McCain And Graham Plan To Introduce Legislation Undermining Supreme Court Decision On Guantanamo

 

Last week, the Supreme Court ruled that Guantanamo Bay detainees have the right to challenge their detention in civilian courts. Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) wasted no time in publicly blasting the decision, saying they were “disappointed” in “one of the worst decisions in the history of this country.”

This ruling will inevitably lead to a “flood of new litigation” challenging the Bush administration’s right to hold these detainees, only one of whom has received a verdict. Detainees will then finally get a decision as to their status.

Today on Fox News Sunday, Weekly Standard editor Bill Kristol revealed that “very soon” — likely as early as next week — McCain and Graham will be introducing legislation to undermine the Supreme Court decision by setting up a “national security court”:

And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can’t let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don’t believe this soldier here who said this guy was doing this,’ you have to release someone,’ or, ‘Let’s build up — let’s compromise sources and methods with a bunch of trials. I mean, it’s ridiculous.

 

A national security court would envision a scenario “in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained.” But as Michael Hoffman and Ken Gude note in a paper for the Center for American Progress, this scenario is problematic and underestimates the U.S. criminal justice system:

Adopting a national security court system would send the United States down another unproven path prone to repeat the same mistakes. It would not further justice or American legitimacy. Rather, it would risk creating American courts that more resemble the tribunals of dictators than those of democracies. And that would be a strategic victory for Al Qaeda, not for Americans. […]

The criminal justice system, coupled with standard military trials when necessary, has and can further law enforcement, intelligence, and prevention efforts without undermining our fundamental liberties or our long-term efforts to combat terrorism. It is time to let it fully do that crucial work.

As ThinkProgress reported on Friday, at one time, McCain and Graham advocated a solution similar to the Supreme Court ruling. In 2003, they called on then-Defense Secretary Rumsfeld to “formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action.” Clearly, things change when you’re running for a third Bush term.

Military lawyers assigned to defend accused 9/11 ploitters

WASHINGTON — The chief defense counsel for the war crimes court at Guantánamo Bay on Monday appointed four U.S. military officers to defend four alleged co-conspirators facing possible death-penalty charges in the 9/11 attacks.

But Army Reserves Col. Steve David said he had not yet formally assigned a lawyer to defend their alleged ringleader, reputed al Qaeda kingpin Khalid Sheik Mohammed.

The assignments had been seen as a key obstacle in the Pentagon’s effort to move forward with its showcase Military Commissions prosecution — a complex, six-captive capital case alleging they organized the Sept. 11, 2001 attacks.

CHARGES FILED

The Pentagon prosecutor swore out charges against the six on Feb. 11. Now a Bush administration appointee is deciding whether to go forward and whether to make execution the ultimate penalty — if the men are convicted in the case that lists the names of 2,973 victims in the charges sheets.

”It’s daunting,” said Navy Reserves Cmdr. Suzanne Lachelier, a former San Diego federal public defender called to service and now assigned to defend Ramzi bin al Shibh.

She also, separately, had been assigned another commissions case — to defend a Sudanese man who allegedly served as Osama bin Laden’s bodyguard, driver and cook, Ibrahim al Qosi.

But the 9/11 case, she said, presented “the ultimate challenge for a criminal defense attorney when a defendant is facing so much hatred from the general public — and political backlash, to say the least.”

Bin al Shibh, who was captured on Sept. 11, 2002, is accused of organizing the German-based cell of the suicide squads that hijacked the commercial airplanes that struck the World Trade Center, Pentagon and a Pennsylvania field a year earlier.

KEY INTERMEDIARY

A citizen of Yemen, he has been described as a key intermediary between some of the hijackers and leaders of al Qaeda, in effect meaning he served as the 9/11 control officer. He also has been described as a key lieutenant to Mohammed.

Mohammed and the four other former CIA-held captives accused in the case have never seen attorneys — military or civilian — and are held in segregation as special ”high-value detainees” at the remote prison camps in southeast Cuba.

They arrived there in September 2006 after years in secret U.S. custody overseas.

Now it will be up to the attorneys to get special intelligence clearances and meet with their clients to see whether they will cooperate with their U.S. military lawyers — who are provided to them free of charge under the Military Commissions Act that created the war court in 2006.

David, in civilian life a judge in Boone County, Ind., near Indianapolis, made the appointments days after several civilian legal groups disclosed that they were organizing a defense fund and recruiting teams of top lawyers with death-penalty experience to help in the cases of Mohammed and the others accused at the war court.

The American Civil Liberties Union is spearheading the effort.

OTHER DEFENDANTS

Of the other former CIA-held detainees facing proposed capital charges:

• Walid bin Attash was assigned Navy Reserves Lt. Cmdr. James Hatcher, who has death penalty defense experience as a South Carolina federal public defender. Bin Attash, a Saudi-raised Yemeni, allegedly selected and trained some of the hijackers and allegedly scouted U.S. aircraft as early as 1999 in Malaysia as part of the plot.

• Ali Abd al Aziz Ali was assigned Navy Lt. Cmdr. Brian Mizer, who is already lead lawyer in the non-capital case against Osama bin Laden’s former Afghanistan driver, Salim Hamdan — whose trial is expected to start in June and last at most two weeks. Aziz Ali, known as Ammar al Baluchi, has been described as nephew of Khalid Sheik Mohammed who allegedly sent about $120,000 to the hijackers to cover, among other things, flight training at U.S. flight schools.

• Azzi Ali’s assistant, Mustafa al Hawsawi, was assigned Army Reserves Maj. John Jackson as his defense counsel.

Only one of the six had already been assigned an attorney.

He is Mohammed al Qahtani, a Saudi who has been held by the military, not the CIA, but was subjected to a special course of interrogations approved by Defense Secretary Donald Rumsfeld.

It was not known whether, as of Monday, his lawyer, Army Lt. Col. Bryan Broyles had yet to meet with him.

SPECIAL ACCESS

The others need special access from the military to see their clients because the CIA has declared as classified the details of their interrogation and detention at so-called ”black sites” overseas.

Lachelier said that David had assured the 9/11 defense counsels that they would get a second uniformed military defense counsel — known as ”a second chair” — as well as an investigator and paralegal to work on the case.

In addition, the ACLU was expected to offer each a civilian co-counsel with outside legal resources to assist in the defense.