The National Association of Criminal Defense Lawyers (NACDL) issued this press release today opposing the military tribunal procedures at Guantanamo:

NACDL Comments Critical of Guantánamo Detainee Review Procedures

Washington, D.C. (Mar. 31, 2004) – President E.E. (Bo) Edwards of the National Association of Criminal Defense Lawyers, and Joshua Dratel, Co-Chair, NACDL Committee on Military Tribunals & Terrorism, today faxed a critical letter to the top lawyer for the Defense Department, identifying serious deficiencies in the department’s draft administrative review procedures for detainees at Guantánamo Bay Naval Base in Cuba. Edwards and Dratel wrote DOD General Counsel William J. Haynes, II, saying they were “deeply troubled” at the department’s failure to address a number of critical issues. Among the problems they see are:

• Lack of criteria for making determination whether a detainee is or is still “dangerous”;

• No time frames for rendering release decisions or re-review;

• No time limits for detention without charge or other disposition;

• Draft review procedures put the burden on detainee to prove he is “no longer a threat.”

The DOJ memorandum asserts that “[t]he law of war permits the detention of enemy combatants until the end of an armed conflict.” But Edwards and Dratel noted that that statement is true only if the alleged combatants are detained pursuant to the Geneva Conventions. The lawyers suggest that the Guantánamo detainees are entitled to POW status unless and until a “competent tribunal” determines otherwise.

John Hutson once was the Navy's Judge Advocate General--its top lawyer. Now he is dean of the Franklin Pierce Law School in New Hampshire. He is so angry about the Bush Administration's treatment of the detainees at Guantanamo that he has signed onto their brief in the Supreme Court.

The Bush administration is holding about 640 foreign nationals at the U.S. Navy base in Guantanamo Bay, Cuba, incommunicado, with no legal hearings and no idea whether they'll ever be released. That not only violates international law and U.S. military regulations, but invites other countries to detain American servicemen and women indefinitely and mistreat them, Hutson says. So Hutson, a lifelong Republican who voted for President Bush, has signed a "friend of the court" brief asking the U.S. Supreme Court to oversee the conditions of detention. "If there were 600 Americans in a cave in Afghanistan and al-Qaida said they were going to hold them indefinitely, we'd be pretty unhappy," he said.

The two cases scheduled to be heard by the Court in April concern the question of whether the detainees at Guantanamo should have access to the U.S. Courts:

Georgetown Law Professor Neal Katyal has an essay up at Slate today called Gitmo' Better Blues: The folly of the new Guantanamo trials.

These military charges are unconstitutional, inconsistent with international law, and unwise....They will demonstrate what critics of the military tribunals have been saying all along: that the administration has sought to create an end run around guarantees of fundamental rights enshrined in our Constitution and universally accepted agreements such as the Geneva Conventions.

Katyal is also chief counsel to the military defense lawyers in the Guantanamo case pending at the U.S. Supreme Court. [link via How Appealing.]

Opposition to the military's rules for trying enemy combatents and detainees is coming from an unusual source: Military lawyers. The Wall Street Journal reports (paid subscription required):

In November 2001, when President Bush authorized the first U.S. military tribunals since World War II, the process drew fire from human-rights groups and some legal experts. Now the critics have an unexpected set of allies: the detainees' five military lawyers, who have launched a surprisingly vigorous assault on the system that hired them.

The five JAGs -- as members of the Judge Advocate General's Corps, the military's legal arm, are known -- have attacked the tribunals as inherently unfair, contrary to international law and susceptible to political influence. In a brief they submitted to the Supreme Court, Cmdr. Swift wrote a section comparing the president with King George III and likening the treatment of tribunal defendants to the injustices that helped spark the American Revolution.

Here's how the tribunals will stack the deck against the detainees. Here are some concerns we all should have about Guantanamo.

[WSJ link via Patriot Watch and reader Cliff.]

Via Scotus Blog:

There is a new and easy-to-use resource center for No. 03-1027, Rumsfeld v. Padilla, established by Wiggin and Dana, one of the firms acting as Padilla's counsel at the merits stage. It includes all of the appellate decisions and briefs to date (in both the Supreme Court and Second Circuit), as well as a full transcript of oral argument and selected other documents. You can access the center here.

