Why Drop Charges Against Al-Qahtani?
The AP reports that charges against Mohammed al-Qahtani have been dropped, suggesting that charges were dropped because he was tortured.
The Pentagon has dropped charges against a Saudi at Guantanamo who was alleged to have been the so-called "20th hijacker" in the Sept. 11 attacks, his U.S. military defense lawyer said Monday.
Mohammed al-Qahtani was one of six men charged by the military in February with murder and war crimes for their alleged roles in the 2001 attacks. Authorities say al-Qahtani missed out on taking part in the attacks because he was denied entry to the U.S. by an immigration agent.
But in reviewing the case, the convening authority for military commissions, Susan Crawford, decided to dismiss the charges against al-Qahtani and proceed with the arraignment for the other five, said Army Lt. Col. Bryan Broyles, the Saudi’s military lawyer.
Officials previously said al-Qahtani had been subjected to a harsh interrogation authorized by former Defense Secretary Donald H. Rumsfeld.
But that’s not right. After all, the remaining 5 detainees were also tortured. Heck, the government has even admitted to water-boarding Khalid Sheikh Mohammed. But he’s still going to get a show trial.
I would suggest that two things contributed to al-Qahtani’s charges being dropped. First, the disqualification of Thomas Hartmann last week may be related. As I suggested in my post on the disqualification, Judge Allred made clear that the charges against Hamdan could go forward because those charges were finalized before Hartmann came on the scene. But the charges in which Hartmann was directly involved–notably of the group of high value detainees that until Friday included al-Qahtani–would be affected. The government is now going to have to prove that those
6 5 detainees would have been charged even without Hartmann making decisions about whether to include evidence gained by torture.
Note that Allred’s decision is dated May 9, Friday, the same day Susan Crawford decided to drop charges against al-Qahtani, so if this was a response to the Hartmann disqualification, it was a very quick response.
But there’s another reason why the charges against al-Qahtani were dropped while KSM will still be charged: evidence that the torture against al-Qahtani didn’t reveal anything. I’ve not yet read Phillipe Sands’ book which details this at more length, but his interview with Bill Moyers on Friday makes this clear:
PHILIPPE SANDS:Well, I remember that very well. And I appreciated very much everything that Representative Franks had to say. But I’ve described that to my friends in London as a sort of Monty Python moment in the hearing. Because he alleged that there had been three individuals water boarded. They had been water boarded for no more than one minute each. And they had spilled the beans. And I was sitting there watching him and thinking, well, that’s new information. I’ve never heard that before. Where on earth does that come from? Counterintuitively, I can’t imagine how a waterboarding of one minute is suddenly going to produce useful information. We don’t even know if it is useful. But also, imagine the scene. You’ve got guys there with stopwatches. We’re gonna waterboard him for one minute, and then we will stop. And in that one minute, everything will come up. I don’t know where he got all that from. I thought he sounded as though he made up on the stop. We don’t have any objective evidence that any of these interrogation techniques have produced any useful information. KSM, you’ve referred to, has owned up to virtually everything under the sun that has happened that is bad for the United States in the last five years. And I find that counterintuitive to common sense. I would say I don’t have actual information on KSM. I do have actual information on detainee 063. I spent time, as I describe in the book, with the head of Mohammed al-Qahtani’s Exploitation Team. And the bottom line of it was, contrary to what the administration said, they got nothing out of him.
BILL MOYERS:There’s another witness who appeared this week when you did, David Rivkin, a lawyer, lots of government experience, lots of experience in the law. And he directly challenged you in his testimony.
DAVID RIVKIN: "I think that it is a moral copout to argue that coercive techniques did not work. Because if they don’t work, there would be nothing to debate. Coercive techniques do work. There’s plenty of evidence to that effect."
PHILIPPE SANDS:Look, Bill, I’ve spent 20 years during courtroom work as a litigating lawyer. I like to see evidence on things. I like arguments to be based on evidence. David Rivkin is unable to provide any evidence. I have honed in on the interrogation of one man, detainee 063. The administration has publicly declared they got a mass of information out of him that related to all sorts of extraordinarily important things to protect the Americans.
I then spoke to the people who were involved in his actual interrogation and the head of his Exploitation Team. That’s not what they told me. If the evidence I had been given had been different, then I would reach possibly a different conclusion. Not as to the legality or the utility of torture, but what do we do in the face of evidence that it works? But there isn’t evidence that it works.
PHILIPPE SANDS:So take Diane Beaver. I had written a previous book where I treated her legal advice. She had been the person down at the bottom who’d signed off on aggressive interrogation. I didn’t like her legal advice at all. I thought it was really bad advice and wrong advice. And I was rather uncomplimentary, perhaps even rude about it, in my last book. And then I met her. And she explained to me the circumstances in which she found herself. I don’t think it justifies what happened. But she described to me the pressure she felt herself under, the anniversary of 9/11 coming up.
This man, detainee 063, al-Qahtani, present and caught. Tremendous pressure coming from the upper echelons of the administration. She described to me a visit that the administration has never talked about in which the three most important lawyers in the administration, Mr. Gonzales, who’s the president’s lawyer, Mr. Addington, who is the vice president’s lawyer, and Mr. Haynes, who is Secretary Rumsfeld’s lawyer– came down to Guantanamo at the end of September, talked to them about interrogations and other issues, watched an interrogation, and left with the message, do whatever needs to be done. Now, put yourself in Diane Beaver’s situation. You’re getting a signal from the main man at the top of the administration: do whatever needs to be done. That takes the lid off and opens the door.
