Watching the Shadows
The US Court of Appeals for the District of Columbia Circuit on July 14 overturned two out of three convictions of Ali Hamza Ahmad Suliman al-Bahlul, media secretary of Osama Bin Laden. The court vacated Bahlul's convictions for providing material support for terrorism and solicitation of others to commit war crimes but did not overturn his conviction for conspiracy to commit terrorism, remanding that issue to the Court of Military Commission Review (CMCR). A three-judge panel of the appeals court had ruled last year that the military tribunal that convicted Bahlul of conspiracy in 2007 erred because a Guantánamo prisoner could not be convicted of conspiracy unless his crime took place after 2006. The court said the Military Commissions Act (MCA) of 2006 codified conspiracy as a war crime, but did not apply to crimes committed before the MCA was passed. The en banc court disagreed, ruling "that the 2006 MCA is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute—regardless of their pre-existing law-of-war status." Nonetheless, the court vacated the other two convictions, concluding that trying Bahlul by military commission for providing material support was "a plain ex post facto violation," and that "solicitation of others to commit war crimes is plainly not an offense traditionally triable by military commission." The new ruling could result in a reduction of Bahlul's life sentence.
Lawyers for Guantánamo Bay detainees on July 2 filed an emergency application (PDF) in the US District Court for the District of Columbia for a temporary restraining order prohibiting the government from depriving the inmates of the right to pray communally during the month of Ramadan. Lawyers for petitioner Imad Abdullah Hassan have already applied (PDF) for a preliminary injunction, now pending, that alleges that prohibiting the detainees from prayer violates the Religious Freedom Restoration Act (RFRA). The emergency application was filed following the US Supreme Court's recent decision in Burwell v. Hobby Lobby. Hassan argues that the decision in Hobby Lobby, which held that for-profit corporations can deny coverage of contraception costs because of their religious beliefs, overrules the district court's prior decision in Rasul v. Myers. In that case the court held that the Guantánamo Bay detainees are not protected "persons" within the meaning of the RFRA. Thus, the motion argues that "a nonresident alien Guantanamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign US territory...must also enjoy the protections extended by the RFRA."
The US Court of Appeals for the District of Columbia Circuit on June 10 dismissed (PDF) a lawsuit brought by a former Guantánamo detainee against former Defense Secretary Donald Rumsfeld. According to the original complaint (PDF), the plaintiff, Sami Abdulaziz Allaithi, was an Egyptian professor working in Kabul teaching English. When the US started its bombing campaign, the plaintiff fled to Pakistan, was captured and then transferred to the Guantánamo Bay Detention Camp where he claims he was tortured and prevented from practicing his religion. This treatment continued even though he was classified as a non-enemy combatant by the Department of Defense's Combatant Status Review Tribunal until he was released. In the opinion, written by Judge Janice Rodgers Brown, the court held that, "[t]he now-settled law reveals several flaws and inadequacies of the Appellants' complaint. ... In response, counsel invites us to remand this case to allow them an opportunity to rectify whatever mistakes lie in their pleadings... We cannot."
The US Department of Defense on June 2 approved the war crimes trial of Abd al-Hadi al-Iraqi (BBC profile), a leader of al-Qaeda's armed forces between 2002 and 2004. The former CIA captive has been held at Guantánamo Bay since 2007. The official charge sheet (PDF) alleges, among other things, that al-Hadi was a superior commander for al-Qaeda and that he and his operatives killed multiple US service members and attacked a US military medical helicopter with rocket-propelled grenades and firearms. Prosecutors also allege that al-Hadi funded and oversaw all of al-Qaeda's operations against US and allied forces in Afghanistan and Pakistan from 2002 to 2004, and that he directed his forces to use various unlawful means, such as attacking civilians and detonating car bombs in civilian areas.
The US District Court for the District of Columbia on May 16 ordered (PDF) officials at Guantánamo Bay to temporarily suspend forced feedings of a detainee at the facility. Judge Gladys Kessler's unprecedented ruling also bars officials at the facility from subjecting the detainee to so-called forced cell extractions "for the purposes of" tube-feedings until May 21, the date of the next hearing in the case. The ruling also orders the military to preserve more than 100 videos that show the prisoner being forcibly removed from his cell and force-fed. Syrian national Abu Wa'el Dhiab (advocacy website) has been held at Guantánamo Bay since 2002 after being detained in Pakistan. Dhiab has been cleared for release or transfer out of Guantanamo since 2009, and has been refusing food for over a year. Defense Department spokesman Lt. Col. Todd Breasseale stated in an e-mail that "[w]hile the Department follows the law and only applies enteral feeding in order to preserve life, we will, of course, comply with the judge's order here." (Jurist, May 17; Al Jazeera America, May 16)
Human Rights Watch (HRW) released a report (PDF) on May 12 finding that the use of fully autonomous weapons by militaries or law enforcement would be an affront to basic human rights and should be preemptively banned by international convention. The report, entitled "Shaking the Foundations: The Human Rights Implications of Killer Robots," was jointly authored by HRW and Harvard Law School's International Human Rights Clinic . It questions the ability of autonomous weapons to comply with international humanitarian law. According to the report, robots could not be pre-programmed to handle every circumstance, and thus fully autonomous weapons would be prone to carrying out arbitrary killings when encountering unforeseen situations. Because it is highly unlikely in the foreseeable future that robots could be developed to have human qualities such as judgment and empathy, fully autonomous weapons will not be able to effectively comply with human rights laws.
Republicans are continuing to bleed "Benghazigate" dry, shamelessly exploiting the four men who died at the consulate in the Libyan city on Sept. 11, 2012 for political ends, even as they accuse the White House of having betrayed them to their deaths. The House of Representatuves has now authorized creation of a select committee to investigate the already exhaustively investigated affair, seizing upon the release of supposedly damning e-mails from a White House aide. As the LA Times notes in an editorial: "The administration should have released the Sept. 14, 2012, email from deputy national security advisor Ben Rhodes long ago. That said, it's anything but a smoking gun. Referring to protests over the video throughout the Muslim world, Rhodes suggested that [then-US ambassador the UN Susan] Rice stress that 'these protests were rooted in an Internet video and not a broader failure of policy.'" The video in question is of course the notorious Innocence of Muslims pseudo-film, produced as a provocation by Islamophobes. That the White House sought to "spin" the consulate attack as a protest against the video that got out of hand, rather than a pre-planned act of "terrorism" that the administration failed to stop, is plausible. (Although the distinction also points to the elastic nature of the word "terrorism.") Now, all too predictably, right-wing commentators like American Thinker are arguing that the video had nothing to do with the attack, while lefty outlets like Mother Jones are insisting that yes it did after all. (The question of whether the attackers were linked to al-Qaeda has been similarly politicized.)
The Periodic Review Secretariat, a national security panel under the authority of the US Department of Defense (DoD), on April 24 recommended (PDF) the release of a Yemeni prisoner currently held at Guantánamo Bay. The prisoner, Ali Ahmad Mohamed al-Razihi, was suspected of acting as a bodyguard for Osama bin Laden and has been held at Guantánamo since 2002. The Periodic Review Secretariat determines whether certain individuals detained at Guantánamo represent a continuing significant threat to the security of the US such that their continued detention is warranted. In making the determination, the security review panel considered the detainee's plans for the future and the level of his involvement with al-Qaeda, including his behavior throughout detention. The journalist and Guantánamo expert Andy Worthington released a copy of al-Razihi's statement delivered before the review board of the Periodic Review Secretariat on March 20.