Over at Lawfare, Bobby Chesney writes:
In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees. All to the good if you ask me. Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO. It’s really quite bizarre, though not unprecedented.
The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier. The detainees are in a ‘legal limbo,’ the editors claim, giving the uninformed reader little reason to suspect the following:
– that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial)
– that many detainees have actually prevailed in the habeas process
– that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions)
– and, last but not least, that an annual ‘administrative review board’ system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial).
Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo…
(Read the full post at Lawfare.)
Tom Joscelyn notes that the Obama administration has delayed the trial by military commission of Abd al Rahim al Nashiri, the mastermind of the USS Cole attack, according to the
Washington Post. The Defense Department denies this, saying in a statement that prosecutors ‘are actively investigating the case against Mr. al-Nashiri and are developing charges against him.’
Tom finds it hard to believe that it’s taking this long to put together a 10 year old case, and I agree that something seems fishy. In fact, as Tom highlights “the Post talked to some ‘military officials’ who ‘said a team of prosecutors in the Nashiri case has been ready [to] go to trial for some time.’”
So what is holding this up, politics of course. From the Post: “‘Its politics at this point,’ said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.”
It’s not like there isn’t sufficient public evidence to proceed against Nashiri, consider the admissions he made during his CSRT (as Tom summarizes):
Tribunal Member: How many times did you meet Osama bin Laden and did you take money from him every time?
Nashiri: Many times. I dont remember what year I met Osama bin Laden. What year, I dont remember. I dont remember what year. Maybe 96 or 95. And during that time whenever [I] went to Afghanistan I just stop by and visited him. And if I needed money I would just ask him and he would give money to me.
Tribunal Member: What was the money used for? And, how much did you take?
Nashiri: Personal expenses. Many times I would tell, give me three of four thousand dollars and he would give them to me. And I use them as personal expenses. When [sic] went to have a project in Yemen, I took money from him several times. I don’t know the total amount of money. Maybe ten thousand. After that five thousand. And the second project after that. After the Cole incident ended[,] I wanted to have a fishing project in Pakistan and a wooden ship in Dubai. I also ask Usama bin Laden to support me. …So the bottom line is that I took money from Usama bin Laden for a fishing project. I was under the impression that the project was mine. And it was a fishing project. I didn’t care about Usama bin Laden. If the project succeeded, I would have paid the money back to Usama bin Laden. That’s it. I understood it as being a loan. But when he told me that we could use this for bombing something…
”Nashiri goes on to say that he pulled out of the deal with bin Laden when the terror master started talking about using Nashiri’s fishing boat for, you know, terrorism – just as al Qaeda did in the attack on the USS Cole. Nashiri conceded that he knew the Cole plotters (“…I got to know the people who were involved in the explosion”), but claimed that they were part of his fishing enterprise (“We were also, we were planning to be involved in a fishing project”). Nashiri also conceded that he used money from Osama bin Laden to purchase explosives, but said the explosives were going to be used to dig wells…”
Read Tom’s full post here.