PHILIPPE SANDS:You’ve got different camps who are struggling down at Guantanamo. And I think it would be wrong in any way to give the sense that there was unanimity to move towards abuse or that there was even strong support towards moving towards abuse. There was a strong body of belief down at Guantanamo amongst the military community, amongst the military lawyers, with the FBI, with the Naval Criminal Investigation Service, that this is a bad thing. Abuse doesn’t work, abuse undermines authority, abuse undermines morale. We are going to stop it. Initially, they weren’t successful. But once the abuse began, a backlash followed. And the folks down at Guantanamo identified a man in Washington who was the general counsel of the Navy, a man by the name of Alberto Mora, who truly is a heroic individual, in my view, who intervened very courageously, no personal advantage, directly with Jim Haynes, and said, "This must stop. If it doesn’t stop, I’m going to reduce this into writing, and I’m going to cause a big fuss." And eventually, it did stop. But only after 54 days of abusive interrogation of Mohammed al-Qahtani, and not before the door had been opened, and the dogs had slipped their leash. [my emphasis]
Now, as the AP reminds us, al-Qahtani recanted the confession he signed after all this torture.
Al-Qahtani last fall recanted a confession he said he made after he was tortured and humiliated at Guantanamo.
Which, given that there are members of the Exploitation Team stating that "they got nothing" from al-Qahtani, suggests a key piece of evidence against al-Qahtani (his own confession) would be unusable. That means that, unlike KSM and the others, they probably don’t have enough evidence untainted by torture to try al-Qahtani (and possibly, the removal of Hartmann eliminated the one person who wanted to try anyway).
Just as important, look at how quickly al-Qahtani’s torture would introduce actions of top Bush Administration lawyers. Al-Qahtani was tortured because Alberto Gonzales and David Addington and Jim Haynes flew down to Gitmo and pushed Diane Beaver to write a memo authorizing torture. Al-Qahtani’s torture can be directly traced to Gonzales and Addington and Haynes and Rummy (and, thanks to Sands’ book, it’s all conveniently in one place). And that torture produced nothing.
They can’t try al-Qahtani because they have insufficient untainted evidence, but more importantly, they can’t try al-Qahtani because doing so will become a trial of Beaver and Haynes and Rummy, and doing so will expose that these people authorized torture even though it doesn’t work.
Update: Via email, here’s a statement from Center for Constitutional Rights, which is representing al-Qahtani:
The government is finally admitting what we have been saying all along, that the government’s claims against our client were based on unreliable evidence obtained through torture at Guantanamo. Using torture to string together a web of so-called evidence is illegal, immoral and cannot be the basis for a fair trial.
Mr. al Qahtani never made a single statement that was not extracted through torture or the threat of torture. The unconscionable techniques used on him are well-documented and were authorized directly by the White House. His torture log is a shameful window onto the depravity of this administration and the depths to which they have been willing to sink.
Mr. al Qahtani should be returned to the custody of the Saudi government, where they have a system in place to maintain custody of any former Guantanamo detainee who presents a danger, as well as a strong rehabilitation program supervising those that are released.
The Military Commissions are sham political show trials designed to do nothing but obtain convictions for the government. Col. Moe Davis testified to that effect in the Hamdan proceedings, and the presiding judge removed the legal advisor to the Commissions, Col. Hartmann, just this week for undue political influence. The Military Commissions allow secret evidence, hearsay evidence, and evidence obtained through torture, which violates every international and domestic legal principle of due process and fair trials. They are designed to hide the criminal conduct of U.S. personnel and to obtain nothing but convictions.
The White House will face the same legal and moral questions with any trial under this system.
We call on the government to send Mr. al Qahtani to Saudi Arabia, where he belongs, and end the failed experiment that is Guantanamo. [my emphasis]
You’re probably right, but there’s the other possibility: that he’s innocent.
By the way, even though they said they were acquitting him, they didn’t mention releasing him, did they?
Nothing I said excluded the possibility he was innocent.
I still think you’re right, for all these trials. There’s no other reason I can think of why there have been no trials for anyone there. It seems pretty clear that they tortured them all, and now their evidence is tainted. And because it’s taken so long to do anything with them, just holding them for that long, in the way they did, amounts to torture. Now they don’t know what to do.
Yup–and particularly with someone like Qahtani, against whom they presumably have little real evidence, what can they do?
Say they’re sorry?
They’re discovering that having evidence before you accuse someone really comes in handy. And having evidence before you torture–contrary to what Scalia suggests–also advisable (goes without saying skipping torture altogether is advisable).
Of course, charges against al-Qahtani have been dropped. But the govt is still making a third attempt against the Liberty City defendants.
It’s hard to imagine what they were thinking with Guantanamo. I mean, if they wanted to torture these guys because they genuinely thought they had evidence (or not), there’s plenty of lower profile ways they could have done it. The incompetence is staggering.
This administration is a great example of an almost complete disconnect with reality. The feedback loop between facts and feelings was utterly missing in most of the decisions made by this administration, from top down. Amazing to me is the sheer number of people impaired, and how strongly they defend the impairment in thinking, reasoning, and fact collection.
Once they have engaged in the said behavior the shame of it forces them to defend it and rationalize it. (I am giving Rummy way too much credit here, because I do not believe that he or his pres have shame or conscience about this) but the damage to those who did experience shame, will be staggering and may take years to bubble up. This truly is a national travesty with grave long term consequences.
Sounds like he could still be a witness against Rummy and crew irt authorized torture no matter what. Additionally, maybe John Durham may want to talk to him.
