A federal appeals court has declined to reconsider its earlier decision limiting the ability of detainees at Guantanamo Bay to lodge legal challenges to their confinement.

In analysis for SCOTUSblog, Lyle Denniston writes that the Jan. 5 decision by a panel of the U.S. Court of Appeals for the District of Columbia "upheld a wide-ranging view of the government's authority to detain non-citizens suspected of terrorism, ruling that the power is not limited in any way by international law - a view that even the Obama Administration indicated it did not share."

Denniston, however, notes that the federal appeals court's action today in Al Bihani v. Obama produced lengthy statements by several of the circuit's judges "to narrow the scope of" the initial panel decision, which upheld the imprisonment of Al Bihani, a former cook for the Taliban who maintains that he never engaged in combat against U.S. forces. The federal appeals court denial of rehearing and the judge's statements are available here (pdf).

During a Senate Judiciary Committee hearing, Attorney General Eric Holder "offered a passionate and sharp denunciation ... of the attacks leveled by Liz Cheney and others accusing his department of aiding al Qaeda sympathizers," The Huffington Post's Sam Stein reports.

For several months Sen. Charles Grassley has loudly called for Holder to release more information about Department of Justice attorneys who, before entering government service, had provided legal representation to military detainees. Grassley's effort was backed by former Vice President Dick Cheney's daughter, Liz, when a group she helps lead released a scathing YouTube video tagging the DOJ attorneys the "Al Qaeda Seven." At yesterday's oversight hearing, Grassley again sought to wrench more information from Holder about the attorneys.

But Holder pushed back. "There has been an attempt to take the names of the people who represent Guantanamo detainees and to drag their reputations through the mud," Holder said. "There were reprehensible ads in essence to question their patriotism. Their names are out there now. I'm simply not going to be a part of that effort. I would not allow good, decent lawyers who have followed the best traditions of American jurisprudence ... I will not allow their reputations to be besmirched. I will not be a part of that."

Stein reported that Holder's defense was applauded by Committee member Sen. Richard Durbin, who said, "I think you are standing up for a very fundamental principle and rule of law here that goes back to John Adams."

Cheney's YouTube ad ignited a backlash, with prominent Republicans weighing in against the attacks. Former Independent Counsel Kenneth Start blasted the attacks on the DOJ attorneys as "shameful. For more on the matter, see ACSblog posts here. 

[image via www.justice.gov/]

Conservatives, including Sen. Charles Grassley and a group affiliated with Liz Cheney, Keep America Safe, have attracted plenty of media attention for sharply criticizing Department of Justice lawyers who represented military detainees earlier in their careers. A hyperbolic video by Keep America Safe called "DOJ: Department of Jihad?" has been blasted as "beyond a cheap shot" by former Bush White House attorney Reginald Brown.

But what's gone largely missing in the story is comparison with a similar situation that occurred during the George W. Bush administration. A top Pentagon official, Charles "Cully" Stimson, commented in a radio interview that he found it "shocking" that a number of U.S. law firms had represented Guantanamo Bay detainees. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter. "Some will maintain they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

Just as the current attacks by Keep America Safe have sparked bipartisan criticism, Stimson's January 2007 comments drew sharp critiques across the political spectrum. As noted by The Huffington Post's Sam Stein, Ted Olson, former solicitor general during the Bush administration and a member of the Federalist Society's Board of Visitors, co-authored with then-Georgetown law school professor Neal Katyal an article for Legal Times blasting Stimson's comments. (About a month after his attacks on the law firms, Stimson resigned his Pentagon post.)

Olson (pictured) and Katyal wrote: 

The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession.

When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.

Picking Cotton

Our Memoir of Justice and Redemption

By Jennifer Thompson-Cannino and Ronald Cotton, with Erin Torneo

[Available Here]

[Editors' Note: After the break, this post includes the author's first-hand account of a violent crime that may not be appropriate for all readers.]

As I travel across America telling our story, one of the most common questions I hear is, "How long did it take you two to write your book"? It took 25 years.

