MILITARY'S LAWYERS FOR DETAINEES PUT TRIBUNALS ON TRIAL
Neil A. Lewis, New York Times, 5/3/04
http://www.nytimes.com/2004/05/04/politics/04GITM.html
WA****NGTON - The Bush administration's plan to use military tribunals to
try some of the detainees held at Guantanamo Bay, Cuba, which has faced
considerable skepticism, has been receiving some of its sharpest attacks
from the military defense lawyers who are participating in the process.
Senior government planners once expected that the first of the prisoners
to
go before a tribunal would plead guilty as part of an agreement to reduce
their jail time. But the five military lawyers assigned to defend the
first
group of prisoners have radically altered that hope, the officials now
acknowledge.
The uniformed lawyers have been especially forceful, not only in
asserting
their clients' innocence but also in denouncing the tribunal system as
inherently unfair and rigged.
The Pentagon wants the military commissions, the first for the United
States since World War II, to be seen as fair at home and abroad. But the
military lawyers, in playing the kind of attack-the-system role that
William Kunstler was known for, have become widely quoted around the
world
and acclaimed by some as heroes after appearances in London and Australia
in
which they denounced the tribunals.
Nonetheless, senior military officials said that while they disagreed
with
the view that the tribunal system is unfair, they had no problem with the
defense lawyers' making harshly critical comments...
*******************************************************
'Definitely a Cover-Up'
By Brian Ross and Alexandra Salomon
ABCNEWS.com
Tuesday 18 May 2004
Former Abu Ghraib Intel Staffer Says Army Concealed Involvement in Abuse
Scandal
Dozens of soldiers - other than the seven military police reservists
who
have been charged - were involved in the abuse at Iraq's Abu Ghraib
prison,
and there is an effort under way in the Army to hide it, a key witness in
the investigation told ABCNEWS.
"There's definitely a cover-up," the witness, Sgt. Samuel Provance,
said. "People are either telling themselves or being told to be quiet."
Provance, 30, was part of the 302nd Military Intelligence Battalion
stationed at Abu Ghraib last September. He spoke to ABCNEWS despite orders
from his commanders not to.
"What I was surprised at was the silence," said Provance. "The
collective silence by so many people that had to be involved, that had to
have seen something or heard something."
Provance, now stationed in Germany, ran the top secret computer
network
used by military intelligence at the prison.
He said that while he did not see the actual abuse take place, the
interrogators with whom he worked freely admitted they directed the MPs'
rough treatment of prisoners.
"Anything [the MPs] were to do legally or otherwise, they were to take
those commands from the interrogators," he said.
Top military officials have claimed the abuse seen in the photos at
Abu
Ghraib was limited to a few MPs, but Provance says the ***ual humiliation
of
prisoners began as a technique ordered by the interrogators from military
intelligence.
"One interrogator told me about how commonly the detainees were
stripped
****d, and in some occasions, wearing women's underwear," Provance said.
"If
it's your job to strip people ****d, yell at them, scream at them,
humiliate
them, it's not going to be too hard to move from that to another level."
According to Provance, some of the physical abuse that took place at
Abu
Ghraib included U.S. soldiers "striking [prisoners] on the neck area
somewhere and the person being knocked out. Then [the soldier] would go to
the next detainee, who would be very fearful and voicing their fear, and
the
MP would calm him down and say, 'We're not going to do that. It's OK.
Everything's fine,' and then do the exact same thing to him." Provance
also
described an incident when two drunken interrogators took a female Iraqi
prisoner from her cell in the middle of the night and stripped her ****d
to
the waist. The men were later restrained by another MP.
Pentagon Sanctions Investigation
Maj. Gen. George Fay, the Army's deputy chief of staff for
intelligence,
was assigned by the Pentagon to investigate the role of military
intelligence in the abuse at the Iraq prison.
Fay started his probe on April 23, but Provance said when Fay
interviewed him, the general seemed interested only in the military
police,
not the interrogators, and seemed to discourage him from testifying.
Provance said Fay threatened to take action against him for failing to
re****t what he saw sooner, and the sergeant fears he will be ostracized
for
speaking out.
