The trial of radical Islamic cleric Abu Hamza al-Masri, the latest alleged terrorist to be tried in the federal court system rather than via military commission, is rapidly moving forward in New York. Jury selection was completed this past Monday, when eight men and four women were selected to serve as the jury for the trial expected to last about five weeks. Continue reading
After last week’s conviction of Bin Laden’s son-in-law Sulaiman Abu Ghaith in Federal Court, Attorney General Eric Holder issued a statement praising the trial as a demonstration that Federal Court is the proper venue for high-profile terrorism cases. As I cited in a post earlier this week, Holder said of the trial:
“We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.” Continue reading
Sulaiman Abu Ghaith, Bin Laden’s son-in-law, was convicted this week of conspiring to kill Americans and a series of other terror-related charges.
Abu Ghaith, was indicted nearly a year ago in The Southern District of New York, just a few blocks from the World Trade Center site, for his role in the September 11th attacks and as a senior associate of Bin Laden. Since news of Abu Ghaith’s indictment was first released last March, there has been a great deal of debate regarding whether SDNY was the appropriate forum for the trial. While many believed SDNY could hold a fair, safe trial for such a high-profile case, many opponents believed a military commission was a far more appropriate venue. Continue reading
My excitement ran high when Mark Denbeaux phoned to tell me I would be heading to the Guantanamo Naval Base for a week, for I had been studying, writing and talking about both its detention facility and its military commissions for years. Now I would be attending, as a journalist and observer, pretrial proceedings in the military tribunal capital prosecution of abd al Rahim Hussayn Muhammad Al Nashiri, the Saudi claimed to have presided over bin Laden’s “boats operation,” for which he had planned three attacks on foreign ships, including the devastatingly lethal one in 2000 on the USS Cole, the destroyer fueling in Aden Harbor in Yemen. Continue reading
“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984. It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.
Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration. Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances. Continue reading
Abu Anas al-Liby, the Libyan man and suspected al-Qaeda leader accused of aiding the 1998 U.S. embassy bombings in East Africa, appeared in a New York federal court for the first time yesterday. Al-Liby pleaded not guilty to charges linking him to the bombings, as well as charges that allege that he plotted with Osama bin Laden to attack American troops across the Middle East. Reports from inside the court stated that al-Liby appeared weak and in poor health, most likely due to his decision to stop eating while aboard a U.S. ship as well as an ongoing bout with hepatitis. Al-Liby was captured earlier this month after he was found by American special forces in Tripoli. Continue reading
In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials. In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants. The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.
A few days ago, a story came out in which William Lietzau, the Pentagon’s Deputy Assistant Defense Secretary for Detainee Affairs and point-man on Guantanamo Bay, admitted that he would argue against building Guantanamo. This came following Lietzau’s announcement that he would be leaving his post to continue his career in the private sector. He also gave President Obama a pointer on how to close Guantanamo; announce that the so-called war against al-Qaeda has come to an end. Lietzau, who was key in getting Guantanamo built in the first place, was quoted as saying, “[a]rguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter.” Continue reading
Thursday, in response to the May 22nd emergency motion requesting an end to the newly instituted groin searches, Federal District Chief Judge Royce C. Lamberth ordered the government to stop genital searches of Guantanamo Bay detainees prior to meeting with their lawyers. In his strongly-worded 35 page opinion, Judge Lamberth ordered prison commanders to return to an earlier search method described in a 2009 Defense Department task force review, which limited guards to grasping the waistband of a detainee’s trousers and shaking their pants to dislodge any contraband. The current search method at Guantanamo, referred to as an exaggerated response to unpersuasive security concerns, involves the touching and holding of detainees’ genital and anal areas “flagrant[ly] disregard[ing] the need for a light touch on religious and cultural matters” and dissuades detainees from gaining access to their lawyers. The order stated in part that:
“… the choice between submitting to a search procedure that is religiously and culturally abhorrent or forgoing counsel effectively presents no choice for devout Muslims like petitioners.”
While the government made justifications for the invasive searches at Guantanamo, i.e.the finding of homemade weapons and prohibited electronic devices in April, Judge Lamberth felt that the record failed to indicate “that the detainees have received any contraband from their attorney or that detainees have attempted to pass contraband to each other during phone calls or meetings with attorneys.”
