Rule of Law

US Decries Rule of Law in Afghanistan While Calling for Overruling Afghan Attorney General

Update: Reuters is reporting that the 65 prisoners were released on February 13.

Without a single hint of awareness of the irony involved, the US military yesterday released a statement decrying Afghanistan’s decision calling for the imminent release of 65 prisoners held at the Afghan National Detention Facility at Parwan, stating that the release would be a “major step backward for the rule of law in Afghanistan”. There are 88 prisoners over whom the US and Afghanistan disagree, but so far only 65 are subject to the current release orders (with the release order for 37 of the 65 dating back to January). Recall that an independent commission, headed by Abdul Shakor Dadras, has been reviewing the status of the prisoners handed over from US control. Despite US bleating that Karzai and Dadras are releasing hardened insurgents bent on returning to battle, it is hardly noted that over 100 of the prisoners have been ordered held over for trial and that the US has not disputed the release of hundreds of others (648 out of 760 reviewed as of January) against whom there was no evidence of crimes.

In their rush to transcribe the complaints from the US military, articles by the New York Times and Los Angeles Times quickly brush over the fact that the results of the Dadras board have been reviewed both by the Afghan attorney general’s office and Afghanistan’s National Directorate of Security, which is the main intelligence agency. In fact, the New York Times doesn’t mention the NDS review at all. From the Los Angeles Times article:

Afghan officials issued a sharp rebuttal, saying the attorney general’s office and the National Directorate of Security – Afghanistan’s CIA – had reviewed the U.S. information and found insufficient evidence to continue to hold the prisoners. “According to Afghan laws there is no information gathered about these detainees to prove them guilty, so they were ordered released,” Abdul Shakoor Dadras, head of the Afghan government committee responsible for the prisoner issue, said in an interview Tuesday.

The New York Times has also posted a document (pdf) purporting to lay out the evidence against the 37 disputed prisoners cleared for release in January. Remarkably, although the military is expressing concern for rule of law, there is a strong reliance on failed polygraph tests in the evidence cited. Of course, polygraph results are so unreliable that they are not admissible in most US states, but that doesn’t seem to matter to the military. Fingerprints and other biometric matches are also cited in the document for some prisoners, but whether these matches are strong or weak is not discussed, even though a court would be very interested in the level at which the match is said to occur. Similarly, evidence of explosive residue is cited for some of the prisoners without any discussion of how conclusive the test result was. Laughably, possession of firearms is cited for many of the prisoners, despite the fact that the country in which they live has been at war for over the last twelve years after the US military invaded.

Back in January, Dadras had this to say about some of the evidence:

Mr. Dadras said in an interview on Monday that he was only being true to Afghan law. He insisted that he had to discard any evidence that was collected without a defense lawyer present, which would appear to include anything in the suspect’s possession when captured. He also said he distrusted evidence collected years after suspects were detained, and was not persuaded when lab analysis found residue from chloride chemical compounds used in explosives. Suspects could have picked up the residue other ways, he said.

“The air is contaminated with chlorides, given the fighting; there is bombing and the wind,” Mr. Dadras said.

Returning to the US military statement, they do acknowledge that Afghanistan’s attorney general’s carried out a review of the disputed cases. However, they dismiss that review: Continue reading

SIGAR’s Sopko re $50 Million Sole Source Rule of Law Contract: “You Can’t Make This Up”

John Sopko

John Sopko

The Special Inspector General for Afghanistan Reconstruction (SIGAR) has discovered that the State Department has awarded a sole source contract for nearly $50 million to provide training on the rule of law in Afghanistan. Remarkably, the State Department ignored its own rules for contracting and provided no mechanism for verifying spending under the contract. SIGAR also has found that the International Development Law Organization, which was awarded the contract, is particularly ill-equipped to manage such a large contract and is refusing to cooperate with SIGAR’s investigation.

From the alert letter (pdf) sent to Secretary of State John Kerry from Special Inspector General John Sopko:

I write to alert you to serious deficiencies related to the Afghanistan Justice Training Transition Program administered by the Department of State, Bureau of International Narcotics and Law Enforcement Affairs (INL). In the course of performing an audit of rule of law programs managed by INL, SIGAR became aware of INL’s sole source award to the International Development Law Organization (IDLO) for Afghan justice sector training services. This award does not appear to contain basic provisions that would allow INL to ensure proper monitoring and evaluation of a project expected to cost U.S. taxpayers nearly $50 million.