The Observer has more details from the Britons released from Guantanamo about their treatment. In interviews, the men discussed:

• How early in their ordeal they survived a massacre perpetrated by Afghanistan's Northern Alliance troops who herded hundreds of prisoners into lorry containers and locked them in, so that people started to suffocate. Iqbal described how only 20 of 300 prisoners in each container lived, and then only because someone made holes in its side with a machine gun - an action which killed yet more prisoners;

• The existence of a secret super-maximum security facility outside the main part of Guantanamo's Camp Delta known as Camp Echo, where prisoners are held in tiny cells in solitary confinement 24-hours a day, with a military police officer permanently stationed outside each cell door. The handful of inmates of Camp Echo include two of the four remaining British detainees, Moazzem Begg and Feroz Abbasi, and the Australian, David Hicks;

• That they endured three months of solitary confinement in Camp Delta's isolation block last summer after they were wrongly identified by the Americans as having been pictured in a video tape of a meeting in Afghanistan between Osama bin Laden and the leader of the 11 September hijackers Mohamed Atta. Ignoring their protests that they were in Britain at the time, the Americans interrogated them so relentlessly that eventually all three falsely confessed. They were finally saved - at least on this occasion - by MI5, which came up with documentary evidence to show they had not left the UK;

• That their first interrogations by British investigators - from both MI5 and the SAS - took place in December 2001 and January 2002 when they were still being held at a detention camp in Afghanistan. Guns were held to their heads during their questioning in Afghanistan by American soldiers, and physical abuse and beatings were rife. At this point, after weeks of near starvation as prisoners of the Northern Alliance, all three men were close to death.

Bump and Update: The Mirrorhas more details of the released Guantanamo detainee's charges of mistreatment:

Their "cells" were wire cages with concrete floors and open to the elements - giving no privacy or protection from the rats, snakes and scorpions loose around the American base. He claims punishment beatings were handed out by guards known as the Extreme Reaction Force. They waded into inmates in full riot-gear, raining blows on them. Prisoners faced psychological torture and mind-games in attempts to make them confess to acts they had never committed. Medical treatment was sparse and brutal and amputations of limbs were more drastic than required, claimed Jamal. A diet of foul water and food up to 10 years out-of-date left inmates malnourished.

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One of the British detainees sent back to Britain from Guantanamo and subsequently released is sharing very unflattering details of his confinement with the media:

Jamal al-Harith told how US soldiers brought in prostitutes to the camp, and paraded them naked in front of the many devout Muslims. The 37-year-old also claimed he was kicked, punched and assaulted with batons. He told the Daily Mirror that detainees were shackled for up to 15 hours at a time in hand and leg cuffs with metal links to the skin. Mr Harith said punishment beatings were meted out by guards and prisoners were subjected to pyschological torture and mind games in an effort to break them.

Update: Here's more.

After a day of questioning in Britain, all five Guantanamo detainees returned this week by the U.S. have been freed without charges. They have been reunited with their families.

After around two years in the US camp in Cuba and just over 24 hours at a high-security police station, Tarek Dergoul, 26, from London, was freed at around 10pm. He was soon followed by Shafiq Rasul, also 26, and Rhuhel Ahmed and Asif Iqbal, both 22, all of whom are from Tipton in the West Midlands. They were reunited with their families at secret locations of their choice.

A bidding war is ongoing for their stories. They should make for interesting reading. Who are they?

It has been alleged that Mr Dergoul was captured in the Tora Bora mountains in Afghanistan following the fall of the Taliban. He is believed to have had an arm amputated and had problems walking due to severe frostbite. His family say he was in the wrong place at the wrong time. Mr Rasul flew to Pakistan to take a computer course, Mr Iqbal to meet a prospective bride and Mr Ahmed told his family he was going to help with Mr Iqbal's wedding.

Meanwhile, there are four more Britons and three British residents still detained at Guantanamo. Approximately 600 prisoners remain. Where are the charges? Where are the trials? Two years is far too long to be holding these men (and in some cases, children.) If they didn't commit a crime, they shouldn't be doing time.

Five British citizens being held at Guantanamo will be sent back within 24 hours. Officials in Britain say prosecutors will decide whether to release the men or charge them with a crime.

Legal experts believe it unlikely the five British citizens to be released will face trial at home because any information gleaned from the men during interrogation would be inadmissible since they had no access to lawyers. Lawyers also said it was questionable whether British courts have jurisdiction over alleged criminal acts in Afghanistan, unless acts of terrorism or treason could be proven.

