West Law Report

The Road to Guantanamo

Posted in Guantánamo by mrkooenglish on June 13, 2008


(1 hr 32 min)

In the film:

Starring: Farhad Harun, Arfan Usman, Rizwan Ahmed, Waqar Siddiqi, Shahid Iqbal Directed by: Michael Winterbottom, Mat Whitecross 95 minutes, UK (2006)

In this compelling docudrama by Michael Winterbottom and Mat Whitecross, the ‘Tipton Three’ narrate their own experiences in America’s controversial offshore detention camp The Road To Guantánamo opens with archive footage of George W Bush, flanked by a stern-faced Tony Blair, declaring his certain knowledge that all the detainees held in Guantánamo are “bad people”. Everything that follows is designed to turn these words inside out, as three young British Muslims tell the story of how they came to be in US custody at Guantánamo for over two years, and discuss the Kafkaesque horrors that awaited them there, until finally they were released without charge or apology.

The title may evoke the Bing Crosby and Bob Hope ‘Road’ movies of the 1940s, travel-themed musical comedies with a vaguely racist depiction of non-Americans, but the exotic journey embarked upon by the so-called ‘Tipton Three’ was to take them into areas that were politically incorrect in an altogether different way. It would be easy to criticise The Road to Guantánamo for being one-sided (it is), and for failing to contextualise the conduct of the US (there is not even a passing mention of 9/11), but such objections miss the point. Many times Bush, Blair and other politicians have used their considerable public platforms to present a similarly partisan, at times even subsequently discredited justification for different aspects of their ‘War on Terror’, including the unlimited detention without trial of men like the Tipton Three. The trio, and the more than 800 prisoners who remain at America’s Cuban base, were not able to communicate their version of events to a lawyer or judge, let alone to the outside world. The Road To Guantánamo gives them their day in court, and the story these “bad people” tell is one that well deserves a hearing.

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HABEAS CORPUS JURISDICTION, SUBSTANTIVE RIGHTS, AND THE WAR ON TERROR

An article of Richard H. Fallon, Jr. and Daniel J. Meltzer in Harvard Law Review (Jun 2007) (.pdf) (84 pages):

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common lawike approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.
The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens?detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

Hamdan v Rumsfeld: The legal academy goes to practice

Posted in Hamdan v Rumsfeld, Harvard Law Review (Article) by mrkooenglish on May 20, 2008

In the paper (Harvard Law Review, Vol 120, Nov 2006) (.pdf) (59 pages), Professor Neal Kumar Katyal discusses:

Like any excluded group, practitioners have begun disparaging the theoreticians in return. We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students’ activities upon graduation.

This Comment uses Hamdan to illustrate why the disparagement of theory is partially wrong. By examining the litigation of the case, it demonstrates some of the benefits of theory to practice. This Comment oscillates, with any luck instructively, between Hamdan’s implications for legal education and its implications for the law.

Part I discusses how broad theoretical research sheds light on the litigants’ strategic moves. Part II explains the implications of the Hamdan decision. Part III looks to the future of both the bar and the academy.

Hamdan v. Rumsfeld: Implications for the Geneva Conventions

Posted in Geneva Conventions, Guantánamo, Hamdan v Rumsfeld by mrkooenglish on May 20, 2008

In the paper (Harvard Human Rights Journal, Vol 20, Spring 2007) (.pdf) (9 pages), Regina Fitzpatrick discusses:

Last term, in Hamdan v. Rumsfeld (2006), the Supreme Court of the United States held that the military commissions convened by the Bush Administration to try non-citizen terror suspects could not proceed as constituted because they lacked congressional authorization and violated both the Uniform Code of Military Justice (“UCMJ”) and the Geneva Conventions. This Recent Development focuses on the Court’s analysis and application of the Geneva Conventions, the most comprehensive codifications of international humanitarian law.

Hamdan has significant, and potentially dangerous, ramifications for international norms in foreign policy practice and American jurisprudence during—and beyond—this interminable “war on terror.” If the dissent’s view in Hamdan were to prevail,3 the applicability of the Geneva Conventions would be notably limited, their domestic enforcement would be left solely to those responsible for violating them, and the customary international law they embrace could be altered.

Justice: Gitmo Grievances

Posted in Guantánamo, Hamdan v Rumsfeld by mrkooenglish on May 20, 2008

(1)
Newsweek magazine reported:

Assigned to try detainees in the War on Terror, three former Guantánamo prosecutors now say the military-commission system is badly damaged.

For example:

A clue may lie in the troubling account of Col. Morris Davis, the chief military prosecutor until last October. Colonel Davis thought he had the evidence to prosecute. But he was not willing to use Qahtani’s alleged confessions because he knew from a Defense Department report and other official sources that the prisoner had been abused and degraded at the U.S. detention facility at Guantánamo Bay.

