Guantanamo & the Fruit of the Poisonous Tree

ETA: Hat tip to commentor NotMax for this link. Carol Rosenberg, at the Miami Herald, still slogging away on the Gitmo beat:

GUANTANAMO BAY NAVY BASE, Cuba — The military judge in the USS Cole bombing case has ordered the CIA to give defense lawyers details — names, dates and places — of its secret overseas detention and interrogation of the man accused of planning the bombing, two people who have read the still-secret order said Thursday.

Army Col. James L. Pohl issued the five-page order Monday. It was sealed as document 120C on the war court website Thursday morning and, according to those who have read it, orders the agency to provide a chronology of the overseas odyssey of Abd al Rahim al Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantánamo four years later.

The order sets the stage for a showdown between the CIA and a military judge, if the agency refuses to turn over the information to the prosecution for the defense teams. The order comes while the CIA fights a bitter, public battle with the Senate on its black site torture investigation.

The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications,” interrogation notes and cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.

It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates…

Two men sailed a bomb-laden skiff alongside the Cole on Oct. 12, 2000, and blew themselves up, crippling the warship and killing 17 U.S. sailors.

The development comes two weeks after the Senate voted to declassify a portion of an investigation of the so-called CIA torture program that could contain some of the answers sought by lawyers for Nashiri before his death-penalty trial. But the judge’s order appears to go further to a level of detail not provided in the executive summary, findings and recommendations that might be made public, if President Barack Obama agrees…

Defense lawyers want to independently reconstruct what happened to Nashiri in secret confinement to challenge the integrity of certain evidence and to argue that his mistreatment disqualifies a death penalty sentence.

The CIA waterboarded him, and an internal abuse investigation showed its agents interrogated Nashiri while he was nude and that they threatened him with a revving power drill, handgun and threats to sexually assault his mother.

Chief prosecutor Martins, has already noted that the Obama administration revamped the tribunal to prohibit use of involuntary interrogations at trial. In the transcript, Lockhart says all mistreatment of Nashiri is now in the public domain.

Navy Cmdr. Brian Mizer, one of Nashiri‘s lawyers, told the Miami Herald recently that an investigation of the treatment should determine whether any of Nashiri’s answers to questions at Guantánamo were truly voluntary: “You have to get back to the past to determine whether this is just a dog barking on command.”

A military medical board has diagnosed Nashiri, 49, a self-described former millionnaire merchant from Mecca, as having post-traumatic stress disorder and a major depressive disorder.

His lawyers want to interview officials who worked at the black sites, comb through manifests and read approved Standard Operating Procedures on so-called enhanced interrogation techniques that spelled out how to waterboard Nashiri in secret custody. And they asked for a list and timeline of the countries that hosted the CIA prisons on condition of anonymity.

Much more at the link. If I am reading this correctly, the government has Nashiri under lock and key, and the chances of him ever changing that status are vanishingly small, but it’s not enough for AMERICA FCK YEAH unless “we” get to kill him for his crimes. But the death penalty standards are still, praise the Constitution, a little higher than the “trust us, he’s the bad man you want for this” perma-war permanent detention rules. Can they change the charges at this point, settle for life in custody, and preserve the black site data in secrecy until the next case?

57 replies
  1. 1
    BGinCHI says:

    Out of sight, out of mind.

    Disgusting.

  2. 2
    Higgs Boson's Mate says:

    I believe that we’ve ceased to be a nation of laws and become instead Festung Amerika.

  3. 3
    Mike in NC says:

    But we now know that torturing random Iraqi cab drivers was wildly successful because Dick Cheney was a huge fan of the Fox show “24”.

  4. 4

    Since I’m in a good mood today, I’d like to say that I’m very proud of the military lawyers like Brian Mizer who have taken on the job of defending the Gitmo prisoners in front of the tribunals. They seem to be taking their jobs very seriously and making a vigorous defense of their clients exactly as they should.