You know, while McC and I were on our walk, I kept wondering what al-Qahtani’s lawyer intended by this comment:
Presumably, much of the evidence against al-Qahtani, aside from his own confession, came from some of these other detainees. So why would al-Q’s lawyer make sure he had spoken with their lawyers first? To tell them the govt had admitted that they had been tortured? To tell them to go after Hartmann’s involvement? I don’t know, but I’m really curious.
”… they can’t try al-Qahtani because doing so will become a trial of Beaver and Haynes and Rummy,… ”
but you leave out the three more important who would be tried:
Addington, Cheney and Bush.
And, FWIW, remember that the Situation Room Cabal, which additionally included Rice, Powell, Ashcroft, Tenet, and others, sat around a table (with Bush listening in by speakerphone, most likely) and debated whether, when, how, and how much to torture al-Qahtani (and KSM, and all the rest).
And, FWIW, remember too that the torture took place in black sites, overseas, which would also implicate the governments of friendly foreign powers, such as Thailand, Poland and Rumania.
All that would come out, under oath, before the press, in open court.
There is no way any of these tortured captives can ever be tried. It’s just a matter of time until the rest of the cases fold up – watch.
This line of thought leads to the conclusion that these prisoners cannot be tried because of what will come out @ trial, but also can never be released, for the same reason…
Bmaz & others posed the question on previous threads- What happens now to someone like an al-Qahtani- cleared of charges but still being held?
There have been a few cases lately where Afghans were released from Gitmo, only to face a “trial” in Afghanistan, though Karzai is none too happy.
They send them back to a country that has an authoritarian regime, where they either kill him, imprison him, or imprison him and then let him escape. That’s what’s been happening, isn’t it? Except for the few from Australia and the UK. One of them somehow wound up bombing our troops in Iraq and died doing it, which all sounds very convenient to my skeptical way of thinking.
I agree the other ones may well fold up.
But remember–al-Q was tortured on “US” soil, at Gitmo. The others were tortured in black sites, but not al-Q.
More on the Khadr clan and the issue of torture and extraordinary rendition. Yesterday the Federal Court of Canada ordered the release of an RCMP memo from 2004 indicating that the US paid Pakistan a $500000 bounty for Abdullah Khadr (Omar’s older brother). The Canadian govt had resisted its disclosure for over a year by the Globe and Mail newspaper, and warned the paper that the release of the information could illegally reveal a state secret. The court recognized the importance of sharing intelligence among countries and the preservation of such confidences, but said that was outweighed by the public interest in the information and the relevance of the information to Khadr’s defence. Khadr’s counsel intend to use the memo to support arguments that admissions made by Khadr are tainted by torture, and thus prevent Khadr’s extradition to the United States on an indictment alleging material support for terrorism – he is not facing charges under the military commissions, but a US court, but it would be a significant thing for a Canadian court to deny extradition on the grounds of torture by the US or its surrogates.
From the Globe:
“Mr. Khadr’s lawyer, Nathan Whitling, said the memo is crucial. “The secret payment of this bounty is another illustration of the U.S.’s notorious practice of ‘outsourcing torture,’ ” he said in an e-mail.
“Rather than getting its own hands dirty, the U.S. simply paid the Musharraf regime $500,000 to arrest Mr. Khadr, knowing full well what Pakistan would do to him.”
When asked which U.S. intelligence agency paid the bounty, another one of Mr. Khadr’s lawyers said it was obvious. “The CIA,” said Dennis Edney. Asked if he had any doubt about that, he said, “none at all.”
Mr. Edney added that records show that the CIA questioned Mr. Khadr for 17 days at the beginning of his detention in Pakistan. Defence lawyers intend to argue that the CIA grilling sessions informed, influenced and tainted all subsequent interrogations, nullifying any admissions Mr. Khadr may have made.”
re ”never tried and never released” – I disagree.
The current administration cannot abide the possibility of either, since the administration and its members would be inculpated in criminality either way.
A future administration might not be able to try them criminally or in a military commission, but would be able to release them. I would suggest that bringing either criminal charges against the perpetrators/instigators of the torture, or a truth commission to expose everything which went on – both of which would bring the facts of the torture into the open – would provide sufficient justification for releasing them with an apology. Some condition of release – good behavior or the like – would probably suffice.
I would suspect that, regardless of the efficacy of torturing them to get admissible evidence at trial – there may well be a strong likelihood they would not be inclined to go back to their alleged previous terrist ways. I dunno and do not want to be seen as suggesting that treating people as these were treated is an effective deterrent to future undesirable behavior.
The important thing, though, is to handle the resolution of these cases in such a way that the individuals cannot be martyrs to whatever cause they might be considered martyrs.
Some random observations:
“Exploitation Team”, really? Why not just call them Inquisitors and be done with it.
Reading through the military analyst document dump reminded me that there are a bunch of folks in the military who signed off on saying that nothing done to al-Qantani violated U.S. law.
I suspect that the Bush Administration is planning on dumping a lot of people out of Gitmo before Jan 9, 2009. Their best hope from a PR standpoint is to release those guys and pray that the detainees commit terrorist acts before the Bushies are put on trial.
Torture by the USG is torture by the USG, wherever it took place. The distinction of having taken place on US soil at Gitmo as opposed to taking place in a black site is, to my eyes, irrelevant. The gov’t wants to use statements derived from torture – it matters not where the torture took place because the statement is still poisoned by the torture.
The only distinctions which I see possibly arising out of the torture taking place in a foreign country black site, are (a) a different set of USG characters involved, depending who was in the SitRoom Cabal when the various modalities were employed, and (b) the potential for differing levels of embarrassment to the various foreign governments involved, which would have different effects depending on where those governments now stand. Poland would, to my eyes, seem to have the most to lose, followed by Rumania and Thailand in that order.
