History > 2008 > USA > Terrorism (V)

OPINION

From Gitmo to Miranda, With Love

July 30, 2008
Page A15
The Wall Street Journal
By DEBRA BURLINGAME

Captive Miranda, Lord knows I have not given a thought to the paperwork you sent me.

Let me tell you, Captive, that our release is not in the hands of the lawyers or the hands of America. Our release is in the hands of He who created us.

The poem, "To My Captive Lawyer, Miranda," was written by Abdullah Saleh Al-Ajmi while he was a detainee at Guantanamo Bay, Cuba. No doubt, it would have given the former detainee, who was released in 2005, immense satisfaction to know that his last earthly deed was referenced in Justice Antonin Scalia's dissenting opinion in Boumediene v. Bush. That's the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants.

Al-Ajmi, a 29-year-old Kuwaiti, blew himself up in one of several coordinated suicide attacks on Iraqi security forces in Mosul this year. Originally reported to have participated in an April attack that killed six Iraqi policemen, a recent martyrdom video published on a password-protected al Qaeda Web site indicates that Al-Ajmi carried out the March 23 attack on an Iraqi army compound in Mosul. In that attack, an armored truck loaded with an estimated 5,000 to 10,000 pounds of explosives rammed through a fortified gate, overturned vehicles in its path and exploded in the center of the compound. The huge blast ripped the façade off three apartment buildings being used as barracks, killing 13 soldiers from the 2nd Iraqi Army division and seriously wounding 42 others.

Using the name "Abu Juheiman al-Kuwaiti," Al-Ajmi is seen on the video brandishing an automatic rifle, singing militant songs and exhorting his fellow Muslims to pledge their allegiance to the "Commander of the Faithful" in Iraq. Later, Al-Ajmi's face is superimposed over the army compound, followed by footage of the massive explosion and still shots of several dead bodies lying next to the 25-foot crater left by the blast.

In 2006, Al-Ajmi's "Miranda" poem was included in a recitation of detainee poetry at a "Guantanamo teach-in" sponsored by Seton Hall Law School. The all-day event was Webcast live to 400 colleges and law schools across the country and abroad. Some of the lead attorneys pushing for detainee rights participated in the event, which began with organizers boasting about the diversity of the event's participating schools as exemplified by the American University of Paris, the American University in Cairo, the U.N. University for Peace in Costa Rica, Princeton Theological Seminary, and Parsons School of Design in New York City. One of Al-Ajmi's lawyers gave a presentation about detainee treatment entitled, "Insults to Religion."

Marc Falkoff, a former Covington & Burling attorney-turned-law-professor who represents several detainees, read the poems and later published a selection of them in a book ("Poems from Guantanamo: The Detainees Speak," Iowa University Press, 2007.) In his introductory remarks to the students, Mr. Falkoff described Al-Ajmi and the other detainee poets as "gentle, thoughtful young men" who, though frustrated and disillusioned, expressed an abiding hope in the future. "One thing you won't hear is hatred," he said, "and the reason you won't hear it is not because I edited it out, it's because it's not there in the poetry." Then how to explain the fact that -- on the advice of Al-Ajmi's attorneys -- "To My Captive Lawyer, Miranda," was excluded from the published collection last year? Mr. Falkoff, who also has a Ph.D. in literature, refused to explain further, though he insists on describing Al-Ajmi's verse as a "love poem to his lawyer."

Miranda, antelope, I am madly in love with captive Roman gazelles.

I pledge that if I ever see you outside this jail, I shall capture you and take you in a starry night.

In light of Al-Ajmi's deadly suicide attack, his poem seems less, as Mr. Falkoff insisted in a recent interview, "a trope about being a prisoner of love," and more about taunting his lawyers and mocking the American legal system. As any devotee of the successful "Law & Order" television franchise knows, "Miranda" is more than a fanciful female name. It is also the name of another infamous prisoner -- Ernesto Miranda, the career criminal and itinerant sex offender whose 1966 landmark legal case resulted in the "Miranda rule," requiring law enforcement officers to inform criminal suspects in custody of their right to remain silent and their right to an attorney during questioning.

It is easy to imagine the detainees' attorneys, upon first arriving at Guantanamo in 2004, earnestly explaining to their incredulous clients how the Miranda warning works. Incredulous, because detainees would certainly grasp that extending the full array of Fifth and Sixth Amendment rights to unlawful enemy combatants would have a devastating effect on vital intelligence-gathering efforts. Indeed, lawyers have already become part of the al Qaeda tool kit. When Khalid Sheikh Mohammed was apprehended in Pakistan in 2003 and handed over to the U.S., he reportedly told his initial interrogators, "I'll talk to you guys when you take me to New York and I can see my lawyer."

After the Boumediene decision, that is no longer an empty threat. While Justice Anthony Kennedy stated in his 5-4 majority opinion that detainees are entitled to habeas review in the federal courts, he failed to expressly outline what legal standards the government would have to meet for detainee cases to pass constitutional muster. Many legal experts contend that if the habeas lawyers succeed in attaining for detainees the same degree of procedural rights as those extended to ordinary criminal defendants in domestic cases, "lawyering up" would mean the end of terrorist questioning, not the beginning.

If this is what "Miranda" represents, no wonder an Islamist suicide bomber would love her.

Miranda, what can I say? The heart is incarcerated in prisons of injustice, tortured and deprived, targeted with sharp, poisoned arrows by the hands of oppressors who have no mercy. Tell the mothers about their sons, the prisoners, brothers in bondage . . . they shall walk home.

But many in the detainees' home countries aren't welcoming them with open arms. The bombings carried out by Al-Ajmi and two other Kuwaiti nationals have stirred a public outcry from their fellow citizens. Al-Ajmi's own father has reportedly threatened to sue the government of Kuwait for issuing his son a passport and failing to live up to the terms set forth in the transfer agreement with U.S. State Department as a condition of his release. Kuwait's negligence and the State Department's failure to follow up have resulted in calls from the public for the detainees to stay right where they are and for Guantanamo to stay in operation.

"I believe the U.S. State Department knows the prisoners well, their way of thinking, and their plans after being released from prison," wrote Ali Ahmad Al-Baghli, Kuwait's former Minister of Oil, in the Arab Times after news of Al-Ajmi's suicide attack broke. He specifically criticized the outspoken leader of the Kuwaiti detainee families committee, Khalid Al-Odah, (interestingly, he is one of the "translators" Mr. Falkoff acknowledges in his poetry book), whose son remains at Guantanamo. Al-Odah hired a Washington, D.C., public-relations firm to "humanize" the detainees with sympathetic press.

