Pentagon Charges the Third Detainee Who Was Water-Boarded

The Pentagon charged Abd al Rahim al Nashiri in relation to the USS Cole bombing today (and click through for links to the charging documents and more).

The Pentagon Monday announced a proposed death penalty prosecution of a Saudi man at Guantánamo, alleging he organized the October 2000 suicide bombing of the USS Cole off Aden, Yemen, that killed 17 American sailors.

The 11-page charge sheets, signed by a Marine major, accuse Abd al Rahim al Nashiri, 43, of conspiracy, murder and other law of war violations.

It seeks to try him by military commission at the U.S. Navy base in southeast Cuba, and execute him if convicted.

This one will be interesting.

As you recall, the CIA has admitted to water-boarding three detainees: Abu Zubaydah, Khalid Sheikh Mohammed, and al-Nashiri.

Abu Zubaydah remains uncharged at the moment. Perhaps they think he’s too crazy to stand trial. Perhaps, once they realized he was a glorified travel agent, they didn’t want to try him. Perhaps they simply don’t have the evidence. But for some reason, after accusing Abu Zubaydah of being a 9/11 mastermind for years, they haven’t included him in the batch of people they’re trying for 9/11.

Then there’s KSM. KSM appears ready to lead his four co-defendants straight to the gallows in hopes of becoming martyrs to the cause. And the Bush Show Trial administrators seem only too happy to go along. Thus, while KSM has already repeatedly raised the torture used on him in the one public hearing he had, it won’t make much difference so long as he continues to request to be killed.

Finally, there’s Nashiri. Though there appears to be abundant evidence tying Nashiri to the Cole bombing, the Administration hasn’t vilified (or glorified, if you’re KSM) him like they have other high value detainees. To most Americans, I’d guess, he’s a rather anonymous terrorist.

But Nashiri, unlike KSM, is fighting his charges.

In March 2007, according to a partially censored Pentagon transcript, Nashiri told U.S. military officers at Guantánamo that he concocted the confession to please his captors. ”From the time I was arrested five years ago, they have been torturing me,” he said then.

Which, for all that KSM wants and seems capable of orchestrating a collective martyrdom, means Nashiri’s trial will be particularly interesting. Given that he claims his confession was false, it’ll really expose how the Gitmo Show Trials will deal with people who claim to be being falsely Read more

Lamberth Doesn’t Seem to Think the Boumediene Sky Is Falling

Because Chief Judge Royce Lamberth of the DC Circuit (where many Gitmo habeas petitions are currently pending) sure seems to be moving forward on developing procedures to give the Gitmo prisoners their habeas petitions.

U.S. District Court Chief Judge Royce C. Lamberth met today with lawyers from the Department of Justice and representatives of the Guantanamo detainees to discuss how the court should proceed in light of last week’s Supreme Court decision in Boumediene v. Bush.  In the off-the-record meeting, lawyers for both sides discussed a number of security and procedural issues that are common to many of the nearly 200 cases pending before the court.  “We had a constructive meeting today and will have a follow up meeting next Wednesday.  I plan to meet soon with the judges of this court to discuss the lawyers’ suggestions for how we can move these cases most efficiently and expeditiously,” said Chief Judge Lamberth.          

"Efficiently and expeditiously." Golly. Once again Article III seems to be missing the Republican script about how the Boumediene decision is the end of the world.

Can’t Gitmo Dirty – The Penultimate Straw

Marcy is in Minneapolis at the Wide Stance Film Festival National Conference for Media Reform (a really cool program I might add, the link is worth a look) and Ted Stevens clogged my tubes last night, but things look to be A-OK this morning.

Guantanamo The Showcase is starting to seep into the conscience. Marcy has pointed out the rather curious intersection of the right wing family value of hating on same sex marriage, and those who would wish to practice it, with military commission procedure. By far and away, the best national reporting on the Guantanamo Show is, and has long been, done by Carol Rosenberg at the Miami Herald. Marcy thinks it is Pulitzer Prize good; by the time the year is out, I’ll bet she may be right. Our friend drational has done a couple of posts reminding us that the Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the "law and order" set at the GOP.

