Welcome to FDL, Hina — thanks to you and to the ACLU for taking time with us today to talk about these issues. I’m sure folks will have quite a few questions, but I wanted to start with a basic one: as an observer, what exactly have you been doing at Gitmo and elsewhere for the ACLU?

Also, can you talk a bit about the various projects you all have going at the ACLU under the John Adams Project rubric — and what folks here can do to help you all get the word out on rule of law issues with this.

Welcome to FDL Ms Shamsi. Thank you and the ACLU for your actions in trying to redeem out nation to what we always stated we believed.

I just received my “I Am A Constitution Voter” sticker yesterday.

How do we restore the Constitution and our integrity? (nothing like a nice open-ended question)

Thanks, Christy, and hello all.

A good question — so you know what our role has been at Gitmo. Since the first iteration of the military commissions started back in 2004, the ACLU and other human rights groups have been attending the hearings as independent human rights observers. That means we sit in the audience section of a room that looks pretty much like any U.S. courtroom (except the room for the trial of the 9/11 defendants) which I can describe in greater detail if folks are interested. We write and report (the ACLU does it in blog form) on the proceedings.

Are any of the JAG’s being punished for their stands?

Thank you for your courageous work on behalf of human rights and the US Consititution. Have you had any reason to believe that you are under illegal surveillance because of these activities?

I know there have been fairly stringent restrictions placed on observation and interaction with a number of the higher security detainee proceedings due to national security and intel concerns and other issues that have been brought up as reasons for contact and information barriers. Are you able to monitor any of those proceedings? And if so, to what extent?

Sure — and that’s our other institutional role at Guantanamo. Because of our concern about the grave systemic flaws in the military commissions process and the extent to which they deviated from any traditional notion of American justice, the ACLU and the National Association of Criminal Defense Lawyers have put together a team of highly qualified criminal defense lawyers to represent the 9/11 defendants. We call it the “John Adams Project” in honor of John Adams decision to represent British soldiers accused of killing Americans.

The best place for information about the project is on our website here.

Ms Shamsi, have you had any discussions with the lawyers at GITMO or the JAGs on the actions of Gen Hartman? Are they appalled at all at his “failing upwards?”

It will indeed be quite an honor to have conversation with Hina Shamsi!

Welcome Hina;

As most here at the lake understand, “orders” to commit torture do not obsolve the participant, they are still bound by law that tells us torture is illegal under any circumstance.

I am wondering;

those who “advise” that certain practices are “not torture” even though they are, aren’t they as culpable for the crime as those who “ordered” torture?

That’s the question, now I have a point which is hardly ever made;

I also want to remind everyone, these are not only crimes against those being tortured, they are crimes against our country and crimes against our national security.

They create enemies against our state, they provoke acts of terrorism, they prevent surrender, they destroy our ability to conduct our business.

That point is hardly ever made, that torture is not only a crime against the individual being tortured, it is a crime against our country.

Thanks to the ACLU for persisting against substantial odds.

A couple of fast questions.

1. Is KSM still scheduled to be tried before the election?
2. Will Hamdan be released when his “sentence” is up?
3. Who are the prosecutors who are gung-ho? What branches of the military do they come from, do they have any links with the neocons, Yoo, etc., in other words help us understand the POV of the prosecutors who think this Kangaroo Kourt is a good thing.

I think punishment can take many forms and there are definitely instances of actions that look like punishment. For example, Commander Charlie Savage, who helped take his client Salim Hamdan’s case all the way to the Supreme Court, was passed over for promotion, effectively ending his career. On the prosecution side, Mo Davis, a former chief prosecutor who also resigned in protest against the commissions says he was denied a medal.

In Vandeveld’s case, the Jawad’s defense lawyer, Maj. David Frakt said Vandeveld feared retaliation against him (although he ultimately testified). In fact, Frakt told the court that the chief prosecutor had directed Vandeveld to undergo a psychiatric evaluation, ordered him to stay at home, and prohibited him from coming into his office pending his official release from military service.

One of the best narratives on some of the set-up for the military commissions that I’ve read is in Barton Gellman’s latest book Angler on Dick Cheney. He goes into some detail in it regarding how the JAG attorneys were deliberately end-run by Cheney, Addington, and others because it was felt that the military attorneys would have wanted to hew to the actual law and the UCMJ and other long-established military codes of conduct and Geneva Convention obligations.

