by Charlie Savage | The New York Times, April 3, 2009
WASHINGTON – A federal judge ruled on Thursday that some prisoners held by the United States military in Afghanistan have a right to challenge their imprisonment, dealing a blow to government efforts to detain terrorism suspects for extended periods without court oversight.
Attiqullah 10, son of Hafizullah Shahbaz Khiel, an Afghan detainee shows documents proclaiming Hafizullah’s innocence during an interview with Associated Press at his uncle’s house on the outskirts of Kabul,Afghanistan, Tuesday, Jan 20, 2009. He is being held at Bagram Air Base.(AP Photo/Rafiq Maqbool)In a 53-page ruling that rejected a claim of unfettered executive power advanced by both the Bush and Obama administrations, United States District Judge John D. Bates said that three detainees at the United States’ Bagram Air Base had the same legal rights that the Supreme Court last year granted to prisoners held at the American naval base in Guantánamo Bay, Cuba.The three detainees – two Yemenis and a Tunisian – say that they were captured outside Afghanistan and taken to Bagram, and that they have been imprisoned for more than six years without trials. Arguing that they were not enemy combatants, the detainees want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
The importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has increased under the Obama administration, which prohibited the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year. The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration’s view that courts had no jurisdiction over detainees there.
Judge Bates, who was appointed by President George W. Bush in 2001, was not persuaded. He said transferring captured terrorism suspects to the prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against” in its 2008 ruling that Guantánamo prisoners have a right to habeas corpus.
Dean Boyd, a Justice Department spokesman, said that the administration was reviewing the decision and that it had made no decision about whether to appeal.
Judge Bates emphasized that his ruling was “quite narrow.” He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture.
“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war,” the judge wrote. “It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”
Moreover, the judge has put off ruling that a fourth prisoner – also captured outside Afghanistan, but holding Afghan citizenship – had a right to challenge his detention. He said any order to release the detainee could lead to frictions with the Afghan government, and asked for additional briefings on that case.
The United States is holding about 600 people at Bagram without charges and in spartan conditions. United States officials have never provided a full accounting of the prison population, but an American government official, speaking on condition of anonymity because it is against policy to discuss details of the Bagram prison, said that fewer than a dozen detainees fell into the category affected by the ruling – non-Afghans captured beyond Afghan borders.
Judge Bates has been involved in several high-profile executive power cases. In 2002, he sided with the Bush administration in a lawsuit over whether Vice President Dick Cheney’s energy task force records were required to be disclosed. But in 2008, he sided with Congress in an executive-privilege dispute over whether top aides to Mr. Bush were immune from subpoenas related to the firing of federal prosecutors.
David Rivkin, an associate White House counsel in the administration of the first President Bush, predicted that Judge Bates’s ruling would be overturned on appeal. He warned that the ruling “gravely undermined” the country’s “ability to detain enemy combatants for the duration of hostilities worldwide.”
But Tina Foster, the executive director of the International Justice Network, which is representing the four Bagram detainees, praised Judge Bates’s decision as “a very good day for the Constitution and the rule of law.”
Ms. Foster said that the Bagram ruling meant that changes to the Bush detention policies would go beyond merely closing Guantánamo and extend “to any place where the United States seeks to hold individuals in a legal black hole.”
The power of federal judges to review decisions by the executive branch to imprison a terrorism suspect was among the most contentious legal issues that arose after the 2001 terrorist attacks. The Bush administration began a policy of holding prisoners indefinitely and without trials, arguing that federal judges had no authority to second-guess its decisions about whom to name an “enemy combatant.”
But human-rights lawyers challenged those policies, winning Supreme Court decisions in 2004, 2006 and 2008 that gradually expanded the reach of the American legal system over detainees.
After taking office, Mr. Obama ordered a review of the evidence against each of the roughly 240 prisoners at Guantánamo as a first step toward closing the prison within a year.
He did not extend the steps he was taking to resolve the fate of the Guantánamo prisoners to those held at Bagram, although a comprehensive review of detainee policies is due to be completed in July. Ms. Foster said that the Bagram case may force the administration to speed up its decisions.
Eric Schmitt contributed reporting.
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Fake Faith and Epic Crimes
April 3, 2009By John Pilger | Information Clearing House, Apri 2, 2009
These are extraordinary times. With the United States and Britain on the verge of bankruptcy and committing to an endless colonial war, pressure is building for their crimes to be prosecuted at a tribunal similar to that which tried the Nazis at Nuremberg. This defined rapacious invasion as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International law would be mere farce, said the chief US chief prosecutor at Nuremberg, Supreme Court justice Robert Jackson, “if, in future, we do not apply its principles to ourselves.”