"We cannot romanticize them into fallen heroes of Western neo-imperialism," wrote Shamael Al-Sharikh, a columnist for the Kuwaiti Times, in an article advocating that Guantanamo stay open, "because we are as much potential victims of terrorist attacks as [Americans] are."

As an example of where we might be headed after Boumediene, consider the situation in Britain. In June, Abu Qatada, a radical imam wanted in connection with bombing conspiracies in several countries, was released from jail after seven years of fighting his deportation. Qatada, whose recorded sermons were found in the Hamburg apartment of the 9/11 hijackers, was described by an immigration appeals commission as a "truly dangerous individual" who was "heavily involved, indeed at the center of terrorist activities associated with al-Qa'eda."

But judges in Britain will not extradite him to Jordan, where he was convicted in absentia, because his lawyers allege that the evidence against him might have been obtained by torture. Sending him packing under these circumstances, the court ruled, would violate the European Convention on Human Rights.

The result is a perverse situation in which, to protect the human rights of the man who issued a fatwa to kill the wives and children of Egyptian police and army officers, the British public pays a yearly tab of $1.1 million to cover Qatada's round-the-clock police surveillance, housing and welfare assistance for him, his wife and five children.

For those who scoff at the idea that U.S. judges would release a dangerous terrorist here, think again. As Attorney General Michael Mukasey pointed out in a speech earlier this month at the American Enterprise Institute, the Boumediene decision was vague on every detail but one. The ruling said that for habeas review to mean anything, the court must have the power to release. What do we do with a graduate of al Qaeda training camps who hasn't yet committed an act of violence? What do we do if no country will take him? If Congress doesn't intervene, the most difficult detainee cases may end up being administered by federal judges who are dismissive of concerns about enemy combatants returning to the battlefield.

"Courts guarantee an independent process, not an outcome," wrote John Coughenour, the federal judge who presided over the trial of "millennium bomber" Ahmad Ressam in a Washington Post op-ed just this Sunday. Yes, and that is precisely why Congress has an obligation to formulate the substance and parameters of that process. Judges do not make law or policy. The scope of their review is limited to the immediate case before them.

Unless Congress weighs in, judges -- unaccountable to the body politic -- will decide what standards of proof and rules of evidence will apply to these detainees, resulting in an ad hoc, case-by-case body of law which focuses on the rights of the detainees, not on the consequences for our war fighters who risk their lives to capture them. Since when do we leave it to judges to decide when and to what degree our troops are required to engage in police duties in the heat of battle?

Further, judges only rule on the applications made by the lawyers who come before them. Despite their rhetoric about "rule of law," attorneys are not charged with acting in furtherance of the national security interests of the public. Their obligation is to their clients alone, the detainees. Hence, we have witnessed the six-year campaign by Gitmo lawyers to pressure the U.S. government into releasing dangerous men before their cases come before a military tribunal or are heard in the federal courts.

David Cynamon, a senior attorney at Pillsbury Winthrop Putnam Shaw, is one of the lead lawyers negotiating the repatriation of the Kuwaiti detainees. In an email last fall to Pentagon officials, Mr. Cynamon expressed frustration with what he perceived as foot-dragging in the release of the last four Kuwaitis still held at Gitmo. He attached an exhibit which compared the unclassified information on all original 12 Kuwaiti detainees who were captured in Afghanistan. "I find it impossible to deduce from this chart," he wrote, "that the four who remain are any more (or less) [sic] dangerous than the ones who were returned." After Al-Ajmi's devastating suicide attack in Mosul, one hopes the Pentagon is giving his chart a second look.

Meanwhile, the habeas attorneys' effort to smear the United States and paint their clients as innocent victims continues. "Poems from Guantanamo" was taught this spring in an undergraduate course called "Writers in Exile" at City University of New York in Queens, a short distance from Ground Zero. The book's introduction states that the detainee poets "follow in the footsteps of prisoners who wrote in the Gulag, the Nazi concentration camps, and, closer to home, Japanese-American internment camps." One of the students, posting on the class blog, wrote of the detainees' plight, "Wow, I had no idea. For the first time in my life, I am ashamed to be seen as an American."

Your whole being and your heart will be captivated by this night, who drove the Romans to madness. You will forget everything about Rome and will live the life of faith in Islam.

Abdullah Salem Al-Ajmi, the detainee who wrote of turning the tables on his lawyer, Miranda, should haunt the dreams of every member of Congress.

Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.

    From Gitmo to Miranda, With Love, WSJ, 30.7.2008, http://online.wsj.com/article/SB121737320982594975.html?mod=hpp_us_inside_today

Land Dispute Moves

Memorial for 9/11 Victims

Across a Pennsylvania Road

July 28, 2008
The New York Times
By SEAN D. HAMILL

SHANKSVILLE, Pa. — It is on just a quarter-acre of land, which everyone agrees is too small, and it has always been called the “temporary” memorial.

But for nearly seven years, this informal site, overlooking the meadow where United Flight 93 crashed on Sept. 11, 2001, has been a place of reflection. Nearly a million people have visited it. They gather on benches made by schoolchildren and study the handmade memorials and smaller tributes left on a 10-foot-tall fence put up for just that purpose.

Now, because of a dispute over the land, pitting the current owner against the National Park Service and a group of families of the victims of Flight 93, the temporary memorial is being moved.

Its new home will be just across the road, on about an acre of land that is part of some 900 acres that the group, Families of Flight 93, bought this year.

“It is bittersweet in the sense that we have to do it,” said Patrick White, the group’s vice president, “but good in the sense that we have the land and are able to do it now.”

The Park Service and the group still want to buy 273 acres that include the temporary site and most of the “sacred ground” where Flight 93 crashed, which is most critical to a proposed 2,200-acre permanent memorial.

The Park Service said the temporary memorial had to be moved because the owner of the site, a local coal company, Svonavec Inc. of Somerset, Pa., told the service last year that its lease would run to only Sept. 5, 2008, because the Park Service will not let the company collect donations at the site to pay for security.

A lawyer for the company, Patrick Svonavec, said the Park Service was welcome to continue to use the land without a lease. “We don’t want them to move,” Mr. Svonavec said.