Families and lawyers of the five prisoners have insisted throughout their two-year-long detention that the men are innocent and were mistakenly caught up in the U.S. war on terror.

The Guardian reports that the families are angry -- we don't blame them:

The father of a British terror suspect held in Guantanamo Bay yesterday denounced a leak from the Bush administration which alleged his son trained at an al-Qaida training camp. Azmat Begg, 65, was in the US capital as part of a campaign for justice for the four remaining Britons held without charge or access to a lawyer for up to two years.

The US leak, to the Daily Telegraph, alleges that the four remaining men trained in terrorist camps and learned skills such as bomb-making. But lawyers for the men yesterday described the claims as "rubbish" and "tendentious" and expressed fears that they might have invented confessions under the psychological pressure of two years' detention without charge or trial and in the mistaken belief they might face the death penalty.

Mr Begg, a former bank manager from Birmingham, said the leaked claims about his son were either American lies or "definitely" obtained under duress. He said Moazzam had been in Afghanistan as an aid worker, teaching and building wells for the poor, and since his detention by the US he had been "kept like an animal in a cell".

Mr Begg continued: "Mr President, I do not plead for mercy. My son has not been charged with any crime. He does not know what is alleged against him. Neither do I. He has been held captive for more than two years. "In all that time he has never been charged and tried. I do not ask for mercy. I ask for justice."

Joining the families at the Washington protest were actress Vanessa Redgrave and former hostage Terry Waite.

We're glad to see other organizations speaking out as well:

by TChris

Solicitor General Ted Olson, speaking for the Bush administration, has filed a brief with the Supreme Court asking the Court to uphold the administration's right to detain indefinitely any foreigner that it captures and holds on foreign soil. Granting those individuals access to our courts, Olson says, "not only would be very damaging to the military's ability to win the war, but [would] no doubt be highly comforting to the enemies of the United States."

Showing the "enemies" of the United States that the United States treats every person fairly (even those the administration regards as "enemy captives") might promote respect for our government, but it is difficult to understand how that "comforts" terrorists or interferes with the military's ability to wage war. While Olson argues that giving detainees access to courts "almost certainly would lead to the filing of scores if not hundreds of follow-up actions by the relatives of other aliens held at Guantanamo," that is true only because the United States has chosen to detain hundreds of individuals at Guantanamo and other overseas military bases. Is it the administration's goal to detain even more people to further an argument that granting them access to the courts would be unduly burdensome?

The notion that the executive branch of government is entitled to detain someone forever, with no judicial review to determine whether the detention is supported by reasoning or evidence, is repugnant to the values that define our nation.

The Court will hear argument in the case next month.

The U.S. announced it is returning one of the Guantanamo detainees to Denmark. Denmark has stated that he will be freed upon his return:

The Pentagon did not give his name, but Danish media have identified him as Slimane Hadj Abderrahmane, imprisoned in February 2001 after being captured in Afghanistan.

The Pentagon said Denmark has provided unspecified assurances that he will not pose a further threat. The United States has released 93 prisoners from Guantanamo but still holds roughly 650 non-U.S. citizens caught in what President Bush calls the global war on terrorism. The Pentagon said it decided he no longer posed a danger.

The first criminal charges have been brought against two detainees at Guantanamo.

Ibrahim Ahmed Mahmoud al Qosi, of Sudan, was a paymaster for al Qaeda, and Ali Hamza Ahmed Sulayman al Bahlul, of Yemen, was a propagandist for bin Laden, the government charged in military indictments unsealed at the Pentagon.

The two men are among more than 600 foreign prisoners held at the U.S. Navy's Guantanamo prison camp in Cuba. Both spent time in terrorist training camps and served as bodyguards for bin Laden, according to military charging documents similar to indictments in the civilian court system.

The two will not face the death penalty but could receive life in prison.

In a statement, the Pentagon described al Qosi as a key al Qaeda accountant and weapons smuggler who was "a longtime assistant and associate of bin Laden dating back to the time when bin Laden lived in Sudan." The Pentagon identified al Bahlul as a "key al Qaeda propagandist who produced videos glorifying the murder of Americans to recruit, inspire and motivate other al Qaeda members" to attack Americans, the United States and other countries.

The Pentagon said al Bahlul and al Qosi were charged with willfully and knowingly conspiring with bin Laden and others to commit terrorism and murder, attack civilians and destroy property.