On December 27, 2012, INL offered IDLO $47,759,796 in exchange for work on a project titled, “Completing the Transition in Afghanistan: Justice Training Transition Program (JTTP)” (see attached). On January 2, 2013, IDLO accepted INL’s offer by initialing a two-and-a-half page Letter of Agreement. According to INL, this is the largest project IDLO has ever worked on and the United States has already obligated $20 million towards its completion.

It is very easy to see that this is the largest project IDLO has ever worked on. Their website is pathetic. The “people” section lists only one person, Irene Khan, noting that she served as Director General of Amnesty International from 2001-2009. The page fails to mention that she was removed from that post and caused quite a scandal with the huge payout she forced Amnesty International to give her in order to leave.

Returning to Sopko’s letter, we see that IDLO was chosen to replace another organization, PAE (whose new Executive Chairman just came from CACI, scary folks there…) and that SIGAR had “significant concerns raised regarding award and management of the PAE contract”. It appears that the State Department can’t quite figure out how to observe the law in giving out grants to train Afghans on the administration of justice. Further, SIGAR found that the State Department ignored its own rule in awarding this contract in a manner that makes oversight almost non-existent, even though it did require oversight on the portion of the program that is contracted to the Afghan government.

Regarding IDLO itself, the letter is devastating (emphasis added): Continue reading

Handoff of Detention Facility in Parwan Marred: Afghan Government Places Higher Value on Rule of Law Than US

Following on the heels of the initial agreement that was virtually meaningless from the start, because the US still retained veto power of many of Afghanistan’s moves, the US today allowed Afghanistan to hold a “splendid” ceremony marking the “complete” handoff of prison control to Afghanistan. As might be expected, the handoff is not complete, and the US is still insisting it retains many powers the Afghans dispute.

Khaama provides a summary of the ceremony:

U.S. officials handed over formal control of Afghanistan’s only large-scale U.S.-run prison to Kabul on Monday, even as disagreements between the two countries over the Taliban and terror suspects held there marred the transfer.

Control of the jail has been hailed by Kabul as a victory for sovereignty, but analysts said it was largely a symbolic measure, as Nato prepares to leave Afghanistan after more than a decade fighting an insurgency.

/snip/

“I’m happy that today we are witnessing a glorious ceremony that marks the handing over of responsibilities of Afghan prisoners to Afghans themselves,” acting defence minister Enayatullah Nazari said.

Multiple reports point to the establisment of an Afghan system for prolonged detention of prisoners without charges as the primary area of disagreement. The New York Times provides the transcription of the US government’s position on the dispute:

The coalition would not say what its concerns were, but some Afghan officials have raised objections to the system of no-trial detention that the United States insisted the Afghan government embrace at Parwan. This system allows the continued imprisonment of wartime prisoners deemed too difficult to prosecute but too dangerous to release.

The Times provides no basis for how we are to understand that these detainees are both “too difficult to prosecute” and “too dangerous to release”. How are we to understand the danger these prisoners pose if the evidence against them is not tested in a court?

The Washington Post dances around the edges of this issue, suggesting that the US position is governed by classified evidence, but that this practice has drawn “international criticism”:

 The United States has held suspected militants for years on the basis of classified, undisclosed evidence, drawing international criticism.

Writing in Foreign Policy, Chris Rogers summarizes the situation in more detail, drawing on a report from Open Society Foundations (funded by George Soros), for which he is an attorney:

This partial handover has come at a high cost for Afghanistan: the creation of a new internment regime that will allow the Afghan authorities to detain without trial. A number of Afghan officials have called this new regime unconstitutional and fear it will be subject to abuse.

The creation of an Afghan internment regime appears to have been introduced largely at the behest of the United States, in order to facilitate the handover of U.S. held detainees, and satisfy the U.S. desire for a lasting internment system on the Afghan side into which it could continue to transfer future captures. Continue reading

Raining On The West Memphis Parade: Fundamental Fairness Denied

The West Memphis 3 are free!! Yea!

Three men convicted in the 1993 murders of three boys in West Memphis, Arkansas, were ordered released after entering new pleas following a court hearing, prosecutor Scott Ellington said Friday.

Damien Echols, Jessie Misskelley Jr. and Jason Baldwin pleaded guilty and were sentenced to 18 years in prison with credit for time served, a prosecutor said. They were to be released on Friday.

The three entered what is known as an Alford plea, which allows a defendant to maintain innocence while simultaneously acknowledging that the state has evidence to convict, Ellington said.

Cause for celebration, right?

