Category Archives: Military Commissions Act

"We can’t have acquittals. We’ve got to have convictions."


I have shuddered at the thought that most, if not all, of the individuals to be tried in BushCo’s kangaroo court known as the military tribunals would be found guilty. That they would be found guilty on shoddy or non-existing evidence coerced out of them by torture and certainly without any decent representation.

Great gnashing of teeth and wringing of hands has occurred on this topic for me. This might cause some folks to see me as a loony lefty, among other things. As if that matters to me what people think of me.

I want the guilty to be found guilty…but I doubt that even a third of the people still being held in Gitmo are guilty of anything, even though they are considered ‘high value’ detainees by the people in charge.

Recently, one of those high-value guys saw the case against him dismissed. The alleged 20th hijacker, Mohammed al-Qahtani’s case came to an abrupt end. The reason? He was tortured and tortured…and tortured some more. As Slate’s Dahlia Lithwick notes:

The decision not to try him comes from the convening authority for the commissions, Susan Crawford. She didn’t give an explanation for halting the prosecution, but, then, we don’t really need one.

Lithwick’s column states the reason that we might never see any of the ‘high value’ detainees tried and automatically convicted is because of the military itself. In her and Emily Bazelon’s mind, there are honorable men and women involved in the Gitmo military commission hierarchy. While I have no doubt that some of the people involved are honorable and have a conscience, I still don’t trust the majority of them to do the ‘right thing’ and end the Gitmo madness.

Dahlia and Emily start with Charles Swift, the defense lawyer from the Navy’s Judge Advocate General Corps who was appointed in 2002 to represent Salim Hamdan. Mr. Swift was a good and honorable man, to be sure. He has even publicly voiced his opposition to the military commissions. His opposition most likely cost him his military career.

Next, they lay out the case for Col. Morris Davis, former chief prosecutor for the tribunals. He is an honorable man only because when it came time for him to actually prosecute detainees, which he had completely backed, he was stunned to learn which cases he was given. Cases without merit…but plenty of torture. From the Slate write up:

He resigned last October and went on an op-ed tear, writing that “full, fair and open trials were not possible under the current system” because it “had become deeply politicized.” Davis, who still maintains that the charges against Mr. Hamdan are “warranted by the evidence,” was called to testify in Hamdan’s case last month by the defense because of his indictment of the system.

Keith Allred is a military judge. That is pretty high up the food chain if you ask me. Allred bounced a biggie from Hamdan’s trial. Brig. Gen. Thomas Hartmann has been removed from any further participation in Hamdan’s prosecution by Allred because he determined that Hartmann directed prosecutors “to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as the result of torture or coercion.” (Allred also made a finding of fact that while interviewing Davis for the chief-prosecutor position, Department of Defense Gen. Jim Haynes told him, “We can’t have acquittals. We’ve got to have convictions.” So now that’s the official account. Good to know.).

As I read further, I relax a bit. I realize that all might not be lost, that inherently good, honest people will not throw away their conscience just because their boss tells them to…they believe in the rule of law. The article rattles off four more names of individuals whose conscience trumped their bosses orders in BushCo’s kangaroo court in Gitmo:

Four others—Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf, and Lt. Col. Stuart Couch—have also left, apparently because of micromanagement and the interference of which Davis complained, including the demand that they use what they deemed to be unreliable coerced testimony.

That these individuals have sacrificed their careers in order to hold onto their belief system makes me feel that much better. It takes a lot for someone who is a career military officer to say fuck it and go very public with their opposition to the bullshit that is the Gitmo military commission.

We can only hope more of them are waiting in the wings. Beause there is still too much time left before January 21st gets here and the next Democratic President can put an end to the madness down in Guantanamo and shut the doors forever.

Crossposted at UnCapitalist Journal

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Army officer says Gitmo panels flawed

Like this is NEW. From AP:

SAN JUAN, Puerto Rico – An Army officer with a key role in the U.S. military hearings at Guantanamo Bay says they relied on vague and incomplete intelligence and were pressured to declare detainees “enemy combatants,” often without any specific evidence.

His affidavit, released Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only “generic” material that didn’t hold up to the most basic legal challenges.

Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.

“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant.”

The Pentagon had no immediate comment, but a spokesman said Defense Department officials were preparing a response to the affidavit.

An attorney for al-Odah, David Cynamon, said Abraham “bravely” agreed to provide the affidavit when defense lawyers contacted him.

“It proves what we all suspected, which is that the CSRTs were a complete sham,” Cynamon said.

Matthew J. MacLean, another al-Odah lawyer, said Abraham is the first member of a Combat Status Review Tribunal panel who has been identified, let alone been willing to criticize the tribunals in the public record.

“It wouldn’t be quite right to say this is the most important piece of evidence that has come out of the CSRT process, because this is the only piece of evidence ever to come out of the CSRT process,” MacLean said. “It’s our only view into the CSRT.”

Abraham said he first raised his concerns when he was on active duty with the Defense Department agency in charge of the tribunal process from September 2004 to March 2005 and felt the issues were not adequately addressed. He said he decided his only recourse was to submit the affidavit.

“I pointed out nothing less than facts, facts that can and should be fixed,” he told The Associated Press in a telephone interview from his office in Newport Beach, Calif.

The 46-year-old lawyer, who remains in the reserves, said he believe he had a responsibility to point out that officers “did not have the proper tools” to determine whether a detainee was in fact an enemy combatant.

“I take very seriously my responsibility, my duties as a citizen,” he said.

Cynamon said he fears the officer’s military future could be in jeopardy. “For him to do this was a courageous thing but it’s probably an assurance of career suicide,” he said.

The military held Combatant Status Review Tribunals for 558 detainees at the U.S. Naval Base at Guantanamo Bay in 2004 and 2005, with handcuffed detainees appearing before panels made up of three officers. Detainees had a military “personal representative” instead of a defense attorney, and all but 38 were determined to be “enemy combatants.”

Abraham was asked to serve on one of the panels, and he said its members felt strong pressure to find against the detainee, saying there was “intensive scrutiny” when they declared a prisoner not to be an enemy combatant. When his panel decided the detainee wasn’t an “enemy combatant,” they were ordered to reconvene to hear more evidence, he said.

Ultimately, his panel held its ground, and he was never asked to participate in another tribunal, he said.

In April, the Supreme Court declined to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement.

Lawyers for the detainees have asked the justices to reconsider and included Abraham’s affidavit in a filing made Friday. The administration opposes the request.

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