In July of 1984, I attended Elon College, a small school nestled beside Burlington, N.C. Living off-campus, I studied hard, worked two jobs, and dated my long-term boyfriend. It was a particularly hot summer, with both the temperature and humidity consistently high. My boyfriend and I spent one of those sticky, July days together playing tennis and later going out to dinner. We planned to attend a party that night, but a raging headache sent me home around 9 p.m. and I went to bed under a loud and rattling air conditioning unit hanging over my bed. I never heard the break-in, but the clock read 3 a.m. when I sensed a presence in the room. The sound of feet sliding on carpet and a brush against my left arm sharpened my consciousness.

"Who is it? Who's there?" I asked. In the blink of an eye he was on top of me, and I felt a cold, sharp object go to me throat. My screams were quickly muffled with a gloved hand and the violent command "Shut up or I'll kill you!" Every nerve ending was on high alert; I knew that my life was in grave danger, and there was nothing I could do to prevent him from killing me. Images of my mother and father filing into the morgue flashed through my mind. I would never see another sunset, tell my family that I loved them, attend graduate school or be a mom. I could not defend myself, and this horrible monster knew it.

The next thirty minutes were surreal. As he held me down and raped me, my spirit and soul slowly began to die. But I made a decision that would ultimately save my life. I must stay present. Take notes. Remember everything! Pay attention. Make a plan. I studied him. Etched in my memory forever was this face - a face I hated.

I tricked him into getting off of me - letting me make us a drink - and ran for my life. A brave neighbor let me in with seconds to spare before he could seize me again. But my nightmare had only just begun. Through the next day I would be subjected to a rape kit to collect evidence left behind, would learn that he had raped another woman within an hour of destroying my life, and ended up at the police department to help offer leads. I remembered everything about this beast, and I wanted him caught and off the streets. A composite sketch was done, newspapers ran the picture, and a suspect was detained. His name was Ronald Cotton, a young black male with a sketchy past and a knack for attracting the attention of the police.

I was able to identify my rapist in a photo lineup and a physical lineup. Both times, I pointed out Ronald Cotton. I knew it and the police knew it, but now we had to prove it to a jury. In January of 1985, State v. Cotton went to trial. After two weeks of trial and forty-five minutes of jury deliberation, Ronald Cotton was found guilty of all counts and sentenced to life plus fifty-four years in prison. Justice prevailed! I thought. A toast to the system! Ronald Cotton would be locked away forever and if there was a God, he would die there.

A second trial in 1987 would bring new information to light. Cotton's team wanted to introduce evidence that a man named Bobby Poole had confessed to the other rape for which Cotton was now being prosecuted. The judge barred the evidence, though, and the jury never got the chance to hear these lies. Once again Ronald was found guilty of all charges, and received another two life sentences. Justice prevailed again! Or so I thought.

Life moved forward. I married in 1988 and became a mother to triplets in the spring of 1990. But by March of 1995, once again my life resembled a train wreck. A DNA test was performed using some of the evidence gathered during the investigations of Cotton's crimes. And they revealed that Ronald was, in fact, innocent; the DNA belonged to Bobby Poole.

I was paralyzed with guilt, shame and fear. I cried throughout the days, became fearful with every shadow, phone call, or car that passed my house. It took two years before I had the courage to do the right thing and ask for forgiveness. With mercy, grace and without hesitation, Ronald gave me that gift and released me from a pain that had haunted me for 13 years.

Since then, Ronald and I have outspokenly advocated for reform. We have worked hard to advance justice and bring to light the human flaws that sometimes get in the way.

As Ronald was awaiting trial that summer and fall of 1984, Bobby Poole continued his reign of terror on the good people of Burlington, and six other women had their lives forever altered. And Ronald wrongfully served 11 years in prison for crimes of which he was, in fact, innocent. As a nation and a people, we must do better at delivering justice.

Justice at Guantánamo

One Woman’s Odyssey and Her Crusade for Human Rights

By Kristine A. Huskey

[Available Here]

"Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."

