PLRC Blog

This Blog Supplements Chapter 9 of America in Peril

24 June 2008

On 12 June 2008 the US Supreme Court ruled that detainees had the habeas corpus right in US courts to challenge their imprisonment.  This potentially upsets all Bush administration plans for convicting prisoners at Guantanamo.  Before delving into that, however, it will be instructional to recap the events leading up to this critical ruling.

Boumediene v. Bush.  Lakhar Boumediene and five other Algerians were accused of plotting to blow up the US embassy in Sarajevo while working for charities in Bosnia in November 2001.  After the Supreme Court of Bosnian and Herzegovina found insufficient evidence to substantiate that charge and ordered them released, they were kidnapped by the Bosnian police as they left the courthouse, turned over to the US military, and ended up at Guantanamo.  This case includes almost three dozen defendants who are seeking habeas corpus rights.  It worked its way up to the US Supreme Court where certiorari was denied in April 2007.

Al Odah v. United States.  Fawzi Khalid Abdullah Fahad Al Odah and eleven other Kuwaiti nationals detained at Guantanamo had also sued for habeas corpus rights and had also unsuccessfully worked their way up through the courts.  Their case was denied certiorari at the same time as Boumediene.

The Supreme Court ruled 6-3 in denying certiorari for the above cases.  However, two of the justices voting for denial said they would reconsider the case if the administration imposes other continuing injuries on the detainees.  Such continuing injuries came to light when Al Odah’s attorneys asked Lt. Col. Stephen Abraham to sign a declaration regarding irregularities he witnessed while working with Combat Status Review Tribunals (CSRTs) at Guantanamo.  Abraham is a 26-year military intelligence veteran and California lawyer.  His June 2007 declaration pointed out that clerks and reporters preparing evidence for CSRT board members were inexperienced in both legal and intelligence fields.  They could not determine if the intelligence information given to them was complete.  Intelligence agencies supplied only what they chose and brooked no questions about possible missing exculpatory information.  Neither did the clerks and reporters have any context about what in the voluminous amount of information might be relevant and what was not.  Quality assurance checks were made by personnel with a similar lack of skills.  Abraham concluded:

What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.  Statements allegedly made by percipient witnesses lacked detail.  Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.  Statements of interrogations presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” … (Declaration of Stephen Abraham)

Abraham also described one CSRY board he sat on.  It was pressured to find the detainee an “enemy combatant.”  When the board failed to do so the members were interrogated and hassled.  The same detainee was then reviewed by another CSRT board which arrived at the administration’s desired decision.  Abraham was not asked to sit on another board.

Abraham’s declaration, the first evidence from inside the CSRT process itself, caused the Supreme Court to make the rare decision of reversing itself and granting certiorari to Boumediene (now combined with Al Odah).  Possibly 200 detainees at Guantanamo would be affected by this monumental case which was heard before the Court on 5 December 2007.  (An estimated 270 are still there.)

While waiting for the Boumediene decision, a related issue cropped up.  The Military Commissions Act of 2006 (MCA) allows appeal of CSRT decisions to the US Court of Appeals for the District of Columbia.  The first case to be appealed under the MCA was Bismullah v. Gates which involved eight detainees.  In July 2007, perhaps influenced by Lt. Col. Abraham’s declaration which also addressed the Bismullah case, a three-judge panel of the D.C. Circuit unanimously ordered the government to provide all records on Guantanamo detainees when they challenge their detention, not just the clerk’s and reporter’s summaries used during the tribunal proceedings.  That of course would reveal the incompetence and prejudice Lt. Col. Abraham described in his declaration.

The Bush administration claimed assembling all the records is impossible.  There was even discussion on convening new combat status review tribunals rather than turn the records over to the court.  An appeal to the entire circuit court for reconsideration resulted in an early February 2008 decision upholding the three-judge panel.  Then the Bush administration on February 14^th filed a Supreme Court case, Gates v. Bismullah, asking the Court to review the circuit court’s demand because compliance would create a “serious threat to national security…” (Greenhouse)

All of this was rendered moot on 12 June 2008 when the Supreme Court ruled 5-4 that the constitutional guarantee of habeas corpus extends to detainees at Guantanamo.  The opinion of the court read in part:

… Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the constitution.” … To hold the political branches have the power to switch the constitution on or off at will … would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this court, say “what the law is.”

