More Kangaroo Court Craziness

Not only did our Kangaroo Court in Gitmo decide that it’s okay to threaten teeenaged boys with rape to get them to confess, but it also announced that the sentence for Ibrahim al Qosi would remain sealed until he was released.

In one courtroom, Air Force Lt. Col. Nancy Paul, a military judge, announced that the length of Ibrahim al Qosi’s plea bargain sentence would be a secret until he was released. The judge then began questioning a jury pool of 15 senior American officers who would on Tuesday deliberate Qosi’s prison sentence.

So much for using the transparency of trials to win hearts and minds! David Iglesias, of the US Attorney firing scandal, is about to issue a statement on this secret sentence.

Then, back to Khadr’s Show Trial, the judge admitted a video crafted by a someone with little real experience in terrorism that has nothing to do with Khadr.

The other disappointing part of today’s hearing was that the government has once again introduced Evan Kohlmann as an expert on al Qaeda and related terrorist groups. The 31-year-old Kohlmann is an NBC news analyst who started his own company that provides reports on terrorist groups to corporations and media organizations, based largely on surfing the Internet. He admitted in court today that he does not speak Arabic or have an advanced degree in anything related to terrorism, Islam or Islamic extremism. He has an undergraduate degree from Georgetown University where he wrote his senior thesis on al Qaeda and Arab-Afghans. All of his research and writing on that and related subjects was based on information he found on the Internet. He appears to believe that his inability to speak or read Arabic did not hinder his ability to review or understand what he found. Kohlmann has created a video that tells the history of al Qaeda and its goals, based, likewise, on video clips and other public documents he’s found online.

Whether Kohlmann is accepted as an expert or not (he probably will be, as he has been in two previous military commission cases and in 16 federal court trials, all testifying for the prosecution), the real issue here seems to be what his expertise has to do with Omar Khadr. Kohlmann testified today that he knows nothing about Omar Khadr except the charges against him. From what I can tell, the defense isn’t contesting that the U.S. is at war with al Qaeda or that al Qaeda has tried to attack the U.S. repeatedly, including on September 11, 2001. But the prosecution isn’t alleging that Omar Khadr had anything to do with that attack, or any of the others that constitute the bulk of Kohlmann’s movie. So I don’t see how the 90-minute historical survey of al Qaeda and Islamic extremist terrorism is going to shed light on whether Omar Khadr is guilty as charged.

Just in case there were any doubts about this being a show trial or not.

And, from Daphne’s update, the Judge also accepted the US claim that killing a uniformed soldier during a war is illegal.

And finally — and perhaps most significantly — Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

Happy Monday! You can get more up-to-the-minute updates on the Gitmo Show Trials by following Carol Rosenberg, Muna Shikaki, and Daphne Eviatar on Twitter.

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  1. BoxTurtle says:

    Possible translation of “secret sentence”: He’s been sentenced to time served. We’re deporting him ASAP to a place where the government has promised not to hurt him.

    Boxturtle (On their word of Honor!)

    • emptywheel says:

      I think what’s happening is what Khadr said he was offered: there would be a “fake” sentence, but an agreement beforehand that it wouldn’t be the real one. Iglesias just said they WOULD announce the sentence once some person decides what it’ll be (not clear that the jury has anything to do w/sentence–they’re just for show).

      • bmaz says:

        That sounds about right; but when you look at your explanation don’t you think WTF? Seriously, this is so far afield from any recognized form of due process it is laughable.

        This IS Obama’s “new and improved system. Glad such an informed and dedicated Constitutional scholar as Barack Obama is leading this delicate process or, you know, it might not be fair. So we got that going for us.

        • emptywheel says:

          Something for Holder: the look (if you don’t LOOK too closely) of legal propriety.

          Something for Rahm: Arbitrary power in the service of feeding the haters.

      • Mary says:

        I guess you just hope that nothing happens to the guys who know what the sentence is – like they retire, forget about you, start drinking lime beers in Costa Rica, etc.

        I’ll toss in another possible a la Hicks – you get a sentence that is dependent upon you, while serving your sentence, not doing or saying things – like not making appeals or not claiming to be tortured, etc. A coercion sentence. And hanging over all that – indefinite detention anyway as long as Obama or Palin wants.

  2. PJEvans says:

    Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime.

