U.S. to Press Fight of Detainee’s Appeal

[Jefferson23]

By CHARLIE SAVAGE
Published: January 9, 2013


WASHINGTON — The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.

Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.

The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.

General Martins also announced on Wednesday that he was abandoning the conspiracy charge in the death penalty case against Khalid Shaikh Mohammed and four others accused of being accomplices in the terrorist attacks of Sept. 11, 2001.

remainder: http://www.nytimes.com/2013/01/10/us/us-to-press-fight-of-detainees-appeal.html

[atreides1]

1. How do we know?

Holder and his band couldn't find one single thing to nail Arpaio...how are we expected to believe they know what they're doing in this case?

[Solly Mack]

2. K&R

Some background.

http://www.motherjones.com/mojo/2012/10/conviction-overturned-bin-ladens-former-driver

Judge Brett Kavanaugh, a George W. Bush appointee, wrote for a three-judge DC Circuit panel that Hamdan could not be prosecuted for acts that were not crimes at the time they were committed. That's because the Constitution prohibits Congress from passing laws ex post facto—after the fact. The government cannot make something a crime after you've already done it and then charge you for doing it. But that's exactly what Congress seemed to do in 2006 when it made "material support for terrorism" a war crime and encouraged the military to prosecute Gitmo detainees—who had already been imprisoned for years—for committing it.

"This is a massive blow to the legitimacy of the military commissions system," says Zachary Katznelson, a senior attorney at the ACLU. The commissions "have been trying people for years for something that isn't even a war crime."

War crime or not, prosecutors love material support charges because they're vague and relatively easy to prove. Material support often involves conduct that might not necessarily be violent—like driving bin Laden's car or cooking his food—that somehow helps a terrorist group.

It's not just a few Gitmo detainees who have faced these charges. Every single detainee at Gitmo who has been convicted by military commission has been at some point charged with material support for terrorism. Now a federal judge—one appointed by Bush!—says that's all bogus. And it's not just material support charges that could be affected. Conspiracy charges, which were also not a war crime under United States law before 2006, could be thrown out for similar reasons.

http://www.andyworthington.co.uk/2012/11/10/conservative-judges-demolish-the-false-legitimacy-of-guantanamos-terror-trials/

http://www.nytimes.com/2012/10/17/us/politics/dispute-over-clothing-dominates-guantanamo-hearing.html?_r=0

[Jefferson23]

3. Thanks for the link Solly. I 'm always struck by the type of conservative judges that did not buy

into these twisted versions of the law. Good thing they're around.

[Solly Mack]

4. You're welcome. I keep up with the trials/decisions, etc..

I guess I always will. I can't just move on.