DOJ/DOD Press Conference on the Gitmo Decisions

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DOD and DOJ had a joint press conference on the Gitmo decisions today. It was on background–so the attribution below is to a senior DOJ official and a senior DOD official. This is just a liveblog transcript–and should be considered a VERY rough approximation.

Sr. DOJ Official: highlight a few things: Decisions to proceed with prosecutions in federal court and reformed military commissions. Bring terrorists to justice, bringing all tools at our disposal to the fight and to the cause of bringing terrorists to justice. Coordinated and cooperative effort by prosecutors. Result of extensive consultations.

Sr. DOD Official: Making good progress toward closing Gitmo, finding new location. Now that review process for these 10 or so has been completed, we have a green light to move forward with the cases. Prosecutors will have to make decisions about how fast to move forward.

LAT: Evidentiary issues: Is statements were made during interrogations of these guys, if that’s going to be from an FBI clean team. If you’re trying to build a case without those, what will you be able to use, incl intercepts?

DOJ: Not going to be asking about evidence. Indictments will be forthcoming. That process has other elements to it.

LAT: Intercepts and so on?

DOJ: Both fora provide for use of classified evidence. CIPA statute. We feel that there’s ample protections for the use of classified information.

DOD: What evidence is offered in any particular prosecution is up to the judges in any particular case.

Savage: We’ve heard various numbers of current population of Gitmo.

DOJ: no numbers

FDL: Questions about competency questions; will detainees be able to get information on their medical condition? What of Ramzi bin al-Shibh’s current pending competency hearing?

DOD: Won’t speculate, these issues will be decided by judges.

Isikoff: Will they get the full story about how they were treated. In death penalty phase of trial?

DOJ: May well be raised in both fora, for the judges to rule upon. We believe that detainees can get a fair trial in both fora.

Gerstein: Immigration status of detainees. Can you address one of the risks of Admin not seeking preventative detention statute in case of acquittal.

DOD: We are defending the law of war detention of the current Gitmo population in the habeas litigation they’ve all brought. We’re confident we have the authority to detain someone ho presents a threat. SCOTUS in Hamdi has said we have the authority. So we’re confident that under a bunch of different authorities we will be able to continue to hold these detainees.

DOJ: There’s an established protocol for the purpose of trial. Has been used in many instances wrt extraditions, was used in matter of Ghailani.

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Defense Lawyer Comments on Ramzi bin al-Shibh and Rahim al-Nashiri

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ACLU just had a conference call on today’s Gitmo announcement with, among others, Razmi bin al-Shibh’s civilian defense attorney, Tom Durkin, and Rahim al-Nashiri’s defense attorney, Nancy Hollander. Both had important details about their clients’ defense.

I asked Durkin about the status of al-Shibh’s competency hearings. Since the government has been trying to refuse defense attorneys access to al-Shibh’s medical records in the context of his competency to stand trial, I wondered if the defense team would continue to push for competency hearing as the trial moves to SDNY. Durkin refused to say what the team would do, but noted that since the military judge had raised the issue of a competency hearing, it is public record that it is an issue.

So expect al-Shibh’s defense team, at least, to continue to push for medical records in the scope of a competency question.

Hollander, who is defending al-Nashiri, noted they, too, have been pushing for their client’s medical records.

She also stated that they are going to contest the venue of the trial. Eric Holder had said a military commission for al-Nashiri is appropriate, given that the Cole bombing occurred in another country and its victims were all military. But Hollander pointed out that the Cole bombing was first investigated as a criminal case, so the only reason (she speculated) why the government would be trying him in a military commission is because they don’t have the evidence to convict him in a civilian court.