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers.  The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (Boumediene v. Bush)

Now detainees at Guantanamo can challenge the legality of their incarceration, and habeas reviews are not restricted to just the D.C. Circuit.  Lawyers can file petitions one-by-one for specific prisoners.  Unlike the CSRT process, during habeas hearings the burden will be on the administration to present evidence that justifies holding the defendant and to describe the treatment he has received.  The administration will not get off with just defending a CSRT board decision.  Judges, not the president, will decide on remedies and can even order release of the prisoner.

Now the Bush administration wants to rewrite all the evidence against Guantanamo detainees – clean it up, so to speak.  Remember, this is the evidence that has kept many men locked up under inhumane conditions for over six years.  This is the evidence the administration has supported for all that time.  It is the evidence CSRT boards relied on to keep people incarcerated indefinitely.  Now that federal judges will see it the administration wants to clean it up.  Obviously the administration’s case, as the old saying goes, won’t hold up in court, at least not a legitimate court.  In the long run, most prisoners may be repatriated to their native country rather than the Bush administration having to face embarrassing habeas procedures.

A Surprise from the D.C. Circuit.

I’ll close this blog with another pleasant surprise.  Just 11 days after the Supreme Court decision on Boumediene, the US Court of Appeals for the District of Columbia for the first time declared invalid a CSRT board decision that a detainee is an enemy combatant.  Huzaifa Parhat has been a prisoner at Guantanamo for over six years.  When the MCA provided for appeal of CSRT decisions, Parhat took his case to the D.C. Circuit.  On June 23^rd a three-judge panel reversed the CSRT decision and ordered Parhat released or given a new tribunal hearing “consistent with the court’s opinion.” (Taylor)  At least 17 detainees, possibly more, will be affected by this ruling.  The full text of the court’s opinion is being reviewed for secret information and is not available at the time of this writing but there seems to be some crumbling of the outlandish extra-legal activities taking place at Guantanamo.

Bob Aldridge

 

References.

Abraham, Stephen; “Declaration of Stephen Abraham,” 15 June 2007.

Boumediene v. Bush; “Opinion of the Court,” Supreme Court of the United States, 12 June 2008.

Cohn, Marjorie; “Supreme Court Checks and Balances in Boumediene,” Jurist, 16 June 2008.

Greenhouse, Lind a; “Bush Appeals to Justices on detainee Case,” The New York Times, 15 February 2008.

Taylor, Marisa; In a First, Court Says Military Erred in a Guantanamo case,” McClatchy Washington Bureau, 23 June 2008.

 

 

 

 

This blog supplements Chapter 1 of America in Peril

15 June 2008

In Chapter 1 of America in Peril I summarized the neoconservative agenda and how a “War on Terror” was devised to fulfill that agenda. What I didn’t describe was a major foreign-policy objective of that agenda — occupying Iraq which sits atop a huge petroleum reserve.

After 9/11, and after toppling the Taliban in Afghanistan, Bush started calling for regime change in Iraq. His purported justification was twofold: (1) Iraq is a security threat to the United States and (2) Iraq supports international terrorists. In June 2002 he told West Point graduates: “If we wait for threats to fully materialize, we will have waited too long.” (Puzzanghera) In September he declared: “The people of Iraq can shake off their captivity. They can one day join a democratic Afghanistan and a democratic Palestine, inspiring reforms throughout the Muslim world.” (Carnegie Endowment Proliferation Brief) Then Bush released his National Security Strategy of preemptive force. Secret “evidence” persuaded Congress in October to conditionally authorize war powers.

In November the UN Security Council unanimously resolved that Iraq must disarm. New weapons inspections yielded inconclusive results. In early 2003 the White House tried for a second UN resolution that would authorize force against Iraq. Secretary of State Colin Powell provided “evidence” supposedly supporting US claims. But when it was evident the second resolution would fail, Bush dropped the issue and decided to act unilaterally. His rationale was that going ahead with no resolution was more palatable to domestic and international opinion than with a failed one. On 20 March 2003 “Shock and Awe” signaled the invasion of Iraq.

Now I will describe the fiction that led us to this point.

 

Was Iraq a Threat to Security?