    In any real court, the judge should be embarrassed by that ruling, and the defense lawyers should be able to shred it and then make the judge eat it.

    Also, I’d like to see Boies and Olson and their Prop8 team take apart that non-expert witness.

  3. skdadl says:

    Well, it’s not quite “Sentence first! Verdict afterwards!” but it’s close enough.

    To Col Parrish and his ilk: “You’re nothing but a pack of cards!”

    Or memories of Jim Haynes: “Acquittals? We can’t have acquittals!”

    *here skdadl redacts her own swearing*

    • fatster says:

      Given the years many of those detainees have been languishing in various US or allied prisons, it seems that the sequence f those events is: “Incarceration/Sentencing/Trial”.

      So, what’ll we call the fourth step?

      • skdadl says:

        So, what’ll we call the fourth step?

        We all know what it will be. They are creating a national-security nightmare for themselves; they are creating enemies and hatred.

        I don’t like to sound like that, but the illogic and the injustice leave me afraid of my own typing.

      • skdadl says:

        Who was it who declared “no one leaves Guantanamo innocent”?

        Reported by prisoner Fouad al-Rabiah, whose habeas testimony before Judge Kollar-Kotelly is summarized at the link by Andy Worthington:

        In about August 2004, shortly before my CSRT hearing [the tribunal at which al-Rabiah repeated his approved confessions in detail], my interrogators told me the CSRT was just a show that would allow the United States to “save face.” My interrogators told me no one leaves Guantánamo innocent, and told me I would be sent home to Kuwait if I “admitted” some of the false things I had said in my interrogations. The interrogators also told me that I would never go home again if I denied these things, because the United States government would never admit I had been wrongly held.

        And pretty much confirmed by Col Morris Davis’s report of Haynes’s directions to him:

        Davis told Tuttle that in 2005, Pentagon general counsel William Haynes said to him, “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.”

          • skdadl says:

            Unbeknownst to the Pentagon, there is a quiet little basement on the north shore of Lake Ontario where a lanky, pale young man labours away at arcane electronic glitches in his master-plan … (That would be my boss, trying to figure out how to fix my wonky internet connection.)

            People who have recently been in contact with him say he’s difficult to deal with because of his mercurial manner and unpredictable behavior.

            Can I testify to that or what? Empty ice cream cartons all over the place, but no, he’s never actually hungry. And I could go on …

            You’re trying to cheer me up, schweetheart, and I thank you for that. You know what I’m doing as a break from Col Parrish and torture and batshit crazy legal arguments? I’m watching old vids of “Cracker,” the British version with Robbie Coltrane, on YouTube. There’s something about domestic murder and mayhem that is such a relief after thinking all day about state sadism.

            How can this be happening to us? How? We had the Enlightenment. We had Nuremberg and all that was built from it. We have thrown that magnificent edifice away, just thrown it away. That was my life.

            • ANOther says:

              As the unofficial Canadian correspondent on this blog, the rest of us read your posts avidly. I suspect that most of us are in full accord. Thank-you for that. I get so angry that our government has abandoned Omar Khadr, then I read the comments on the Globe & Mail site and realize that there are votes in their stance, and then I get more angry.

              To calm me down, I found this. The death of Stan Rogers was an incredible loss to this country.

              • bobschacht says:

                To calm me down, I found this. The death of Stan Rogers was an incredible loss to this country.

                Aye, he was a favorite of my brother’s. I’ll forward your link to him.

                Thanks,
                Bob in AZ

              • skdadl says:

                I get so angry that our government has abandoned Omar Khadr, then I read the comments on the Globe & Mail site and realize that there are votes in their stance, and then I get more angry.

                The comments at the G&M can get scary, can’t they? I don’t want to believe that those are my fellow citizens, but there they are, some anyway, who sound as paranoid and xenophobic as any Glenn Beck clone. Last time I saw a Khadr poll, a majority believed the boy should be repatriated, but I think that Steve counts on general apathy when it comes to foreign affairs.

                Stan — such a great heart. We should have made that song our anthem while we still had him to sing it (although I think that brother Garnet still performs).

                In spite of October 70 (for which I hope he did penance the rest of his life), I still think that PM Fuddle Duddle did have a democrat’s constitutional convictions. He gave us the Charter at least — and the haters still hate him hugely for that. I hope that Steve goes to sleep at night gnashing his teeth over it.