Holder’s Press Conference on Gitmo

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Starts by highlighting 9/11: “Just over eight years ago, … deadliest terror attacks we’ve ever seen.”  Then brings up USS Cole. Today we announce a step forward in bringing those responsible for 9/11 attacks and Cole. KSM, bin Attash, bin al-Shib, Ali, Hawsawi. Those prceedings stayed since Feb. Case against alleged mastermind withdrawn in Feb. Working to review every case that has been referred for prosecution. Determinations of 10 detainees now held at Gitmo. Including 9/11 and Cole. DOJ in federal court for 9/11. Further decided to refer back to DOD 5 defendants to face military commission charges. SDNY and EDVA. Brought in Manhattan in SDNY. After 8 years, those allegedly will finally be brought to justice. Just blocks away from where Twin Towers once stood. Also want to assure American people that we will prosecute vigorously. Extraordinary crimes. Maximum penalties. Federal rules allow for death penalty. Fully expect prosecutors to pursue death penalty against 9/11.

Military commissions highest standard.

Based on protocol. Bc many cases could be prosecuted in either civilian or military. Place where occurred, victims, how investigated. Important that we use every forum possible to hold terrorists accountable.

(Technical issues, missed some questions)

Q: What if they get a soapbox?

A: Confident Judge will conduct with dignity.

Q: Peter King says this puts NY in danger.

A: Not factually correct.

Q: Khadr–defense atty says he’ll be transferred to Canada.

A: Right now one of the military commissions one. I’ll look at Khadr matter.

Isikoff: harsh techniques will have to be disclosed to defense attorneys?

Holder: The big question is relevance, will those statements be used? I’m confident we have the evidence we need to prevail (also mentions evidence that has not been discussed).

Q: Surprised about Greg Craig.

A: Great lawyer, contributed in significant want to this Administration. Those who have tried to palce on Grag unfair proportion of blame for why we have not proceeded faster not fair. He leaves with President’ s thanks.

Q Are they going to be charged with 9/11?

Holder: Charged for what we believe they did: mastermind and carry out 9/11.

Q: How open?

A: Like other terrorist trials. Open to the world, with some closed sessions to present classified information.

Q: Fair trial in NY?

A: Together, really searching voir dire process we can come up with jury for fair trial in NY.

The full statement is below:

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What Did Dick Give Judy to Go Pro-Torture?

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Judy Miller must think she’s smarter than Susan Crawford. Crawford, after all, while still convening authority for military commissions in Gitmo, admitted that Mohammed al-Qahtani had been tortured. And by that, she was referring to the treatment that started in November 2002, nine months after Gitmo opened; she was talking about conduct that was ultimately approved in large part by Rummy.

Susan Crawford ought to know, and she says we tortured Qahtani.

But Judy Miller now says we didn’t torture at Gitmo–and any abuse occurred in the first four months after Gitmo was opened–in May 2002 and earlier. (h/t fatster)

“Even though this hasn’t been true for many, many years now,” she explained. “No one was ever waterboarded at Guantanamo, according to Guantanamo officials,” Miller continued. “Torture as ordinary people would call it took place only during four months when it first opened…like sleep deprivation, being doused with ice cold water…things that don’t meet current standards.”

What’s particularly interesting about this opinion from someone whose opinion no one much heeds anymore is that she had a different take on Gitmo back in May.

Joel, I’m sorry, but I was actually in a jail with — one floor away — from Zacarias Moussaoui. … We know how to do this. Believe me, we can do it. The issue is, is it politically acceptable to the American people? That we’re not sure about.

Back in May (just a month after Judy admitted she had a hard time reading the torture memos her buddy Dick had conjured up), she said we know how to close Gitmo. But back in September, Judy said we had to have Gitmo or a place like it.

While the administration ponders the detainees’ legal fate, it seems pointless to spend more money and energy moving them to “Gitmo North” — maximum-security prisons in the United States where they may be far more harshly treated.

It’s time for the Obama administration to acknowledge that Gitmo, or another center like it, will be needed as long as the war on terrorism — no matter what our commander in chief calls it — endures.

Now, I never really expected intellectual consistency from Judy Miller. But I do find it interesting that she’s hitting the airwaves at the moment making claims that are transparently untrue.