But Joanne Hanley, the Park Service superintendent for the Flight 93 National Memorial, said that was not an option. “We have the public trust,” Ms. Hanley said, “and I think the public expects us to do business on more than a handshake.”

In 2006, the company gave similar notice about the lease as negotiations bogged down, then relented and allowed the lease to continue. “There was some discussion that maybe this time he’d do the same thing,” Mr. White said. “But we came to the conclusion that once the families had the land across the road we weren’t going to be put in that position again.”

The two and a half years of negotiations with the company have been strained since the start when, Mr. White said, Svonavec’s treasurer, Michael Svonavec, Patrick’s brother, told the families group that he thought the land was “worth $50 million, but you can have it for $10 million.” Michael Svonavec said he never made the comment.

In June, the Park Service resubmitted to Svonavec Inc. the same offer it had made the year before: $250,000 for the 273 acres.

The company has not made a counteroffer, Patrick Svonavec said, because it has not been given copies of two appraisals the Park Service had done and then rejected. “I suggest what they’re doing is hiding the appraisal,” he said. “And I guarantee you we could all sit down and negotiate this tomorrow if they’d release the appraisals.”

Ms. Hanley said the appraisals were rejected because they did not conform to the standards of the Department of the Interior, which oversees the service.

Still, Mr. White said he remained optimistic that a deal could be worked out soon. The goal is to open the $58 million first phase of the permanent memorial in 2011, the 10th anniversary of the attacks. To achieve that, the Park Service said construction must start next summer.

Moving the temporary memorial has been emotionally wrenching for staff members and repeat visitors, who have come to appreciate the pleasant clutter of ball caps, photos, T-shirts, flags and toys left as tributes, many with personal messages to the 40 passengers and crew members who died on Flight 93.

Since the fence was put up on Nov. 2, 2001, “it has never been empty,” said Barbara Black, acting site manager for the memorial, who oversaw the removal of the tributes last week and planned to help put them all back on the new fence on Sunday.

“There were some tears when we took them down,” Ms. Black said, “and there will be some tears when we put them back on Sunday.”

For now, visitors still stop at the old site, even though most memorials are at the new one, which will open in two weeks.

“That’s O.K,” said Sam King, 65, of Chester County, Pa., who drove 250 miles on Friday to view the site with his wife. “I really just wanted to see the crash site.”

    Land Dispute Moves Memorial for 9/11 Victims Across a Pennsylvania Road, NYT, 28.7.2008, http://www.nytimes.com/2008/07/28/washington/28memorial.html

A City’s Police Force Now Doubts Focus on Terrorism

July 24, 2008
The New York Times
By DAVID JOHNSTON

PROVIDENCE, R.I. — Nearly seven years after the attacks of Sept. 11, 2001, the war on terror in this city has evolved into a quiet struggle against a phantom foe.

Last year, when a sailor slipped over the side of a Turkish merchant ship in the city’s port, a Providence police detective assigned to a joint terrorism task force was quickly alerted, reflecting a new vigilance since the Sept. 11 attacks. Alerts also went out to immigration, customs, the F.B.I. and other federal agencies, but the case went cold.

Another alarm was sounded over a suspicious man of Indian descent who asked a metals dealer about buying old power tools and hair dryers. The lead petered out when the prospective buyer told a police detective in an interview that he wanted to refurbish the equipment for resale overseas.

Like most of the country’s more than 18,000 local law enforcement agencies, the Providence Police Department went to war against terror after 9/11, embracing a fundamental shift in its national security role. Cops everywhere had been shaken by disclosures that police officers in Oklahoma, Florida, Maryland and Virginia had stopped four of the 9/11 hijackers at various times for traffic violations, but had detected nothing amiss.

Over the years since, police officials in Providence joined with state and federal authorities in new information-sharing projects, met with local Muslim leaders and urged their officers to be alert for anything suspicious. Flush with federal homeland-security grants, the department acquired millions of dollars worth of hardware and enrolled officers in training courses to detect and respond to a terrorist attack.

But much has changed. Now, police officials here express doubts about whether the imperative to protect domestic security has blinded federal authorities to other priorities. The department is battling homicides, robberies and gang shootings that the police in a number of cities say are as serious a threat as terrorism.

The Providence police chief, Col. Dean M. Esserman, said the federal government seemed unable to balance antiterror efforts and crime fighting. “Our nation, that I love, is like a great giant that can deal with a problem when it focuses on it,” said Colonel Esserman, who has been chief since 2003, when he was hired by Mayor David N. Cicilline. “But it seems like that giant of a nation is like a Cyclops, with but one eye, that can focus only on one problem at a time.”

“The support we had from the federal government for crime fighting seems like it is being diverted to homeland defense,” he added. “It may be time to reassess, not how to dampen one for the other, but how not to lose support for one as we address the other.”

In Washington, Attorney General Michael B. Mukasey has defended cuts in criminal justice programs that have shrunk as homeland security grants continue, although even those seem to be shrinking. At a Senate Appropriations committee hearing in April, Mr. Mukasey responded to a chorus of complaints from Democrats. “We’re not pretending that less money is more money,” Mr. Mukasey said. “But we’re trying to use it as intelligently as we can.”

Some federal homeland security officials worry about complacency given the passage of time since 9/11 without an attack or concrete evidence of a domestic threat. These officials say they are convinced al Qaeda remains determined to strike inside the United States and will find vulnerabilities if vigilance is relaxed.

In Providence, the police have girded for an attack. Flush with Homeland Security money, the department bought a 27-foot patrol boat to monitor the city’s port, along with an automated underwater inspection and detection system and a portable small craft intrusion barrier.

At police headquarters, the department upgraded a video surveillance system, erected 159 concrete posts and 220 feet of guard rails around the building’s perimeter. Supposed targets for attacks, like rail and air terminals, have been inventoried and assessed, and in some cases, hardened against assaults.

The department acquired a small fleet of S.U.V.’s for emergency response, a bomb containment vehicle, a bomb response canine vehicle, mobile data terminals, scuba gear, trauma kits, underwater camera and video gear, and special protective suits for all officers. With a $5.6 million grant, the department is developing a sophisticated radio system so police, fire and other emergency responders throughout the region can communicate with one another.

