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The Torture Report(Originally posted on Huffington Post.) Since 2004, the ACLU and its partners — the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace — have been litigating under the Freedom of Information Act for documents concerning the abuse of prisoners held by the Department of Defense and CIA. The litigation has produced thousands of pages of government documents, including the Justice Department torture memos that were released in April, the FBI emails that discussed the torture of prisoners at Guantanamo, and dozens of autopsy reports relating to the deaths of prisoners in the custody of the Defense Department. To those of us who have been working on the lawsuit, though, the remarkable thing is not how much information has been released but how much is still being withheld. Six years after we filed our FOIA request, and five years after the Abu Ghraib photos were broadcast by CBS 60 Minutes, the Defense Department is still withholding photographs showing prisoners being abused at facilities other than Abu Ghraib as well as interrogation directives used by special forces in Afghanistan and Iraq. The CIA is still withholding large segments of a crucial report written by the CIA's Inspector General, transcripts in which prisoners describe the abuse they suffered at the hands of their CIA interrogators, and hundreds of documents relating to the destruction of videotapes showing CIA prisoners being waterboarded. It's clear that it will be months and perhaps years before we have anything that resembles a complete picture of how the torture policies were developed, on whose authority they were implemented, and what consequences they had for prisoners held by the military and CIA. If it's remarkable how much information is still being withheld, it's even more remarkable how little has been done to address the information that has been released. Congress has convened no select committee. The Justice Department has inaugurated no criminal investigation other than a narrowly circumscribed one into incidents in which CIA interrogators exceeded the authority that had been invested in them by their superiors. The victims of the torture program have received no official acknowledgement, and the proposition that they should be compensated for the abuse they suffered at the hands of their interrogators is one that has no traction at all. In an effort to fill at least some of this gap, the ACLU yesterday launched a new online project that will attempt, over the next months, to give the full account of the Bush administration's torture program, from its improvised origins to the systematized, lawyer-rationalized maltreatment of hundreds of prisoners in U.S. custody around the world. Published serially online, The Torture Report will bring together everything we now know from government documents, official investigations, press reports, photographs, witness statements, and testimonials into a single narrative — one that is updated dynamically and subject to critical review and improvement as it unfolds. It will be a collaborative project. We have invited a group of expert contributors to offer comments and observations as new material appears. These contributors include Matthew Alexander, David Frakt, Glenn Greenwald, Joanne Mariner, Deborah Popowski, John Sifton, and Marcy Wheeler, as well as attorneys from the ACLU; their annotations will be viewable in line in the text. We are also inviting members of the public to contribute additional information and comments at the end of the chapter. As new sections are added to the Report, chapters already online will be edited, expanded, or amended to address or incorporate the most valuable suggestions and latest information. President Obama has spoken eloquently about the importance of restoring America's moral authority abroad. Restoring that moral authority, though, will require restoring the rule of law at home, and restoring the rule of law at home will require finally confronting the gross human rights abuses of the last administration. Crucial to this process will be the creation of a comprehensive and publicly accessible record of the last eight years. We're hoping that The Torture Report will be an important part of that record. Tags: The Torture Report
John Yoo's Dragnet
(Cross-posted to CBSNews.com and Daily Kos.)
In a recent Wall Street Journal piece, former Justice Department lawyer John Yoo defends the Bush administration's warrantless wiretapping program with the claim that, after the September 2001 terrorist attacks, the government needed the ability to monitor communications to and from Osama bin Laden.
It is no surprise that Yoo defends the warrantless wiretapping program; as a lawyer for the Bush administration's Office of Legal Counsel, he wrote the secret legal memos that professed to supply a basis for it. But Yoo's public defense of the program obscures what's really at stake.
When the warrantless wiretapping program was inaugurated, there was already a law in place that expressly permitted the government to monitor the communications of suspected terrorists. That law — the Foreign Intelligence Surveillance Act — was enacted by Congress in 1978 and updated several times over the next twenty-three years.
The law created a specialized court to oversee government surveillance of suspected spies and terrorists, but the oversight was limited, and in practice the court granted almost every surveillance application that the government submitted. Between 1978 and 2001, the government submitted 13,102 applications and the court approved 13,100.
Yoo's suggestion that the FISA court would not have permitted the government to monitor Osama bin Laden's communications is wrong. If the government had submitted an application to the FISA court for the surveillance of bin Laden or his associates, the court would have approved the application as a matter of course. In fact, the government could even have commenced the surveillance immediately and approached the court for approval after the fact, because in emergencies FISA allowed the government to begin surveillance unilaterally.