Sort of makes you wonder who’s behind her new opinions about Gitmo, doesn’t it?

Intimidating the Defense Attorneys

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It was bad enough that the Bush Administration did away with attorney-client privilege via their warrantless wiretap program. Now the Obama Administration appears to be trying to intimidate lawyers defending Gitmo detainees by threatening them with prosecution for trying to ascertain the identities of those involved in abusing their clients.

The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.

Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency’s interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.

If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify.

This seems akin to me with the practice of refusing to tell defense attorneys what was done to their clients, including withholding Abu Zubaydah’s own diary.

But for a more informed take on what’s going on, check out this Bill Leonard post (remember, he used to head ISOO, the organization in charge of the federal security classification and after the AIPAC defendants won the right to call him to testify, the government case against the defendants fell apart). 

With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer’s cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.

The ready disclosure by the government of Warren’s identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law…". Read more →

Ramzi bin al-Shibh’s Lawyers Can’t Know about the Torture that Drove Him Crazy

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bmaz and I have both covered the government’s Kafkaesque refusal to give Abu Zubaydah–who reportedly has very serious memory issues–his own diary back, thereby making it impossible for him to catalog just what was done to him by James Mitchell’s torturers.

Well, from a Gitmo judge’s ruling last week, it appears there’s a concerted effort to prevent defense attorneys from learning what happened to their clients while being interrogated. (h/t fatster)

Bin al Shibh, 37, is one of five men charged in a complex death penalty prosecution by military commission currently under review by the Obama administration. He allegedly helped organize the Hamburg, Germany, cell of the Sept. 11, 2001, hijackers before the suicide mission that killed 2,974 people in New York, the Pentagon and Pennsylvania.

But his lawyers say he suffers a "delusional disorder,” and hallucinations in his cell at Guantánamo may leave him neither sane enough to act as his own attorney nor to stand trial. Prison camp doctors treat him with psychotropic drugs.

Army Col. Stephen Henley, the military judge on the case, has scheduled a competency hearing for mid-September.

Meantime, the judge ruled on Aug. 6 that "evidence of specific techniques employed by various governmental agencies to interrogate the accused is . . . not essential to a fair resolution of the incompetence determination hearing in this case.” The Miami Herald obtained a copy of the ruling Monday.

According to the Red Cross, bin al-Shibh was exposed to water dousing, stress positions, food deprivation, and forced shaving. For the entire month of February 2005, he was "restrained on a bed, unable to move … and subjected to cold air conditioning." Of course, that also suggests that his intense interrogation lasted much longer than it did for Abu Zubaydah and Khalid Sheikh Mohammed (per the same Red Cross report), since that means he was subjected to intense treatment more than two years after he was captured.

But we (and more importantly, bin al-Shibh’s lawyers) can’t have the details of that treatment because if they learned why he was mentally unfit to stand trial, then it might make it clear that it was torture. And if it did, then bin al-Shibh wouldn’t be the only one standing trial.

Rosenberg Guilty of “Unnecessary Profanity” But Not Harassment

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The Miami Herald has done an investigation into the allegation that their excellent Gitmo reporter, Carol Rosenberg, had sexually harassed a Gitmo officer, Jeffrey Gordon. The investigation concluded that Rosenberg used "unnecessary profanity," but had not harassed her accuser.

In a letter Monday to the Pentagon, Miami Herald Vice President of Human Resources Elissa Vanaver wrote that the newspaper’s internal investigation ‘‘did not find corroboration” for the complaint of sexual harassment and abusive behavior made last month by Cmdr. Jeffrey Gordon.

Herald executives interviewed military officials and journalists from other news outlets, some of whom had witnessed the incidents Gordon cited in his complaint. "We found some inconsistencies in [Gordon’s] version of events," said Miami Herald Executive Editor Anders Gyllenhaal.