That is now happening. Spain, Germany, Belgium, France and Britain have long had “universal jurisdiction” statutes, which allow their national courts to pursue and prosecute prima facie war criminals. What has changed is an unspoken rule never to use international law against “ourselves,” or “our” allies or clients. In 1998, Spain, supported by France, Switzerland and Belgium, indicted the Chilean dictator Augusto Pinochet, client and executioner of the West, and sought his extradition from Britain, where he happened to be at the time. Had he been sent for trial he almost certainly would have implicated at least one British prime minister and two US presidents in crimes against humanity. Home Secretary Jack Straw let him escape back to Chile.
The Pinochet case was the ignition. On 19 January last, the George Washington University law professor Jonathan Turley compared the status of George W. Bush with that of Pinochet. “Outside [the United States] there is not the ambiguity about what to do about a war crime,” he said. “So if you try to travel, most people abroad are going to view you not as ‘former President George Bush’ [but] as a current war criminal.” For this reason, Bush’s former defence secretary Donald Rumsfeld, who demanded an invasion of Iraq in 2001 and personally approved torture techniques in Iraq and at Guantanamo Bay, no longer travels. Rumsfeld has twice been indicted for war crimes in Germany. On 26 January, the UN Special Rapporteur on Torture, Manfred Nowak, said, “We have clear evidence that Mr. Rumsfeld knew what he was doing but nevertheless he ordered torture.”
The Spanish high court is currently investigating a former Israeli defence minister and six other top Israeli officials for their role in the killing of civilians, mostly children, in Gaza. Henry Kissinger, who was largely responsible for bombing to death 600,000 peasants in Cambodia in 1969-73, is wanted for questioning in France, Chile and Argentina. Yet, on 8 February, as if demonstrating the continuity of American power, President Barack Obama’s national security adviser, James Jones, said, “I take my daily orders from Dr. Kissinger.”
Like them, Tony Blair may soon be a fugitive. The International Criminal Court, to which Britain is a signatory, has received a record number of petitions related to Blair’s wars. Spain’s celebrated Judge Baltasar Garzon, who indicted Pinochet and the leaders of the Argentinian military junta, has called for George W. Bush, Blair and former Spanish prime minister Jose Maria Aznar to be prosecuted for the invasion of Iraq — “one of the most sordid and unjustifiable episodes in recent human history: a devastating attack on the rule of law” that had left the UN “in tatters.” He said, “There is enough of an argument in 650,000 deaths for this investigation to start without delay.”
This is not to say Blair is about to be collared and marched to The Hague, where Serbs and Sudanese dictators are far more likely to face a political court set up by the West. However, an international agenda is forming and a process has begun which is as much about legitimacy as the letter of the law, and a reminder from history that the powerful lose wars and empires when legitimacy evaporates. This can happen quickly, as in the fall of the Berlin Wall and the collapse of apartheid South Africa — the latter a spectre for apartheid Israel.
Today, the unreported “good news” is that a worldwide movement is challenging the once sacrosanct notion that imperial politicians can destroy countless lives in the cause of an ancient piracy, often at remove in distance and culture, and retain their respectability and immunity from justice. In his masterly Dr. Jekyll and Mr. Hyde R.L. Stevenson writes in the character of Jekyll: “Men have before hired bravos to transact their crimes, while their own person and reputation sat under shelter … I could thus plod in the public eye with a load of genial respectability, and, in a moment, like a schoolboy, strip off these lendings and spring headlong into the sea of liberty. But for me, in my impenetrable mantle, the safety was complete.”
Blair, too, is safe — but for how long? He and his collaborators face a new determination on the part of tenacious non-government bodies that are amassing “an impressive documentary record as to criminal charges,” according to international law authority Richard Falk, who cites the World Tribunal on Iraq, held in Istanbul in 2005, which heard evidence from 54 witnesses and published rigorous indictments against Blair, Bush and others. Currently, the Brussels War Crimes Tribunal and the newly established Blair War Crimes Foundation are building a case for Blair’s prosecution under the Nuremberg Principle and the 1949 Geneva Convention. In a separate indictment, former Judge of the New Zealand Supreme Court E.W. Thomas wrote: “My pre-disposition was to believe that Mr. Blair was deluded, but sincere in his belief. After considerable reading and much reflection, however, my final conclusion is that Mr. Blair deliberately and repeatedly misled Cabinet, the British Labour Party and the people in a number of respects. It is not possible to hold that he was simply deluded but sincere: a victim of his own self-deception. His deception was deliberate.”