My colleagues and I at the white-shoe law firm of Shearman & Sterling began representing Kuwaiti citizens detained at Guantánamo in March of 2002, just six months after 9/11. Then, it was worse than controversial to do so, it was considered unpatriotic. We were called terrorists by some and The Washington Post printed a letter to the editor suggesting that we be sent to Cuba to join our clients. Because Guantánamo really was a legal black hole back then, we sued the government on behalf of our clients and wound up before the Supreme Court in the case, Rasul v. Bush, which ultimately held in 2004 that the detainees had a statutory right to habeas. We had won! When we went to Guantánamo for the first time -- soon after Rasul -- we ecstatically told our clients about the ruling that would allow them a fair hearing and eventually to go home. But, Congress intervened twice -- first with the Detainee Treatment Act in 2005, and then with the Military Commissions Act in 2006 -- all in attempt to cut off the basic right of these imprisoned men to challenge their detention.

Following our "win" in Rasul, we had four more years of litigation and countless visits to Guantánamo to deliver bad news to our clients -- men who had not seen or spoken with their families in years, men who had been abused and tortured and who had participated in hunger strikes to protest the injustice of their situation. One of my most upbeat and ever-optimistic clients wrote out his last will and testament and sliding it across the small card table, quietly told me that he just "couldn't take it anymore." Then in 2008, the Supreme Court ruled in Boumediene that the Guantánamo detainees had the constitutional right to habeas -- the right to challenge their detention -- a right which couldn't be taken away by Congress or the lower courts. We had won, again! But, the Department of Justice intervened and delayed, slowing the habeas litigation down to a crawl such that in the year and a half since the Court concluded the detainees were entitled to "prompt habeas hearings" only 41 detainees have had habeas hearings. In bittersweet victory, federal judges have determined that in 32 of those cases, the government's evidence did not justify the detentions. Some of those men are still at Guantánamo today.

When President Obama signed an executive order -- just two days after taking office -- requiring the closure of Guantánamo within one year, we rejoiced. We had won, big time! But, Congress and the fear-mongering talking heads intervened by passing legislation and inciting public opinion that would make closing Guantánamo and transferring the men to their home countries or other safe countries extraordinarily difficult.

Some people have remarked that the title of my book "Justice at Guantánamo" is an oxymoron and sadly, I couldn't agree more. I wrote the book -- a memoir -- because I wanted to tell the story of Guantánamo and how it came to be. I wanted to tell the story of my clients and me-as human beings. The book is far from a legal text, rather it is the human side of Guantánamo-an attempt to reveal the cost to the men there and the difficulties and discoveries I encountered as a young attorney. The book ends with my HOPE that President Obama would make good on his word. Yet, Obama's promise of change has atrophied into empty rhetoric.

This January is a significant month for Guantánamo observers: January 11th marked the 8th year of its existence and January 22nd was the deadline for its closure. The latter date passed without much fanfare by the government. No new deadline has been set for the prison's closure nor has any official plan been announced for dealing with the men still detained there. It is time to close the detention center, not by transporting it to Illinois, but by really closing it and all U.S.-run prisons outside the law. Justice at Guantánamo and an end to the injustice it has come to represent is long overdue.

The world breathed a collective sigh of relief when-just days into his administration-President Obama issued a series of executive orders to phase out Guantanamo, end torture, and shutter the Bush-era web of secret prisons.

But recent revelations indicate that the Administration's actions have failed to match its lofty rhetoric. According to The New York Times and The Washington Post, the Obama administration continues to use the practice of secret detention at facilities such as the recently identified "black jail" located at Bagram Airfield in Afghanistan.

It is a shocking revelation, not least because of Obama's firm stance against virtually identical practices that occurred under the Bush administration. On the same day that the president called for a winding down of detention operations in Guantanamo Bay nearly a year ago, he ordered the immediate closure of the network of CIA-run "black sites". These secret prisons, where detainees were often held incommunicado before being transferred to other detention facilities or released, saw some of the worst human rights abuses in the "War on Terror." And yet the Obama administration has permitted their apparent reincarnation in Afghanistan. 