Weapons of mass destruction (WMD) are classified as nuclear, chemical, and biological. In the 1980s Saddam did use chemical weapons against Iranians and his own Kurdish people. After Desert Storm Iraq had to destroy all WMDs and UN weapons inspectors found no trace of any after that.

Yet Bush insisted in his October 2002 speech at the Cincinnati Museum Center that there is “clear evidence of peril” and that “we cannot wait for the final proof — the smoking gun — that could come in the form of a mushroom cloud.” (Mackay) He sent David Kay to Iraq with a $900-million budget and hundreds of inspectors to find those elusive WMDs. Kay eventually gave up, saying he didn’t think they existed.

Also in October 2002, CIA Director George Tenet provided the Senate a declassified version of CIA estimates on Iraq’s weapons along with a letter summarizing the report. The official CIA opinion was that Saddam would not strike first with chemical or biological weapons and is not a security threat on that score. But the CIA felt if he is attacked, he would use them if he had them. Regarding nuclear weapons, the CIA assessed Saddam’s program as merely one of intention. According to the CIA Iraq was not an imminent threat and there was no reason to go to war.

 

Was Iraq Connected to the 9/11 Attacks?

To justify a war on these grounds, Iraq had to be connected to the terrorists who planned and carried out an attack on America. White House officials consistently harped on failed liaisons between Iraq and Al Qaida during the 1990s, but could find no evidence of a successful alliance. Investigative reporter Neil Mackay wrote: “Try as it might, the UK has been unable to produce any evidence clearly linking Saddam to bin Laden, and the French have positively ruled out any connection.” France’s leading terrorist investigative magistrate, with full access to France’s intelligence material, said: “We have not found any link between Al Qaida and Iraq. Not a trace.” Mackay added that “the secular nature of Saddam’s regime deters him from getting into bed with the likes of bin Laden. It also makes cozying up to Saddam anathema to the fundamentalists of Al Qaida.” (Mackay)

During Powell’s infamous UN speech, he claimed an Al Qaida collaborator named Abu Musab Al-Zarqawi had his headquarters in Iraq. Zarqawi had overseen a terrorist training camp in Afghanistan specializing in poisons. When the Taliban was ousted, Zarqawi established a poison and explosive training program at a camp run by Ansar al-Islam in northeastern Iraq. But this was in the autonomous Kurdish territory where Saddam had no control — it was in the northern no-fly zone patrolled by the US.

After the Ansar group’s camp was captured by US forces it was found they had “no strong evidence of connections to Baghdad” and was not “a serious threat beyond its mountain borders.” (Fleishman) It was organized for jihad against a rival Kurdish group. Powell said Zarqawi went to Baghdad in May 2002 for medical reasons and started a base of operations there to coordinate movement of money, people, and supplies throughout Iraq. However, senior US officials said that although the Iraqi government was aware of that activity it did not operate, control or sponsor it. It was analogous to terrorist activity in America.

 

Invading Iraq Was a Crime.

The UN Charter states: “All Members shall refrain … from the threat or use of force against the territorial integrity or political independence of any state,…” War is outlawed but there are exceptions for self-defense. But if a threat is fabricated, use of force constitutes an international crime. Bush had tried for another UN resolution to authorize force because no resolution so far had done that. When that failed, he twisted the language of past resolutions. He invoked Security Council Resolutions 678 (1990) and 687 (1991), claiming they provided “clear authorization from the Security Council to use force to disarm Iraq.” (Washington File) But, Resolution 678 authorized force only to expel Iraq from Kuwait.

Resolution 687, among other things, calls for Iraq to eliminate all WMDs, submit to UN inspections, and not support terrorism. A formal cease fire took effect upon “official notification by Iraq” of its “acceptance of the provisions above.” Whether in good faith or not, Iraq has accepted and has declared many times that it possesses no WMDs and harbors no terrorists. Bush invaded Iraq during a UN-mandated cease fire and thus committed an international crime. The Security Council is the decision maker, not the White House.

 

The Great Sham – Deception of Congress.