The truth is that the warrantless wiretapping program that Yoo defends had little if anything to do with monitoring the communications of people like bin Laden. The point of the program was to eliminate judicial oversight so that the government could monitor the communications of a much broader category of people.
In retrospect, we can see that the warrantless wiretapping program was just an intermediate step. Last summer, Congress ratified the Bush administration's program and extended the government's surveillance authority even further. Under the new law — called the FISA Amendments Act — the government can conduct warrantless dragnet surveillance of Americans' international calls and emails. The new law eliminates the probable cause requirement and imposes no meaningful limitations on the government's authority to retain, analyze, and disseminate the communications that it acquires. For Americans' international communications, the new law effectively eliminates the right to privacy altogether.
The question that Americans need to grapple with is not whether the government should have the authority to monitor Osama bin Laden's communications. Of course it should, and it's always had it. The question is whether the government should have the authority to monitor the communications of innocent people. This is what John Yoo is really proposing, and this is what the FISA Amendments Act allows. It allows the government unfettered access to Americans' international communications without reference to whether they or the people they're communicating with have done anything wrong.
This week a federal court in New York will hear argument in the ACLU's constitutional challenge to the FISA Amendments Act. In our legal papers, we point out that the Fourth Amendment protects against unreasonable searches and seizures and generally forecloses searches that are not predicated on probable cause. In other words, the Fourth Amendment prohibits the surveillance that the FISA Amendments Act permits.
The illegality of the Act, though, is not the only reason Americans should be troubled. A recent report from five Inspectors General examined the Bush administration's warrantless surveillance program and, in addition to finding it illegal, raised serious questions about the program's effectiveness.
According to the Inspectors General, many of the leads generated by the program were dead ends, and the CIA had trouble identifying instances in which the program had helped it identify terrorists or prevent attacks. (Yoo inveighs against the report in his Journal piece but notably he declined an invitation to be interviewed by the Inspectors General before the report was finalized.)
The report of the Inspectors General focuses on the Bush administration's warrantless wiretapping program, but it should prompt questions about the FISA Amendments Act as well. If there's little evidence that the Bush administration's program worked, why extend the government's surveillance authority even further? If John Yoo's dragnet was ineffective, what's the argument for expanding it?
Accountability for TortureSince 2004, the ACLU and its partners — the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace — have been litigating under the Freedom of Information Act for documents concerning the abuse of prisoners held by the Department of Defense and CIA. The litigation has resulted in the release of thousands of pages of government documents, including the Justice Department torture memos that were released in April, the FBI emails that discussed the torture of prisoners at Guantanamo, and dozens of autopsy reports relating to the deaths of prisoners in the custody of the Defense Department. 
To those of us who have been working on the lawsuit, though, the remarkable thing is not how much information has been released but how much is still being withheld. Six years after we filed our FOIA request, and five years after the Abu Ghraib photos were broadcast by CBS 60 Minutes, the Defense Department is still withholding photographs showing prisoners being abused at facilities other than Abu Ghraib as well as details of abusive interrogation methods used by military interrogators in Afghanistan and Iraq. The CIA is still withholding a crucial report authored by that agency's Inspector General, transcripts in which prisoners describe the abuse they suffered at the hands of their CIA interrogators, as well as hundreds of documents relating to the destruction of videotapes showing CIA prisoners being waterboarded. We're expecting some of these documents to be released to us tomorrow, but it's clear that it will be months and perhaps years before we have anything that resembles a complete picture of how the torture policies were developed, on whose authority they were implemented, and what consequences they had for prisoners held by the military and CIA. If it's remarkable how much information is still being withheld, it's even more remarkable how little has been done to address the information that has been released. Congress has convened no select committee. The Justice Department has inaugurated no criminal investigation other than a narrowly circumscribed one into the destruction of the waterboarding tapes. The victims of the Bush administration's torture program have received no official acknowledgement, and the proposition that they should be compensated for the abuse they suffered at the hands of their interrogators is one that has not got traction at all. Earlier this month, the ACLU launched an initiative that will put new resources behind our transparency work and behind the larger aim of accountability. The Accountability for Torture initiative has four interrelated goals.