But I want to bring attention to something that really sank in for me yesterday morning and that a few people are starting to pick up on, but not many, and not nearly enough. Rosenberg laid out the background on the day long arraignment proceedings for the detainees at Gitmo at the link cited above:

But the day was remarkable — a 9 a.m. to 6:30 p.m. court session, including two prayer breaks — in which each man rejected the two to four military and civilian attorneys sitting beside him.

The director of the American Civil Liberties Union, Anthony Romero, watched from the spectators gallery in a fury. He had been building a death penalty defense fund and pool of criminal defense lawyers to help the military lawyers.

”It was one of the saddest days in American jurisprudence,” he said. ‘The word `torture’ was used so abundantly and the legal process continued.”

He blamed Pentagon haste to get the men to trial before the end of the Bush administration. Defense lawyers were not given sufficient time to forge attorney-client relationships ”with men who were tortured for five years,” before Thursday’s arraignment, he said.

Some of the men rejected the legitimacy of commissions, in which U.S. military officers serve as judge and jurors. Saudi Mustafa Hawsawi, who allegedly funneled funds for the terror plot, went last and appeared to be echoing the others who came before him.

At one point, after Read more

KSM Refuses Lawyer Because of All the Legal Same Sex Marriage in the US

Try to get your head around this.

David Nevin, fresh off his victory in getting Geoffrey Fieger acquitted of all charges, has volunteered to donate his considerable legal skills to represent Khalid Sheikh Mohammed in his death sentence Show Trial. But KSM doesn’t want the help, he says, because the Constitution permits same sex marriage.

”I will not accept any attorney. I will represent myself,” Mohammed said. “I will not accept anybody, even if he is Muslim, if he swears to the American Constitution.”

Mohammed said he recognized Islamic shariya law and rejected the U.S. Constitution, in part because it allows for "same sexual marriage and many things are very bad.”

It’s true, I suppose, that the Constitution permits same sex marriage–as in, does not prohibit states from performing them. But it in no way affirmatively protects it. Do you think we ought to tell KSM that same sex marriage is only legal on the hippie coasts–and may be overturned in California come November?

On the one hand, if that were to make him feel better about the Constitution (at least the Constitution of the huge number of states that prohibit civil unions and gay marriage), then he might accept Nevin’s legal representation. That might prevent KSM from being killed for plotting the 9/11 plan–or at least give the trial more legitimacy. And, frankly, since KSM seems intent on turning himself into a martyr, there’s something to be said for doing everything we can to prove that this nation is not really all that friendly to gay marriage.

Defiant, confessed 9/11 mastermind Khalid Sheik Mohammed went before a military judge on Thursday, refused his U.S. defense counsel and said he would welcome a death sentence.

Mohammed, 43, became the first of a succession of five alleged co-conspirators in the 2001 terror attacks to reject the legitimacy of the first U.S. war crimes tribunal since World War II.

”In Allah I put my trust,” the Pakistani intoned in Arabic from a Koran, then personally translated the verse into English for the benefit of the audience.

Judge Ralph Kohlmann, a Marine colonel, asked Mohammed whether he understood that the crimes for which he was accused are punishable by a death sentence.

”This is what I wish — to be martyred,” Mohammed replied in the broken English he learned as an engineering student in his 20s in North Carolina.

On the other hand, it is true that the Constitution does not prohibit gay marriage.

Read more

How Is Rick Renzi Like a Gitmo Detainee?

A tiny bit of me (okay, miniscule) wishes that Rick Renzi were sticking around as a Congressman. That’s because, now that the government has tried to use wiretaps of conversations between him and his attorneys in his trial, Renzi might be motivated to champion legislation reaffirming the importance of attorney-client privilege.

Attorneys for Rep. Rick Renzi (R-Ariz.), who has been indicted on 35 federal corruption charges, filed a motion today asking a federal judge to exclude from trial a series of "at least 50" cell phone calls by Renzi that were recorded by FBI agents.

