team is now considering a motion to stay the proceedings against their client.

Names of convicted offenders kept secret

International Herald Tribune
3 convicted in Germany for plot to kill Iraqi leader
Tuesday, July 15, 2008

BERLIN: A German court on Tuesday convicted three alleged members of the terrorist organization Ansar al-Islam of plotting to kill the Iraqi prime minister on a visit to Berlin in 2004.

A state court in Stuttgart sentenced the three to prison sentences ranging from 7½ years to 10 years for conspiring to murder Ayad Allawi, who was prime minister at the time, and for membership in the radical Islamist terrorist organization, which has been linked to Al Qaeda.

Two years after the trial began, the verdict was hailed by terrorism experts as a victory for German counterterrorism efforts and a sign that prosecutors can turn intelligence and widely publicized arrests into convictions in court.

A court statement said one of the men, identified only as Ata A., was "an important, leading member" of the terrorist organization with "regular close and trusted contact to the highest levels of the organization’s leadership." The man and his two accomplices, identified as Mazen S. and Rafik M., were arrested in early-morning raids on Dec. 3, 2004.

Investigators intercepted telephone calls and e-mails to gather evidence against the men. According to the court statement, the man identified as Rafik sought permission to carry out the attack against Allawi, who was scheduled to appear at an event discussing German-Iraqi economic relations at a Deutsche Bank building in Berlin. Rafik received approval from Mazen, after consultation with Ata, in a telephone call the night before the three were arrested.

"The severity of the decision demonstrates that the German justice system, when the evidence is sufficient, can send a clear signal against terrorism," said Rolf Tophoven, director of the Institute for Terrorism Research and Security Policy in Essen, Germany. But he cautioned that, although the decision was a "cornerstone in the fight against terrorism," hard-core Islamists "would not allow themselves to be scared by such decisions."

In a separate case, Germany was shaken last year by the arrest of three men accused of planning a major terrorist attack against American and German targets. The authorities seized military detonators and large amounts of potentially explosive chemicals.

Ansar al-Islam, a militant Islamic group that formed in the Kurdish region of northern Iraq, has been blamed for suicide bombings throughout that country. Last year, an Iraqi Kurd was sentenced to two and a half years in prison for supporting a foreign terrorist organization by transferring over $10,000 worth of funds to Ansar al-Islam.

Bin Laden’s driver guilty as ordered

International Herald Tribune
Bin Laden’s driver guilty as ordered
Thursday, August 7, 2008

Now that was a real nail-biter. The court designed by the White House and its congressional enablers to guarantee convictions of detainees in Guantánamo Bay, Cuba – using evidence obtained by torture and secret evidence as desired – has held its first trial. It produced … a guilty verdict.

The military commission of six senior officers found Salim Ahmed Hamdan, who worked as one of Osama bin Laden’s drivers until 2001, guilty of one count of providing material support for terrorism.

The rules of justice on Guantánamo are so stacked against defendants that the only surprise was that Hamdan was actually acquitted on the more serious count of conspiring (it was unclear with whom) to kill Americans during the invasion of Afghanistan after Sept. 11, 2001.

The charge on which Hamdan was convicted seemed logical since he did work as bin Laden’s driver. But it was still an odd prosecution.

Drivers of even the most heinous people are generally not charged with war crimes. It is impossible, in any case, to judge the evidence against Hamdan because of the deeply flawed nature of this trial – the blueprint for which was the Military Commissions Act of 2006, one of the worst bits of lawmaking in American history.

At these trials, hearsay and secret documents are admissible. Hamdan’s defense was actually required to began its case in a secret session. The witness was a camp psychologist, presumably called to back Hamdan’s account of being abused by his interrogators.

Colonel Morris Davis, the former chief prosecutor in Guantánamo, put the trial in a disturbing light. He testified that he was informed by his superiors that only guilty verdicts would be tolerated. He also said that he was told to bring high-profile cases quickly to help Republicans score a pre-election public relations coup.

Davis gave up his position on Oct. 4, 2007. That, he wrote in The Los Angeles Times in December, was "the day I concluded that full, fair and open trials were not possible under the current system."

In his article, Davis described a highly politicized system in which people who were supposed to be neutral decision-makers were allied with the prosecutors. According to Davis, Defense Secretary Robert Gates pushed out a fair-minded "convening authority" – the official who decides which cases go to trial, which charges will be heard and who serves on the jury.

That straight-shooting administrator was replaced by Susan Crawford who, Davis said, assessed evidence before charges were filed, directed the prosecution’s preparation and even drafted charges. This "intermingling" of "convening authority and prosecutor roles," Davis argued, "perpetuates the perception of a rigged process."

Davis said the final straw for him was when he was placed under the command of William Haynes, the Defense Department’s general counsel. Davis had instructed prosecutors not to offer evidence obtained through the torture technique known as waterboarding. Haynes helped draft the orders permitting acts, like waterboarding, that violate American laws and the Geneva Conventions.

We are not arguing that the United States should condone terrorism or those who support it, or that the guilty should not be punished severely. But in a democracy, trials must be governed by fair rules, and judges must be guided by the law and the evidence, not pressure from the government. The military commission system, which falls far short of these standards, is a stain on the United States.


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The ‘rule of law’ in occupied Afghanistan

David Rohde and Tim Golden

Detained by the U.S. and tried by Afghanistan
International Herald Tribune, 11 April 2008

Dozens of Afghan men who were previously held by the United States at Bagram Air Base in this country and at Guantánamo Bay, Cuba, are now being tried here in secretive Afghan criminal proceedings based mainly on allegations forwarded by the U.S. military.

The prisoners are being convicted and sentenced to as much as 20 years’ confinement in trials that typically run between half an hour and an hour, said human rights investigators who have observed them.

One early trial was reported to have lasted barely 10 minutes, an investigator said.

The prosecutions are based in part on a security law promulgated in 1987, during the Soviet occupation of Afghanistan. Witnesses do not appear in court and cannot be cross-examined. There are no sworn statements of their testimony.

Instead, the trials appear to be based almost entirely on terse summaries of allegations that are forwarded to the Afghan authorities by the U.S. military.

Although President Hamid Karzai refused to sign a decree law drafted with U.S. help (sic), that would have allowed Afghanistan to hold the former detainees indefinitely as “enemy combatants,” the Afghan authorities have tried 82 of the prisoners since last October and referred more than 120 other cases for prosecution.
Although Afghan officials said the trials were not officially secret, they have allowed only thre outside obsevers – two human rights investigators and a representative of a local United Nations office.

The human rights investigators who observed the court’s operations described them as a perversion of the efforts by Afghanistan and the United States to rebuild and reform the Afghan judicial system after years of war, corruption and neglect.

“The files provided by U.S. authorities and the information in them would never have been admissible in a U.S. court or even a military commission in Guantánamo,” said Jonathan Horowitz, an investigator for One World Research, a public-interest investigations firm in New York that also monitored the Afghan trials.

In an interview, one of the justices of the Afghan Supreme Court argued that while the trials might have some flaws, they represented a fair process.

“All of these trials have been prepared by our friends from the United States,” said the justice, who uses the single name Rashid. “They have seen it themselves. We don’t have any doubts about the trial not being fair.”


CIA given permission to violate Geneva Conventions

Mark Mazzetti

CIA given leeway for [harsh] interrogations
International Herald Tribune, 28 April 2008

The Justice Department has told Congress that U.S. intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice (sic) Department to Congress on March 5 makes clear that the administraiton has not drawn a precise line in deciding which interrogation methods would violate that standard and is reserving the right to make case-by-case judgments.

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.