The first response is "Hogwash." Remember that war crime charges involve very few of the many thousands of heroic U.S. war fighters in Iraq and Afghanistan, and also that being charged does not necessarily mean one is guilty. (Duh) The Uniform Code of Military Justice has proved itself in peace and combat, including in Iraq and Afghanistan. But, undeniably, there are problems in prosecuting war crimes.

Although the code works well, the law of war — the part of international law that regulates armed hostilities — does not. The wonder is that it works at all. Some war crimes go unreported. After the Abu Ghraib scandal, greater attention is now given to enforcing the law of war, which partly explains the greater number of media accounts of criminality. Our military is not riddled with criminals. Rather, commanders are paying closer attention to possible war crimes and, as required by military law, they are investigating and reporting them.

In Haditha, after an improvised explosive device killed a popular Marine, 24 Iraqi noncombatants were killed. The Marine battalion commander denied the possibility of his men’s criminality and failed to make sufficient inquiry into their actions, multiple investigations allege. Time magazine backed this up, and Marine headquarters cast a wide net in charging those possibly involved, including senior officers who may have inadequately investigated. The division commander, a two-star general, has been administratively punished.

After a shaky start in Iraq, military justice is working. Three soldiers involved in the rape-murder-burning of a 14-year-old Iraqi girl were court-martialed and sentenced to 90, 100 and 110 years confinement. Problems remain, but find a system without problems. Over time, our military’s courtroom record is good.

The 2-1 ruling by the U.S. 4th Circuit Court of Appeals in Richmond, Va., ordered Ali Saleh Kahlah al-Marri released from a South Carolina military brig’s isolation cell, where he has been held since he was declared an enemy combatant. U.S. authorities have described al-Marri as an associate of Al Qaeda operations chief Khalid Shaikh Mohammed who came to the United States on Sept. 10, 2001, to help a "second wave" of sleeper agents bent on striking America.

Monday’s ruling held that neither the expanded post-Sept. 11 wartime powers nor the Military Commissions Act passed by Congress last year eliminated al-Marri’s constitutional rights to challenge the government’s allegations against him in a court of law.

"This is a landmark ruling for all individuals in this country, rejecting the administration’s unprecedented assertion that it can treat the entire world, including the United States, as a battlefield and jail people for life without charge and without trial simply because he labels them enemy combatants," said Jonathan L. Hafetz, litigation director of the Liberty & National Security Project at the New York University School of Law and al-Marri’s lead counsel.

Habeas corpus, which is used to challenge imprisonment and enforce due-process rights, "is what stands between the United States and a police state," Hafetz said.

However, the decision apparently applies only to al-Marri and stands a good chance of being overturned on appeal.

In her 77-page ruling for the majority, Judge Diana Gribbon Motz said al-Marri may be guilty of serious crimes, but sanctioning the indefinite detention of civilians would have "disastrous consequences for the Constitution — and the country."

"Put simply," she wrote, "the Constitution does not allow the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if they call them ‘enemy combatants.’ "

Motz said the government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in terrorism investigations or detain him for a limited time pursuant to the Patriot Act. "But military detention of al-Marri must cease," she wrote.

In a dissenting opinion, visiting Judge Henry E. Hudson said that "definitive precedent is admittedly sparse" but that the administration does have the right to hold al-Marri as an enemy combatant.

The Justice Department issued a statement saying that it was "disappointed with today’s divided decision" and that it would appeal the ruling to the entire appeals court.

Monday’s ruling does not have a direct effect on the 385 detainees at Guantanamo Bay, Cuba, because it addresses only those held within the United States.

Al-Marri, a citizen of Qatar and Saudi Arabia, is believed to be the only person on U.S. soil held as an enemy combatant. He was first detained in December 2001 at his home in Peoria, Ill., on a material witness warrant, after moving there with his wife and children to study for a master’s degree. He was later indicted in Illinois for credit-card fraud, making false statements to the FBI and other charges. He pleaded not guilty but was designated an enemy combatant before his trial began.

Al-Marri’s lawyers said their client insists he has had nothing to do with Al Qaeda.

Al-Marri, 41, was given the news of the ruling Monday by Andrew J. Savage III, the private attorney in Charleston, S.C., who has worked most closely with him and is handling the case without charge. "When I told him, he put the phone down, got down and prayed to Allah," Savage said. "Then he came back on the phone and expressed a lot of gratitude to everyone involved, the judge included."

Said Steven R. Shapiro, legal director of the American Civil Liberties Union: "It is difficult to imagine a more complete repudiation of the administration’s strategy of treating suspected terrorists as enemy soldiers who can be subject to indefinite detention by the military without charges or trial."

The Justice Department said Monday that "the president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders."

The department’s unsigned statement said that al-Marri trained at "Osama bin Laden’s terrorist training camp in Afghanistan" and that in the summer of 2001 he met with Mohammed, the self-described mastermind of the Sept. 11 attacks, to discuss how he could enter the United States and "explore methods of disrupting the U.S. financial system."

Some U.S. officials and legal experts suggested that a government appeal would have a good chance of succeeding, noting that Motz and Judge Roger Gregory were nominated by President Clinton, while the overall 4th Circuit is considered among the most conservative in the country. If that appeal fails, they said, the administration is likely to take the case to another court with a conservative majority: the U.S. Supreme Court. ]]> http://bodilyinjuryblog.com/4th-curcuit-court-of-appeals-rules-accused-al-qaeda-operative-cant-be-jailed-indefinitely/feed/ 0 http://bodilyinjuryblog.com/supreme-court-refuses-to-hear-guantanamo-detainees-case-for-now/ http://bodilyinjuryblog.com/supreme-court-refuses-to-hear-guantanamo-detainees-case-for-now/#comments Tue, 03 Apr 2007 13:34:15 +0000 Edward Bills http://bodilyinjuryblog.com/?p=192 Detainees at the U.S. military base at Guantanamo Bay, Cuba, were dealt a setback Monday by the Supreme Court, which refused — for now — to hear their claim that they were being denied the right to habeas corpus that is protected by the Constitution.