Police officers have enrolled in training that would have been unlikely before 9/11. Officers attended a terrorist bombing school in New Mexico, learned how to interpret deceptive responses, studied weapons of mass destruction and clandestine explosives labs and attended classes in terrorism prevention and suicide bombings. They carried out a role-playing exercise on airport hijackings.

Today, the boat still patrols the harbor, especially when liquefied natural gas tankers arrive from overseas. The stanchions around police headquarters are in place. The S.U.V.’s, loaded with emergency response gear, have been distributed to field units who use them as part of regular patrols. Most officers have learned to put on and take off their emergency gear, but none of the equipment or training has been needed to respond to a terrorist threat.

From 2002 to this year, the department went from zero to more than $11.6 million in homeland security grants, according to police department figures, while other criminal justice grants, like those from Justice Department programs used to pay overtime and hire more officers, dwindled to less than $4.5 million for the same period.

One Justice Department program, the Byrne Justice Action Grant, which helps police fight violent crime by paying for overtime and other policing costs, has suffered heavy cut backs. Providence’s Byrne grant was reduced to $118,000 this year. from $388,000 in 2007.

The Bush administration has proposed eliminating money for the program in its final 2009 budget.

Larry Reall, a 21-veteran of the Providence police department, is the police liaison to the local Joint Terrorism Task Force. He has top-secret security clearance and access to classified computer databases where he works at the local F.B.I. office down the street from City Hall in Providence’s resurgent downtown.

In Mr. Reall’s six years on the job, none of the hundreds of leads he has chased has turned up a terrorist. But he keeps looking, convinced his work has made the city safer and may have deterred a potential extremist before a threat materialized.

”It’s not whether we are going to be attacked; that’s probably not going to happen,” Mr. Reall said. “But I don’t think that you can let your guard down. Just because nothing has happened, doesn’t mean that something won’t.”

Police experts said Providence’s experience was similar to that of other cities around the country. Looking back, local law enforcement agencies took on new counterterrorism responsibilities when violent crime rates had plunged to statistical lows.

By 2005 and 2006, while overall crime rates were stable, middle-size and larger cities began to be hit with increases in homicides, robberies and aggravated assaults, according to Chuck Wexler, executive director of the Police Executive Research Forum, which studies policing issues.

The International Association of Chiefs of Police recently issued a scathing analysis of federal spending, saying: “Unfortunately, funding federal homeland security efforts at the expense of state, tribal and local law enforcement agencies weakens rather than enhances our nation’s security.”

The frustration is expressed by other Providence police officials. The deputy chief, Commander Paul J. Kennedy, said the department no longer had the flexibility to use federal funds to pay for overtime. “I just wish we had some discretion about how we can use this federal money,” he said. “We know what our problems are. If you say to us the money can only be used for homeland security or equipment, it really limits how effective we can be in fighting crime.”

A weekly meeting of the department’s command staff, in which nearly three dozen city, state and federal officials, including representatives of social welfare and animal control agencies, assemble in a windowless third-floor conference room to discuss crime, focuses heavily on gangs like the West Side Clowns, the Chad Browns and others, mostly associated with crime in the city’s housing projects.

Providence has big city crime problems, but is small enough so that when the police talk of shootings, assaults and robberies, they sometimes know the victims, suspected perpetrators and their families on a first-name basis. Representatives of the F.B.I. and other federal agencies are on hand, but there is little talk about terrorism.

“This is what we do,” Colonel Esserman said of how crime and violence absorbed his department. “We talk about crime. We talk about it all the time. And we try to respond to it as effectively as we know how.”

    A City’s Police Force Now Doubts Focus on Terrorism, NYT, 24.7.2008, http://www.nytimes.com/2008/07/24/us/24terror.html?hp

Military Trial Begins for Guantánamo Detainee

July 22, 2008
The New York Times
By WILLIAM GLABERSON and ERIC LICHTBLAU

GUANTÁNAMO BAY, Cuba — In a hushed courtroom here on Monday, a military judge opened the first American war crimes trial since World War II, culminating a nearly seven-year effort by the Bush administration to try some of the hundreds of terrorism suspects held in the detention camp.

At a few minutes after 9 a.m. in an improvised courthouse under the simmering sun, a military judge uttered words the Bush administration has been working toward through a tangle of legal and practical obstacles: “We will proceed to trial. This military commission will come to order in the case of Salim Ahmed Hamdan.”

Even as Mr. Hamdan, Osama bin Laden’s former driver, faced trial, Attorney General Michael B. Mukasey, in Washington, called for legislation the administration says it needs to control the scores of legal cases from terrorism suspects challenging their detention at the Guantánamo Bay Naval Base in federal courts. Among his requests is a law barring the suspects from ever setting foot in the United States because of the “extraordinary risk” they pose.

Mr. Mukasey’s speech reflected the administration’s difficulty in dealing with Guantánamo, which has become a magnet for international criticism, partly because no detainee had been tried for any offense.

As Mr. Hamdan’s trial began, the military judge, Capt. Keith J. Allred of the Navy, quickly seated a panel of six senior military officers to act as a jury. The military panel was one of a number of stark differences between the proceedings here and those in American courts, where, critics have argued, civilian jurors would not be members of the same armed forces that are running the accused man’s trial.

Mr. Hamdan, a Yemeni, pleaded not guilty to charges of taking part in a conspiracy by Al Qaeda and providing material support for ism.

Opening statements are scheduled for Tuesday.

Judge Allred created last-minute uncertainty when he ruled against prosecutors and decided to bar them from introducing as evidence some of the confessions Mr. Hamdan made in the six years he has been held.

Among the barred statements were those made when Mr. Hamdan was held at Bagram Air Base in Afghanistan in 2001. The judge found Mr. Hamdan’s hands and feet were restrained 24 hours a day, he was always alone and a soldier put his knee in Mr. Hamdan’s back and demanded that he “speak.”

But Judge Allred declined a defense motion that suspects held at Guantánamo had a broad right against self-incrimination.

As a result, he said the military prosecutors could introduce some statements Mr. Hamdan made at Guantánamo. The judge rejected a defense assertion that Guantánamo was inherently coercive, ruling, for example, that he found no evident linkage between Mr. Hamdan’s access to medical care and his willingness to cooperate with interrogators.

The “apparent correlation,” Judge Allred wrote, was “not a sinister attempt at coercion, but the natural consequence of agents seeking to help detainees in order to build rapport.”