President Obama has spoken eloquently about the importance of restoring America's moral authority abroad. Restoring that moral authority, though, will require restoring the rule of law at home, and restoring the rule of law at home will require finally confronting the gross human rights abuses of the last administration. Over the next few months, we'll press the Obama administration to do this. As we've been saying, accountability for torture is a legal, political, and moral imperative. Tags: accountability
Obama Was Right to Release Torture Memos(Originally posted on Index on Censorship’s Free Speech Blog. Index on Censorship is a British organization and magazine that promotes freedom of expression.) Last week the Obama administration released four legal memos that supplied the basis for the Bush administration’s torture program. The memos, which were disclosed in response to a lawsuit that the American Civil Liberties Union (ACLU) filed five years ago, include detailed descriptions of the interrogation methods that CIA interrogators were authorized to inflict on prisoners in their custody. Described methods included ‘the facial slap’, ‘the water board’, and perhaps most grotesque, ‘cramped confinement box with insect’. These revolting memos shouldn’t have been written in the first place, but the Obama administration was right to release them. The public can now better understand the nature of the CIA’s interrogation and detention program, and the role that Justice Department lawyers played in developing and implementing it. CIA officials reportedly pressed President Obama to withhold key passages in the memos, but the president rightly recognized that redacting these passages would have enmeshed the new administration in a cover-up of the Bush administration’s crimes. In a self-serving op-ed published in the Wall Street Journal, Michael Mukasey (who served as attorney general from 2007 to 2009) and Michael Hayden (who served as director of the CIA from 2006 and 2009), contend that President Obama’s disclosure of the memos makes the United States less safe; they argue that the disclosure of the memos, and of the interrogation techniques discussed in them, unwisely broadcast to terrorists ‘the absolute limit of what the U.S. government could do to extract information from them’, and they warn that terrorists will now ’supplement their training’ so that they can resist the described techniques. They add that the disclosure of the memos will make CIA interrogators timid and risk-averse, unwilling to use ‘aggressive’ methods even when Justice Department lawyers assure them that such methods are lawful. But the methods described in the memos are illegal under both domestic and international law, and they were illegal when the Bush administration endorsed them. For years, the U.S. State Department’s human rights reports have described these methods as torture. And after the Second World War, the United States prosecuted Japanese commanders for having inflicted some of the methods that the memos purport to authorize. It does not compromise national security to broadcast to the world that the US will eschew methods that are criminal under US and international law, that the State Department has described as torture, and that the United States has previously prosecuted as war crimes. Indeed, to propose that the nation’s security would be compromised by that message is to propose that the nation’s security would be compromised by the rule of law. Nor will it be unfortunate if CIA interrogators hesitate before relying on legal advice that strikes them as implausible or wrong. Indeed, there is something astounding about a former attorney general characterizing this kind of hesitation as ‘timidity’. Anyone who reads the memos will understand immediately that the CIA and Justice Department each sought to absolve itself from responsibility for torture by basing its actions on transparently worthless assurances from the other. It would be a good thing if CIA interrogators hesitated before entering into this kind of arrangement again.
Jameel Jaffer: See No EvilThe report issued Tuesday by Glenn A. Fine, the Justice Department's Inspector General, is overflowing with new information about the development and implementation of the Bush administration's torture policies. The report's most important finding is that some of the administration's senior officials — possibly including Condoleezza Rice, who was then the National Security Advisor — knew as early as 2002 that FBI agents and some Justice Department personnel believed that interrogation methods being used by the Defense Department were not just ineffective but also illegal.
The report makes clear that the CIA, too, knew that the interrogation methods it was using were of dubious legality. In early 2002 — before the Office of Legal Counsel supplied the CIA with a memo sanctioning the use of harsh methods — an FBI agent told CIA personnel that the methods being used against one prisoner were "borderline torture." In the story told by the Inspector General, the FBI comes off relatively well. While the Defense Department and CIA were authorizing their interrogators to use torture, FBI agents were documenting the harsh techniques being used by their military counterparts, refusing to participate in interrogations that were abusive, and in some cases conveying their concerns about abusive interrogations to their superiors and military commanders. (Amrit Singh and I have written at length about all of this in a recent book, Administration of Torture.) The Inspector General's report, though, raises serious questions about the actions that FBI headquarters took — or, more significantly, failed to take — in response to the concerns being raised by FBI agents. The key question, I think, is why the FBI — which is, after all, supposed to be the nation's principal law enforcement agency — didn't try to end the abusive interrogations being conducted by other agencies. FBI agents concluded in 2002 that interrogation methods being used by the Defense Department and CIA were illegal. Indeed, some agents collected their notes about abusive interrogations in a "war crimes" file. But when agents at Guantánamo documented abuse in 2002, the agency waited six full months before giving the agents permission to finalize and distribute their memo. (According to a footnote in the report, the FBI's leadership was afraid that distributing the memo would offend the military.) At some point in 2003, FBI agents were affirmatively told not to maintain the "war crimes" file; they were told that "investigating detainee allegations of abuse was not the FBI's mission." And the agency waited until May 2004 — a month after the publication of the Abu Ghraib photographs — to issue written guidance requiring FBI agents to report abuse. Even after the FBI issued written guidance, the agents were told not to question the expansive authority that other agencies' interrogators had been given; they were told instead to report incidents in which other agencies' interrogators had exceeded their authority. They were told, in other words, to ignore criminal activity that they ought to have been trying to stop. Overall, the FBI's leadership seems to have been more interested in ensuring that the agency would not be held responsible for the abuse of prisoners than in actually ending — or even documenting — the abuse. FBI agents who raised concerns about the lawfulness and effectiveness of abusive interrogation methods deserve credit. The FBI's leadership, on the other hand, should be held accountable for having turned a blind eye to torture.