Not here; I feel nothing but sweet sorrow because, while Damien Echols (who had actually been on death row most all of the intervening time), Jessie Misskelley Jr. and Jason Baldwin are free, a solid little chunk of the American justice system, due process and fundamental fairness was sacrificed in the process.

Let one of the three, Mr. Baldwin, speak for himself and me here:

This was NOT justice. I did not want to take this deal, but they were going to kill Damien an I couldn’t let that happen.

And therein lies the huge rub. The facts had never been particularly solid against these three once young men. They were brow beaten by avaricious prosecutors, sought to be lynched by a southern community ginned up on fear, horror and emotion and poorly served by their attorneys at the original trial level. In short, every facet of the American system of due process was compromised and tainted, and they have sat convicted, one on death row, ever since as a result.

Thanks to a litany of friends, motivated activist celebrities like Johnnie Depp, Natalie Maines and Eddie Vedder, and documentary filmmakers the cause of the West Memphis Three has never died. And, in fact, I would love to say that all that sweat, love and belief was vindicated today. But, sadly, that is simply not the case.

Yes, it is good, and truly heartwarming, to see “The Three” in sunshine. That said, justice and the rule of law are a little more dead for the effort if they are truly innocent. And the facts, including the key absence, indeed exclusion, of DNA evidence, now known – almost unequivocally – militate to a conclusion of innocence. While people should be happy, no thrilled, they are out of custody, I cannot believe there is not concurrent shrieking at the highest levels as to how exactly that has transpired.

Let’s be honest, no prosecutor in his right mind walks these three men out the front door of the courthouse if he truly believes they are guilty and there is even the slightest chance in hell he can make the charges stand up in a retrial. And no prosecutor lets them do it through Alford pleas. I do not care what kind of happy pablum they spew to the television cameras and press, it is really just that simple.

So, what we have here is nothing but a reaffirmation, ratification and craven ass covering of the original miscarriage of justice that railroaded the West Memphis Three. There will be no words of commendation here for the prosecutors, nor for Judge David Laser for giving the court’s imprimatur of propriety to this; in fact, they should all be questioned as to their ethics and morals.

This is nothing short of Mike Nifong making the Duke lacrosse players take misdemeanor pleas and register as sex offenders in order to save his precious reputation and job, and stop civil damage suits. Nifong did not get away with such depravity in Durham, and the prosecutors in Jonesboro Arkansas should not either.

Somewhere a gold lady with a set of scales weeps because another pint of her lifeblood has been spilled in Jonesboro Arkansas in the name of prosecutorial malice, vanity and civil damage mitigation. So many people have put their souls into this case, but the work is not over and the job not done yet. Because until the names of Damien Echols, Jessie Misskelley Jr. and Jason Baldwin are cleared in full, due process has been denied and fundamental fairness refused.

Going Astray – Obama and Nato Bombings in Libya

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words ”ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn's point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years. 

Emptywheel Twitterverse
bmaz @ScottGreenfield @ntswanson @JudgeKopf Yep. And no matter what, you have to admire that quality. And I do.
1mreplyretweetfavorite
bmaz @emptywheel @TimothyS @onekade Seconded again! Hey it is still dark out here, I am lagging....
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bmaz @matthewamiller I am ashamed of the naiveté of the American press. At worst, Snowden cast more light on RU surveillance than was before.
3mreplyretweetfavorite
emptywheel @onekade As opposed to "gag just ask nicely" here in the US.
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bmaz @ScottGreenfield @ntswanson @JudgeKopf Yes, sadly, it very much does. Then again, it is, I suppose, at least maddeningly honest.
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bmaz Not very satisfying RT @ScottGreenfield Oh boy.-->RT @JudgeKopf: Why does Kopf believes cops most of the time? http://t.co/VAemO3FW0B
11mreplyretweetfavorite
bmaz @nickmartin That fox has been guarding the henhouse for a long time.
16mreplyretweetfavorite
bmaz @emptywheel @onekade Todashev got the "final deportation" courtesy of the FBI.
18mreplyretweetfavorite
emptywheel @jeremyduns Thanks. Telling ME that is useless. As I only control my work. The vast majority of which is for emptywheel.
21mreplyretweetfavorite
bmaz @SBN_BillC @Travis_Waldron That is a FACT. Jeebus.
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bmaz @onekade Seconded! Thanks @TimothyS
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bmaz RT @onekade: So happy to see this @TimothyS op-ed in the NYT, calling for congress to investigate IC reliance on private spies. http://t.co
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