Critics have long asserted that the military commission system was designed partly to permit prosecutors to use confessions obtained through coercion and without giving detainees any opportunity to assert a right against self-incrimination, as they might if they were prosecuted by civilian authorities.

But if the seating of the panel members at Guantánamo appeared to be a milestone for the administration, Mr. Mukasey’s legislative proposals showed that the policy debate about Guantánamo — where 265 men are now held — remained snarled. The proposals were intended as a response to a Supreme Court ruling in June that granted detainees the right to contest their detentions in federal court.

As part of a six-point initiative, Mr. Mukasey said the administration wanted Congress to “reaffirm” nearly seven years after the Sept. 11 attacks that the United States “remains engaged in an armed conflict with Al Qaeda.”

The administration used Congress’s original affirmation of an armed conflict, three days after the Sept. 11 attacks, not only to invade Afghanistan and to conduct wiretaps on Americans without a court warrant, but also to hold men it defines as enemy combatants indefinitely.

Mr. Mukasey said he was asking for reaffirmation of the government’s authority to detain enemy combatants.

“I am suggesting that it would do all of us good to have that principle reaffirmed,” he said, “not that the principle itself is in doubt.”

Democrats and civil liberties groups said the proposal was unnecessary. Senator Harry Reid, the majority leader, said in response to Mr. Mukasey’s speech that “the courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.”

But in calling for Congressional action, Mr. Mukasey said the federal courts would become clogged with inconsistent and unwieldy appeals from the detainees unless Congress set clear rules for the process.

He said all the appeals should be consolidated in a single court, probably the District Court in Washington. Prisoners should not be allowed to physically attend the appeals hearings in the United States, he said.

Rather, Mr. Mukasey said, they could view the proceedings from a secure video link from Guantánamo Bay — a comment that appeared to signal that the administration plans to keep the base open for the time being.

The courts should also not be allowed to release a prisoner into the United States if he is cleared, Mr. Mukasey said. And the proceedings should not be allowed to delay the military commission trials at Guantánamo Bay, with some 20 prisoners now facing trial for war crimes and others expected later. Only after those trials are completed should prisoners be able to appeal their detentions to the civilian courts, the attorney general said.

Mr. Mukasey’s proposals dealt mainly with the cases brought by detainees to contest the administration’s determination that they are unlawful enemy combatants.

Mr. Hamdan’s case, as both sides acknowledged, did not focus on that determination, but instead on whether he violated the international law of war. Prosecutors assert that he was not only Mr. bin Laden’s driver, but also part of an elite bodyguard force and an arms courier for Al Qaeda. They said he was captured in Afghanistan in 2001 with shoulder-fired missiles that could only have been meant for American aircraft.

If convicted, he could face a possible life term. But because of the administration’s claim that it can hold unlawful enemy combatants indefinitely, even an acquittal would not mean release. It would simply mean he would return to his status as a detainee being held indefinitely — until, according the administration, the end of the war of terrorism.

Mr. Hamdan’s lawyers, some of whom have worked on his case for years, describe him as a low-level employee with a fourth-grade education who was little more than a powerful man’s subordinate.

The selection of the panel of six members and one alternate at times sounded like jury selection in an American civilian court. Lawyers on both sides and Judge Allred asked a sprinkling of questions about such issues as whether the panel members could follow instructions from the judge.

Half of the potential jurors said they had personal connections to the events of Sept. 11, 2001, which prosecutors described as a product of the sweeping Qaeda conspiracy in which they say Mr. Hamdan was an enthusiastic participant.

One panel member who was selected, an Army colonel, said she had been anxious that day because her college roommate was at the Pentagon.

Another, an Army pilot, said he had been later deployed to Iraq and had been attacked by ground fire there. When Mr. Hamdan’s military lawyer, Lt. Cmdr. Brian L. Mizer, asked what the impact might be on the pilot’s ability to judge the case fairly, the pilot answered, “I’m not sure of the answer to that, sir.”

Aaron Zisser, an observer at Guantánamo for Human Rights First, said he had found the selection of the panel members troubling. American federal courts, he said, “are equipped to address both national security concerns and the fundamental rights of the accused.”

But the chief military prosecutor, Lawrence J. Morris of the Army, said he had confidence in the independence of the military panel members.

One interview report the judge was considering barring prosecutors from using included an interview at Guantánamo in which federal agents said Mr. Hamdan said he had sworn an oath of loyalty to Mr. bin Laden and expressed “uncontrollable enthusiasm” for him.
 

William Glaberson reported from Guantánamo Bay, and Eric Lichtblau from Washington.

    Military Trial Begins for Guantánamo Detainee, NYT, 22.7.2008, http://www.nytimes.com/2008/07/22/washington/22detain.html?hp

Sides clash over treatment of Bin Laden's driver

Wed Jul 16, 2008
11:47pm EDT
Reuters
By Jim Loney

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The prosecution and defense witnesses have given widely different accounts of the way Osama bin Laden's former driver has been treated in U.S. prisons in Afghanistan and at Guantanamo Bay.

Isolation cells, beatings and sexual humiliation during nearly seven years in captivity left Salim Hamdan traumatized and unable to trust even doctors trying to help him, a psychiatrist told the Guantanamo war crimes court.

But prosecutors pressing charges of conspiracy and providing support to terrorists against Hamdan say his allegations of mistreatment in U.S. custody are false. In questioning of witnesses this week, they said al Qaeda trains operatives to make false claims of abuse or torture.

The two starkly different views of the alleged abuse of the Yemeni national who has admitted driving for the al Qaeda leader, emerged in testimony on Tuesday and Wednesday from a psychiatrist who diagnosed Hamdan with post traumatic stress disorder (PTSD) and from U.S. agents who interrogated him.

His trial, the first before the war crimes tribunals set up at the remote U.S. navy base in Cuba after the September 11 attacks on the United States, is scheduled to begin on Monday. Hamdan faces life in prison if convicted.

Hamdan's attorneys are trying to have his statements to interrogators thrown out because, they say, he was coerced.

They say he was sexually humiliated by female interrogators and deprived of sleep, personal belongings and medical care.

Dr. Emily Keram, a psychiatrist who has treated PTSD patients, cited a laundry list of Hamdan's traumas to the war crimes court at the remote U.S. navy base in Cuba. They included being threatened with death and witnessing a killing in Afghanistan and his long periods in solitary at Guantanamo.