Opaque Guantánamo
In a June 2003 statement President Bush observed, that governments that use torture often seek to “shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors.” He was not speaking of his own government, but he might as well have been. United Nations human rights experts sought access to Guantánamo repeatedly – in January 2002, January 2004, June 2004, April 2005, May 2005, and June 2005. Each of their requests was denied.
It wasn’t until October of 2005 that the Bush administration finally relented, and even then the administration conditioned access to Guantánamo on the experts’ agreement not to seek private interviews with individual prisoners. Understandably, the experts found that condition unacceptable. As one of the experts asked, “How can I assess whether torture or ill-treatment is practiced in any prison in the world if the only people with whom I can talk are the prison guards and the doctors, but not the detainees?” As for “staging elaborate deceptions,” the Bush administration did that, too. In an effort to allay concerns about the treatment of prisoners at Guantánamo, the Defense Department offered a handful of journalists the opportunity to observe interrogations from behind a glass wall. Journalists who accepted the offer were shown an interrogator and prisoner sharing a milkshake from McDonald’s and engaging in friendly conversation. No maltreatment, no abuse, no torture. As Neil Lewis reported for The New York Times, however, “it became apparent to reporters comparing notes . . . that the tableau of the interrogator and prisoner sharing a McDonald’s meal was presented to at least three sets of journalists.” Evidently, the whole “tableau” had been fabricated with the specific purpose of misleading the journalists and the public. What do interrogations at Guantánamo really look like? Government documents from 2002, 2003, and 2004 show that prisoners were deprived of sleep, isolated for long periods of time, exposed to extreme temperatures, threatened with dogs, blinded with strobe lights, bombarded with deafening music, and shackled in excruciatingly painful “stress positions.” In one document (pdf), obtained by the ACLU and its partners under the Freedom of Information Act, an FBI agent describes an interrogation that took place in February 2004: [The prisoner] did not recognize the interviewers and when he told them he didn’t want to speak to anyone unless they were introduced by his regular interrogators, he was yelled at for 25 minutes, . . . was short-shackled, the room temperature was significantly lowered, strobe lights were used, and possibly loud music . . . . They yelled at him and told him he was never leaving here . . . . After the initial 25 minutes of yelling, [the prisoner] was left alone in the room in this condition for approximately 12 hours. Documents released only last week remind us that such interrogations were not unusual. The documents show that, in response to an internal FBI inquiry, twenty-six different FBI agents reported that they had witnessed military interrogations that they considered to be abusive. What came of those reports is unclear, and what interrogation methods are being used now is not known. Five years since the first prisoners were brought there, Guantánamo remains as impenetrable and opaque as ever. Jameel Jaffer served as a monitor at the Guantánamo Bay military commissions and is Deputy Director of the ACLU’s National Security Program.
Report Reveals Wider Reach of Financial Spying
In today’s New York Times, Eric Lichtblau and Mark Mazzetti report that the CIA and Pentagon have been using "national security letters" to obtain sensitive financial information about Americans and others living in the United States. The report raises serious questions about the extent to which the Pentagon and CIA have become involved in domestic intelligence gathering.
