The U.S. has agreed to free 7 Guantanamo Detainees.

The seven are Pakistanis whom the Government has identified as neither being terrorists nor able to provide any intelligence information. They are the first prisoners the U.S. has agreed to release since January when it opened the prison camp in Guantanamo Bay, Cuba.

Pakistan is considered an ally in our war on terror. Sources say that prisoners from Kuwait, which is also considered an ally, may be freed next. Rumseld has already signed off on the release.

"The decision follows 10 months of outcry from human rights groups and some foreign governments about the indefinite detention without charges of hundreds of unidentified people apprehended abroad in the U.S. war on terror. Some advocates have also protested the conditions under which the detainees are being held and have said the inmates should either be charged criminally or released."

Sunday, we wrote about The Forgotten Prisoner: Mukkaram Ali. He is the student from Norman, Oklahoma who let his friend Hussein al-Attas and an acquaintance, Zacharias Moussaoui, stay in his apartment for several weeks during the summer of 2001 when Ali was elsewhere. Ali has been detained since September, first as a material witness for the Government, and now as a defense witness for Moussaoui. Our earlier post explains why his continued detention should be revisited.

The Government dropped its request to hold Ali months ago as their investigation concluded he was a mere acquaintance of Moussaoui and had no terrorist ties. He was friends with the second man, Hussein al-Attas. who Ali let stay in his apartment with Moussaoui.

We've written about al-Attas before as well, see Descent Into Federal Detention. Al-Attas has been detained as a material witness since September for having given Moussaoui a ride from Norman to Minnesota where Moussaoui was going to try again at flight school.

Al-Attas was sentenced today to time served for lying to authorities about Moussaoui. Ordinarily, he would be released or deported.

But no, al-Attas, whose criminal sentence has been served will not be released from jail. He is scheduled to testify for the Government against Moussaoui, and so he remains in detention until the trial is over (or his testimony is concluded and he is excused). Trial is now set for June, 2003.

This is one of the reasons the critics of Bush and Ashcroft decry these detentions. They are indefinite in scope. The material witnesses are kept in solitary or near solitary confinement 23 hours a day, with restricted access to counsel and family.

Ali overstayed his student visa and remains in jail for almost 2 years while al-Attas panicked when arrested and lied to the investigators about his knowledge of Moussaoui. The Government acknowledges that neither one was involved in terrorist activities. And they stay in jail for 2 years? Something is very wrong with this picture.

Another sad story today, this time about a detainee the Chicago Tribune calls the forgotten prisoner.

"Although he has never been charged with a crime and there is no evidence he is involved in terrorism, Mukkaram Ali, 26, has been imprisoned for more than a year and remains in jail today--thanks in no small part to the wishes of terror suspect Zacarias Moussaoui."

For nine months Ali, a college student at the University of Oklahoma who overstayed his visa, was held due to prosecutors designating him a "material witness" in the Moussaoui case. They dropped their request but then Moussaoui named Ali as a defense witness in one of his uncounseled, handwritten pleadings. Apparently Ali allowed a friend of his and Moussaoui to stay at his apartment in Norman, OK for a few weeks in the summer of 2001 while Ali was out of town. Ali and Moussaui were only casual acquaintances.

As a result of Moussaoui's request, the Judge has ordered Ali be kept in prison until his testimony in the case, which is not set for trial now until June 30, 2003.
Ali is probably the only person being held as a material witness for a terror defendant.

"The material witness law allows the government to jail someone if prosecutors believe that person has important information about a criminal investigation. The government's use of the law is controversial, given that it has allowed prosecutors to jail people, such as Ali, in high-security prisons without charges and in near-total secrecy."

The Government has never threatened to charge Ali with a crime and they have not presented any evidence that he has terrorist ties. His attorneys say they may seek to have his testimony presented by videotape and may move for his release.

We think they should seek both. Here is the text of the material witness statute:

"If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure."

We haven't read anything about why it would be impractical to secure Ali's appearance by subpoena. Or why a videotaped deposition wouldn't be sufficient. By the time Moussaoui's trial comes around, Ali will have been imprisoned for 1 year an 9 months without having committed a crime. His only misdeed appears to be overstaying his student visa. Assuming the information in the Tribune in accurate and complete, this is simply unfair.

We think the Justice Department should file a motion asking the Court to direct Moussaoui to take Ali's testimony by video deposition now (with the Government present to cross-examine Ali) if Moussaoui or his standby counsel won't request it, and then either release or deport Ali or do whatever it is that they would otherwise do once his presence for trial is no longer at issue.