Scribe – For the life of me, I cannot remember where I saw it, or what the exact nature was (if I see it again or remember, I will post an advisory to you), but I have seen some distinction that out torture regime has drawn in relation to this, and they do believe there is a difference between “on soil” and “off soil”. As a general matter, I agree completely with you; it doesn’t matter where or who, if done at the direct order of the USG, then it is the USG. They seem to have a theory for their madness, or at least think they do though.
EW – My take on it was pretty much a combination of the things you have mentioned plus drational. I do believe the drational part is in there as a factor though, because our torture regime is unduly focused on death penalty. As to the “without prejudice” part, no prosecutor, ever, wants to dismiss “with prejudice” unless forced to; it is just not in their DNA. Here, there is not a chance in hell they would make a dismissal with prejudice. Back to the evidentiary viability of the confessions for a moment. One of the adjuncts to the principle of corpus delicti is that no extra-judicial confession may be used against a defendant to convict without corroboration. I think they not only had no corroboration, but even more significantly, Sands is right that everything they got is pure shit. And they knew it and cannot afford to have that get out. Same reason they destroyed the torture tapes.
I think the reference is to the second Yoo torture memo. I don’t have a link on this computer, and if interested, I can get one and provide the language.
This is a move to secure execution of KSM.
They are just separating Al-Qahtani from the other 5 capital cases to remove the taint his well-documented torture would impute on the 5.
They will try him after the others have been convicted and executed. This administration gets to execute Khalid Sheik Mohammed et al, and the next administration has to deal with the torture-tainted failure to achieve death penalty for the “20th Hijacker”.
Fascinating theory, drational. Particularly given al-Q’s lawyer’s concern about talking with the other defense attorneys before he spoke about the reasons why al-Q’s charges were dropped.
Because this is a show for GOP electoral manipulation. I suspect the intention is that KSM and the others will be dead by October. Democrats will be forced to call for the “rule of law” and to stand “against torture” to stop the show, and GOP candidates will have fun with how Democrats love terrorists more than the patriots who died on 9/11.
Better get ready for flag pins.
You, correctly, note this is a propaganda exercise:
…. I suspect the intention is that KSM and the others will be dead by October. Democrats will be forced to call for the “rule of law” and to stand “against torture” to stop the show, and GOP candidates will have fun with how Democrats love terrorists more than the patriots who died on 9/11.
My answer to this, is the same answer I have to those who tremble before the argument that whatever the Executive orders must be legal, because the President’s word supersedes all written law.
Really simply – no Republican in his right mind (I know – don’t go there) will ever argue in a Court that “whatever the Executive orders must be legal, because the President’s word supersedes all written law.” The simple and short reason for that is – that is one argument they do not want to win if a Democratic administration is in office. They might win the acquittal for their crimes, but they’d never get to enjoy it because winning that argument means there is no need for Courts any more – anyone who offends the Executive would be exposed to termination with extreme prejudice – with no recourse.
Similarly, when the flag pins and stand up for the Rule of Law gets forced – I say “Bring it on”. This, for the simple reason that this gives the Dems the opportunity to remind the people of everything which the Ultimate Decider and his lawless lackeys have managed to f*ck up over the last too-many years. And, to remind the people that without the law, they’d be exposed to Bushie and his minions torturing them.
The administration must be held accountable because of the potential that some of these folks after being released engage in illegal behavior. If this occurs the only valid way to make it clear that this administration is partly to blame for this is to be in the process of trying them.
If we do not do this, the spin will be that these “bad” people were released because of the “bad” liberals that do not understand the depravity of these people. In my mind if we do not hold Bush/co accountable it will be spun against the dems and liberals for years to come. Instead if there are further atrocities committed by folks who were held at quantanamo…a legal procedure against Bushco will make it clear that these folks were “free” because Bushco failed to follow the rules of the world. He will be “the bad guy” in the primitive mind. Right now the blame is ambiguous and would be easily manipulated.
Their are many folks susceptible to this reality disconnect: “if we had just snuffed ‘em all out we’d all be safe”. There are plenty of primitive thinkers who would see this as the source of our problems and the current regime has done a beautiful evil job of harvesting those sentiments.
How would the lawyer know the reasons for the refusal to charge? Is there a written statement of the reasons? Was there a briefing?
Good question. What’s also interesting is the “without prejudice” part of this–I can’t help but imagine the govt would try to hold potential prosecution over his head so as not to help out the other 5.
But I guess that didn’t work.
I would imagine that being tortured and held indefinitely without charge–and the knowledge that your captors can make your life even worse–would be enough to keep him from helping out the other 5.
As to the larger point of whether or not we got anything useful out of him by torturing him, the answer is a simple “No”. This Administration would have trotted out a massive press conference if they had gotten ANYTHING useful out of this guy. Remember the capture of KSM? It would have been like that, only with fireworks.
Here’s a possible answer: they told him only that his client wouldn’t be charged, he guesses why they aren’t charging, and offers to make his client available to the other defendants as a witness. So, he could testify that he was tortured at Guantanamo, which would bolster their testimony that they were tortured overseas.
Certainly the lawyer wants to see the grounds for continuing to hold his client. He wants to know if the other defendants know anything. Now that he has something to offer them, they might be more willing to talk.
Omar Khadr’s (the other Khadr, the child soldier already charged at Guantanamo) U.S. military lawyer testified to a Commons subcommittee last month in answer to a question about what would happen to Khadr, anyway, even if he were acquitted:
EW, just a quick question… If they are dropping charges, on what grounds can they continue to hold him? Or are they planning on releasing him?