  5. 5
    Omnes Omnibus says:

    @Higgs Boson’s Mate: Actually, this is a decision by a court saying that evidence gathered by unconstitutional means is not admissible. The prosecution is being ordered to turn over to the defense information about the way the evidence was gathered. You and I know why the CIA won’t turn it over. If they don’t, the judge will find all that evidence inadmissible. This is a good thing.

  6. 6
    some guy says:

    and to think, now we American taxpayers get to supply weapons and support to al qaeda in Syria, even while we prosecute al qaeda in Cuba. the more things change

    is a tortured al qaeda prisoner allowed to offer moral support to our al qaeda allies fighting the godless secularist Baathists in Syria?

  7. 7
    RandomMonster says:

    This is the ongoing shitty aspect of torture as a policy: You can’t prosecute people effectively.

  8. 8
    Omnes Omnibus says:

    @RandomMonster:

    This is the ongoing shitty aspect of torture as a policy: You can’t prosecute people effectively.

    Well, not if you care about either truth or justice.

  9. 9
    Baud says:

    @RandomMonster:

    Bush and Cheney never intended to prosecute them.

  10. 10
    Higgs Boson's Mate says:

    @Omnes Omnibus:

    Understood though I thank you for offering such gentle correction. My observation stems from the fact that those in Gitmo will not be tried in a civilian court. I know that the reasons for that are complex and that they stretch back more than a decade. I’m just an old pessimist but, it seems to me to be another indication that the system is broken.

  11. 11

    …It was sealed as document 120C on the war court website Thursday morning and, according to those who have read it, orders the agency to provide a chronology of the overseas odyssey of Abd al Rahim al Nashiri, 49, from his capture in Dubai in 2002 to his arrival at Guantánamo four years later.

    Bad guys oughta know just getting netted up in the US justice system is punishment alone. Steer clear, muthafuckas. Guilty until proven innocent, especially if you fail the WASP test.

    And the war court has a website: yet another anachronism of the Bush Era, though for the sake of transparency I am, actually, grateful that it is there. Has it been vetted for the Heartbleed vulnerability?

    @Higgs Boson’s Mate:

    I’m just an old pessimist but, it seems to me to be another indication that the system is broken.

    This x sixteen jillion. Yet another reminder of Rove’s Law: if you can’t bend something to suit your needs, break it so no one else can use it.

  12. 12
    Omnes Omnibus says:

    @Higgs Boson’s Mate: Yeah, I am making a bit of lemonade with these here lemons, but I think it matters. The flawed system put into place is actually doing its best to function properly.

  13. 13
    NotMax says:

    I think I owe someone a hat tip for this link.

    Perhaps li’l ol’ moi.

    The whole “You can’t handle the truth” ethos one gets from reading about these cases is execrable (that in addition to my comment at the link on a different snippet from same article).

  14. 14
    Chris says:

    @Baud:

    Bush and Cheney never intended to prosecute them.

    Quoted for nauseatingly accurate truth.

  15. 15
    RandomMonster says:

    @Omnes Omnibus:

    Well, not if you care about either truth or justice.

    As it turns out, I do!

  16. 16
  17. 17

    @Higgs Boson’s Mate:

    I think you’re vastly underestimating the professionalism of the military lawyers who are defending these cases. So far, many (most?) of them seem to be defending their clients just as vigorously as a civilian lawyer would.

  18. 18
    RandomMonster says:

    @Baud:

    Bush and Cheney never intended to prosecute them.

    Of course they didn’t. What good is due process in the face of TERROR?!! All justice must be dispensed with in the face of an existential threat.

  19. 19
    Omnes Omnibus says:

    @Mnemosyne (iPhone): No, he is attacking the idea of military tribunals being used rather than actual courts and he is dead on in doing so. The military lawyers are doing a damned good job withing a fucked-up ad hoc system. The prisoners though are either prisoners of war, who, if charged with a war crime, should be afforded an actual court martial or they are civilians who should be afforded a proper criminal trial.

  20. 20
    RandomMonster says:

    @Baud:

    Commie!

    Proudly, in fact.

  21. 21
    NotMax says:

    Moderation for no apparent reason.