As the CIA and Pentagon have apparently been issuing national security letters for at least five years, it seems reasonable to ask why we’re learning of it only now. One reason may be that national security letters often come with “gag” orders that prohibit recipients from disclosing even the mere fact that the government has demanded information from them. The ACLU challenged such gag orders in two cases – one involving library records and another involving Internet records – and in both cases the gag orders were ruled unconstitutional. Congress amended the relevant statutes early in 2006, but unfortunately it did not fix the gag provisions. Our client in the Internet record case has now been under a gag order for more than two years. And if the government has its way, this John Doe client – the government won’t permit us to disclose the client’s name – will be under a gag order for the indefinite future. Our John Doe client has filed a legal challenge to the amendments made by Congress in 2006. (Our principal legal brief in Doe v. Gonzales is available online here; and the government’s brief is here.) We expect the district court to hear oral arguments in the Spring. It is not clear from today’s Times article whether the CIA and Pentagon have been imposing gag orders on organizations served with national security letters. But the article underscores once again how little we know about the government’s surveillance activities. Although executive agencies issue thousands of NSLs every year, the public knows virtually nothing about who those letters were served on, what information the letters sought, or why. All of this surveillance takes place in secret, with little if any oversight by Congress, the courts, or the public. This situation is an invitation to abuse, as history has shown. Jameel Jaffer is Deputy Director of the ACLU’s National Security Program and lead counsel in Doe v. Gonzales.
Keep Out: The New Yorker on Ideological Exclusion
This week's New Yorker includes a Comment by George Packer about the State Department's refusal to grant a visa to Swiss-Egyptian scholar Tariq Ramadan. Ramadan is a prominent scholar of Islam -- he is currently a Fellow at Oxford University and his last book, "Western Muslims and the Future of Islam," was published by Oxford University Press -- and he has developed a significant popular following for his contention that European Muslims can be both fully European and fully Muslim.
In the New Yorker, Packer argues that the State Department's refusal to grant Ramadan a visa makes the United States "appear defensive, timorous, and closed." Packer is certainly right about this, but it is worth underscoring that the problem is not simply one of appearances. The government's exclusion of Tariq Ramadan impoverishes academic and political debate inside the United States, and it does so at a time when open debate about the status of Muslims in the West is exceptionally important. The State Department apparently disagrees with Ramadan's ideas, but Americans should be allowed to decide for themselves whether those ideas are persuasive. Americans surely don't need the government to protect them from the controversial ideas of foreign intellectuals. In January 2006, the ACLU filed a lawsuit to challenge the State Department's refusal to grant Ramadan a visa. The lawsuit -- filed on behalf of the American Academy of Religion, the American Associaiton of University Professors, and PEN American Center -- also challenges the constitutionality of the Patriot Act provision that the government initially cited to justify Ramadan's exclusion. The lawsuit is ongoing and you can read more about it here. It's also worth noting that the ACLU shows up in two other places in this New Yorker issue: Our lawsuit against the NSA is mentioned in the profile of ACLU v. NSA client Christopher Hitchens, and a feature on Fox News owner Rupert Murdoch cites Bill O'Reilly's sideswipes at the ACLU during Fox's questionable coverage of the Abu Ghraib scandal. (Jameel Jaffer is lead counsel in American Academy of Religion v. Chertoff, the lawsuit challenging Tariq Ramadan's exclusion.)
Guantánamo: A Legal Black Hole
The pre-trial hearings in the Hicks case came to an end today, so this may be my last dispatch from Guantánamo. Next week, the commission will hear motions in the case of Salim Ahmed Hamdan, a 34-year old Yemeni who is accused of having served as a bodyguard and driver to Osama bin Laden. Trial in the Hicks case is scheduled to begin in March.