"I feel like I'm being punished for being honest," Provance told
ABCNEWS. "You know, it was almost as if I actually felt if all my
statements
were shredded and I said, like most everybody else, 'I didn't hear
anything,
I didn't see anything. I don't know what you're talking about,' then my
life
would be just fine right now."
In response, Army officials said it is "routine procedure to advise
military personnel under investigative review" not to comment.
The officials said, however, that Fay and the military were committed
to
an honest, in-depth investigation of what happened at the prison.
But Provance believes many involved may not be as forthcoming with
information.
"I would say many people are probably hiding and wi****ng to God that
this storm passes without them having to be investigated [or] personally
looked at."
http://abcnews.go.com/sections/WNT/Investigation/abu_ghraib_cover_up_040518-1.html
===============
One key advantage of declaring that Taliban and Al Qaeda fighters did
not have Geneva Convention protections is that it "substantially reduces
the
threat of domestic criminal prosecution under the War Crimes Act,"
Gonzales
wrote
------------
May 17 - The White House's top lawyer warned more than two years ago
that U.S. officials could be prosecuted for "war crimes" as a result of
new
and unorthodox measures used by the Bush administration in the war on
terrorism, according to an internal White House memo and interviews with
participants in the debate over the issue.
The concern about possible future prosecution for war crimes - and
that
it might even apply to Bush administration officials themselves - is
contained in a crucial ****tion of an internal January 25, 2002, memo by
White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges
President George Bush declare the war in Afghanistan, including the
detention of Taliban and Al Qaeda fighters, exempt from the provisions of
the Geneva Convention.
In the memo, the White House lawyer focused on a little known 1996 law
passed by Congress, known as the War Crimes Act, that banned any Americans
from committing war crimes-defined in part as "grave breaches" of the
Geneva
Conventions. Noting that the law applies to "U.S. officials" and that
punishments for violators "include the death penalty," Gonzales told Bush
that "it was difficult to predict with confidence" how Justice Department
prosecutors might apply the law in the future. This was especially the
case
given that some of the language in the Geneva Conventions - such as that
outlawing "outrages upon personal dignity" and "inhuman treatment" of
prisoners - was "undefined."
One key advantage of declaring that Taliban and Al Qaeda fighters did
not have Geneva Convention protections is that it "substantially reduces
the
threat of domestic criminal prosecution under the War Crimes Act,"
Gonzales
wrote.
"It is difficult to predict the motives of prosecutors and independent
counsels who may in the future decide to pursue unwarranted charges based
on
Section 2441 [the War Crimes Act]," Gonzales wrote.
The best way to guard against such "unwarranted charges," the White
House lawyer concluded, would be for President Bush to stick to his
decision - then being strongly challenged by Secretary of State Powell -
to
exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva
convention provisions.
"Your determination would create a reasonable basis in law that (the
War
Crimes Act) does not apply which would provide a solid defense to any
future
prosecution," Gonzales wrote.
The memo-and strong dissents by Secretary of State Colin Powell and
his
chief legal advisor, William Howard Taft IV-are among hundreds of pages of
internal administration documents on the Geneva Convention and related
issues that have been obtained by NEWSWEEK and are re****ted for the first
time in this week's issue.
The memos provide fresh insights into a fierce internal administration
debate over whether the United States should conform to international
treaty
obligations in pursuing the war on terror. Administration critics have
charged that key legal decisions made in the months after Sept. 11,
including the White House's February 2002 declaration not to grant any Al
Qaeda and Taliban fighters prisoners of war status under the Geneva
Convention, laid the groundwork for the interrogation abuses that have
recently been revealed in the Abu Ghraib prison in Iraq.
A copy of the Gonzales memo and the response to it by Secretary of
State
Colin Powell are being posted today on NEWSWEEK's web site accompanying
this
article.
As re****ted in this week's magazine edition, the Gonzales memo urged
Bush to declare all aspects of the war in Afghanistan - including the
detention of both Al Qaeda and Taliban fighters - exempt from the
strictures
of the Geneva Convention. In the memo, Gonzales described the war against
terrorism as a "new kind of war" and then added: "The nature of the new
war
places a high premium on other factors, such as the ability to quickly
obtain information from captured terrorists and their sponsors in order to
avoid further atrocities against American civilians, and the need to try
terrorists for war crimes such as wantonly killing civilians."
