Just another read on it:
Dozens of Gitmo detainees finally get day in court
By PETE YOST, Associated Press Writer Pete Yost, Associated Press Writer – Sun Nov 15, 9:15 pm ET
WASHINGTON – In courtrooms barred to the public, dozens of terror suspects are pleading for their freedom from the Guantanamo Bay prison, sometimes even testifying on their own behalf by video from the U.S. naval base in Cuba.
Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse here are giving detainees their day in court after years behind bars half a world away from their homelands.
The judges have found the government's evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners.
Scooped up along with hard-core terrorist suspects in Afghanistan, Pakistan and elsewhere, these 30 detainees stand in stark contrast to the 10 prisoners whom the Obama administration targeted for prosecution Friday for plotting the Sept. 11 and other terrorist attacks. Khalid Sheikh Mohammed, the professed mastermind of 9/11, and four of his alleged henchmen are headed for a federal civilian trial in New York; five others, including a top suspect in the bombing of the USS Cole, will be tried by a military commission.
More detainees are expected to soon be added to the prosecution list. But there will still be plenty of cases left among the 215 detainees now at Guantanamo to keep the judges here busy as they work to clear a legal morass the Bush administration created after the Sept. 11, 2001, attacks.
Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held "the worst of the worst." The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn't even have enough evidence to keep 30 other detainees behind bars.
"There is absolutely no reason for this court to presume that the facts contained in the government's exhibits are accurate," District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.
"Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said," Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.
The evidentiary record "is surprisingly bare," U.S. District Judge Colleen Kollar-Kotelly wrote in ordering the release of Fouad Mahmoud Al Rabiah, a 50-year-old father of four from Kuwait who had been an aviation engineer for Kuwaiti Airways for 20 years. He has been imprisoned at Guantanamo Bay since 2002.
Rabiah is one of dozens of men who won their cases in court or who have been cleared for transfer by the Obama administration who are still among the 215 detainees at Guantanamo. Finding countries willing to take the detainees has proved difficult. Since Obama took office, only 25 detainees have actually left.
In the case of a detainee from Syria, Abdulrahim Abdul Razak Al Ginco, who uses the surname Janko, U.S. District Judge Richard Leon pointed to evidence that the man had been tortured repeatedly by al-Qaida for three months into falsely confessing that he was a U.S. spy, then jailed for 18 months by the Taliban in Kandahar before he fell into the hands of U.S. forces.
"Notwithstanding these extraordinary intervening events, the government contends that Janko was still 'part of' the Taliban and/or al-Qaida when he was taken into custody," Leon wrote in ordering the detainee's release. "Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed!"
One detainee who lost his bid for freedom was Adham Mohammed Ali Awad, taken into custody seven years ago when he was a teenager.
"It seems ludicrous to believe that he poses a security threat now, but that is not for me to say, " wrote U.S. District Judge James Robertson.
"The case against Awad is gossamer thin," consisting of raw intelligence, multiple levels of hearsay and documents whose authenticity cannot be proven, said Robertson. "In the end, however, it appears more likely than not that Awad was, for some period of time, 'part of' al-Qaida."
The detainees' hearings — which usually last a day or two apiece — are expected to go well into next year, unless the Obama administration finds homes for them in other countries in the meantime.
Some 45 percent of the detainees are citizens of Yemen. Afghanistan is the home country of about one in 10 detainees. Saudi Arabia, Algeria and Tunisia together are home for about one in five, according to the Pentagon.
The courthouse's Guantanamo cleanup started with the Bush administration still in office, set in motion by the district judges just days after the Supreme Court ruled that detainees could go to civilian court to challenge their indefinite detention. After two earlier Supreme Court rulings in favor of the detainees, a Republican-controlled Congress stepped in to effectively keep detainees from seek freedom from civilian courts, but the Democratic-controlled Congress let the June 2008 ruling stand.
The district judges contacted the attorney general and the defense secretary to arrange for a secure video link to Guantanamo. A few judges have taken testimony by satellite from several detainees who wanted to speak on their own behalf.
Typically, the first half hour of a detainee's hearing is open to the public, with the prisoner listening by phone. Then the courtroom doors are locked, and the judges hear classified evidence.
The 15 judges' chambers were outfitted with safes, special laptop computers and printers and each of the judges' law clerks underwent background checks and was given a security clearance to deal with classified information that dominates the evidence.
One of the last bastions of judicial opposition to the detainees is the federal appeals court on the fifth floor of the courthouse.
There, a three-judge panel ruled the judges lack authority to order them released into the United States even if they have won their release and have nowhere else to go. Considered no threat to the United States, the detainees in that case are 17 Muslims, known as Uighurs. They were picked up in Afghanistan after fleeing western China and fear persecution if returned to China. The Supreme Court has agreed to hear their appeal, with a decision expected next spring. This year, the U.S. government found a home for four Uighurs in Bermuda and six on the Pacific island nation of Palau. The seven still at Guantanamo hope to live in the United States. To achieve that goal, their lawyers must persuade the Supreme Court to rule in their favor.
Treat the earth well: it was not given to you by your parents, it was loaned to you by your children. We do not inherit the Earth from our Ancestors, we borrow it from our Children. ~ Ancient American Indian Proverb
Or did you forget that this guy was captured in a foreign country, by a foreign country, and would never have set foot on US soil unless brought here by Obama?
So what is it going to be?… and please be consistent with your previous arguments.
Americans are so enamored of equality that they would rather be equal in slavery than unequal in freedom.
Alexis de Tocqueville
Well, to get the thread back on topic, and to address the seeming stupidity of moving this trial into civilian courts:
John Yoo: The KSM Trial Will Be an Intelligence Bonanza for al Qaeda - WSJ.com
The KSM Trial Will Be an Intelligence Bonanza for al Qaeda
The government will have to choose between vigorous prosecution and revealing classified sources and methods.
By JOHN YOO
'This is a prosecutorial decision as well as a national security decision," President Barack Obama said last week about the attorney general's announcement that Khalid Sheikh Mohammed and other al Qaeda operatives will be put on trial in New York City federal court.
No, it is not. It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.
Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.
Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.
KSM is the self-proclaimed mastermind of the 9/11 attacks on the World Trade Center and the Pentagon—and a "terrorist entrepreneur," according to the 9/11 Commission report. He was the brains behind a succession of operations against the U.S., including the 1996 "Bojinka plot" to crash jetliners into American cities. Together with Osama bin Laden, he selected the 9/11 terrorists, arranged their financing and training, and ran the whole operation from abroad.
After the U.S. invasion of Afghanistan KSM eventually became bin Laden's operations chief. American and Pakistani intelligence forces captured him on March 1, 2003, in Rawalpindi, Pakistan.
Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.
Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.
This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.
In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.
Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.
Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.
The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War. The lawyers in the Bush administration—I was one—understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.
The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.
Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.
For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.
All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.
KSM's lawyers will not save the government from itself. Instead they will press hard to reveal intelligence secrets in open court. Our intelligence agents and soldiers will be the ones to suffer.
Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.