"Lawyers for two French men held in a U.S. prison camp in Cuba on Friday asked a French judge to declare them prisoners of war after the United States ruled the Geneva Conventions did not apply to suspected al Qaeda fighters."

"In an unprecedented legal move, lawyers for Nizar Sassi and Mourad Benchellali and their parents asked a civil judge to rule on the issue on the grounds that conditions at the Guantanamo Bay camp violate their fundamental freedoms as French citizens."

This is the second challenge by non-citizens to their indefinite detention without access to lawyers and other rights resulting from their designation as enemy combatants.

Yesterday we wrote about the Kuwaiti detainees' challenge, backed by their government, here.

The Los Angeles Times today reports that Kuwaiti detainees at Guanamo Bay are the first to mount an organized challenge to their detention. They are backed by the Government of Kuwait, an ally of the U.S.

"A dozen Kuwaiti captives have mounted the first organized legal and diplomatic effort by prisoners at the U.S. naval base at Guantanamo Bay to challenge U.S. policy that holds terrorism suspects indefinitely without court hearings or charges being filed against them."

"The men assert they are not members of Al-Qaeda, and are merely "charity workers who were assisting refugees of Afghanistan's harsh regime when they were caught up in the chaos of the war last fall and winter. In attempting to flee across the Pakistani border, they say, they fell into the hands of Pakistanis who "sold" them to U.S. troops, collecting a bounty that American forces were offering for Arab terrorism suspects captured in the region."

The men have been at Guantanamo for a year. No charges have been filed against them. The Government claims they are enemy combatants and not entitled to legal protections.

We remember a year ago when the Government told us that all the Guantanamo inmates were "front-line Taliban or Al Qaeda fighters, 'the hardest of the hard.' "

Later the Government admitted it had not identified any high-level terrorists among them. "Defense Secretary Donald H. Rumsfeld said last spring it is possible that some were "victims of circumstances and probably innocent.... If we find someone's an innocent and shouldn't have been brought there, they would be released."

The Kuwaitis are still here. "They are teachers, engineers and students, according to leave-of-absence documents signed by their employers approving their charitable work. One is a government auditor; another works as a government agriculturist. Some have been fired from their jobs since their capture. Some knew one another before they arrived at Guantanamo."

Their lawsuit is backed by high Kuwaiti officials and has been brought by Shearman & Sterling, a Washington law firm specializing in international law. The prisoners are asking to meet with their families, to be notified of the charges against them, to confer with lawyers and for access to a court or other impartial tribunal.

The Kuwaiti Ambassador has said nine of the twelve have no ties to terrorism. "The Kuwaiti government isn't saying all of the men are innocent, but it simply wants the United States to evaluate its countrymen. "Let them be put on trial," Ambassador Sabah said. "If they are innocent, let them go. If they are guilty, we will deal with that. Nothing will solve this issue until they are given due process."

That is unlikely to happen any time soon as the U.S. insists that the men are enemy combatants who may be kept without charges, trials or even military tribunal proceedings until the "war" is over.

The Kuwaitis' lawsuit was dismissed by a federal judge but an appeal is pending in the D.C. Court of Appeals. Oral argument is scheduled for December 2.

There is much more in this compelling article about the detainees themselves, we recommend reading the whole thing. The LA Times requires free registration.

The lawyers for "dirty bomb" suspect Jose Padilla filed pleadings yesterday arguing the Government's continued detention of Padilla in the absence of criminal charges is an "unprecedented expansion of executive authority."

"They added, "The president's detention of Padilla cannot be condoned as an exercise of the president's military power in the interest of national security."

"A lawyer represented Mr. Padilla, a former Chicago gang member who is also known as Abdullah al-Muhajir, before Mr. Bush's declaration; none have been able to meet with him since then. His lawyers said that neither the Constitution nor the Congress has authorized such a detention and that denying Mr. Padilla access to a lawyer has "frustrated any attempt of meaningful judicial review."

Padilla is an American citizen. He was arrested at the Chicago airport in May. He has been in held in a navy brig in South Carolina since June when President Bush declared him an "enemy combatant"-- without any criminal charges, without access to his lawyer, and without any judicial review of his detention. Mr. Padilla is entitled to due process and he isn't getting it.

The Administration's treatment of suspects since September 11 has no consistency. They make up the rules as they go along. Padilla and Yaser Hamdi are citizens who are detained without rights as "enemy combatants." John Walker Lindh, the Buffalo Six, the Detroit Four, James Ujaama, Zacarias Moussaoui and accused "shoe-bomber" Richard Reid have been processed in the federal criminal courts and are receiving the due process and other rights required by our system of justice.