            • MrWhy says:

              We also had Prime Minister Fuddle Duddle who famously said “Just watch me.”
              And PM Steve Harper, who ignores his Supreme Court when they tell him to do something he doesn’t want to.

  4. Mary says:

    @6 – It helps to think of him as a Catholic Priest instead of a Kangaroo Kourter – what happens in the Parrish, stays in the Parrish. They’re doing for the US what pedophiles did for the Church.

  5. Garrett says:

    And, from Daphne’s update, the Judge also accepted the US claim that killing a uniformed soldier during a war is illegal.

    And finally — and perhaps most significantly — Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

    A military commission under this chapter shall have jurisdiction
    to try persons subject to this chapter for any offense made punishable
    by this chapter, sections 904 and 906 of this title (articles 104 and
    106 of the Uniform Code of Military Justice), or the law of war, whether
    such offense was committed before, on, or after September 11, 2001, and
    may, under such limitations as the President may prescribe, adjudge any
    punishment not forbidden by this chapter, including the penalty of death
    when specifically authorized under this chapter.
    Military Commissions Act of 2009

    I think that the laws of war exist as the booklet put out by the Secretary of Defense.

    Not enough fuss and objection gets made about this. I’m glad to see it highlighted as significant.

    • bmaz says:

      Sure wish we could see the motion/pleading/brief papers supporting this horseshit. Because it is patently absurd on its face. Also, if Parrish’s conclusion that killing a soldier in a war is a war crime, how are the same soldiers Khadr is accused of attacking (other than the dead one) not also being tried for their war crimes for the killings they made in the same battle?

  6. hcgorman says:

    Someone sent me a WSJ account of the secret sentencing that announced al Qosi is getting two years and then being sent back to the Sudan….I of course wonder where he will do his two years if Gitmo closes? but i guess that is a question for another day.

  7. Mary says:

    This story may be (?) a bit of an update:
    http://news.yahoo.com/s/ap/20100810/ap_on_re_la_am_ca/cb_guantanamo_military_trials

    The military judge presiding over the case initially said Monday that al-Qosi’s sentence would not be revealed until after his release. But a spokesman for the prosecutors, Navy Capt. David Iglesias, said later that the official overseeing the offshore system will announce the sentence once it is formally approved.

    Looks like the plea deal was mostly so the guy could avoid what looks like an almost mandatory solitary.

    Now that it’s established that it’s a war crime (subject to secret sentences) to be a cook or driver, America will be safer.

    GObama!

  8. Frank33 says:

    Judge Parrish ruled that he is accepting the government’s statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side’s soldier in a war has never before been considered or prosecuted as a violation of the laws of war.

    Our neo-con Overlords actually admit there are such things as War Crimes. Or is this the only war crime that exists. Starting an illegal war based on forged evidence and false confessions from torture, is not a war crime. Committing murder against civilians as a feature not a bug, is not a war crime. Using depleted uranium and who knows what other poisons against the indigenous population is not a war crime.

    They may be planning Kangaroo Courts for the rest of us who are assisting Terrorists by opposing Kangaroo Courts.

    • bobschacht says:

      Why, certainly there are war crimes! War crimes are bad things that people do who are not citizens of the United States, like Charles Taylor, or the President of Sudan, do. Americans never commit war crimes, because if we did it, its OK. Got that straight now?

      Bob in AZ

  9. powwow says:

    With regard to Al Qosi’s secret plea deal [which is only the fourth conviction since 2001 – half by plea bargain – of a “war criminal” via Guantanamo’s segregated “justice system,” from among the 700+ foreign citizens once detained there, more than 500 of whom have been released (most under Bush) uncharged and untried, without apology or compensation, years after being seized and locked away from public view or any independent judge or courtroom, despite the ongoing “armed conflict” in which they were all declared to be “enemy combatants” without benefit of the Article 5 hearing that the law of war and the U.S. law of the land require], Carol tweets:

    On Qosi case, Law of War scholar Gary Solis, ex Marine judge, says he presided at 700+ courts martial “never heard of a secret sentence.”