Responding quickly to the order, the Justice Department filed an appeal late last night. The Justice Department has requested a hold to be placed on the stopping of genital searches, stating that Guantanamo detainees are able to gain access to weaponizable items which may result in suicide, harm to other detainees, or the guards becoming seriously injured. In addition to the appeal, the government submitted a sworn declaration from Marine General John Kelly, commander of United States Southern Command, who spoke strongly of the irreparable harm that would result with the discontinuance of genital searches at Guantanamo. The government claims that the newly implemented search methods have not deterred meetings nor have they impacted access to the prisoners. Furthermore, the government states Judge Lamberth’s order is barred by the Military Commissions Act, which “unequivocally bars conditions-of-confinement claims by Guantanamo detainees.”
“Because the full-frisk-search and visit-location policies with which Petitioners take issue both concern their conditions of confinement, the Court lacked jurisdiction to issue an order enjoining them.”
The appeal has resulted in great tension. Guantanamo leadership is maintaining protocol, requiring their “standard” genital searches before and after visits with attorneys or phone calls, while lawyers have filed a motion asking Judge Lamberth to issue an order requiring the government to follow his ruling, arguing that the government is acting in contempt of court. In the upcoming weeks, it will be interesting to see whether the appeal moves forward, or if for the first time, a federal court can restrict a military commander from implementing certain security procedures at a detention facility.
Alexandra Kutner, Research Fellow
Center for Policy and Research
As the controversy surrounding force-feeding tactics at Guantanamo Bay continues, two top members of the U.S. Senate have spoken out in favor of ending the practice. Senators Richard Durbin and Dianne Feinstein called on President Obama to stop force-feeding prisoners partaking in hunger strikes in protest of their status at Guantanamo. This comes just days after a U.S. District Court Judge handed down a ruling stating that federal courts have no authority to shut down the force-feeding program, but agreeing with detainees and their attorneys that the practice is troubling and may violate human rights. The decision put the burden solely on President Obama to address the situation, and it looks like he will be receiving pressure from Congress as well.
Senators Durbin and Feinstein did imply that there may be cases where force-feeding is medically necessary, but stated that the military does not observe proper guidelines and safeguards even in those cases. This was not Senator Feinstein’s first attempt at convincing the government to stop force-feeding. Last month she wrote a letter to Secretary of Defense Chuck Hagel after a visit to Guantanamo in which she called hunger strikes a “long-known form of non-violent protest aimed at bringing attention to a cause, rather than an attempt of suicide.” This seems to imply that Feinstein’s views are in line with others who believe that force-feeding is inhumane in instances where protests do not threaten Guantanamo personnel and involve mentally competent detainees.
The White House turned to its usual response, stating that it does not want any detainees to die of malnutrition while in detention. So it’s ok to hold them indefinitely with no hope of release even though we lack the necessary evidence to press charges, but it’s not ok for them to protest a largely unreasonable policy in a manner that poses no threat to the United States or its military personnel. Got it.
The Senators also called on President Obama to make good on his long overdue promise to close Guantanamo Bay altogether, which was just another drop in the proverbial ocean of similar requests made since Obama took office. As sad as it is, it’s almost laughable at this point to think that another request to close Guantanamo will make a difference with so many members of Congress still in favor of keeping it open. But I guess it’s nice to know that there are still politicians out there who believe that it can be accomplished.
Do I think this latest effort to stop force-feeding and close Guantanamo will make any difference? Not really. Like I’ve said before, closing Guantanamo will be a long, painful process and there are still too many people who want to keep it open. It’s not a groundbreaking prediction but I don’t think Guantanamo Bay will be closed any time in the near future. I think our short-term goal needs to be putting an end to force-feeding. If you believe Monday’s decision, we should be able to sidestep much of the political process and leave it up to President Obama if we focus on that. That doesn’t mean we should abandon efforts to close the base, but we need to focus on the immediate problems that we can fix right now.
In a related story, two hunger-strikers dropped out of the over 4 month-long protest for unspecified reasons, bringing the total number down to 104. However, 45 are still being force-fed on a daily basis.
Chris Whitten, Research Fellow
Center for Policy and Research