    FYWP for the trillionth time.

  22. 22
    Omnes Omnibus says:

    @NotMax: You know what you did.

  23. 23
    Baud says:

    @Omnes Omnibus:

    You should read the transcript AL linked to in the post. The defense lawyer was great. If nothing else, read the last few pages.

  24. 24
    Goblue72 says:

    @Mnemosyne (iPhone): My law school classmates who went JAG after tended to be true believers in the “serve your country as officers of the court” thing. (This was at a top school where you could get handed a $125k+ job after graduation at a white show firm if you just avoided drooling on yourself).

    Folks going JAG tended to be the kind of conservatives that Andrew Sullivan is always fantasizing about in his Oakshotte wet dreams.

  25. 25
    Omnes Omnibus says:

    @Baud: Rick Kammen is very good.

  26. 26
    Poopyman says:

    @Omnes Omnibus:

    The flawed system put into place is actually doing its best to function properly.

    Because there are still people who really care that it does function properly. These little rays of hope are about all that keep hope alive for our country as a democracy.

  27. 27
    Soonergrunt says:

    COL James Pohl, JA is the Military Judge who presided over the court-martial of BG Sinclair.
    People who know him say he’s trying very hard to actually return to retired status. As we witnessed in the Sinclair court-martial, he has very little use for prosecutorial shenanigans.

  28. 28
    Omnes Omnibus says:

    @Poopyman:

    These little rays of hope are about all that keep hope alive for our country as a democracy.

    Same as it ever was. It is not as though there was some golden age of peace and light. We have always been on the razor’s edge – at some times the razor is sharper than others.

  29. 29
    Poopyman says:

    @Omnes Omnibus: True. I suppose it’s time we trotted out the old Edmund Burke quote again.

  30. 30
    🌷 Martin says:

    @Higgs Boson’s Mate:

    I know that the reasons for that are complex

    Not so complex. Congress cares more about avoiding some chickenshit wingnut protests than doing what’s right.

  31. 31
    Higgs Boson's Mate says:

    @🌷 Martin: @🌷 Martin:
    In my defense, I could have used the word “multifarious.”

  32. 32
    Omnes Omnibus says:

    @Poopyman: Blanking at the moment…. Which Burke quote?

    I keep flashing to Franklin’s ” A republic if you can keep it.” and Churchill’s “You can always count on Americans to do the right thing – after they’ve tried everything else.”

  33. 33
    Poopyman says:

    @Omnes Omnibus:

    “All that is necessary for the triumph of evil is that good men do nothing.”

    Although WikiQuotes tells me that it also appears in War and Peace.

    So, what the heck, we’ll use this one as a bonus backup (even while not directly applicable to Gitmo):

    The people never give up their liberties but under some delusion.

    Or does it apply to Gitmo?

  34. 34
    mclaren says:

    If they tortured me long enough, they could get me to confess to the assassination of JFK and Abraham Lincoln.

    Why the hell is torture-induced “evidence” even allowed in a courtroom?

  35. 35
    mclaren says:

    @Omnes Omnibus:

    The prisoners though are either prisoners of war, who, if charged with a war crime, should be afforded an actual court martial or they are civilians who should be afforded a proper criminal trial.

    Please provide evidence that America is currently engaged in, or has been negaged in, a declared war with any nation since 11 September 2001, or stand revealed as a pathological liar.

    The phony phrase “War on Terror” is a term of art with no more legal validity than the equally bogus phrase “War on Drugs” or “War on Copyright Infringement” or “War on Drunk Driving.”

  36. 36
    Omnes Omnibus says:

    @Poopyman: Derp on my part.

    @mclaren:

    Why the hell is torture-induced “evidence” even allowed in a courtroom?

    It isn’t. That’s the whole point of this decision. The defense gets access to the records to determine what evidence was acquired by unconstitutional means. That evidence will be excluded.

  37. 37
    mai naem says:

    I saw a tweet recently that Carol Rosenberg had a scoop. Apparently one of the people on the defense team on one of the cases was an informant for the FBI. I don’t even know what to say. An informant for the FBI on the actual defense team. Who would even agree with that? How is this constitutional in any way?