    About 4 hours ago via web

    Gary Solis, speaking with Scott Horton in April about material support for terrorism (one of the American-manufactured “war crime” charges with which Al Qosi was persecuted):

    Is “material support” a crime recognized under the law of armed conflict?

    In my opinion, it is not, has never been, and should not in the future be considered a war crime. Until a 2008 Guantánamo military commission convicted Salim Hamdan of material support for terrorism, no American tribunal had ever prosecuted such a charge.

    It is not mentioned in 1907 Hague Regulation IV, in any U.S. field manual, in the Statute of the International Criminal Court, the Statutes of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, or the Special Court for Sierra Leone. The U.N. Special Rapporteur on human rights concludes that it is not an offense under the laws of war, and the Congressional Research Service finds the charge is not supported by historical precedent. No multilateral treaty on terrorism requires ratifying states to enact such a war crime.

    War crimes cannot simply be made up, as this one was by Congress in the 2009 Military Commissions Act. Custom and historical precedent are required to give a war crime legitimacy. “Material support for terrorism” lacks any of these indicia.

    […]

    But as the U.N. War Crimes Commission says, the laws and customs of war are “rules of international law with which belligerents have customarily, or by special conventions, agreed to comply in case of war.” Although there are other definitions of “war crime,” material support of terrorism meets no element of the U.N.’s definition. In my view, prosecutions based on such a charge only add to the disrepute of American military commissions.

    Scott Horton’s introduction to
    his interview with Gary Solis:

    Cambridge University Press has just issued Gary Solis’s The Law of Armed Conflict, a comprehensive and current treatment of one of the most controversial legal topics. Solis teaches at Georgetown University Law Center, and for six years he directed West Point’s law of war program. He is a retired Marine and was a company commander in Vietnam. I put six questions to him relating to some of the current controversies addressed in his book.

    Gary Solis will be reporting about the Khadr & Al Qosi proceedings that he has traveled to Guantanamo to observe, at the website of the National Institute of Military Justice.

    The history, tradition, and principles of the law of war (aka the law of armed conflict), and the law of nations of which it is a part, have now been willfully, recklessly, despicably repudiated in pursuit of unequal justice under law, by, first, our modern Presidents (of both Parties), then by our modern Congresses (under both Parties), which now take, rather than give, Executive Branch rules governing (or failing to govern) our armed forces, and by a modern military judge (Colonel Patrick Parrish).

    Here, in comparison, is John Quincy Adams – a United States Senator who, in stark contrast to our contemptible modern Senators, respected and honored the law of nations and its reach and limits, upon which his proposed bill might impact – modelling how one follows “the rule of law” and the law of nations, in a March 3, 1806 speech on the Senate floor describing his proposed bill:

    On these principles, thus equitable and moderate in themselves, and thus universally established, is founded every provision of the bill before you, so far as it implicates the law of nations. I have been fully aware that, although by the Constitution of the United States[,] Congress are authorized to define and punish offenses against the law of nations, yet this did not imply a power to innovate upon those laws. I could not be ignorant that the Legislature of one individual in the great community of nations has no right to prescribe rules of conduct which can be binding upon all; and therefore, in the provisions of this bill, it was my primary object not to deviate one step from the worn and beaten path – not to vary one jot or one tittle from the prescriptions of immemorial usage and unquestioned authority.

    An MCA-created military appellate court is considering – has been considering, since January oral arguments – the same questions about the reach of the law of nations, and the law of armed conflict – in this case as they impact on the segregated American Military Commissions and their “war crime” offenses – because of the pending appeals of the two non-plea-deal commission convictions. It doesn’t speak well of that new appellate court (the Court of Military Commission Review) that, with only two pending appeals to contend with, along with a smattering of other work related to limited ongoing commission proceedings, it couldn’t come to a decision before the start of the Omar Khadr trial, more than six months after oral arguments were heard. Thereby leaving unenforced and open to continuing abuse the same profound principles and questions about the balance of power in our Republic that Military Commission Judge Patrick Parrish so casually discarded today at Guantanamo in the absence of a firm check from anything even remotely resembling an independent American judiciary.