On what grounds were they holding him before?
A rhetorical question I assume, but nonetheless, BushCo has maintained the artifice all along that these prisoners would get “due process” via the military commissions once they were up and running. So if one of the poster children for this process is having the charges against him dropped, then he should expect to be released if such commissions really do have a process for determining whether someone is being held appropriately. I do not see how they can continue to hold him while the government tries to think up new charges, just because their first stab at it apparently didn’t hold any water. If they drop the charges and continue to hold him, they are blatantly revealing to the world what a farce these commissions truly are (not that that is news).
See “Bush Administration, 2001-2008″
Point taken : ) I should not have stated it in quite that way… My point is simply that the military commissions do not constitute “due process” for anyone being held. If you and I were arrested and held on suspicion of something or another, then they decided not to bring any charges, we would get to go home. But that is not the case here evidently. Bush can claim that all of the prisoners (aside from the first batch of 5) are simply waiting for their turn to receive their due process. Now we have one man who was part of that first batch, against whom charges have been dropped. If in fact he has received due process, he should be released. BushCo will have to invent a new cover story about what Gitmo is all about.
Which gets back to my original question, on what grounds is BushCo claiming the right to continue holding Al-Qahtani if they have dropped the charges against him? What new fiction have they created to assert their right to hold him?
Well Phred, then you may be surprised to know that there is a movement that has been underway for a while now to allow the indefinite civil detention of alleged sex offenders, even if the criminal charges have been dropped/dismissed or the defendant was acquitted. As always, “for the children” you know. so, once it is permissible for terrorist suspects and sex offenders, there really shouldn’t be any problem extrapolating to the rest of society’s offenses.
I am surprised. I didn’t know there was such a movement and I sincerely hope it is not successful.
tekel, for one coming off of finals, you’re hitting on all cylinders here : ) The connection between election-driven-show-trials and McCain’s candidacy really does beg the question of whether his own complicity in the passage of the MCA was motivated by his desire to be President. I have long thought that when the WH called him (along with Warner and Graham) on the carpet to get them in line on the MCA, that they must have promised to support his candidacy in return. I had not previously extended that thought to the possibility that BushCo is now using the MCA itself to gin up their show trials in time to make good on those promises of support to McCain.
WTF??? It was bad enough when an unfounded report of child abuse got you an unerasable mention on the Child Abuse Register for 20 years in my jurisdiction whether you were charged or not, let alone convicted (and this long predated the War on Terrah). Now detention as well??? It is like the way AGAG used the war on child pornography to campaign for intrusive searches on private computers and ISPs – of course, there wouldn’t be any other reason for this, right? /s
There actually is such a dedicated effort, although you will not find it publicly acknowledged as such very often. i was told of this several years ago by a judge here who was invited to meet with a very high powered national advocacy group because he was seen as a very tough sentencer on sex crimes (which he was, and is, but is still very traditional rule of law guy that was aghast at what he heard). The first step was the enactment of “lifetime probation” provisions for sex crimes, which are now ubiquitous. The next step is involuntary civil commitment for offenders that have completed their criminal sentences and are eligible for release; and this component is being actively pushed and implemented as we speak, with varying degrees of success to date depending on the specifics of the local attempt. And the attempts to expand that into what I described above are just starting to gestate.
They have been using civil commitment for sex offenders who have completed their sentences for several years already here in MN.
Coupling this question with others’ comments about the fate of detainees released to places like Saudi Arabia, I have been viciously attacked by this proposed piece of Bushworld Logic [sic]:
“Don’t you see? We have to imprison and torture them over here here so that they won’t be imprisoned/tortured/killed over there!”
A longer version is running through my mind, but I don’t even want to put it in words. I’m only tossing this out here so that if/when the BushJunta makes a similar announcement, I can say “Oh, FORK! I predicted it, but I was trying to be IRONIC!!!”
I promise to try to get through the rest of the comments before chiming in again.
From the Miami Herald article 5/12/08- 5 Gitmo Detainees to Face 9/11 Capital Case:
“No full-blown trial is expected before the end of the Bush administration. Legal experts predict lengthy pre-trial challenges in part because the government may rely on classified evidence…Moreover, Baluchi’s attorney, Navy Lt. Cmdr. Brian Mizer, said Monday night he was filing a motion to dismiss the charges on grounds of “unlawful command influence.”
No full blown trial for a while, of course, doesn’t preclude parading the prisoners in & out of court for various appearances from June through, oh, let’s say, the end of October. And the resulting MSM attention to same.
I hadn’t put together that al-Q’s lawyer is a CCR lawyer. They’re the ones who just complained that their discussions with detainees were bugged (which was always part of their wiretap suit as well). I wonder if there’s a connection there, too.
Damn Rosenberg is good–her reporting on Gitmo is much better than any else’s covering the show trials.
“Damn Rosenberg is good–her reporting on Gitmo is much better than any else’s covering the show trials.”
Also, she is the most bloggeresque with hyperlinks providing content that let her readers see primary data….
A gem MSM reporter.
This is high praise from both you and Marcy. Since Ms Rosenberg’s email is listed right under her byline, I just dropped her a grateful email and included a link to your shout-out. Don’t want the gem MSM reporters to get lonely and discouraged. Well, no more so than necessary…it can’t be easy to be surrounded by so many integrity- and/or competency-challenged turkeys (er, colleagues).
Thanks EW and everyone here for the information and discussion. I really appreciate the work you do. You make reliable information and analysis available to all of us non-experts who want to understand these complex topics.
