Archive for category: Gitmo Show Trials

The announcement in the WaPo that Phil Carter had resigned his post as Deputy Assistant Secretary for Detainee Affairs was bleak enough. That article attributes Carter’s departure to “family reasons.”

Phillip Carter, who was appointed deputy assistant secretary of defense for detainee policy in April, said in a brief telephone interview that he was leaving for “personal and family reasons” and not because of any policy differences with the administration.

But Carol Rosenberg–whose coverage of Gitmo is far and away the best–seems to suggest there’s more going on.

He quit without explanation just days after Obama confirmed in an interview with Fox News in Beijing that his administration would miss its Jan. 22 Guantánamo closure deadline.

The development apparently took the Department of Defense by surprise.

[snip]

A Defense Department source said Carter, an attorney with a 2004 law degree from UCLA, had already stopped reporting to work by the time the Pentagon confirmed his resignation — and that his last field trip was not abroad but to Thomson, Ill.

She goes onto suggest that Carter may not have gotten along with the Cheney dead-enders in the Pentagon.

So Carter heads off to Thomson, IL at just about precisely the time Obama was announcing that Gitmo would not be closed any time soon (and, it should be said, in the wake of Greg Craig’s resignation, apparently for Gitmo-related reasons). And then he quits suddenly, apparently without notice.

That may well be the “family reasons” the WaPo suggests. But it appears that the folks closest to Gitmo suspect something else is going on.

Update: Glenn Greenwald catalogs the views Carter has espoused that have been rejected by the Obama Administration.

If you suspended disbelief in yesterday’s DOJ oversight hearing and pretend this wasn’t about demagoguing and protecting torturers, the Republican attacks on Eric Holder’s decision to try five of the 9/11 detainees raise good points. They argue:

• The 9/11 conspirators are actually more appropriate defendants for a military commission than some others who will be charged in military commissions
• The standards for who gets tried in a civilian court and who gets tried in a military commission are inconsistent
• Trying al Qaeda detainees in civilian courts may present Miranda challenges to soldiers in Afghanistan
• A civilian trial will take a long time (3 years, according to Mary Jo White) and cost a lot of money ($50 million, according to Chuck Schumer)
• Defendants might get off on legal technicalities
• There were problems alleged to have arisen out of the earlier NYC terrorist trials
• KSM might be able to demand asylum under the Convention Against Torture once in the US

Some of those are, frankly, legitimate concerns. But I said, “pretend this wasn’t about demagoguing,” because even when Holder addressed each of these concerns (though he did admit he’s not an immigration expert), the Republicans continued to attack him on the same grounds. They simply ignored his serious responses to their questions.

But what I found most interesting about the way Republicans not listening to Holder’s answers came in response to Holder’s assertion that the government is more likely to succeed in getting a conviction in Article III Court. The exchange, above, with Kyl, is one of the most heated examples.

Kyl: Surely you’re not arguing that it’s easier to get evidence into an Article III than a military commission. I mean, you made the point that you’re aware of a lot of evidence in this case that others aren’t, of course, but the rules for admitting evidence are more lenient before a military commission than an Article III Court, so that can’t be the basis for your decision, is it?

Holder: That is not necessarily the case. With regard to the evidence that would be elicited in a military commission, evidence elicited from the detainees, from the terrorists as a result of these enhanced interrogation techniques, it is not clear to me, at all, that that information would necessarily be admitted into a military commission, even with the use of a clean team, or that it would withstand appellate scrutiny. And on the basis of that concern and other things, my desire to go to an Article III Court and to minimize the use of that kind of information, that kind of evidence, I thought was paramount.

Yet Kyl all but dismissed this assertion, continuing on to demagogue some more (in this case, by raising one of Andrew McCarthy’s attacks on Holder).

The Attorney General of the United States repeatedly told Congress that the government stands a better chance of getting a conviction in a civilian court, yet Republicans don’t care–they still want their military commissions.

Now, the Republican refusal to consider Holder’s assertion is one thing. But it does raise the question of what Holder meant.

We discussed some of these issues in the David Frakt thread. Significantly, Frakt noted that the judge in the Jawad case ruled that he had the basis to dismiss all charges on the basis of pretrial abuse.

The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. [my emphasis]

And that–Frakt suggests later in that comment–might lead a military judge to deny the death penalty to make up for the fact that KSM had been waterboarded 183 times. In addition, both Mustafa al-Hawsawi and Ramzi bin al-Shibh have active challenges to the constitutionality of the military commissions, which, at the very least would hold up the military commissions themselves (even assuming that they were found to be constitutional).

Holder seems to be accounting for some of these factors–as well as noting that a death penalty case should be heard in the place where the crime occurred. But he also seems to be suggesting that it will be easier to present the evidence he feels the government should use to try its case against KSM and the others. (I sort of suspect he thinks it might be easier to bracket off any consideration of KSM’s torture in a civilian trial–though I’m curious what the lawyers think about this.)

I’m going to look more closely at what Holder might be thinking.

But the bottom line is this: the country’s top law enforcement officer says we are most likely to win a conviction of KSM in a civilian trial. But Republicans want their military commission anyway.

In both my post wondering whether a trial in NYC makes a material support for terrorism charge more viable for the alleged 9/11 financiers, and in my post linking to Jonathan Hafetz’ post criticizing the “lawless” system of justice imposed for Gitmo detainees, pow wow has linked to Lt. Col. and Associate Professor David Frakt’s testimony to the House earlier this year, arguing that almost none of the charges filed under military commissions are actually war crimes.

You’ll recall that Frakt represented Mohammed Jawad; in the course of representing Jawad through his release, he made some of the most powerful statements that have been made against the military commissions system. Given the fascinating discussion in these threads, I decided to email Frakt and put some of these questions to him directly.

I asked Frakt his general thoughts about Friday’s announcements.

I reject the government’s claim that the nature of the crime determines the forum (federal court or military commission). I believe it is largely political considerations that are the basis for these determinations. Basically, if there is a U.S. Attorney who wants to try the case and they think they can prove it, they get priority and it goes to federal court. Clearly, there weren’t any federal prosecutors who wanted to touch the Khadr case with a ten-foot pole. Who wants to be the first person to try a 15 year old child soldier as a war criminal in history? (Answer – the prosecutors at OMC) It is absolutely appalling that AG Holder has approved this case to continue in the military commissions. This is truly one of the great disappointments of the Obama Administration to date. The claim that the nature of the crime determines the forum is similarly false. The Administration claims that “law of war offenses” will be tried in commissions, but there are precious few, if any, legitimate law of war violations to try. The attack on the U.S.S. Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the U.S. was engaged in an armed conflict with al Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the U.S. and al Qaeda prior to 9/11.

I asked Frakt specifically about Noor Uthman Mohammed–who was captured with Abu Zubaydah–because I think it presents interesting questions about the way the government is tying people to Al Qaeda.

The Noor Uthman Mohammed charges illustrate the wholesale deficiency of most of the military commission charges. Read more →