We fail to see any rational distinction between Padilla and Hamdi and the others. We commend the Government for charging the others in federal courts, and think it should reconsider its unjust and unequal treatment of Padilla and Hamdi.

We hope Judge Michael B. Mukasey of United States District Court in Manhattan reviews the legality of Mr. Padilla's detention and orders his release. If Padilla didn't commit a criminal act, there isn't any reason to hold him, other than to interrogate him. If he hasn't succombed to the military's interrogation techniques by now, it's unlikely he is going to. And if the military has already picked his brain and still have no evidence he committed a crime, they should let him go.

Chisun Lee has been writing great articles in the Village Voice about civil liberties violations since September 11. This week he has a poignant article about Mohammed Azmath who was seized on an Amtrak train in Texas on September 12 and detained since then while authorities investigated him for terrorist ties. The investigation ultimately found he had nothing to do with terrorism, but that he had engaged in credit card fraud.

Azimuth pleaded guilty to the credit card fraud and was sentenced to time served, twelve months. Azimuth and his lawyers spoke out at his sentencing. Here is some of what they had to say:

"Azmath's lead counsel, Anthony Ricco, told the judge last week that his client "was housed under the most severe conditions I have ever witnessed. In initial interviews with me, he was shackled, he had [on] manacles, and those interviews were videotaped."

"Ricco told reporters later that Azmath had been abused in such bizarre ways as being taken to the outdoor exercise area on rainy days and locked outside in the cold for hours. In a May letter to Islamic advocate Adem Carroll, Azmath wrote, "They just give once a week a legal call. I didn't make any . . . call to my family in eight months."

"....At the hearing, when he was essentially freed pending deportation by the INS, Azmath spoke publicly for the first time about his detention. Standing, he addressed the court for several minutes, sometimes speaking faster than his limited English would easily allow. "I am singled out on train as a suspect of terrorism," he said. "

"In the three months he did not have a lawyer, he said, a prosecutor named Eric Bruce interrogated him cruelly. "He said to me many times, 'We're going to make your life miserable, your family's life miserable. You're not here for immigration [violations]. You're here for terrorism. You're going to get the death sentence. You're never going to see your wife again.' "

The government lawyer present objected to Azmath's claims, calling them "highly incredible and unlikely." But the Justice Department has told the Voice in the past that investigators are permitted to threaten and even lie in their questioning. Such tactics are not uncommon in more mundane police probes. "

"Legon told the Voice that Azmath's family in India had been "rounded up on several occasions" and questioned by police there, as a result of the U.S. government's investigation. International media have reported that the family faces deportation from India, and Judge Scheindlin cited the crisis as one reason Azmath should be released now....she said, "The sooner he can get home, the more chance he has to save his family."

Chisun Lee wisely concludes his article with this:

"Unlike Azmath, the more recent terrorist suspects in Buffalo and Detroit have received due process, with court hearings and attorneys from the start. Their lawyers have vigorously demanded that prosecutors back up their hype with hard evidence, and courts seem to be proceeding with caution as well. Azmath's case of empty circumstances shows these lawyers and judges are doing the right thing."

Update: Don't miss Skippy the Bush Kangaroo's analysis on Azmath and other arrestees held in secret detention.

Let It Begin Here discusses the President's trampling on not only the Bill of Rights but 800 years of history (and on principles enshrined in law since the Magna Carta) in Casualties of War or Stupidity.

Toby writes of a visit he took to Philadelphia's Independence Hall this weekend:

"At the visitor center, the National Park Service had on display one of the oldest surviving copies of the Magna Carta, signed and sealed by King John in 1215."

"The exhibit highlighted two key points established in the Magna Carta: That no ruler was above the law, and that every “freeman” had the right to a trial by his peers, and could not be subjected to arbitrary death or punishment. The exhibit then went on to detail how this foundation from English civil law was critical for the framers of the constitution. "

"I couldn’t read this without marveling at how cavalierly Pres. Bush has trampled on nearly 800 years of established English common law. Specifically, when he holds American citizens such as Jose Padilla in indefinite detention, without charges, without trial and without disclosing evidence—he is recreating the abuse of power that led to the Magna Carta. My first thought was his audacity is breathtaking. Then I thought, maybe it was stupidity. He may not realize how firmly embedded in our legal system and society is this fundamental right to trial in open court. "

The American Bar Association's Task Force on Treatment of Enemy Combatants, comprised of military law experts, prosecutors, judges and defense counsel, issued a report last month criticizing the indefinite detention of American citizens such as Hamdi and Padilla under the guise of being "enemy combatants."