But while top White House officials publicly talked about trying Al
Qaeda leaders for war crimes, the internal memos show that administration
lawyers were privately concerned that they could tried for war crimes
themselves based on actions the administration were taking, and might have
to take in the future, to combat the terrorist threat.
The issue first arises in a January 9, 2002, draft memorandum written
by
the Justice Department's Office of Legal Counsel (OLC) concluding that
"neither the War Crimes Act nor the Geneva Conventions" would apply to the
detention conditions of Al Qaeda or Taliban prisoners at Guantanamo Bay
Cuba. The memo includes a lengthy discussion of the War Crimes Act, which
it
concludes has no binding effect on the president because it would
interfere
with his Commander in Chief powers to determine "how best to deploy troops
in the field." (The memo, by Justice lawyers John Yoo and Robert
Delahunty,
also concludes - in response to a question by the Pentagon - that U.S.
soldiers could not be tried for violations of the laws of war in
Afghanistan
because such international laws have "no binding legal effect on either
the
President or the military.")
But while the discussion in the Justice memo revolves around the
possible application of the War Crimes Act to members of the U.S.
military,
there is some reason to believe that administration lawyers were worried
that the law could even be used in the future against senior
administration
officials.
One lawyer involved in the interagency debates over the Geneva
Conventions issue recalled a meeting in early 2002 in which participants
challenged Yoo, a primary architect of the administration's legal
strategy,
when he raised the possibility of Justice Department war crimes
prosecutions
unless there was a clear presidential direction proclaiming the Geneva
Conventions did not apply to the war in Afghanistan. The concern seemed
misplaced, Yoo was told, given that loyal Bush appointees were in charge
of
the Justice Department.
"Well, the political climate could change," Yoo replied, according to
the lawyer who attended the meeting. "The implication was that a new
president would come into office and start potential prosecutions of a
bunch
of ex-Bush officials," the lawyer said. (Yoo declined comment.)
This appears to be precisely the concern in Gonzales's memo dated
January 25, 2002, in which he strongly urges Bush to stick to his decision
to exempt the treatment of Taliban and Al Qaeda fighters from the
provisions
of the Geneva Conventions. (Powell and the State Department had wanted the
U.S. to at least have individual reviews of Taliban fighters before
concluding that they did not qualify for Geneva Convention provisions.)
One reason to do so, Gonzales wrote, is that it "substantially reduces
the threat of domestic criminal prosecution under the War Crimes Act." He
added that "it is difficult to predict with confidence what actions might
be
deemed to constitute violations" of the War Crimes Act just as it was
"difficult to predict the needs and circumstances that could arise in the
course of the war on terrorism." Such uncertainties, Gonzales wrote,
argued
for the President to uphold his exclusion of Geneva Convention provisions
to
the Taliban and Al Qaeda detainees who, he concluded, would still be
treated
"humanely and, to the extent appropriate and consistent with military
necessity, in a manner consistent with the principles" of the Geneva
Convention on the treatment of prisoners of war.
In the end, after strong protests from Powell, the White House
retreated
slightly. In February 2002, it proclaimed that, while the United States
would adhere to the Geneva Conventions in the conduct of the war in
Afghanistan, captured Taliban and Qaeda fighters would not be given
prisoner
of war status under the conventions. It is a rendering that Administration
lawyers believed would protect U.S. interrogators or their superiors in
Wa****ngton from being subjected to prosecutions under the War Crimes Act
based on their treatment of the prisoners.
-------------
Dick Eastman's 84-year-old father taken to psychiatric ward following his
cancer operation -- the psychiatrist whom the family did not want, called
him potentially suicidal and obtained a court injunction -- there will be
a
hearing tomorrow in Yakima at 8:00 a.m. There is no reason why my
father
is being held -- it certainly adds to his depression to be held a
prisoner.
The question is why did this happen to him. Is it an effort to control
the
son by nabbing the father?
Is there a pro bono lawyer in the house?
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