Renzi’s legal teams says that the calls should be privileged under attorney-client privilege, as well as the Speech or Debate Clause, a constitutional privilege that protects lawmakers and aides from legal action for legislative activities. Renzi is not raising a Speech or Debate claim on these intercepted calls yet.

"These privileged calls include conversations between Congressman Renzi and his criminal defense counsel and an attorney representing him in a Federal Election Commission (‘FEC’) proceeding. The privileged calls reflect discussions regarding legal strategy and core work product, including the direction of the investigation, witness interviews, DOJ strategy, Congressman Renzi’s recollection of relevant issues, and legal advice regarding theories of prosecution and applicable defenses," Renzi’s lawyers wrote. They are asking that the audio files and transcripts of the calls should be returned to Renzi’s control and a protective order should be granted to prevent prosecutors or anyone else from reviewing the calls.

It’s a problem that extends beyond corrupt Congressmen. Many of the lawyers defending detainees at Gitmo believe they are being wiretapped.

One lawyer for Guantánamo detainees said he replaced his office telephone in Washington because of sounds that convinced him it had been bugged. Another lawyer who represents detainees said he sometimes had other lawyers call his corporate clients to foil any government eavesdroppers.

In interviews and a court filing Tuesday, lawyers for detainees at Guantánamo said they believed government agents had monitored their conversations. The assertions are the most specific to date by Guantánamo lawyers that officials may be violating legal principles that have generally kept government agents from eavesdropping on lawyers.

“I think they are listening to my telephone calls all the time,” said John A. Chandler, a prominent lawyer in Atlanta and Army veteran who represents six Guantánamo detainees.


Read more

The 9/11 Detainees Want Hartmann Disqualified, Too

In thoroughly unsurprising news, the defense attorneys for the five 9/11 High Value Detainees (including Khalid Sheikh Mohammed and Ramzi bin al-Shibh) have moved to either have the charges against their clients dismissed or, at least, have General Hartmann disqualified as Legal Advisor to the Show Trials. Here’s Carol Rosenberg on that story–as well as the news that Judge Allred will delay the start of Salim Hamdan’s trial until after SCOTUS rules in Boumedienne.

This motion obviously piggy-backs on Judge Allred’s decision from last week to have Hartmann disqualified in the Hamdan trial. The 9/11 defendants largely replicate the Hamdan complaint in their own motion–with one significant addition. They also argue that Hartmann illegally tried to coerce defense counsel, in addition to Colonel Morris Davis, the Chief Prosecutor. As they describe:

On January 25, 2008, a member of the Convening Authority’s staff, Colonel Wendy Kelly, inadvertently emailed a draft copy of the charges against Khaleed Sheikh Mohammed and five other detainees to Mr. Michael Berrigan, the Deputy Chief Defense Counsel. The draft charges were being circulated within the Office of the Convening Authority. Mr. Berrigan immediately notified Colonel Kelly of the disclosure and ascertained it was inadvertent, but after seeking counsel from his state bar, refused to return the draft charges.

On February 1, 2008, the Legal Advisor to the Convening Authority wrote a memorandum to the Chief Defense Counsel, Colonel Steven David. General Hartmann stated that he had contacted the professional responsibility offices for the Army, Navy, and Marine Corps and they had opined that Mr. Berrigan must return the draft charges in this case; charges which approximately two weeks later General Hartmann claimed to have just received.


The fact that the Legal Advisor, rather than the Chief Prosecutor, sent the Memorandum to the Chief Defense Counsel illustrates the point that the Legal Advisor failed to retain the required independence from the prosecution function and maintain his ability to provide independent, neutral, and impartial advice to the Convening Authority.

The [Military Commissions Act] prohibits attempting to coerce or unlawfully influence the professional judgment of trial or defense counsel. While the Secretary of Defense has attempted to circumvent the statutory prohibition against unlawful influence of trial counsel by regulation, he has not done so for defense counsel. When unlawful influence is directed against a defense counsel, it "affects adversely on accused’s right to effective assistance of counsel." [citations removed]

Read more

Clement’s Departure

As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.


Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.


During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

Read more

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. Read more