[snip]

The written complaint, which is available on the Internet and has been a hot topic on blogs that follow the Guantánamo story, prompted dozens of people familiar with the sometimes-contentious relationship between Gordon and Rosenberg to contact The Herald in support of Rosenberg, Gyllenhaal said.

"We even heard from generals," he added.

Aside from my, um, solidarity with someone guilty of unnecessary profanity (though I insist that "blowjob" is not a profanity), this conclusion makes me ask the question I asked earlier.

Did Gordon file a complaint about Rosenberg because she’s doing the best reporting from Gitmo?

Breaking! Crazy Pete Hoekstra Wants to Refuse New Jobs for Michiganders

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picture-121.thumbnail.pngJust saw this on Twitter:

petehoekstra If press reports on moving Gitmo detainees to Mich are accurate my answer is no. I will do everything possible to stop this.

Mind you, John Engler, Carl Levin, and Bart Stupak have all spoken favorably of moving Gitmo detainees to Michigan. Bipartisan support! And why not? We’ve got the empty prisons, the remote areas. And lots and lots of Michiganders who need a job.

But Crazy Pete apparently thinks he needs to fearmonger on terrorism more than Michiganders need jobs (or America needs to restore its reputation internationally).

And he wants to run for Governor of Michigan?

Update: I’ve put a map of where the prison in question is located–basically the pointer finger knuckle, in mitten-speak. 

Sexual Harassment Claim or Attempt to Silence?

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I don’t know whether there’s any merit to the claim a Gitmo commander just filed against the Miami Herald’s Carol Rosenberg or not.

In a letter to the paper’s editor, Cmdr. Jeffrey Gordon accused Carol Rosenberg of "multiple incidents of abusive and degrading comments of an explicitly sexual nature." Gordon, who deals primarily with the Guantanamo Bay, Cuba, prison, said in the letter that this was a "formal sexual harassment complaint" and asked the Herald for a "thorough investigation."

"Her behavior has been so atrocious over the years," Gordon said in an interview. "I’ve been abused worse than the detainees have been abused."

But I do know two things. Rosenberg’s reporting from Gitmo has consistently been the best reporting from the military commissions.

And this accusation from Gordon sounds suspiciously like treatment US soldiers inflicted on detainees in military custody.

While watching Sept. 11, 2001, co-defendant Mustafa al-Hawsawi seated on a pillow in court last year, Rosenberg told Gordon: "Have you ever had a red hot poker shoved up your [butt]? Have you ever had a broomstick shoved up your [butt]? . . . How would you know how it feels if it never happened to you? Admit it, you liked it."

That is, the comment could be as much a comment about American members of the military dismissing torture as it is about harassment.

I’m not advocating ignoring a claim of harassment (note, Gordon claims Rosernberg made insinuations about his sexual orientation). But I do find it suspicious that this claim is being leveled against the best journalist covering our Kangaroo Courts.

David Kris: Our Only Military Commission Convictions May Be Illegal

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I was interested in one particular detail in David Kris’ testimony before the Senate Armed Services Committee hearing on military commissions the other day. He said that we probably couldn’t charge and try people with "material support for terrorism" in military commissions.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

I’ve always thought the "material support for terrorism" to be a fairly arbitrary crime. That’s particularly true given that Eric Holder, back in his high-priced Defense Attorney days, got powerful white corporate executives off with no charges after they knowingly supported right wing terrorist violence, but as Attorney General, Holder recently oversaw DOJ win 15 year penalties on Muslims who claimed to believe their donations had supported charity.

But Aussie Lawyer reminded me of something more important. 

Two of the only people (maybe the only people?) who have been convicted thus far in our kangaroo court Guantanamo military commission system are David Hicks and Salim Hamdan. The charge both were convicted on?

Material support for terrorism.

Of course, both have served their sentence and been freed, so I question whether either will challenge their conviction based on Kris’ statement. 

But the current Assistant Attorney General for National Security seems to be suggesting that the only two convictions the Bush White House got from his military commissions would not hold up under appeal. Read more →