If you don’t ask for their opinion, then you don’t have to take it into account — so they shut them out of the process. Whent he JAGs found out, they tried to insert themselves into it and were rebuffed. There was apparently an internal rebellion among both JAGs and a number of attorneys who worked for the OLC, who refused to participate in a system or to defend it when they felt that it was extra-legal in a number of respects. It’s a story that doesn’t get nearly enough play in the media — and it should.

Well, without reporting on specific conversations, I think it’s fair to say that people are pretty appalled about Gen. Hartmann’s actions (for those catching up, three courts have found that he influenced prosecution decisions unlawfully or in ways that raised serious concerns that his actions were unlawful). He’s become a symbol of how political the decision-making around the commissions has been.

Also, speaking of Hamdan, I’ve wondered how his sentence was received on all sides of the aisle among the legal folks surrounding these cases. Any info you can share?

Thanks Christy and Hina; I saw the interview with Gellman on ‘Angler’ on Democracy now but the focus was on ‘How it almost brought down the Presidency’.

These JAGS that have stood up for justice/rule of law/whatever you wish to call it really do deserve public support and applause (I say that as an ACLU member).

btw, in the interests of full disclosure, Hina and I were dear friends all the way back in our college days. It’s such a small world moment to find us both working on similar issues at the same time…again. *g*

Certainly committing torture is a federal crime. But I think you’re making another very important point — both torture policies and policies that so transparently permit illegitimate and unfair trials only do damage to national security and the U.S.’s image around the world, which has an impact on its security. You would have thought that our leaders would have recognized that with Guantanamo — but clearly not.

Uh, I assume you mean Lt Cmdr. Charles Swift?

Charlie Savage is the Pulitzer Prize winning writer, formerly of the Boston Globe, now at the NY Times, who had cornered the market on reporting the President’s Signing Statements. :})

Ms. Shamsi, out of curiosity, is there any word among any of the lawyers there as to the plight of the Bosnian-Algerian prisoner named Sabar Lahmar? He was detailed in the HRW report Locked Up Alone (p.29 start) as losing both his mental and physical health (loss of use of his legs, mind reduced to a blank stare). Would it be possible to file for him, or anyone else there, under the Torture Victims Protection Act? In other words, are the only options the military commissions and habeas pleas in court, or can charges be filed against the government for maltreatment?

Long-term policy implications planning — not exactly a strong suit of the Yee Haw! foreign policy crew among Bush/Cheney-ville. SIGH

Thanx for the response.

Here’s a question though, I know those who order torture are committing a crime.

what about those who give advise that certain practices are not torture though they have been interpreted in the past that they are?

for instance, john yoo gave legal council that water torture was NOT torture and a perfectly fine practice

I would love to believe rendering that opinion is as much a crime as ordering torture

(ps DESPISE the term “water board”, it is too benign and completely non descriptive)

Here’s an interesting take. Basically argues the Pentagon & Administration are pleased as punch because Hamdan proves that the tribunals are fair & opens the door to more serious Gitmo “trials.”
http://deepbackground.msnbc.ms…..54366.aspx

One of the more egregious cases over the last few years has been that of the uighurs who were declared innocent ages ago, yet still held in indefinite custody because they couldn’t safely be sent home to China. The recent federal decision ordering release into the US has led to an internal kerfuffle and I’m wondering what if anything is being done about that case at the moment, if you know?

In response to your questions:

1. There’s no way KSM will be tried before the election, although that was certainly an administrative goal at one point.
2. That’s the big question with Hamdan — will the Pentagon keep him in custody given that it has said that even if a prisoner were to be acquitted in a military commission trial, the government has the ability to continue to detain as an “unlawful enemy combatant.” My personal view is that it would be a public relations and policy disaster for the government to continue to hold Hamdan. And it would send the clear and counter-productive message that the government itself thinks the commissions are a sham. The government by the way is appealing the Hamdan sentence because a portion of it includes taking into account the time he’s been incarcerated at Gitmo.
3. I think there are true believers who really think that all the people at Gitmo are the worst of the worst. I don’t think they come from any particular service or part of DOJ — and one of the points I wanted to make is that many in the military (and DOJ) find the commissions abhorrent.