This right to go before a judge to determine whether detention is lawful is considered a fundamental principle of Anglo-American law, and the Constitution says this privilege of habeas corpus "shall not be suspended" except during invasions or insurrections. But the reach of this right remains in doubt. Bush administration lawyers say the right to habeas corpus does not extend to foreign-born prisoners held by the U.S. military outside the nation’s borders.

The justices voted 6 to 3 against taking up the issue and deciding it in the current term. But the matter was more closely divided than the numbers indicate, since Justices John Paul Stevens and Anthony M. Kennedy said they voted with the majority only because the prisoners had not tried all the "available remedies" under the law.

The two justices were referring to a provision, added by Congress to defense appropriations legislation in late 2005, that said detainees held by the U.S. military were entitled to a Combatant Status Review Tribunal at Guantanamo Bay.

In these brief hearings, military officers examine whether there is evidence to hold the detainee as an "enemy combatant." The detained men do not have a right to a lawyer, and they cannot challenge, or even see, all the evidence against them. In more than 90% of the cases, the officers upheld the Pentagon’s decision to hold the detainee.

Congress said the detainees could ask the U.S. Court of Appeals for the District of Columbia Circuit to review the decisions of these tribunals.

None of the current detainees has tried that option, which their lawyers call a sham. Because the appeals court already has ruled that the detainees have no rights under the Constitution, the detainees have virtually no chance of winning relief in that court.

Now, however, lawyers representing the Guantanamo prisoners will have to go through that lower court before they appeal again to the Supreme Court.

Among the first wave of Marines sent into battle, the young rifleman had been diagnosed since his return with posttraumatic stress disorder and a groin injury. Now, Bailey acknowledged to his family and a friend, he needed immediate treatment for his addiction to prescription and street drugs.

On Jan. 25, Justin Bailey got prescriptions filled for five medications, including a two-week supply of the potent painkiller methadone, according to his medical records.

A day later, he was found dead of an apparent overdose in his room at a VA rehabilitation center on the hospital grounds. He was 27.

The Los Angeles County coroner’s office is awaiting toxicology reports and has not ruled on the cause of death. Numerous other investigations are underway, including one by the Department of Veterans Affairs.

Whatever the outcome, Bailey’s family and friends hold the VA directly responsible. The young man’s medical records contain multiple references to his history of abusing prescription drugs — even a note about a warning from his concerned mother.

In view of that, his father wonders, why was Bailey allowed to administer his own medication?

Hospital officials say the death has prompted immediate reforms — including more random urine tests, increased staffing on weekend nights and room checks for drugs.

The death comes amid a national furor over the poor treatment and squalid conditions experienced by some patients at Walter Reed Army Medical Center in Washington, D.C.

Even before the scandal broke, however, questions had arisen nationally about the ability of military and VA hospitals to handle the influx of Iraq veterans with post-traumatic stress disorder, or PTSD.

An Army-funded study published in January in the American Journal of Psychiatry found that almost one in five combat veterans returning from Iraq suffered from PTSD, which increases the risk of substance abuse. Many of those returning troops also suffer physical pain.

Anything provided on this blog is for informational purposes only and by no means consittutes an attorney-client relationship between a visitor and Attorney Ted Bills.  Any reader of this blog is urged to consult competent legal counsel regarding specific points of law and not construe any material transmitted via this blog as legal advice.

In the service and facing a Court Martial? – What do you do?:

Whether you have just been arrested, read your Article 31/Miranda rights, or whether you have had charges preferred or referred against you for a Summary, Special, or General Court Martial, you might want to think about hiring a civilian attorney with expertise in military law issues. For example: you need to find a civilian lawyer with knowledge regarding the various types of Court Martial proceedings, Article 15s, and discharge issues.

It would be best if you could find someone with access to forensic psychologists, forensic toxicologists, computer experts, and other experts to assist in your defense.

It is not unusual for someone, particularly a non-lawyer, to have been read their Article 31/Miranda rights and still have no idea what their rights are and what may come next in the military justice process.

It is also critical to find a lawyer that will make NO moral judgments about you or the case. Innocent or guilty, the client is entitled to the best defense that the lawyer can provide.

When serious charges or false official statement charges are dropped as a result of an aggressive defense following an Article 32 Hearing, it can be possible to carry-on with a military career.

If an attorney guarantees you a victory, you might, wisely, seek out another lawyer. There are no guarantees in life and each case has its own unique facts and circumstances. A good attorney will not tell you that you have a great case and that you are certain to win. A good laywer should promise that you will get a great fighter in your corner.

Attorney Ted Bills has one mission – to fight for the rights of personal injury victims and those who have been devastated by the misconduct of others – he represents clients which an aggressive approach designed to provide SWIFT justice. Attorney Bills is a member of the American Bar Association, the Colorado Bar Association, the Colorado Trial Lawyers Association, and the El Paso County (Colorado Springs) Bar Association. He works in tandem with his clients to provide assertive, business-savvy, legal services that solve problems, reduce delays, and minimize costs.