Protected by the fake sinecure of Middle East Envoy for the Quartet (the US, EU, UN and Russia), Blair operates largely from a small fortress in the American Colony Hotel in Jerusalem, where he is an apologist for the US in the Middle East and Israel, a difficult task following the bloodbath in Gaza. To assist his mortgages, he recently received an Israeli “peace prize” worth a million dollars. He, too, is careful where he travels; and it is instructive to watch how he now uses the media. Having concentrated his post-Downing Street apologetics on a BBC series of obsequious interviews with David Aaronovitch, Blair has all but slipped from view in Britain, where polls have long revealed a remarkable loathing for a former prime minister — a sentiment now shared by those in the liberal media elite whose previous promotion of his “project” and crimes is an embarrassment and preferably forgotten.
On 8 February, Andrew Rawnsley, the Observer’s former leading Blair fan, declared that “this shameful period will not be so smoothly and simply buried.” He demanded, “Did Blair never ask what was going on?” This is an excellent question made relevant with a slight word change: “Did the Andrew Rawnsleys never ask what was going on?” In 2001, Rawnsley alerted his readers to Iraq’s “contribution to international terrorism” and Saddam Hussein’s “frightening appetite to possess weapons of mass destruction.” Both assertions were false and echoed official Anglo-American propaganda. In 2003, when the destruction of Iraq was launched, Rawnsley described it as a “point of principle” for Blair who, he later wrote, was “fated to be right.” He lamented, “Yes, too many people died in the war. Too many people always die in war. War is nasty and brutish, but at least this conflict was mercifully short.” In the subsequent six years at least a million people have been killed. According to the Red Cross, Iraq is now a country of widows and orphans. Yes, war is nasty and brutish, but never for the Blairs and the Rawnsleys.
Far from the carping turncoats at home, Blair has lately found a safe media harbour — in Australia, the original murdochracy. His interviewers exude an unction reminiscent of the promoters of the “mystical” Blair in the Guardian of than a decade ago, though they also bring to mind Geoffrey Dawson, editor of The Times during the 1930s, who wrote of his infamous groveling to the Nazis: “I spend my nights taking out anything which will hurt their susceptibilities and dropping in little things which are intended to sooth them.”
With his words as a citation, the finalists for the Geoffrey Dawson Prize for Journalism (Antipodes) are announced. On 8 February, in an interview on the Australian Broadcasting Corporation, Geraldine Doogue described Blair as “a man who brought religion into power and is now bringing power to religion.” She asked him: “What would the perception be that faith would bring towards a greater stability …[sic]?” A bemused and clearly delighted Blair was allowed to waffle about “values.” Doogue said to him that “it was the bifurcation about right and wrong that what I thought the British found really hard” [sic], to which Blair replied that “in relation to Iraq I tried every other option [to invasion] there was.” It was his classic lie, which passed unchallenged.
However, the clear winner of the Geoffrey Dawson Prize is Ginny Dougary of the Sydney Morning Herald and the Times. Dougary recently accompanied Blair on what she described as his “James Bondish-ish Gulfstream” where she was privy to his “bionic energy levels.” She wrote, “I ask him the childlike question: does he want to save the world?” Blair replied, well, more or less, aw shucks, yes. The murderous assault on Gaza, which was under way during the interview, was mentioned in passing. “That is war, I’m afraid,” said Blair, “and war is horrible.” No counter came that Gaza was not a war but a massacre by any measure. As for the Palestinians, noted Dougary, it was Blair’s task to “prepare them for statehood.” The Palestinians will be surprised to hear that. But enough gravitas; her man “has the glow of the newly-in-love: in love with the world and, for the most part, the feeling is reciprocated.” The evidence she offered for this absurdity was that “women from both sides of politics have confessed to me to having the hots for him.”
These are extraordinary times. Blair, a perpetrator of the epic crime of the 21st century, shares a “prayer breakfast” with President Obama, the yes-we-can-man now launching more war. “We pray,” said Blair, “that in acting we do God’s work and follow God’s will.” To decent people, such pronouncements about Blair’s “faith” represent a contortion of morality and intellect that is a profanation on the basic teachings of Christianity. Those who aided and abetted his great crime and now wish the rest of us to forget their part — or, like Alistair Campbell, his “communications director,” offer their bloody notoriety for the vicarious pleasure of some — might read the first indictment proposed by the Blair War Crimes Foundation: “Deceit and conspiracy for war, and providing false news to incite passions for war, causing in the order of one million deaths, 4 million refugees, countless maiming and traumas.”
These are indeed extraordinary times.
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