Among the worst was the humiliation of a woman interrogator touching him improperly during questioning, she said. Hamdan and other Guantanamo detainees have accused agents of violating Muslim sexual taboos by acting provocatively around them.

"On a scale of one to ten that was about a ten," she told the court. "To make that stop he would do anything."

FBI DENIES MISTREATMENT

On Wednesday prosecutors called a parade of FBI agents to the stand. All had been involved in questioning Hamdan at the Kandahar airfield in Afghanistan shortly after his capture in 2001 or at Guantanamo and all denied seeing any abuse and said Hamdan had not complained to them of mistreatment.

Lawyers say Hamdan has over 80 disciplinary infractions on his record, among them throwing urine at a guard and inciting a riot. But his lawyers say most are minor, including citations for an overdue library book, possessing an equestrian magazine and having extra salt and pepper in his room.

Prosecutor John Murphy suggested to Keram that Hamdan's life in war-torn Afghanistan, from transporting missiles to a battlefield to digging bodies out of bombed buildings, could have contributed to mental disorders.

"Could standing next to the most dangerous terrorist in the world ... cause or aggravate PTSD?" he asked.

Keram said she believed the worst of Hamdan's anxieties began with his November 2001 capture in Afghanistan, when he has said he saw a fellow detainee killed, was beaten and threatened with death.

As a result of his treatment at Guantanamo, Hamdan doesn't trust doctors and won't take medication that might help him, Keram said. One incident that contributed to his mistrust was a force-feeding at a Guantanamo prison camp.

When he was asked if it was a doctor who inserted a feeding tube down his nose, Hamdan said: "Doctors, butchers, I don't know," said Keram, who has spent over 100 hours with Hamdan.

(Editing by Alan Elsner)

    Sides clash over treatment of Bin Laden's driver, R, 16.7.2008, http://www.reuters.com/article/domesticNews/idUSN1645985220080717

Court Backs Bush on Military Detentions

July 16, 2008
The New York Times
By ADAM LIPTAK

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.

The decision was a victory for the Bush administration, which had maintained that a 2001 Congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States.

The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge Mr. Marri or to release him. The case is likely to reach the Supreme Court.

How helpful the decision will be to Mr. Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like. In that respect, Tuesday’s decision resembled last month’s decision from the United States Supreme Court granting habeas corpus rights to prisoners held at Guantánamo Bay.

Mr. Marri is the only person on the American mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science. He was charged with credit-card fraud and lying to federal agents, and was on the verge of a trial on those charges when he was moved to military detention in 2003.

Brian Roehrkasse, a Justice Department spokesman, said the decision properly recognized “the president’s authority to capture and detain Al Qaeda agents who, like the 9/11 hijackers, come to this country to commit or facilitate warlike acts against American civilians.”

Mr. Roehrkasse added that while the department believed that Mr. Marri “had already received all the process he was due,” its lawyers were “studying the court’s decision and will respond to Mr. Marri’s contentions” before the trial judge.

Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law, called the Fourth Circuit’s decision deeply disturbing.

“This decision means the president can pick up any person in the country — citizen or legal resident — and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial,” Mr. Hafetz said.

The 216-page decision included seven opinions, none of which commanded a majority. The only common ground was four unsigned paragraphs at the beginning of the decision summarizing the result.

The Fourth Circuit is generally considered the nation’s most conservative federal appeals court. The closely divided and complex decision in a major terrorism case therefore came as something of a surprise.

Mr. Marri’s unusual situation played a role, said Robert M. Chesney, a law professor at Wake Forest University. Mr. Marri “was lawfully present in the U.S. and then arrested and held here, as opposed to being a noncitizen captured in a foreign land,” Professor Chesney said. “This consideration makes his case more difficult even in the eyes of relatively conservative jurists.”

The five judges who ruled that the president has the authority to detain people captured in the United States offered differing criteria for who might be subject to such detention.

Judge J. Harvie Wilkinson III said the president might detain members of organizations or nations against which Congress had authorized the use of force who mean to harm people or property to further military goals.

To reverse the trial judge’s decision allowing Mr. Marri’s detention to continue “because he was not captured on a foreign battlefield or foreign soil,” Judge Wilkinson wrote, “is akin to a judicial declaration that Congress and the executive may fight only the last war.”

Judge Diana Gribbon Motz, writing for herself and three other judges, disagreed, saying that Mr. Marri was at most a civilian criminal who may be prosecuted in the courts but not detained by the executive branch.

“This does not mean that al Marri, or similarly situated American citizens, would have to be freed,” Judge Motz wrote. “Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the convicted September 11th conspirator [Zacarias Moussaoui] they could be tried on criminal charges and, if convicted, punished severely. But the government would not be able to subject them to indefinite military detention.”

Judge William B. Traxler Jr. was the swing vote. He agreed that Mr. Marri was subject to detention if what the government said about him was true. But Judge Traxler broke with the judges who voted against Mr. Marri across the board. Those judges said Mr. Marri had already had an adequate opportunity to challenge his detention in court, in the proceeding based on Mr. Rapp’s statement. Judge Traxler said that Mr. Marri must be given a fair and meaningful opportunity to see and refute “the most reliable evidence” against him, subject to national security and other concerns.

The four judges who would have ordered Mr. Marri’s release from military custody — Judges Motz, Roger L. Gregory, M. Blaine Michael and Robert B. King — agreed to join an order returning the case to the trial court based on Judge Traxler’s middle ground. They did so, Judge Motz wrote, “to give practical effect to the conclusions of the majority of the court who reject the government’s position.”

But Judge Gregory expressed frustration over the net effect of the exercise. “There is no concrete guidance as to what further process is due” Mr. Marri, he wrote.

All of the judges who would have denied Mr. Marri any relief — Judges Wilkinson, Karen J. Williams, Paul V. Niemeyer and Allyson K. Duncan — were appointed by Republican presidents; all who would have granted him full relief were appointed by Democrats. Judge Traxler was appointed to the appeals court by President Bill Clinton.

In the conclusion of his long opinion, Judge Wilkinson said terrorism cases presented courts with special challenges.

“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.”

    Court Backs Bush on Military Detentions, NYT, 16.7.2008, http://www.nytimes.com/2008/07/16/washington/16combatant.html?hp

Blurry Peek at Questioning of a Guantánamo Inmate

July 16, 2008
The New York Times
By IAN AUSTEN

OTTAWA — The video is blurry and the soundtrack muffled, but the technical shortcomings of the video recordings released Tuesday did not obscure the emotions of Omar Khadr as he was interrogated at the Guantánamo Bay detention center in Cuba.