The ABA sharply disagrees with the Justice Department's view that enemy combatants who take up arms against America, including those who are U.S. citizens, are not entitled to enter the criminal justice and court systems.

In a nutshell, the report calls for detained citizens to have the right to counsel and judicial review of their cases. The message: You don't need to suspend the Constitution to accept the importance of intelligence gathering.

The report clearly distinguishes the Quiran case from WWII that the Justice Department and its spokespersons rely upon--the report is encrypted so we can't copy that part here--so go over and read it.

Federal Judge Nancy Edmonds in Detroit has ruled that the government violated the constitutional rights of a Lebanese man arrested after the Sept. 11 attacks by subjecting him to secret detention and deportation hearings.

The Judge opined, "It is well established that aliens subject to deportation are entitled to due process protections afforded by the Fifth Amendment of the United States Constitution.... Courts have found that an open hearing is fundamental to guarantee a fair hearing."

Judge Edmonds gave the Government ten days to either agree to open hearings or release the man.

It is likely the case will go to the Supreme Court since Judge Edmonds opinion (Sixth Circuit) is opposite that of the Third Circuit.

The outcome will impact hundreds of foreign men of Arab and Muslim background who have been detained since the September 11 attacks.

The military is sharply curtailing the media at Guantamo Bay.

"Interviews with U.S. military personnel are being monitored by media escorts, who accompany journalists to most places on the base, including bathrooms and vending machines. The media also has been barred from speaking without authorization to civilians working on the base."

An Italian film crew had its room searched by the Naval Crimnal Investigation Service. Then they were forbidden to take pictures of the sea or go to the side of the base where the detainees are being held.

Remember the international outrage over the arrival of the initial detainees? We all saw pictures of them blindfolded by goggles, shackled and kneeling . To avoid a recurrance, pictures are now banned. And a large green screen has been installed so the journalists can't see the detainees, even from a distance. The military says this is to protect their rights under the Geneva Convention. Wait, haven't we been told repeatedly that the detainees are "unlawful combatants" not prisoners of war and therefore they are not entitled to the protections of the Geneva Convention?

Then there was this restriction: "Before a four-day media trip to cover Sept. 11 ceremonies on the remote U.S. base in eastern Cuba, American and foreign journalists were told they would be allowed to photograph services but were then barred from filming or taking pictures. The military said media coverage would “interfere with the spirituality of events.”

Reporters Without Borders is not pleased. After all, the First Amendment is one of those freedoms we are going to war to try and protect. Isn't it?

One more thing. There is room now for 612 detainees now, and 204 more cells are being built. But the administration is planning for 2,000 detainees. We think the world has a right to know what's going on down there. Journalists are our only eyes and ears. We hope they yell loudly about this.

The "make-shift" prison at Guantanamo Bay, Cuba housing mostly prisoners brought there from Afganistan is being considered for long-term use. Detainees will likely remain there for at least three more years.

"Navy Capt. Bob Buehn said his budget proposals through 2005 call for funds to continue housing detainees here, and could be expanded to accommodate even more than the roughly 2,000 prisoners authorized by Congress."

Plans call for "new roads, building construction and other improvements to house and support guards and other staff to watch the detainees."

We find this quote to be particularly ominous:

"We've already been here almost a year now," Buehn said, "and we're planning three years ahead. We have grand plans that go out for 20 and 25 years."

In the first lawsuit of its kind, an Egyptian national seeks damages for being denied access to counsel and for his mistreatment by federal prison guards during two months of incarceration in Louisiana.

Arrested on Sept. 12, Hady Hassan Omar's "offense" was buying an airline ticket at the same Kinko's copying center as one of the 9/11 hijackers. He was released on Nov. 23, after it was determined he had no connection to terrorism. Married to a U.S. citizen, he was charged with overstaying his visa.

Omar's lawsuit alleges he was "subjected to numerous unnecessary body cavity searches, harassed and ridiculed by guards and was not allowed to pray or eat according to Islamic traditions. At one point... he was forced to urinate on himself because he was not able to use a bathroom."

Omar says the treatment he received over 73 days in detention amounted to torture. He is believed to be the first to formally accuse the Justice Department of maltreatment. His suit also names prison and immigration officials.