    As for our nominally-independent federal judiciary, here’s the plea that its highest court heard last Thursday (two days before the military defense counsel filing the appeal on Khadr’s behalf had to board a military charter plane for Guantanamo), after Khadr’s attorney (Jon Jackson) finally forced a D.C. Circuit panel into action last Wednesday, four months after all briefing had concluded on Khadr’s unresolved emergency mandamus appeal challenging the military commissions as unConstitutional:

    Entering a brief stay of military commission proceedings in order to afford applicant [Omar Khadr] the opportunity to file and this Court to dispose of a writ of certiorari from the [belated D.C. Circuit panel] order below is the only way to ensure that Applicant’s important, novel, and substantial constitutional claims receive due consideration by this Court and that irreparable harm is avoided. See Hollingsworth v. Perry, — U.S. —, 130 S.Ct. 705, 709-10 (2010).

    If a stay is not granted, Applicant’s right not to be put on trial will be rendered meaningless, a possibility that this Court recognizes as one of the few bases for its intervention before trial in a criminal prosecution. […] The government, on the other hand, would suffer the minimal harm of another relatively brief continuance of the proceedings – something that has happened numerous times previously in this case, including over a year-long hiatus at the government’s request. A brief stay is necessary to prevent irreparable harm and if a stay is not granted, the relief requested will be moot.

    […]

    The Military Commissions Act of 2009 limits the jurisdiction of military commissions convened under its authority to non-citizen unlawful enemy belligerents. The uniqueness of that jurisdictional limitation in American military history cannot be overstated. Without exception, since the Revolutionary War, both the ordinary courts-martial system and the “law-of-war” military commissions, see Hamdan v. Rumsfeld, 548 U.S. 557, 596 (2006) (distinguishing law-of-war commissions from others), have tried Americans alongside aliens. In fact, Americans have been tried by law-of-war commission in every military action in which they have been employed since the Revolutionary War. (The underlying petition as well as a full petition for writ of certiorari has comprehensive historical citations that establish this point).

    […]

    Applicant then shows, through historical analysis, that the specific limitations on military jurisdiction imposed [on Congress] by the Define and Punish Clause are the limitations imposed by “the Law of Nations.” That is to say, the jurisdictional limitations imposed by the Clause are as those that it imposes on the substantive limitation on Congress’s power to “define and punish . . . Offenses.”

    […]

    It is therefore far too late in the day for the government to claim that some “practical need” justifies an alienage distinction that both this Court and the military have long rejected. For that reason, the jurisdictional provision of the Military Commission Act of 2009 violates the law of war, and therefore the limitation on Congressional power imposed by the Define and Punish Clause.

    […]

    In light of the novelty and merit of Applicant’s underlying arguments, the requested stay of commission proceedings should be granted so this Court has the opportunity to consider the merits of Applicant’s arguments in an orderly fashion under its certiorari jurisdiction.

    Lieutenant Colonel Jon Jackson JAGC, USAR
    Office of the Chief Defense Counsel
    Military Commissions
    United States Department of Defense

    Dated: August 5, 2010

    The next day, Chief Justice John Roberts and his colleagues refused Lt. Col. Jon Jackson’s request for a two-week delay, of the pending Khadr trial, that would’ve allowed him – Khadr’s lone remaining defense attorney – time to file for a rehearing of the slapdash one-page denial (inexcusably withheld for four months) of Jackson’s mandamus plea on Khadr’s behalf. A denial that had been belatedly issued only the day before (thereby succeeding in delaying all action on Khadr’s appeal until the Circuit panel was on the brink of being ordered to act by the Supreme Court, and Khadr’s trial was about to begin) by three members (Ms. Henderson, Mr. Tatel, & Mr. Kavanaugh) of the United States Court of Appeals for the D.C. Circuit – which has sole appellate jurisdiction over Guantanamo captives, in the absence of Supreme Court intervention.

    • bobschacht says:

      Thanks for all these details, powwow.
      Are both sides positioning themselves for an appeal?
      I mean, there is an appeal process for the Military Tribunals, isn’t there? And it looks like grounds for appeal are already piling up.

      Bob in AZ

  10. timbo says:

    Who was responsible for holding 500+ innocent people for years and years without trial, without valid evidence, etc? And what about the people who “disappeared” extra-judicially? Who was responsible for that?

  11. fatster says:

    O/T, strange story, terra-related. Doe v. Ashcroft.

    Plaintiff who challenged FBI’s national security letters reveals concerns

    LINK.