Mr. Khadr, just 16 years old at the time of the taping, in February 2003, swung from calm and indifference to rage and grief during four days of interrogations in the recordings, which his Canadian lawyers released.

The recordings, turned over to the defense under a Canadian court order, provide the most extensive videotaped images from inside Guantánamo Bay yet seen. In them, Mr. Khadr, now the last Western citizen held there, is seen pleading with a Canadian intelligence agent for help. At one point, the recording shows him displaying chest and back wounds that had still not completely healed months after his capture in Afghanistan.

The seven hours of recordings were made by the United States military and given to Mr. Khadr’s Canadian lawyers by the Canadian Security Intelligence Service under the terms of an order by Canada’s Supreme Court.

They show Mr. Khadr, who is accused of killing a United States soldier in Afghanistan in battle in July 2002, being questioned by an unidentified member of the Canadian intelligence agency. A Canadian diplomat and a third person, apparently an American official, were also present.

For national security reasons, the audio was removed from several parts of the recordings, and the officials’ faces were electronically obscured by black blobs.

Mr. Khadr, a Canadian, maintains he was abused by American interrogators in Afghanistan and at Guantánamo Bay. It appears from the recordings, as well as from written documents of the interrogations that were released last week, that Mr. Khadr initially believed that the Canadian agent had come to help him. But he eventually seemed to realize that the agent was present only to extract information.

Much of the material released shows Mr. Khadr, in an orange uniform, sobbing and repeatedly saying, in a moan, either “Help me, help me” or “Kill me, kill me.” His Canadian lawyers said they were not sure which, and the poor audio quality makes it hard to determine with certainty.

In the interrogation, Mr. Khadr said he wanted to return to Canada, but the agent suggested that the situation was so good in Cuba he might want to stay there himself. “The weather’s nice,” the interrogator said. “No snow.”

Mr. Khadr, who had been shot and was near death at the time of his capture in Afghanistan, repeatedly complained about his medical treatment and physical condition. At one point, he lifted his shirt to show the agent the wounds on his back and stomach.

The agent, however, was unmoved. “I’m not a doctor, but I think you’re getting good medical care,” he responded.

Later, a sobbing Mr. Khadr said, “You don’t care about me.”

Slats, apparently from a ventilation panel in the detention center, obscure parts of the images.

In a statement regarding the tapes, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, offered only a blanket defense of the detainees’ treatment. “Guantánamo provides an environment for detainees that is stable, secure, safe and humane,” it said. “This environment sets the conditions to successfully gain valuable information from detainees built on a relationship of trust, not fear.”

The statement called it “commonplace” for interrogators seeking to establish rapport with detainees to share “a meal from Subway or McDonald’s.”

Amnesty International and several Canadian groups and politicians have unsuccessfully pressed the Canadian government to ask the United States to return Mr. Khadr to Canada. Kory Teneycke, a spokesman for Prime Minister Stephen Harper, said the videos had not altered the government’s thinking.

“This videotape is several years old, and the Canadian government is not changing course in terms of the process that will determine Mr. Khadr’s fate,” he said. “He’s obviously facing very serious charges. We believe his fate should be decided through a judicial process rather than a political process.”

Nathan Whitling, one of Mr. Khadr’s Canadian lawyers, said he hoped the airing of the videos, which were featured Tuesday on Canadian television networks, would increase public pressure on the government. “The only way to get him released is through a political process,” he said. “So we are pleading in the court of public opinion.”
 

William Glaberson contributed reporting from Guantánamo Bay.

    Blurry Peek at Questioning of a Guantánamo Inmate, NYT, 16.7.2008, http://www.nytimes.com/2008/07/16/world/16khadr.html?ref=washington

Detainee Challenges Guantánamo by Describing Life There

July 16, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — Salim Hamdan moved slowly to the witness chair.

Once a driver for Osama bin Laden, Mr. Hamdan is scheduled next week to become the first detainee to go on trial at Guantánamo and the first person in decades to face an American war crimes trial.

Fluke and circumstance brought him, and not Mr. bin Laden, to Guantánamo to answer for Al Qaeda. So Mr. Hamdan, with his bad back and his deep brown eyes, took the stand Tuesday at a pretrial hearing and described the everyday details of life in Guantánamo.

His lawyers are asking a military judge to move him from what they call solitary confinement, claiming that he has been so driven to distraction by Guantánamo that he cannot focus on his case.

In a white head scarf and a beige jacket with sleeves that were too long, Mr. Hamdan delivered something of a travelogue of his six years here. “Camp Echo,” he said at one point, “is like a graveyard where you place a dead person in a tomb.”

At Camp 6, where he was also held, “you can only see the soldiers,” he said. “And, of course, I was never able to see the sun.”

Tuesday’s hearing was part of a broad strategy by the team of military and civilian lawyers working for Mr. Hamdan. On Thursday, in Washington, they plan to ask a federal judge to stop the trial here from starting, asserting that the military commission system violates Mr. Hamdan’s constitutional rights.

If the judge in Washington permits the military trials to begin, there will be many more scenes like the one Tuesday, a preview by Mr. Hamdan of the detainees’ portrait of life at Guantánamo.

He was not sure when he had been moved into one or another of the half dozen camps here, or when he was transferred out. Time is not measured in the usual ways for the detainees. He often recalled his moves from camp to camp in relation to Ramadan, though it was not always obvious if he knew in what year the events had occurred.

But, as he presented them, some details were clear. He described the airplane trip to Guantánamo, during which he said he was blindfolded and tied down in a position that inflamed a back injury. “Such severe pains, I cannot really explain,” he testified.

He described the time when, he said, a female interrogator sexually humiliated him. “She came very close with her whole body towards me,” he said, looking down, seeming to catch his breath. “I couldn’t do anything.”

The detainees’ cells are small, he said in answering questions from a retired military lawyer, Charles D. Swift, who has represented Mr. Hamdan for years in cases all the way to the Supreme Court. The possessions permitted are few, he said: a toothbrush, a blanket, a towel. They are sometimes taken away, he said.

He was less jovial than the last time he spoke in court, in April, when he had a bit of a debate with the military judge about the process. He is about 40, even though he is not certain of his birth date, and has a youthful face. He had the tentative gait of a man with back pain.