What are the chances that ultimately the govt. can not proceed with prosecution because the commission finds that Gonzales, Haney and Addington exerted the same inappropriate influence on the prosecutions that Hartmann was found to have exerted? I don’t think the dust has cleared around the ramifications of moving ahead with evidence gleaned through torture especially in the climate that is apparently emerging among the commission judges.
The constitutional aspects of the commission making a stand are interesting inasmuch as the commission is in place as a facet of a legislative reaction to a judicial check on the executive.
I don’t think that can squelch everything. At some point (actual guilt and valid charges?) any “command” entity is going to want the prosecutor and forum to charge, try and convict a guilty accused. The fact that such is the case in an emotionally charged area like terrorism isn’t particularly shocking to the conscious unless it is coupled with inappropriate actions that serve to materially deny the accused due process.
Please – when you say
you make confusion between one of the funnier memories of my youth (Mr. Haney from Green Acres) and the DoD General Counsel for Torture And War Crimes.
Please refrain. This topic is too serious to be making friendly diminutive nicknames for the perpetrators.
Well, except that Mr. Haney may have better morals and ethics than Haynes; it may be an instructive comparison….
I did indeed confuses Haynes with Mr. Haney. Thank you for pointing this out.
Never the less the image of the executive branch is in play here. I am sure my confusion of Haynes and Mr. Haney was a subconscious unintentional conflation but this does reveal a theme I have been thinking about in terms of the public image of the presidency. In as much as Reagan intentionally exploited Imperial Roman forms in his public ceremony, the Bush administration has fallen back on a corporate image–marketing language, secrecy, buzz words placards in the production of public announcements. And this is in addition to the seduction of the primitive mind suggested earlier. Still the traditional media still deference to governmental pronouncements. Its a kind of “dignity of the office” theme. But the record is one of massive misleading, deceit and half-truths. From Libby’s lies, to Del’Orto’s attempted manipulations of Davis, to the 16 words, to Cheney’s selective leaking, to the Presidential statement about Abu Ghraib being the responsibility of “a few bad apples” and promising “transparency”, Gonzales’ parsing, Sampson’s failed memory etc. ad nauseam.
Though it is true that there is a gravity that is appropriate to charges of war crimes, seeing the administration as the flimflam artists that their actions require is a first step in a shift of public perception. And I do not wish to minimize this seriousness with levity in this context today. But when will the traditional media report the story of the unavoidably clear pattern of dishonesty that emerges here?
Just as Haynes said, “We can’t have acquittals, we’ve got to have convictions.” , the ‘Publicans are figuring that we can’t let anyone go as well. Anyone who lets a future terrorist free will be Willi Hortonized in the next election, count on it. So they are setting us up – show trials June through January, and then we’ll get the blame for any future malfeasance on the part of the released Gitmo guys.
Cynical? Yes. They have so politicized the whole process that in my opinion they will carry on with attempts at more politicization.
This fits with my first thought about this story:
Bush cabal needs a fresh identifiable boogie man “out there” to scare the people.
Thanks for the overview. I just came from reading the article in the Toronto Star on this and here you gave us the summary. Thank you!
I’ll post a link to the article I read in the Star…but I prefer your post better!
and here is the Globe and Mail story:
confuse even…was not an effort at satire….
Here’s another (long) Rosenberg story on why the govt won’t get their show trials before the elections. Complete with a story of how the CBC reporters almost got shipped out of Gitmo for trying to film an update.
Thanks for the link to Rosenberg’s other trial article on Monday. Always have appreciated her clarity & depth of coverage on the big ticket stories. One of the last times I bothered to bookmark anything from the PBS NewsHour was this 4/07 interview w/Rosenberg. The two analysts that follow her are Neal Katyal & our pal John Yoo:
Got to hit the trail. Read you all later.
Make that interview 3/26/07.
I just checked with CCR: al-Qahtani is the only one of the (originally) 6 detainees that CCR is defending, so it’s possible the wiretapping is also part of this.
I was just looking over their brief in opposition to the govt’s Glomar pleading. Maybe the govt thinks they are going to lose that FOIA case as well.
That’s what I’m thinking.
Also, in relation to the bit you picked up on earlier about @20 above about wanting to talk to the other detainee’s lawyers, keep in mind that because of the tapping/snooping, they only talk in person.
WO – They should lose that FOIA suit.
I agree. Even under Glomar, which was awful law, they don’t have a leg to stand on.
Please help out the ignorant here: Who filed the FOIA request, and what is it for?
The CCR (Center for Constitutional Rights, not Creedence Clearwater Revival, although they were cool back in the day) filed an FOIA request for records showing whether or not the lawyers of Gitmo detainees have been surveilled through warrantless wiretapping. Since al-Qahtani was the only one of the detainees being charged now who was there before the TSP was (allegedly) brought under FISA, if the govt loses the FOIA case, the prosecution against him would be untenable.
A link might help.
Just an interesting note:
the lead plaintiff in the Wilner case is the managing partner at Shearman and Sterling.
For many, many years, Shearman was (and I still believe is) the primary outside law firm for Citibank (in its current and prior incarnations). Just like Milbank, Hadley, et als. was the lead outside firm for the Rockefellers, and Sidley Austin was the lead outside firm for AT&T.
It would be nice for someone to start looking at which of the major law firms are providing these services to captives and which not. Maybe there has been some quiet payback dealt by the Admin to the clients of those firms which do – I recall an undersecretary of Defense (with a childish nickname I forget at this moment – Chucky or something) railing about how these corporate law firms were “hurting America”.