(2)
What is Hamdan v. Rumsfeld (2006)?

Philippe Sands: use of torture undermines international law

The barrister answers readers’ question on Times:

Q: What consequences would the use of controlled “legislative” violence in the interrogation of suspects have for our present understanding of Human Rights?

A: In my view, the move to abusive interrogation has deeply undermined the United States’ ability to promote respect for international human rights law. For that reason I deeply regret what has happened and sincerely hope that the United States will take corrective measure and bring its own house in order before inaction compels prosecutors and judges in other jurisdictions feel the need to intervene.

Q: Are European countries that allowed rendition-flights to Guantanamo complicit in violating the absolute prohibition on torture under international law? If so, how can these countries be held accountable?

A: Article 4 of the Convention prohibiting torture, criminalises “an act by any person which constitutes complicity or participation in torture”. What constitutes complicity or participation will turn on the facts of a particular case. Knowing support for rendition flights, or turning a blind eye in circumstances in which torture is seen as likely or reasonably foreseeable, could constitute complicity or participation. Again, it turns on the facts, which are to be established.

Q: Why doesn’t the international committee put more pressure on the US to resolve this situation?

A: History shows that it can take time for countries to call to account abuses of international law. Senator Pinochet was arrested in London eight years after he had left office. But countries do seem to have turned a blind eye. On April 17, 2008 British Prime Minister Gordon Brown stood next to President Bush in the Rose Garden at the White House and said: “The world owes President George Bush a huge debt of gratitude for leading the world in our determination to root out terrorism, and to ensure that there is no safe haven for terrorism and no hiding place for terrorists.” (Read the transcript.)

President Bush has taken responsibility for approving techniques of interrogation that, in my view, have amounted to torture. Just a few weeks earlier President Bush vetoed legislation prohibiting the CIA from using the very same techniques of interrogation I describe in my book. “The bill Congress sent me,” President Bush said, “would take away one of the most valuable tools in the war on terror — the CIA program to detain and question key terrorist leaders and operatives”. (Click here for the transcript.)

Where would the detainees go?

Posted in Guantánamo, Jeffrey Toobin by mrkooenglish on May 12, 2008

Philippe Sands: Bush Administration Torture Policies

Posted in Guantánamo, Philippe Sands QC, war crime by mrkooenglish on May 10, 2008

6 May 2008

(8 min)

He speaks before the House of Representatives Committee on the Judiciary Constitution, Civil Rights & Civil Liberties:

Philippe Sands without reservation, states that war crimes were committed by the most senior members of the Bush administration. He is a professor of law at the University College London and recently wrote a book “Torture Team”.

Read his testimony [*.pdf] and his article The Green Light on Vanity Fair (May 2008).

Sands: “Don’t call it a War on Terror”

(4 min)

Philippe Sands: Lawless World

Posted in Guantánamo, International Human Rights Law, Philippe Sands QC by mrkooenglish on May 10, 2008

Mar 2006

(2 hr)

Philippe Sands, a British international lawyer and law professor, discusses the current U.S. and British adminstrations’ international law.

Philippe Sands: Follows the Bush Torture Trail

Posted in Guantánamo, International Human Rights Law, John Yoo, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

8 May 2008


(10 min)


(10 min)

In the interview:

Attorney Philippe Sands Follows the Bush Administration Torture Trail A new exposé in Vanity Fair by British attorney Philippe Sands reveals new details about how attorney John Yoo and other high-ranking administration lawyers helped design and implement the interrogation policies seen at Guantanamo, Abu Ghraib and secret CIA prisons. According to Vanity Fair, then-White House counsel Alberto Gonzales and other top officials personally visited Guantanamo in 2002, discussed interrogation techniques and witnessed interrogations. Sands joins us in our firehouse studio.

Rush transcript in Decomcracynow.org

Ask Philippe Sands

Posted in Guantánamo, International Human Rights Law, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

Philippe Sands, the writer of Lawless World, published his 2nd book Torture Team. The QC will answer readers’ question on Times Online on May 15. I’m thinking about question.

But first, I should get a copy of his 1st book (can’t find the new one yet) and re-read it. Read the interview in Times (4 May) and the book review of the new book on Times (4 May).

Read also his article in Guardian (19 Apr) about a Guantanamo officials’ interrogation tech inspired by the TV series, 24.

A Prison of Shame

Posted in Guantánamo by mrkooenglish on May 4, 2008

Nicholas Kristof, the columnist writes in NY Times (“A Prison of Shame, and It’s Ours “, 4 May 2008):

It would take an exceptional enemy to damage America’s image and interests as much as President Bush and Dick Cheney already have with Guantánamo.