Jurist Legal News and Research

Germany Could Take in Gitmo Prisoners

German government spokesperson Thomas Steg said Monday that Germany would consider taking in detainees released from the Guantanamo Bay military prison if U.S. President-elect Barack Obama closed the facility. Steg said that Germany supports closure of the facility and that all European Union (EU) member states should cooperate to formulate a plan for taking in detainees who cannot be returned to their homelands because of risk of torture. Hamburg interior minister Christoph Ahlhaus said Monday that his state might be willing to take in detainees, but would consider each case on an individual basis.

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Bush Signs Executive Order Barring Union Rights

U.S. President George W. Bush issued an executive order on Monday that defined the primary objective of some 8,600 federal agency employees to be national security-related, rendering them ineligible for Federal Labor-Management Relations Program coverage such as collective bargaining rights. The order says:

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Will Obama Take on Bush-era Torture?

Some officials in the formative administration of U.S. President-elect Barack Obama have said they support the creation of a bipartisan congressional commission to investigate potentially abusive U.S. counter-terrorism policies, according to a Newsweek report Saturday. The officials have suggested that such an investigation should be similar to the 9/11 Commission, with a focus on making public the details surrounding the development and authorization of harsh interrogation techniques and other counter-terrorism policies, rather than incriminating those involved. Both Obama and his aides have said previously said that his administration is not likely to prosecute those who approved or carried out the torture or other harsh interrogation of terrorism suspects, and will instead focus on the creation of new anti-torture laws.

Earlier this month, human rights experts at the University of California, Berkeley, in partnership with the Center for Constitutional Rights released a report urging Obama to form an independent, nonpartisan commission with subpoena powers to investigate the treatment of U.S. detainees in Guantanamo as well as in facilities in Afghanistan and Iraq. Their proposal, however, was more directed at establishing accountability, as the authors warned that any commission established by Obama must not be undercut by the issuance of pardons, amnesties, or other shielding measures.

Legal Challenges Filed Against Prop 8

Rights groups filed a writ petition with the California Supreme Court on Wednesday seeking to invalidate a state constitutional amendment prohibiting same-sex marriage. Proposition 8, which was approved by about 52 percent of California voters Tuesday, provides that "[o]nly marriage between a man and a woman is valid or recognized in California." The writ petition, filed by attorneys for the American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights on behalf of Equality California and six same-sex couples who want to marry, asks the court to stay enforcement of the amendment until the litigation is resolved. The petition alleges that Proposition 8 is not a valid amendment but rather a constitutional revision, which under provisions of the California Constitution must be approved by the state Legislature. In a press release, Lambda Legal attorney Jenny Pizer said:

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Military Probing Abuse of Power by Top Gitmo Brass

[JURIST] The U.S. Air Force is conducting an ethics investigation of Air Force Brig. Gen. Thomas Hartmann over allegations that he abused his power and inappropriately influenced the prosecution of enemy combatants at Guantanamo Bay, military officials said Saturday. Hartmann was the legal advisor to the U.S. military commissions at Guantanamo and supervisor of the Office of Military Commissions-Prosecution (OMC-P) until he was reassigned to the position of director of operations of the Office of Military Commissions last month. It has been alleged that Hartmann forced officials at Guantanamo to bring prosecution cases before they were ready, prosecuted an individual on charges that were unwarranted, and that he tried to get prosecutors to use coerced evidence notwithstanding their objections. The Air Force is also investigating complaints by two military officials that Hartmann exhibited abusive and retaliatory behavior towards them within the Office of Military Commissions. The Los Angeles Times has more. AP has additional coverage.

Earlier this year military judges presiding over the trials of Guantanamo detainees Omar Khadr, Mohammed Jawad and Salim Ahmed Hamdan barred Hartmann from taking any part in the trials of those detainees on grounds that he was unduly biased towards the prosecution. U.S. Army Gen. Gregory Zanetti, deputy commander at Guantanamo Bay, testified in August that Hartmann routinely bullied his counterparts and was inappropriately aggressive in seeking indictments against detainees. In October, newly resigned Guantanamo chief military prosecutor Col. Morris Davis said during his tenure Hartmann questioned the need for open trials and was upset with the slow pace of the proceedings begun by Davis.