He described a Guantánamo that sometimes seems far from the orderly courtroom.

Alone month in and month out, he said, he briefly had the chance to live in Camp 4, detainees’ favorite because it is the only place at Guantánamo where men are permitted to live communally, with group areas for meals and prayers.

“You share a room with other people, and have almost a normal life,” he said. “You speak together. You pray together.”

But soon, he said, there was “a problem” and he was back in a cell alone, in Camp 5, which looks like an American prison. He is there now, he said.

One prosecutor, Lt. Cmdr. Timothy D. Stone, said the “problem” was that Mr. Hamdan had incited a disturbance.

Whatever the cause, the move was a source of sorrow for Mr. Hamdan. In Camp 4, he said, “I felt like I started to live again.”

Mr. Swift asked Mr. Hamdan if the two had discussed his concerns. For a man facing a trial that could bring a life sentence, his answer showed how small the world is on the other side of the barbed wire.

His lawyers say Mr. Hamdan can barely discuss any subject other than his wish to get back to Camp 4.

“I always ask other lawyers, and I ask you,” Mr. Hamdan said to Mr. Swift. “Why am I being placed in the fifth camp? If you can’t do anything for me, I don’t need you. Why are you my lawyer?”

    Detainee Challenges Guantánamo by Describing Life There, NYT, 16.7.2008, http://www.nytimes.com/2008/07/16/us/16gitmo.html

Two Subplots in Guantánamo’s Long Legal Story

July 4, 2008
The New York Times
By WILLIAM GLABERSON

The long legal story of the Bush administration’s effort to prosecute detainees at Guantánamo Bay, Cuba, now has two fast-moving subplots. Either one could soon write something of a final chapter.

One plot will proceed in a federal courthouse in Washington, where lawyers for a detainee filed papers on Thursday seeking an injunction that, if granted, could be the death knell for the Bush administration’s military commissions at Guantánamo.

The other will play out in a makeshift courtroom overlooking Guantánamo Bay itself, where military prosecutors are pressing ahead with plans for what, later this month, would be the first of the trials the administration has been seeking for nearly seven years.

Either one could be decisive.

“This is a critical moment for the proceedings,” said Joanne Mariner, a lawyer at Human Rights Watch.

A completed trial would be the success the administration has sought to bolster its argument that the detainees are dangerous terrorists, and that its beleaguered system for trying them works. Pentagon officials note that charges have been brought in 20 cases.

But critics say an injunction barring one trial, particularly after the defeat for the administration’s detention policy last month in the Supreme Court, could effectively bring the entire war-crimes system to a halt.

The White House spokesman, Dana Perino, said at a briefing on Thursday that administration discussions about the Guantánamo detainees had been going on “more intensively” since the court decision. But, Ms. Perino said, “There’s no imminent decision that’s going to be announced from the White House.”

The detainee at the center of both subplots is Salim Hamdan, a onetime driver for Osama bin Laden who was, depending on one’s viewpoint, either a Qaeda loyalist with high-level ties or little more than an errand boy.

In an odd twist of history, Mr. Hamdan was also the subject of a previous case that derailed the Bush administration’s original plans for military trials. In the first hours of his trial in 2004, a theatrically timed federal court injunction brought the proceedings to a halt.

The 2004 case had begun with a filing by the same lawyers who sought an injunction on Thursday from the same Federal District Court judge, James Robertson, a former civil rights lawyer appointed by President Bill Clinton.

On Thursday, Judge Robertson set an accelerated schedule that would allow him to rule on the request on the eve of Mr. Hamdan’s trial, now set by a military judge in Guantánamo for July 21. Judge Robertson’s 2004 injunction led to the 2006 Supreme Court decision, Hamdan v. Rumsfeld, which overturned the first system for military commissions.

In that case, the Supreme Court ruled against the administration partly because Congress had played no role in drafting the commission system.

In the current case — Hamdan II, some lawyers are calling it — Mr. Hamdan’s lawyers are arguing that the new system is also flawed. “The trial is flatly illegal, and it should be put on hold while the federal court in Washington considers the legal arguments,” said Neal K. Katyal, a Georgetown law professor who spearheaded both Hamdan v. Rumsfeld and the filing on Thursday.

The Justice Department said after Thursday’s filing that “the military commission proceedings are constitutional” and “should go forward without interruption.” The new Hamdan case claims that the Supreme Court’s most recent pronouncement on Guantánamo, Boumediene v. Bush, set the stage for broad challenges to the war crimes prosecutions.

That ruling did not directly involve the military commissions. Instead, the justices rejected an administration argument and ruled that the detainees have the constitutional right to challenge their detention in federal court through habeas corpus cases.

Mr. Hamdan’s lawyers argue that the Supreme Court ruling suggests that detainees have other constitutional rights as well, which they say would be violated if he were tried in the military commissions system.

In filings in Washington and Guantánamo, their list of constitutional rights they say are violated by the commissions is long, including Mr. Hamdan’s right against self-incrimination and his right to confront the witnesses against him.

John Yoo, one of the architects of the administration’s original detention policy, now a law professor at the University of California, Berkeley, said federal courts usually waited for a trial to play out before evaluating its fairness. But, he said, after the “overreaching” by the Supreme Court decision, “any form of judicial micromanagement is possible.”

As detainees’ lawyers are attacking the military system in federal court, the Pentagon is pressing ahead in Guantánamo. Hearings are scheduled next week before a military judge at Guantánamo for five detainees charged with the attacks of Sept. 11, 2001. Pretrial hearings in Mr. Hamdan’s case are scheduled for the following week. On Monday, military prosecutors filed charges against a Saudi detainee charged as a planner of the attack on the Navy destroyer Cole in 2000 that killed 17 sailors.

“The military commissions are going to move forward,” Brig. Gen. Thomas W. Hartmann said in announcing the Cole charges.

But administration critics say history may be repeating itself.

“This is déjà vu,” said Ben Wizner, a lawyer with the American Civil Liberties Union who has been an observer at Guantánamo. “Once again the executive branch is pressing forward to begin Mr. Hamdan’s trial even though constitutional questions have yet to be resolved. This is exactly what happened before.”

Two Subplots in Guantánamo’s Long Legal Story, NYT, 4.7.2008, http://www.nytimes.com/2008/07/04/washington/04gitmo.html