If corporate America (and its lawyers) are against Bush – maybe that fact might give a little more clarity to the coming flag-pin debate, too.
When you have Navy Jags, like Andrew Williams, very publicly resigning because of Hartmann…an understanding that trials have been politicized…another JAG – former USAG who has experienced being the victim of politicization, an investigation of missing torture tapes, and then Phillip Sands book…Well, I do not think I would want to be Hartmann, Rummy or anyone who signed off on the Yoo memo in light of al Q’s release…I think this can and will work against them. Any attempt at “show trials” has a great chance of backfiring.
Now, if only we could get the torture endorsers all on a plane to Spain…
EW and WO,
I know you both wrote about this in the past but thought it might be good to bring it back in light of the thread comments. And it’s a repeat of old commentary…
John Dean’s write-up on this FOIA back at the end of Dec. would probably agree too…they are going to lose the FOIA…
Not to confuse cases, but it seems like both the CCR and the ACLU could collide on al Q’s release…
I’ve got a legal question. If the government admitted they tortured (and that’s a big “if”), how on earth can the government still stand with Glomar on any FOIA right now with either the CCR FOIA or the ACLU FOIA?
As for why he had to speak with their lawyers first..I’m curious too.
Sorry to overlap the FOIA cases…I was thinking in thread earlier comments of the benefit his release would or could have on the ACLU FOIA, if any?
proofreader is my friend…
Here’s the bad new about all of this. One of the released prisoners played right into to the torturers hands.
Sorry I don’t have time to read all the comment right now, but I thought I’d add this.
Ooops, link didn’t work (work computer).
Old news and already discounted by the market.
I am going to need a whole hell of a lot more than the unsubstantiated stuff we have seen on this. I assume it is a complete fabrication.
That’s a relief! I wanted to s&*t when I first heard about it. Sorry I don’t have the time to vet this stuff, although I was suspicious about the only sources I saw when I Googled it.
Sorry, none of the reply works here; that was a reply to 60 & 61.
Qhatani is the only one who was tortured at GITMO (which per Rasul is subject to US courts’ jurisdiction and law – or was, at the time, before the charge to kill habeas at GITMO that Levin, Warner, McCain & Graham started with the DTA ended with a mobetta worldwide suspension of habeas in the MCA that Reid refused to fight).
Qhatani’s torture records have been seen by way too many people to just disappear them, and some of those who saw them were not scum and, unlike DOJ lawyers, may tell the truth.
By contrast, the direct torture evidence for those tortured at black sites is much more indirect and likely to fail evidentiary standards. Given the Padilla and Salah precedents of either just putting a mask on the torturers and putting all their evidence in as if it were real evidence, or destroying evidence after years of blacksiting and then having DOJ nd JAG suborn away to their hearts content, there will be no problems with the torture evidence as long as the proof of torture/coercion has been destroyed and hidden by DOJ and the Executive.
Qhatani’s case opens a bigger pandora’s box and since, with the DOJ we have now (and will have no matter who is president – it’s cultural now) it is perfectly acceptable to just buy and kidnap people and disappear them forever – and since Congress has signed off on the same crap with the “no penalties for nuthin” MCA, there’s no downside to not trying him. I’m sure all the patriots in what passes for a justice system will enjoy having him around for entertainment – balancing dog treats on his nose and making him bark. A GITMO entertainment feature. All the ex AGs and DAGs and Pentagon counsels etc. can round up their kids and grandkids and get pictures of them riding Qhatani around like a pony, with their little whips.
Who needs trials and courts? The Bush accolytes have found their pony.
I thought the MCA gave retroactive immunity for crimes only before December 31, 2005.
Ack. I’ve probably missed a signing statement or two.
I think these GITMO guys are basically, if not literally dead, because Bushco wants someone dead, and since they don’t have Osama (that we know of), KSM will probably be the poisonous sacrificial goat. When i was reading the 9/11 report my jaw kept dropping at all the stuff KSM was said to be responsible for. Now we know about Bush folk lies, the fact that Pakistan paid to stay out of the 9/11 report, torture, domestic spying, etc. Even if KSM was responsible for 1/10th of what the 9/11 report said, he is a criminal, but since the torture and all, maybe no death penalty should be invoked. They should definitely let his children (if they are still alive), go, smashed testicles and all.
Now that finals are over I’m trying to get back into the bloggy swing of things. I’ll freely admit that there are at least a few threads I haven’t read over the last five weeks or so- and please forgive me if this is too off-topic. But isn’t the whole Guantanamo Bay Show Trial Scheme authorized by the MCA of 2006? And didn’t John McCain have a huge hand in making sure that the MCA was passed, even without the specific prohibitions against torture?
If the Show Trial Scheme was in fact intended as a propaganda stunt for the November 2008 election, to what extent can the MCA be fashioned into an albatross to hang round John McCain’s neck?
And tekel, congratulations on making it past another painful milepost; the endpoint is that much closer. Hope all went well.
seems to me that McCain is involved in far too many “coincidences” for the American people to take anything he does at face value. And phred’s suggestion @ 71 is much more plausible given that the offered quid pro quo would have come in 2006 – Rove was still in the white house with “The Math,” Gonzo was still AG, we were still three or four months from the beginnigs of the Libby trial, a good nine months away from the first casualties of the credit crunch and 14 or 15 months from +80% “wrong track” polls.
How could McCain have known that a promise given in October of 2006 would be worth so much less only 18 months down the road?