Over the past few days, I've written mainly about the legal process (or lack of it) afforded to the handful of prisoners who, like Hicks, have been charged with war crimes. These are the detainees who'll be tried before military commissions. I want to use this last dispatch to talk about the hundreds of prisoners here who have not been charged with any crime at all. There are 550 or so prisoners held here at Guantánamo right now; only 15 of these have been designated by the President as eligible for trial before the commission, and of these only four have actually been charged. The overwhelming majority of the prisoners held here at Guantánamo have not been charged with any crime or even designated as eligible to be tried. The Defense Department has argued that they can nonetheless be imprisoned indefinitely - perhaps for life - because they're "enemy combatants." Let's put aside the question of whether the government is legally entitled to detain enemy combatants indefinitely. How do we know that the people locked up here are in fact enemy combatants? Senior government officials seem to harbor few doubts. The Secretary of Defense has referred to the Guantánamo prisoners as "hard-core, well-trained terrorists" and "among the most dangerous, best-trained, vicious killers on the face of the earth." Vice President Cheney has referred to them as "the worst of a very bad lot . . . devoted to killing millions of Americans." But senior officials said similar things, remember, of the hundreds of immigrants who were detained in the United States after September 2001. None of those people were convicted of a terrorism-related offense. In fact, most were never charged with any crime at all. Notably, one of the military officials in charge of detention camps at Guantánamo recently acknowledged that many of the prisoners pose little threat and have provided little intelligence value. "Most of these guys weren't fighting. They were running," he said. So how do we know that someone whom the government calls an "enemy combatant" is in fact an enemy combatant? Last year, the Supreme Court held in Hamdi v. Rumsfeld that the government may not detain a person as an enemy combatant unless a neutral tribunal determines - after providing due process - that the person is actually what the government says he is. After that ruling, the government contrived something called the Combatant Status Review Tribunal (CSRT) to make such determinations. Predictably, the CSRT process does not provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it's up to the prisoner to prove that he's not. Rebutting a presumption of guilt would be difficult in any context but it is made doubly so here because the prisoner is not given access to all of the evidence and is not provided a lawyer. The prisoner is provided something called a "personal representative," but the personal representative does not have legal training and does not (and cannot) assure confidentiality. Thus, a prisoner's conversations with his representative may be used against him - not only at the CSRT but also in any subsequent criminal proceeding. The CSRT process has worked exactly as it was intended to. While the CSRT has reviewed the cases of some two hundred prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all. Let me close by saying something more general about what I've seen here at Guantánamo over the last few days. Many of us hoped that the Supreme Court's decisions in Hamdi, Padilla, and Rasul would lead to the adoption of policies here at Guantánamo more consistent with the constitution and with international standards of justice. It's clear that this hasn't happened. Both the military commissions and the CSRTs are fundamentally lawless; they are proceedings designed not to provide fair process but rather to rubber stamp essentially political decisions. There is no doubt that the Supreme Court's rulings were critically important, but Guantánamo remains a legal black hole. Unfortunately, it's clear that there's a lot more work to do. Tags: David Hicks, Guantanamo Dispatch
While U.S. Elections Loom, It's Another Day at the Kangaroo Court
Right now, Guantánamo Naval Base seems very far away from the election going on in the United States. There are restrictions on what members of the military can say in uniform, so there aren't a lot of public conversations about politics. I haven't seen any political posters or bumper stickers. And there are no voting booths here, because those who vote do so by absentee ballot. Here at Guantánamo, it would be easy to forget about the election altogether.
This is ironic, because the outcome of the election is likely to have a profound effect on the lives of the 550 or so detainees who are imprisoned here. For the detainees who haven't been charged with any crime, the election may determine whether they're afforded a meaningful opportunity to challenge their continued detention. For the handful of detainees who've been charged, the election may determine whether they're tried in traditional courts martial, with all the protections those proceedings entail, or in military commissions like the one that over the last three days has been hearing motions in the case of David Matthew Hicks. Unfortunately, the hearing that took place in the Hicks case today confirmed what the ACLU and other legal and human rights organizations have been saying from the outset: the military commissions, at least as they're set up now, are simply not capable of providing anything resembling fair process. Frankly, the commission today did not even seem interested in fair process. The panel members peppered the defense with hostile questions about even the most conservative legal arguments; by contrast, even when the prosecution proposed outlandish interpretations of international law, the panel members just nodded approvingly. The panelists chuckled when the prosecution compared the defense's complaints about the process - which could result in a life sentence for Mr. Hicks - to a teenage girl's complaints about her prom date. On two occasions, the Presiding Officer, Col. Peter Brownback, dismissively referred to defense counsel Dan Mori as "sunshine." More troubling still, the panelists - two of whom have no legal training, remember - struggled to understand even the most basic legal concepts. One of the charges levied against Hicks is "destruction of property by an unprivileged belligerent." The defense appropriately moved to dismiss the charge on the grounds that destruction of property is a war crime only if the property is "protected" under the Geneva Conventions; the defense pointed out that the prosecution had not alleged that the destroyed property was protected. Col. Bogdan treated this straightforward argument as frivolous. He asked, "Isn't the status of the property something we should decide at trial?" But, as any lawyer can tell you, the question of whether a crime has been alleged is certainly not something that should be decided at trial. We don't subject a person to a criminal trial if the government can't allege that he's committed a crime. It's astounding that a kangaroo commission like this one has been invested with the authority to decide whether David Hicks spends his life in prison. The likelihood of his being afforded a full and fair trial seems vanishingly small. Tags: Col. Peter Brownback, David Hicks, Guantanamo Dispatch
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