Another superb account, which I highly recommend, is in Jane Mayer’s “The Dark Side”

It is fantastic — especially because Jane has really dug into Addington in such a thorough way. (Which has to royally tick him off…)

Ooops, yes — typing too quickly.

I’m not familiar with the case but can follow up and let Christy know so perhaps she can pass info on to you.

Second question (sorry to pepper): The ACLU supports closing Guantanamo, the ICRC opposes it. Comment?

Thanks.

WRT to your last answer about True Believers, one would think that even they would be influenced by evidence after awhile. Given that the majority who’ve ever been imprisoned in Gitmo have been released and that the only conviction after 7 years is Hamdan, a chauffeur for crying out loud, the “worst-of-the-worst” meme seems pretty laughable.

Ms. Shamsi,

Even though there is a push to finish these 5 cases before the end of teh Bush Administration, would there be a basis for revisiting them in the next administration (other than by appeal), or will they be res judicata?

The Yale law clinic has filed a civil suit against Yoo, FYI.

You bring up another broader issue, that of accountability, which we still don’t have, for policies that permitted torture and other illegal practices. And I don’t think we’re going to get it unless there’s some kind of independent fact-finding commission, established either by the President or Congress (there are merits to each alternative), that does a top to bottom review of who ordered what, why and when. And we at the ACLU have also called for a special prosecutor to investigate and, if there’s a basis, prosecute any violations of federal law.

Now, we’re clearly not getting that before November, but that’s got to be an important priority for the next President, whoever he may be. Christy asked earlier what folks can do — keeping up the drumbeat for accountability is one major contribution.

(And yes, I also detest the euphemism “waterboarding.)

Ah, “I think there are true believers” ; wish more people would (or had read) Hoffer’s book.

The Yale law clinic has filed a civil suit against Yoo, FYI.

YAYYYYY

I am hoping christy or marcy does a post on this

For an another view, check out Glenn Greenwald’s interview with my colleague Ben Wizner, who observed the entire Hamdan trial here. (Apologies for the plug, but Ben was the only observer there for the whole thing, and has a particularly trenchant take.)

Although, I think the potential for a special prosecutor from the Mukasey DOJ is exceptionally slight, there is potential for a push on that from a new administration. By continuing to bring this issue up, time and again — both here where staffers and such may read about activist interest — but also making the calls to various Congressional offices, sending letters and FAXes, sending in letters to the editor (all the things we continually do), that keeps the issue on the front-burner and shows continued interest on the part of Americans on getting real, solid answers and holding people accountable for their misguided actions.

We need to all keep doing this until we get them.

Things are moving really quickly litigation-wise — I believe the latest is that the government has sought and obtained a stay of the prisoners’ release and has appealed Judge Urbina’s (terrific) decision to release the Uighurs. Bill Glaberson has an excellent article in the NY Times today, I think, talking about the disagreements between the State Dept. and the Justice Dept. that have resulted from the government’s appeal.

Let me second that recommendation on the interview with Ben Wizner — it’s fantastic. I linked it up at the time Glenn did the interview. But if folks haven’t listened to it, Ben is spot on through the entire discussion, and well worth listening to on these issues for his thorough first-hand perspective.

Ooooh — missed that article. Will have to find it — thanks for the heads up!

Do you see Hamdan as being a model for traffic courts in the US?

Thanks for the link.

Mahler, Swift & Kaytal were on Book-TV last Monday, talking about Hamdam. Some of their descriptions of the way he behaved, especially at trial, nearly had me choked up.
http://www.booktv.org/program……ayMedia=No

Really? I would be very surprised if that were the ICRC position. Where do you get that.

If the case of the 17 Uighurs is any guide, I would think that the government will try to hold Hamdan at least until the inauguration of the new Administration.

Um, at a meeting with Red Cross representatives? They are worried that the prisoners at Guantanamo, if it closes, will end up beyond scrutiny in prisons at which access by rights and humanitarian organizations is much less.