And bmaz: thanks I’ll know in about 2 weeks. I took an antitrust class this term, from a very progressive professor who made his bones doing antitrust plaintiff’s work in the 70s and 80s. He painted a very clear picture of how things have changed since then…
and a general comment on the “lock ‘em up forever” trend: the whole idea of “equal protection” is so very 1960s. In our Modern America after the Year 2000, there is no more racism and police never make mistakes. There is simply no more need for the Fourteenth Amendment. You should thank Saint Ronnie for having the vision to anticipate our progress, so that he could appoint judges who would be ready to bring the law into line with the new reality.
“Mr. al Qahtani should be returned to the custody of the Saudi government, where they have a system in place to maintain custody of any former Guantanamo detainee who presents a danger, as well as a strong rehabilitation program supervising those that are released.”
Jesus, they’ll torture him for the hell of it and then kill him!! What are they thinking?
That if he disappears in Saudi Arabia he can’t testify against them…
And, yet, despite all the horrid things discussed herein that are done to incarcerate and punish some criminals forever; other
criminalssuspected cheats are set free to plague otherwise perfectly upstanding Leagues of gentlemen!
If mom comes looking for me, please don’t tell her I am hiding under the table!
Look, if the Pats want to tape signals, but spend all their time videotaping the cheerleaders’ boobs, it’s not really going to help them much anyway.
Something about those Giants cheerleaders, I guess…
I had to say something to drum up some excitement, am completely having withdrawal pains with no football…..
Ah football, that glorious ancient sport that ceased after the retirement of The Great One. Perhaps after an appropriate period of mourning for the loss of that exquisite game from that far (vrah) gone era, some faint shadow of it may yet be resurrected on emerald fields of grass ; )
And more importantly, on the Frozen Tundra! I have apologized to EW, but I have been having withdrawal pains and just couldn’t resist a little football trash talk….
Yep, me too ; ) I’ll stop now, I promise…
Awww. Football withdrawal. Go look here, to get little dose of Farve for yourself. This is about as mobile as he’s gonna be, from here on out.
It’s al-Qahtani’s own defense lawyers that want him released to the Saudis.
But The Bush Admin certainly has no impetus to let him go.
Here are some choice quotes from Rock Star Lawyer Clarence Darrow:
and perhaps this one is my favorite:
Seemed appropriate for this thread.
9 – interesting info Ishmael, thanks.
16 – Torture by the USG is torture by the USG, wherever it took place. The distinction of having taken place on US soil at Gitmo as opposed to taking place in a black site is, to my eyes, irrelevant.
The relevance has less to do with his trial at GITMO, as it does with the ramifications of the the testimony and evidence and, secondarily, the ability to even get to evidence that has not been destroyed or compel testimony from witnesses.
With respect to using “tortured” or “coerced” testimony at the trials, the first issue is how do you know (know in the evidentiary sense as a court – not in the ‘we all know’ sense) the statements resulted from torture? Well, for the blacksites, lotsaluck getting records and evidence. Apparently freezing a man bound in ’stress positions’ to death “for interrogation purposes” doesn’t even get a looksee by Congress (despite Priest’s public reporting), so who, exactly, has been making sure that records of treatment are available? DOJ has been busy making sure CIA destroys evidence – not too concerned with procution and preservation.
OTOH, with respect to Qhatani, there are a lot of people and records that can be obtained. So therein lies the big difference with respect to his trial, imo.
There is another round of issues too. Because the Qhatani ‘interrogation’ records are even more fleshed out and preserved than the Padilla ones (with DOJ never making any lit hold effort to preserve any of the information from the Pentagon review of abuses of Padilla and the other detainee in the So Car Brig) and because they are pretty on their face horrible, a trial of Qhatani puts him in his absolute strongest position to get clean and clear access to the “classified” depravity information of his interrogations and put that into evidence. Or, if Gov wants it kept out of evidence (and they do) they would have to do something military courts analogous what Comey did in el-Masri’s suit and file to keep it out as state secrets, but then they would seemingly have to drop charges (at least, in the fairy tale world where DOJ makes some minor attempt to follow the law or courts boot them in the backside and make them).
So if they keep the interrogation evidence out using state secrets, the charges may have to be dropped. If they allow the evidence in – – then that’s where the US jurisdiction becomes a larger looming issue.
Once there is evidence in about the interrogations, then the Torture Conventions and War Crimes Act come into play, at least the Torture Victims Act in a civil recovery sense and – if you had non-corrupt prosecutors, then the criminal provisions. And while Eisentrager has indicated that the US court has no jurisdiction actions taken by the USG on certain foreign sites, Rasul both calls Eisentrager into question and, in any event, specifically finds that GITMO is subject to US courts’ jurisdiction. So habeas notwithstanding (and a habeas case based on actual torture in the record and actual military conviction obtained using such actual torture is not one of the cases DOJ would pick to defend as a constitutional habeas challenge) a US court would have jurisdicion over the torturers and assaulters and abusers and coercers – – and their co-conspirators – – with respect to actions taken at GITMO.
All fwiw, bc with what DOJ has done to law and justice over the last 8 years, it’s not likely that any of it matters anymore.
Slightly OT. My understanding that the choice of GITMO for the siting of Camp Delta was precisely that it was not US Soil, and this avoided the risk of challenges in the US courts.
By the same token, what does this do for John McSame’s status as a natiral born American born in the Panama Canal Zone?
However, there will always be a Jon Yoo surrogate to provide a legal opinion.
Good point. So if Gitmo isn’t really US soil, then McCain isn’t really a natural born US citizen, and therefore is disqualified to run for President. Works for me…
Still, I would prefer Gitmo to be treated as US soil (as it should be) with all the legal rights for prisoners that that entails.