  38. 38
    Omnes Omnibus says:

    @mclaren: Good fucking god. There are two legal statuses that could possibly apply to the detainees that would allow a trial of some kind. I named them. Military tribunals were fucking invented because the detainees didn’t fit into the POW who committed a war crime status and the Bush administration didn’t want to use civilian courts. They couldn’t use civilian courts because of the inadmissible evidence on which they wanted to rely. Now, the tribunals that they invented are still declining to rely on that evidence.

  39. 39
    Soonergrunt says:

    @mclaren: Please provide evidence that a war need be “declared” under US or any form of International law for it to be a war, under which individual combatants and belligerent powers have certain rights and responsibilities, or stand revealed as a emotionally immature and woefully ignorant troll.

    Oops, too late.

    @mclaren: If you’d been paying attention, you stupid fuck, you’d know that torture-derived evidence isn’t being allowed in the court room. That’s the whole thrust of the article.

  40. 40
    mclaren says:

    @Soonergrunt:

    The Treaty of Westphalia along with the subsequent Geneva Convention. Read ’em.

    Both these documents establish the fundamental legal principle that only nations can wage war, and then only against other nations.

    If you’re trying to tell us that the 350 years of legal precedent since the Treaty of Westphalia are invalid, and that any act of violence can be declared and legally regarded as a “war,” you’re in a world of shit, buckaroo.

    According to your so-called legal “reasoning,” that means that any bank robber can say in court “I was waging war against the United States of America, so I move that all charges be dismissed. The police officers I gunned down are merely enemy combatants.”

    That’s horseshit and you know it’s obvious horseshit.

    If we open the door to legally regarding any arbitrary act of violence as a legally sanctioned war regardless of whether the war was actually declared or not, that means that every Hatfield-McCoy feud and every gangbanger shooting on the streets now has the legal status of war.

    That’s so absurd and so unworkable that it requires no discussion. Words have meaning. Legal precedents can’t just be brushed away and wiped out of existence because the president of the united states and his toadies want to redefine them out of existence.

  41. 41
    Omnes Omnibus says:

    @Soonergrunt: mclaren has no interest in paying attention. maclaren wants to hurl ad hominems and talk about “shithole America.” mclaren is a troll. I tried to offer a substantive response this time for the punters in the stands.

  42. 42
    Omnes Omnibus says:

    @Soonergrunt: Shit. I forgot. there is another legal status from legal history that is analogous to that of a modern terrorist – pirate.

  43. 43
    mclaren says:

    @Omnes Omnibus:

    Good fucking god. There are two legal statuses that could possibly apply to the detainees that would allow a trial of some kind. I named them. Military tribunals were fucking invented because the detainees didn’t fit into the POW who committed a war crime status and the Bush administration didn’t want to use civilian courts. They couldn’t use civilian courts because of the inadmissible evidence on which they wanted to rely. Now, the tribunals that they invented are still declining to rely on that evidence.

    Let’s unpack your JTRIG horseshit. Then you can go to your JTRIG handler at the NSA and tell him you need a pay raise because your JTRIG disinformation just isn’t cutting it.

    Good fucking god.

    This is not an argument. Strike one.

    There are two legal statuses that could possibly apply to the detainees that would allow a trial of some kind.

    No, there are many possible categories of legal status that would allow a civlian trial, but there is no category of legal status that would permit a military trial of a foreign national kidnapped without due process absent a legally declared state of war. Canada can’t go to Mexico, kidnap one of its citizens, and then declare that this person committed war crimes for some word salad collection of buzzwords. That’s not a legal precedent. There are no laws supporting that. That’s just kidnapping and a kangaroo trial, no different than what the Soviet Union did in the 1930s. No American legal thinker believes that Stalin’s show trials in the 1930s had any legal validity. You’re just making shit up here. What you’re saying has absolutely no basis in law.