A high-level intelligence official said analysts at the working level “are feeling very strong pressure from the Pentagon to cook the intelligence books.” Over a dozen others agreed. All of them granted that Saddam would eventually have to be dealt with, possibly with military action, but maintained “the US government has no dramatic new knowledge about the Iraqi leader that justifies Bush’s urgent call to arms.” (Strobel, Landay, and Walcott)

Section 3 of Public Law 107-243 passed by Congress on 16 October 2002 spelled out what authorized use of US armed forces against Iraq. Subsection (b)(1) says diplomacy and working with the UN must be certified as insufficient to protect our national security. I have already shown how Bush illegally circumvented the UN.

Section (b)(2) provides for “necessary actions” to be taken against “international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” (boldface added) That means the US can attack any international terrorist organization, but to attack a nation like Iraq that nation had to have been involved in the 9/11 attack.

Bush had to certify to Congress in the exact words of those subsections in order to justify using the war powers Congress authorized. That is exactly what he did on 18 March 2003. The lie was soon exposed. On 16 June 2004 the 9/11 Commission released a preliminary staff report stating: “We have no credible evidence that Iraq and Al Qaida cooperated on attacks against the United States.” (Scheer) Thomas H. Keen, hand-picked by Bush to chair that Commission, said the commission’s staff found “no credible evidence that we can discover, after a long investigation, that Iraq and Saddam Hussein were in any way part of the attack on the United States.” (Pincus and Milbank) Vice Chairman Lee Hamilton said “the panel had been unable to document any ‘collaborative relationship’ between Iraq and the terror network – against the United States or any other target … of any collaborative relationship – period.” (Shenon and Stevenson)

Bush retorted : “This administration never said that the 9/11 attacks were orchestrated between Saddam and Al Qaida. We did say there were numerous contacts between Saddam Hussein and Al Qaida.” (Pincus and Milbank) White House Communications Director Dan Bartlett added that Bush never made an explicit link between Saddam Hussein and 9/11. Remember however, Bush certified to that exact connection in his letter to Congress to justify use of military force. One journalist commented “It’s the Big Lie technique – never flinch in the face of truth.” (Scheer) Andrew Kohut, director of the June Pew Research poll, said Bush will keep Iraq and 9/11 tied together: “So many people believe it because he’s saying it. Bush’s hanging tough on this gives him the credibility he has.” (Milbank)

On 5 June 2008 the Senate Intelligence Committee, after five years of investigation, released its report on the deception used to invade Iraq. Chairman John D. Rockefeller IV summed it up: “In making the case for war, the administration repeatedly presented intelligence as fact when, in reality, it was unsubstantiated, contradicted or even nonexistent. Sadly, the Bush administration led the nation into war under false pretenses.” (Miller)

Bob Aldridge

For a more detailed treatment of events leading up to the invasion of Iraq see my research paper on this subject at http://www.plrc.org/docs/030503.pdf

References.

Carnegie Endowment Proliferation Brief, “Origins of Regime Change in Iraq,” 19 March 2003.

Mackay, Neil; “Why the CIA Thinks Bush is Wrong,” Sunday Herald (Glasgow, Scotland), 13 October 2002.

Milbank, Dana; “9/11 Panel’s Findings vault Bush Credibility To Campaign Forefront,” Washington Post, 20 June 2004.

Miller, Greg; “Senate Intelligence Committee Rebukes Bush, Cheney on Prewar Claims,” Los Angels Times, 6 June 2008.

Pincus, Walter and Milbank, Dana; “Bush Reasserts Hussein-Al Qaida Link,” Washington Post, 17 June 2004.

Puzzanghera, Jim; “Key Advisers See Iraq War as Test Case,” San Jose (CA) Mercury News, 19 March 2003.

Scheer, Robert; “Truth About Iraq Finally Has Its Pants On,” Los Angeles Times, 22 June 2004.

Shenon, Philip and Stevenson, Richard W.; “Leaders of 9/11 Panel Ask Cheney for Reports,” The New York Times, 19 June 2004.

Strobel, Warren P., Landay, Jonathan S., and Walcott, John; “Bush Pushes for First Strike on Iraq: Evidence Not So Solid, Some Officials Say,” San Jose (CA) Mercury News, 8 October 2002.

Washington File, “Excerpt: Bush Has Legal Authority To Use Force In Iraq, Advisor Says,” US State Department International Information Programs, 21 March 2003. Search at http://usinfo.state.gov/egi-bin/washfile/