The brief of the Guantanamo detainees in the Supreme Court case Rasul v. Bush is available online here. (pdf) The question presented is "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba?" [link via How Appealing]

Update: From UPI:

The 30-page brief pulls no punches in its criticism of the legal issues surrounding the more than 600 detainees being held at Guantanamo Bay Naval Base, ostensibly outside the reach of civilian courts. "If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah," the brief states.

If the Bush administration's treatment of the prisoners is not challenged by the Supreme Court "the government is free to label virtually any person on the globe an enemy alien and deprive recourse to the civilian court."

As world criticism mounts against the U.S. policy of holding detainees at Guantanamo for 2 years without charges or trials, a disturbing fact emerges:

While Washington has promised tribunals, it also continues to expand the prison. Eventually it will have 1,100 cells, raising further questions of what the future holds for the mission.

There are still 660 prisoners at Guantanamo, including 3 teenage boys. While 88 have been released, new arrivals have taken their places.

Johan Steyn, one of a panel of judges who sit in Britain's House of Lords, recently said holding the tribunals in Cuba would be a "monstrous failure of justice."

....Some U.S. lawmakers also have raised concerns about prolonged delays in the detainees' cases. Others say holding tribunals outside the jurisdiction of U.S. courts would make trials unfair.

Many critics say the United States has abandoned its judicial principles in its zeal to prevent another terrorist attack on its soil. "You have people sitting there for two years with rights under international law being utterly ignored by the administration," said Jamie Fellner, U.S. director of Human Rights Watch.

There have been 34 suicide attempts by the prisoners--including one this week.

Guantanamo turns 2 years old today. How depressing.

The Bush Administration suffered another setback today in its persistent legal fiction that it can hold American citizens indefinitely, without criminal charges and without access to a lawyer by unilaterally declaring them to be "enemy combatants": The Supreme Court today agreed to hear the case of Yaser Hamdi--over the objections of the Administration:

Over the administration's objections, the court said it will consider the treatment of Yaser Esam Hamdi, a suspected Taliban foot soldier held at a U.S. naval brig in South Carolina. The government calls Hamdi an "enemy combatant" and says he is ineligible for ordinary legal protections.

Hamdi's case (and that of Jose Padilla, whose case may also be taken up) "raise basic legal and constitutional questions about the breadth of executive power and the rights of terror suspects to defend themselves in court."

....The Bush administration has maintained that it alone has the power to designate someone an enemy combatant - and that the label means a detainee can be held in open-ended military custody without access to courts, lawyers and sometimes family or other outsiders.

...."The court has really drawn a line in the sand," said Deborah Pearlstein, a lawyer and national security specialist at the Lawyers Committee for Human Rights, which has been a frequent Bush administration critic. "It is recognizing that, yes, the executive has some wartime powers, but they are not unlimited."

Mohamed Kamel Bellahouel was secretly jailed after the Sept. 11 attacks. His court case was kept secret. It's now before the Supreme Court. The Bush Administration has filed a request to continue to keep the case secret. More than 20 media organizations have filed requests to open the proceedings.

Justices sometimes are asked to keep parts of cases private because of information sensitive for national security or other reasons, but it's unusual for an entire filing to be kept secret.

Lucy A. Dalglish, executive director of The Reporters Committee for Freedom of the Press, said she was disappointed by the government's request. "The idea that there is nothing that could be filed publicly is really ridiculous," she said. "It just emphasizes our point that we're living in frightening times. People can be arrested, thrown in jail and have secret court proceedings, and we know absolutely nothing about it."

Behind the Homefront has much more on the case. The motion to intervene is here. The amicus brief is here. The case is The case is M.K.B. v. Warden, 03-6747.

Update: Arthur at Light of Reason has more.

[no comments on this post because they got spammed.]

By TChris

John Fugh, a retired major general and former judge advocate general, has criticized the decision of military prosecutors to pursue minor charges against Capt. James J. Yee, the Muslim chaplain who was initially viewed as a suspect in an espionage ring at the U.S. military base in Guantanamo Bay. Yee, who spent 76 days in solitary confinement (often in leg irons and manacles) prior to his release on Dec. 8, has been charged with mishandling classified information, as well as adultery and keeping pornography on his government computer.

According to General Fugh, "This whole thing makes the military prosecutors look ridiculous."

"It certainly seems like they couldn't get him on what they first thought they had," General Fugh said, "so they said, `Let's get the son of a gun on something.'"

General Fugh, who has played no role in the prosecution or the defense of Captain Yee, said, "Adding these Mickey Mouse charges just makes them look dumb, in my mind."

Interviews conducted by The New York Times suggest a number of events that "led the military ever deeper into its prosecution," including assigning inexperienced reservists to act as counterintelligence officers at the camp, confusion about whether documents were or were not classified, and an atmosphere of suspicion that surrounded the decision to allow Muslims and Arab-Americans to be involved in camp operations. The evidence of Captain Yee's adultery and the pornography on his computer were discovered as the military was tying to strengthen its case for espionage. The espionage theory was not borne out, and the most serious charges against Air Force translator Ahmad I. al-Halabi (whose weekly dinners with Capt. Yee apparently led to Yee's arrest), once viewed as the central figure in a plot to pass secrets to a foreign government, have been dropped.

Arthur at Light of Reason says

We have now been informed as to Bush's "reasoning" with regard to cases such as the Padilla one -- by none other than Bradford A. Berenson, "a Washington lawyer, who was associate White House counsel to President Bush."

Arthur reviews Mr. Berenson's claims and says we should all be frightened because our country is headed for a dictatorship.