Poland Investigating Claims of CIA Secret Prison

A spokesman for Polish Prime Minister Donald Tusk announced Friday that the Polish government is investigating claims that the U.S. Central Intelligence Agency (CIA) operated a secret prison in Poland. The prison was reportedly part of the CIA's extraordinary rendition program, under which terrorism suspects were seized and flown to secret locations outside the U.S. for interrogation and imprisonment. Prosecutors have reportedly obtained a memo written by Polish intelligence officials in either 2005 or 2006 that confirms the prison's existence. Reuters has more.

Poland and Romania have been accused of hosting secret prisons for the extraordinary rendition program. Allegations against the two countries came in a June 2007 report to the Council of Europe by Swiss Senator Dick Marty. The report concluded that numerous European governments had cooperated with the CIA program. In February 2007, the European Parliament condemned more than a dozen European states for their roles in the program. Several nations have been accused of obstructing European probes into the secret prison allegations, including Poland, which allegedly housed the largest CIA detention facility in Europe. President Bush acknowledged the existence of the secret facilities in September 2006 but provided no details on their location or operation.

Former Gitmo Prisoners Seeking Religious Rights and Protection from Torture for Prisoners Who Remain

British nationals and former Guantanamo Bay detainees Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith have petitioned the U.S. Supreme Court to hear a lawsuit in which they seek religious rights and protection from torture for those still at the facility. In the petition, docketed Monday, the men argue that a lower court's dismissal of their claims should be reversed after Boumediene v. Bush, in which the Court ruled that that detainees have the right to file habeas corpus petitions in federal court. The men argue that the Court should hear the case because of the gravity of the issues addressed and the claimed error of the lower court:

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DOJ Preparing to Charge Six Blackwater Guards in Nisour Square Massacre

The U.S. Justice Department has sent so-called target letters to six Blackwater Worldwide guards involved in the September 16 killings of 17 Iraqi civilians, the Washington Post reported Sunday. Sources told the Post that the letters, which provide an opportunity for the recipients to contest grand jury evidence, indicate the Justice Department will likely seek indictments against at least some of the guards under the Military Extraterritorial Jurisdiction Act (MEJA). Indictments against the Blackwater employees under the MEJA would mark the first time that State Department contractors were prosecuted under the Act, which allows criminal charges to be filed against contractors working for the Department of Defense. The sources explained that a final decision on whether to indict the men may not be made until October. The Washington Post has more.

The Blackwater incident caused domestic outrage in Iraq and has prompted legal controversy in the US. In November, the New York Times and the Washington Post reported that an FBI investigation into the incident concluded that the shootings were unjustified and last month Iraqi Foreign Minister Hoshyar Zebari announced that private security contractors operating in Iraq may be stripped of their immunity from prosecution under a U.S.-Iraqi agreement currently in negotiations. Advocacy group Human Rights First issued a report in January asserting that existing federal law is sufficient to prosecute private contractors using excessive violence in their overseas capacities, and that the U.S. government is to blame for failing to "develop a clear policy with respect to the accountability of private contractors for crimes in Iraq and Afghanistan." The report says that the MEJA could be extended to State Department contractors, but that the U.S. has failed to do so.

Mukasey Defends Torture Architects

U.S. Attorney General Michael Mukasey defended Bush administration attorneys who authored memoranda supporting the legality of coercive interrogating tactics -- the so-called "torture memos" -- in a commencement address to Boston College Law School graduates Friday. Emphasizing the legal complexity of the issues raised in the memos and criticizing the vilification of the authors in some quarters, Mukasey told the audience:

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An Independent Prosecutor Should Investigate the Architects of the White House Torture Policy

This is an excerpt from Marjorie Cohn's recent testimony before the U.S. House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That's Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The U.S. War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person" or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo's definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo's definition of torture, and admitted that a defendant's motives to protect national security won't shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.
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