So, Hina, beyond amicus briefs that you all have been filing in a vast number of cases on habeas and other rule of law issues with detainees, all the human rights observation work ACLU puts forward, and actual representation in a number of cases since 2001…and lobbying efforts on the Hill and all over the country on restoration of rule of law issues and closing Gitmo and everything else civil liberties and justice related — what else is ACLU doing that I’ve missed? *g*

BTW, I have an even more fundamental Q on Hamdan. Why is “driving” a military leader a war crime? I thought the Nazi chauffeurs were not prosecuted.

Any ideas on how to close Guantanamo? How would/could evidence so tainted by years of neglect, misconduct, and malfeasance ever be used to mount a case in a real court?

There were also allegations that he was a sort of bodyguard and planned security measures, I believe. But they weren’t prosecuted during WWII…

Appeal is always possible, as you note, but even that’s not a great option — the Military Commissions Act allows for it, although another of its flaws is that the scope of review on appeal is restricted so that the court cannot look at issues of fact, including claims of factual innocence. I’ve no doubt that provision can and should be challenged. But I don’t actually think all five cases will get tried before there’s a new president. And the question then is, what happens if cases are pending? I don’t think there’s an easy answer, in part because of res judicata. Col. Morris’ push to get the cases tried is only going to leave the next administration with a bigger mess on its hands. Still, I think at that point you have a choice — to right what’s wrong and not to further it and a new president can decide not to use the commissions; DOJ can conduct all prosecutions in federal court (if there’s evidence to support them), which is where they should have been in the first place.

Why eCAHN, don’t you know? They’re ALL leaders. All we ever do is kill or capture the #3 or 4 person in the local hierarchy of terrorists. They just replace and promote so fast dincha know. /s

Bush takes comfort in that since he’s just Cheney’s puppet.

Ah, a very simple response: it isn’t a crime and Hitler’s driver, in fact, was not prosecuted. Eric Umansky, in an article for Propublica (I believe) did a very good job of addressing this aspect of the Hamdan case.

Hina — I wanted to take a moment to thank you so much for coming on to talk about all of this with us today. It’s so much better to get a first-hand perspective on all of this than to get some third-hand, anonymously sourced spin. Thanks so much — and huge thanks to the ACLU for working on these issues from day one.

he was a sort of bodyguard and planned security measures

That may be the claim but I don’t think he ever had any training in either of these things and it wasn’t something he could read in a book because IIRC he was illiterate.

Not saying it was a valid assumption, just saying that was tossed into the charge.

In a dramatic development in the commissions case against Mohammad Jawad, Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he said he does not believe he can ethically proceed with the case.

Well good. Conservatives can have a change of heart.
And thank you ACLU for helping us fight against the unpatriotic Bush/Cheney/Addington administration.

I think you’ve done a pretty good job laying out a few of the things that keep us busy :), but I encourage folks to visit our blog at http://blog.aclu.org/, for more takes on all the issues we work on.

Talking of which, I should get back to work — thank you all for the great and engaged questions. My only regret is that I couldn’t type faster.

And Christy — this was a terrific way to e-meet after all these years! Keep up your great work.

Hina, thank you again for being here this afternoon and for all your (and the rest of the good folks at the ACLU) efforts on behalf of the Constitution and our professed ideals.

Quite the pleasure…good luck with all this work!

Looseheadprop upstairs on Credit Default Swaps and who is really to blame for the mess.

really the Uighurs, the teenage boys, the shizophrenic, the 80 year olds. . . don’t get me started on the travesty. And the Uighurs deserve permanent US residency (I know I say it all the time, but I will continue to say this until they are all given residency and compensation, especially after the ChimpCo let the Mainland Chinese torture them in Gitmo)

To the party late, but FDL had andy worthington and I noticed some other authors on Gitmo here for a book salon. It’d be nice to have a FDL thread with all the authors who’ve done work on Gitmo and the ACLU. Hard to organize maybe. But what a thread it’d be.

Thank you and all your colleagues at the ACLU for all you do.

We have another one coming up this weekend, too. I cannot imagine the headache of trying to organize a multi-author thread, though. *G* Tough enough to get one guest at a time…

Speaking of which, Sen. Ben Cardin will be here tomorrow afternoon. :)

How about invites to all the authors, and see who shows on the next thread. If I try to imagine organizational problems, the mind glazes over, heh.