Keep in mind that the government keeps repeating that the "war on terror" will go on for an indefinite period of time -- and that it may well go on for as long as we live. But if Mr. Berenson, and I assume the administration, had their way, any United States citizen could be apprehended, taken into custody, and held for the rest of his life -- with no charges being filed, no recourse to an attorney, and with no hope of ever being set free, until and unless the President happens to change his mind.

[the comments have changed the topic of the thread and are now closed.]

In a new interview with journalist Craig Oliver, Canadian Maher Arar and his wife renew their call for a full inquiry into his seizure at JFK by American authorities who transported him to Syria where he was imprisoned and tortured. [Background here.]

Oliver: why have you decided not to let this thing go?

Arar: Because what happened to me could also happen to other people in the future, so I felt it's an obligation upon me as a human being and as a Canadian, to do something for other people in the future and, so to keep my story alive will help other people. It will also put more pressure on the government to call for public inquiry and we have not found the answers yet for what happened to me.

It's a long and interesting interview, we recommend reading the whole thing.

A Massachussetts army national guardsman at the Guantanamo prison was killed by a gunshot to the head. It sounds like a suicide but all authorities will say for now is that the investigation is continuing. [link via Agonist].

David Cole, Georgetown University law prof and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, has an op-ed in today's Los Angeles Times on the recent 2nd and 9th Circuit Copurt of Appeals decisions reminding Mr. Bush he is President Bush and not King George.

Foreign nationals, no less than U.S. citizens, have a right not to be locked up arbitrarily, based in the Constitution's guarantee that "no person shall be deprived of liberty … without due process." And indefinite incommunicado incarceration without charges, trial or hearing is the definition of arbitrary detention.

Detaining the enemy on the battlefield has of course always been — and remains — a legitimate tool of war. Neither the 2nd nor the 9th Circuit ruled to the contrary. But they both insisted that preventive detention under U.S. jurisdiction must be subject to the rule of law. And the rule of law, like liberty itself, is not a right reserved for U.S. citizens.

Via Bush Wars, we read about Mahmoud Abu Rideh, who has been held for two years in Great Britain under anti-terror legislation that prevents him from knowing the evidence against him. He has not been charged or tried for any crime. He is one of 14 such detainees. He tells his story of despair in a letter that reached The Guardian.

"The British security services arrested me at 5.30 in the morning. They broke the door while I am sleeping and scared my children - I have five children between the ages of three years and nine years." He was taken straight to Belmarsh prison in south-east London, with no access to a lawyer.

"At 7 o'clock in the morning they told me that you are going to stay all your life in Belmarsh. There is a unit inside it, it is like a prison in the prison. They put me alone in a small room where you face bad treatment and racism and humiliation and biting and swearing.

"They prevented us from going to Friday prayers and every 24 hours there is only one hour walk in front of the cells and half an hour walking inside a cage. You do not see sun. You cannot tell whether it is night or day. Every thing is dark."

Videotapes confirm the findings of the Inspector General's report that detainees held as part of a post-9/11 terrorism roundup at a federal prison in Brooklyn were abused:

The Justice Department's inspector general announced yesterday that investigators had found hundreds of prison videotapes that confirm reports of serious physical and verbal abuse of immigrants detained after the Sept. 11 attacks. Inspector General Glenn Fine found that "some officers slammed and bounced detainees against the wall, twisted their arms and hands in painful ways, stepped on their leg-restraint chains and punished them by keeping them restrained for long periods of time," according to a report released yesterday.

The report also found that jail personnel improperly taped meetings between detainees and lawyers and overused strip searches. Fine's office concluded that as many as 20 guards at the Metropolitan Detention Center (MDC) in Brooklyn, N.Y., were involved in the abuse and recommended discipline or counseling for 12 of those who remain employed there. Four guards no longer work at the prison, but the report said their new employers should be told of the Justice Department findings. The inspector general could not identify the others involved.

The Inspector General's report is available here. The Justice Department is considering action against the guards:

Department spokesman Mark Corallo said the agency's civil rights division and the U.S. attorney for the Eastern District of New York will review the report and the videotapes to see if anyone should be prosecuted. "We agree with the inspector general that even the intense emotional atmosphere surrounding the attacks, particularly in New York City where smoke was still rising from the rubble of Ground Zero, is no excuse for abhorrent behavior by Bureau of Prisons personnel," Corallo said.

Two Democratic members of the House Judiciary Committee, Reps. John Conyers of Michigan and Jerrold Nadler of New York, asked Attorney General John Ashcroft to punish the guards and to take steps to prevent a repeat of the abuse. "Actions such as these not only constitute a disservice to the department but seriously undermine our war against terror," they said in a letter.

Update: Patriot Watch reminds us of Ashcroft's arrogant and dismissive response to the original DOJ IG report:

"our actions are fully within the law and necessary" and "under these unprecedented and extraordinary circumstances, the law was scrupulously followed and respected"

From a press release on the website of the Department of Defense:

"The Department of Defense announced today that Guantanamo detainee Salim Ahmed Hamdan of Yemen has been assigned a military defense counsel. Although he has not been charged, Hamdan is one of six detainees President Bush determined to be subject to his military order of November 13, 2001. Military commission rules require that a detailed defense counsel be available to an accused sufficiently in advance of trial to prepare a defense. Navy Lt. Cmdr. Charles Swift was detailed to represent Hamdan by the acting Chief Defense Counsel, Air Force Col. William Gunn. Swift intends to meet with Hamdan in the near future."

Looks like the tribunals are getting closer.....

[Link via Patriot Watch]