    Military tribunals were fucking invented because the detainees didn’t fit into the POW who committed a war crime status and the Bush administration didn’t want to use civilian courts.

    Strike two. Wrong: military tribunals were invented to deal with war crimes, either those committed by enemy soldiers (which is a legally touchy area: see America’s post-Civil War trial of Henry Wirth, the commandant of Andersonville prison camp) or those committed by American soldiers.

    They couldn’t use civilian courts because of the inadmissible evidence on which they wanted to rely.

    Strike three. You’re out. This is illegal and unconstitutional. It directly and specifically violates the fifth amendment due process clause and the sixth amdendment requirement of a jury trial. The U.S. government can’t just declare that it’s going to try a suspect in a military court because the evidence obtained against that suspect violated the fifth and sixth amendments — if that were legal, the Nixon administration could have tried the Chicago Seven in a military court because the evidence against the Chicago Seven was obtained by burglarizing Daniel Ellsberg’s psychiatrist’s office and illegally wiretapping all the defendents.

    The government cannot simply throw out the law when it finds it convenient to do so and then state “We are trying the defendant in a military court because the way we collected our evidence violates the constitution.” If the government could do that, then every time the LAPD tortured a drug suspect or planted dope on him, they could simply have the Los Angeles district attorney turn the defendant over to a military tribunal and declare him an “enemy combatant.”

    That’s horseshit. And you know it’s horseshit.

    Being stupid is a privilege, not a right — and you’re abusing it.

    Tell your NSA JTRIG handlers that your cover has been blown and your disinformation tactics aren’t working on this forum.

    You’ve faithfully followed the procedures for deception in this slide from Ed Snowden’s leaked NSA disinformation overview, but the deception techniques are just not working. Best advise your NSA handlers to pull you out and reinsert you under another i.p. address using another sock puppet identity.

  44. 44
    Omnes Omnibus says:

    @mclaren: Dude. I strongly suggest that you put a a great deal of effort into improving your reading comprehension. Virtually every thing that you are implying that I said is the polar opposite of my actual statements.

    Whichever right-wing plutocrat is paying you to play a hardcore leftie is overpaying.

  45. 45
    mclaren says:

    @Omnes Omnibus:

    Shit. I forgot. there is another legal status from legal history that is analogous to that of a modern terrorist – pirate.

    Utterly and provably false. Now you’ve shown you know nothing about the law in these edge cases.

    Pirates often had letters of marque from foreign nations. This made their legal status dicey. If a pirate had a letter of marque from, say, the British Empire, it became problematic to try that pirate in, say, a Spanish Court.

    The legal status of pirates was even more cloudy because many of the most famous pirates originally started out with legally valid letters of marque, but then began to attack ships of their own country.

    Piracy, moreover, gets dealt with by the Law of the Sea, which is different from the laws which apply on land, for obvious reasons. For example, the Law of Sea must deal with situations in which a legally constituted agent of one nation commits organized violence against a legally constituted agent of another nation outside any national boundaries (i.e., on the high seas).

    That’s entirely different from the situation with so-called “enemy combatants,” who all commit violence against other people within clearly defined national boundaries.

    You need to read up on the law in these cases. You’re making a fool of yourself. Next you’ll dredge up the old long-discredited “American-soldiers-in-Afghanistan-are-exactly-like-policemen-on-American-cities” analogy. Utterly wrong, a faulty analogy, no legal validity at all.

    You’re making a fool of yourself. Best to cut your losses and stop posting before it gets any worse for you.

  46. 46
    mclaren says:

    @Omnes Omnibus:

    Dude. I strongly suggest that you put a a great deal of effort into improving your reading comprehension. Virtually every thing that you are implying that I said is the polar opposite of my actual statements.

    This kind of vacuous character assassination is not an argument. You’ll want to actually make a valid argument using logic and evidence rather than making empty claims without any supporting evidence or logic.

  47. 47
    mclaren says:

    @Omnes Omnibus:

    mclaren has no interest in paying attention. maclaren wants to hurl ad hominems and talk about “shithole America.” mclaren is a troll. I tried to offer a substantive response this time for the punters in the stands.

