The judge presiding over the military commission proceedings of Khalid Sheikh Mohammed, Ramzi Binalshibh and three other detainees at Guantanmo issued a stay order today putting the cases on ice until November 16, so President Obama can decide whether he prefers to have the cases transferred to federal criminal courts.

The military had flown some family members of 9/11 victims in for the hearing. The defendants didn't appear in court which disappointed them -- and the prosecutor. The prosecutor asked they be brought from their cells but the judge refused. [More...]

Update: The DC Circuit has ordered the government to respond to the petition and emergency motion for stay of proceedings by this Tuesday, Sept 15, at noon.

Accused 9/11 terror participant Ramzi Bin al Shibh (aka Ramzi Binalshibh), one of the detainees facing a trial by military tribunal at Guantanamo, has filed a Petition for Writ of Mandamus in the D.C. Circuit Court of Appeals to stop the proceeding. He is represented by two JAG Corps attorneys in the Military Commissions' Office of the Chief Defense Counsel, CDR Suzanne Lachelier, USNR, and LCDR Richard Federico, USN. The John Adams Project, a collaborative effort of the ACLU and National Association of Criminal Defense Lawyers (NACDL) has been assisting. According to NACDL,:

The petition for extraordinary relief filed today asks the Court of Appeals for the D.C. Circuit to enjoin the prosecution of five high value detainees, consistent with President Barack Obama’s Executive Order of January 22, 2009. Defense attorneys are asking the court to assert jurisdiction over the commissions and compel a stop to all proceedings on the grounds that the commissions are unconstitutional and continue to operate without regard for the rule of law. The attorneys hope to shed light on the lawlessness of the military tribunal and force the Obama administration to formally charge the defendants in federal court.

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U.S. District Court Judge Ricardo Urbina last month ordered the Government to provide Guantanamo inmate and habeas petitioner Abdul Raheem Ghulam Rabbani, who allegedly worked for accused 911 mastermind Khalid Sheikh Mohammed, with some of the discovery he requested about his interrogation in overseas prisons.

Judge Urbina also ruled that Rabbani can submit written questions to KSM. The declassified and redacted opinion has now been released. It's a long opinion, here are some of the more notable parts:[More...]

U.S. District Court Judge Jeffrey White in San Francisco yesterday ruled Jose Padilla can sue former Bush terror policy maker John Yoo.

Mr. Padilla was held as an “enemy combatant” in solitary confinement for more than three years in the Navy brig in Charleston, S.C. Mr. Padilla, who was convicted of supporting terrorism and other crimes, demands that Mr. Yoo be held accountable for actions that Mr. Padilla claims led to his being tortured.

....In the 42-page ruling, Judge Jeffrey S. White of Federal District Court in San Francisco characterized the conflict as one that embodies the tension “between the requirements of war and the defense of the very freedoms that war seeks to protect.”

Judge White refused all but one of Yoo's immunity claims, finding "Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”

After 8 years at Guantanamo, Ahmed Khalfan Ghailani, will now face trial in federal criminal court. At his court appearance today, he pleaded not guilty.

What comes next? A fight over who gets to represent him. The Government will be picking up the tab for whoever it is. My suggestion is the court-appointed counsel who represented the WTC1 and other terror trials.

In 1998, the Clinton Administration demonstrated an atypically aggressive response toward terrorism after the assault on two U.S. embassies in Africa. On Aug. 7, 1998, the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were bombed by terrorists, leaving 258 people dead and more than 5,000 injured.

The result: [More...]

An interesting paradox is presented by this story:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial. . . . American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

So by placing people like Khalid Sheik Mohammed in a military commission system, the Bush Administration (and now by extension, the Obama Administration) has inadvertently forced the issue of torture into the equation. Of course, in civil courts, KSM and others like him could plead guilty (in spite of the torture committed upon them) and the issue of torture would not require the airing military commissions would require. As an ACLU spokesman puts it:

Omar Khadr's lawyers continued their bickering in court today. The military judge scolded them and praised Canadian detainee Omar Khadr for his good behavior. Khadr has been detained since he was captured in Afghanistan at age 15. He's now 22. (Background here.)

A visibly angry Parrish lashed out at Khadr's lawyers and encouraged the Toronto-born captive to meet with them again during today's session. He commended Khadr for being "well spoken" and warned the lawyers to act in a "professional and dignified" manner. Khadr said it wasn't possible. "They just had a fight this morning," he told Parrish.

Today's hearing was considered an embarrassment for Guantanamo's defence office and the Obama administration, which has asked to have the cases suspended until the fall and pledged to close this prison by January.

But, the Judge made Omar pick between the dueling military lawyers. He wants his own Canadian lawyers, but under the misguided, inadequate military tribunal rules, he can't have them, except in an advisory capacity.[More...]

The TimesonLine quotes TalkLeft pal Terry Kindlon (who represented defendant Yassin Aref in the Albany terror case) on the latest New York Bronx Synagogue bust:

“This whole operation was a foolish waste of time and money,” claimed Terence Kindlon, a defence lawyer who represented the last terror suspect to be tried in New York state. “It is almost as if the FBI cooked up the plot and found four idiots to install as defendants.”

Kindlon’s complaints were echoed by other legal experts who have repeatedly questioned the FBI’s reliance on undercover informants – known as confidential witnesses (CWs) – who lure gullible radicals into far-fetched plots that are then foiled by the agents monitoring them.

Questions raised by the case: [More...]

The New York Post has a useful little primer on the informant at the center of the alleged plot to bomb a Bronx synagogue. According to the Post, the informant is an upstate New York motel owner named Shahed Hussain.

Hussain became an informant after being busted on fraud charges; Hussain worked as a translator for the DMV and helped immigrants cheat on driver's tests. His bid to become an informant, according to the Post, was driven by a desire to win leniency on the fraud charges and avoid being deported to Pakistan. [More...]

I've been reading the pleadings filed in the Military Commission trials of the "9/11 co-conspirators." Rulings on several of the motions are also available. Two that made a lot of sense to me are the Motion to Dismiss for Lack of Jurisdiction (Bill of Attainder) and Motion to Dismiss for Lack of Jurisdiction (Absence of Armed Conflict).

The motions and responses concerning Ramzi Binalshibh's competency are also interesting.

The two themes that run through the prosecution's pleadings are: (1) Trial by military commission does not entitle the accused to protections of the Bill of Rights, only to rights authorized by the Military Commissions Act, and (2) the length to which the DOD will go to prevent anything coming up as to what may have happened while the detainees were held and interrogated in CIA black sites overseas. [More...]

The ACLU tells President Obama that reviving the military commissions is like putting lipstick on a pig:

"These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. Tweaking the rules of these failed tribunals so that they provide ‘more due process' is absurd; there is no such thing as ‘due process light.' If the administration's proposed rules really bring these proceedings in line with constitutional requirements, there is no reason not to use our tried and true justice system. If they don't, these tribunals have no place in our democracy.

[More...]

Tomorrow, President Barack Obama will announce his decision to continue military commissions trials against Guantanamo detainees.

He will say he's giving the detainees greater rights, including:

• Restrictions on hearsay evidence that can be used in court against the detainees.

• A ban on all evidence obtained through cruel, inhuman or degrading treatment. This would include statements given from detainees who were subjected to waterboarding.

• Giving detainees greater leeway in choosing their own military counsel.

• Protecting detainees who refuse to testify from legal sanctions or other court prejudices.

It's not enough. The commissions are flawed beyond repair. More from the Center for Constitutional Rights.