    Once again, not an argument. Name-calling occupies the lowest level of Graham’s hierarchy of disagreement.

    Name-calling is not an effective debate tactic. Though you wouldn’t know it to read the comments on Balloon-Juice…

  48. 48
    Omnes Omnibus says:

    @mclaren: I suggested an analogue, not a exact match.

    @mclaren: From you, that is laughable. As for the substance, I leave it to the readers of the blog to determine the honesty of your interpretation of my comments.

  49. 49
    Soonergrunt says:

    @mclaren: Where do either of those documents declare that a war must be declared?
    Because it damn sure isn’t any of the MULTIPLE treaties that have been colloquially called “The Geneva Conventions.”
    In fact, the latest of these treaties, the 1977 Additional Protocol II to the Hague Treaty of 1899 and 1907, and the the “Geneva Conventions” specifically delineates the rights and responsibilities of non-state actors such as partisans and non-military resistance fighters to include third-national parties in articles 43 through 47.

    The hypothetical you cited with such confidence as if you knew what you were talking about is covered with respect to belligerent national parties in Article 44. With respect to conflicts internal to nation-states such as uprisings, insurgencies, or civil war, this is addressed by Article 6 of the 1977 Additional Protocol II.

    When you state “If we open the door to legally regarding any arbitrary act of violence as a legally sanctioned war regardless of whether the war was actually declared or not, that means that every Hatfield-McCoy feud and every gangbanger shooting on the streets now has the legal status of war[.]” you show that you do not know what you are talking about, because there’s nothing in any of these treaties that does that. Criminal activity is not, and never has been protected by international law. And these same treaties do not require a formal declaration of war in order for a state of war as contemplated by these treaties (or any other form of international law) to exist. Since you do not seem to understand this, I’ll let you in on another thing that isn’t remotely secret–even in cases where nations and people are at war, criminal activity such as you’ve described here is still subject to police action and legal sanction in every jurisdiction in the world.

  50. 50
    Omnes Omnibus says:

    @mclaren: Oh darling, I wasn’t name calling. I was describing.

  51. 51
    James Hare says:

    @mclaren: and referring to your opponents as government plants isn’t name calling?

  52. 52
    Omnes Omnibus says:

    @James Hare: mclaren doesn’t seem all that worried about logical consistency. Or reading what other people actually wrote for that matter.

  53. 53
    burnspbesq says:

    @Omnes Omnibus:

    Agreed. To his credit, Col. Pohl is trying hard to get to just outcomes in a system that was consciously designed by Congress to make such outcomes impossible.

    And Carol Rosenberg is far more deserving of a Pulitzer than certain recent winners.

  54. 54
    burnspbesq says:

    If they tortured me long enough, they could get me to confess to the assassination of JFK and Abraham Lincoln.

    Come clean, mclaren. We know you also did Garfield.

  55. 55
    Snarki, child of Loki says:

    Australia called. They want their damn kangaroos back from Gitmo, PDQ

  56. 56
    Epicurus says:

    @Soonergrunt: “Please provide evidence that a war need be “declared” under US or any form of International law for it to be a war, under which individual combatants and belligerent powers have certain rights and responsibilities, or stand revealed as a emotionally immature and woefully ignorant troll.” I’m not going to jump in to defend McLaren, but just thought I would leave this here:

    U.S. Constitution, Article I, Section 8 reads, in part: “The Congress shall have Power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…” Just because this little clause has been ignored since the Viet Nam War does not mean it’s no longer “operative,” but that subsequent Administrations and Congresses ignored it. Your point, however, is correct, in that war does not have to be declared in order to be fought. See, e.g., Cambodia, Iraq, Afghanistan, ad nauseum. And the entire Gitmo mess is another lovely present from the Cheney Misadministration. How long will we be paying for their sins??

  57. 57
    Soonergrunt says:

    @Epicurus: And where in the document granting Congress the exclusive power to declare war does there exist a requirement for such declaration for a state of war to exist?

    The answer is…nowhere.

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