Because the "black jails" in Afghanistan are managed by military Special Operations forces instead of the CIA, their existence does not technically violate Obama's executive order. Still, the maintenance of such facilities almost certainly runs afoul of U.S. commitments under human rights treaties and the Geneva Conventions. And the message to the world is clear: the Obama administration is willing to treat detention as an international shell game.

According to news reports, prisoners at the sites are held in small, windowless, concrete cells and deprived of human contact, aside from twice-daily interrogations, for weeks or months. This policy of isolation includes the denial of access to the International Committee of the Red Cross, which plays a monitoring role at other detention facilities, and contravenes the spirit of U.S. obligations under the Geneva Conventions and under President Obama's Order Ensuring Lawful Interrogations. Moreover, released detainees reported tactics designed to create mental stress, such as sleep deprivation and disorientation from the time of day, and physical abuse that potentially violates the Detainee Treatment Act of 2005, the Convention Against Torture, and the Geneva Conventions.

The legal black hole created by these black sites in Afghanistan is indicative of a larger approach to detention riddled with shortcomings and inconsistencies. Even as the Obama administration strives to close the detention facility at Guantanamo Bay, it continues to operate a similar facility at Bagram Airfield in Afghanistan - only at Bagram the legal protections for detainees have been even fewer than those the Supreme Court roundly rejected in Boumediene. Bagram's persistence raises the appearance that the Administration is willing to take a symbolic win for human rights by closing Guantanamo, only to shift the locus of its detention policies-which remain essentially unchanged-to Afghanistan, thousands of miles from the scrutiny of the American public.

The Obama administration has provided little indication that it intends to change course anytime soon. In an April ruling a district court judge afforded limited access to U.S. courts to non-Afghan detainees who were kidnapped by U.S. forces outside of Afghanistan and shipped to Bagram. The Obama administration has appealed the decision and continues to repeat the position first advanced by the Bush administration. Back in Afghanistan, U.S. officials recently unveiled a new $60 million prison, which will permit the U.S. to further expand their detention operations.

As disturbing as these policies are as a matter of human rights, they have profoundly negative consequences for our military's efforts in Afghanistan. In General Stanley A. McChrystal's recent assessment of the conflict, he highlighted the importance of gaining the support of the Afghan people. And as McChyrstal and other military leadership recognize, the black sites and Bagram serve as an "ominous symbol" of abuse for Afghans, engendering mistrust and resentment. This situation is counterproductive to our efforts to build U.S. relations with Afghans and also serves as a recruiting tool for the Taliban and Al-Qaeda. Without a change in our detention practices, the damage to the United States' reputation may very well cripple any effort to obtain the support of the Afghan people and succeed in this war effort - a shameful miscalculation that the United States can ill-afford as thirty thousand more of our soldiers risk their lives to bring peace to that country.

PTSD Defense via "Selective Empathy": ACS Board member Linda Greenhouse on the Supreme Court overturning a veteran's death sentence.

Huckabee & Clemmons' Clemency: The former governor's persistent defense of clemency for an apparent cop-killer.

Civil Disobedience or Epidemic?: Following the jailing of their colleague, 20 courthouse deputies call in sick.

Crime-fighting with Criminology: Cincinnati's "unusual" approach to combatting gang violence.

Re-Thinking the System: Sen. Jim Webb and other special guests join ACS for a major event on Wed. 12/9 to assess the shortcomings and opportunities in our country's approach to criminal justice.

[Image via Daniel Y. Go.]

Attorney General Eric Holder Jr. announced this morning that the Department of Justice will prosecute some suspected terrorists, held at the Guantánamo Bay military prison, in federal court.

Holder said at a press briefing that Khalid Shaikh Mohammed and four other men, "accused of conspiring to commit the 9/11 attacks" will be prosecuted in federal court. Holder said that Abd al-Rahim al-Nashiri and four other military detainees charged with the 2000 "terrorist attack on the USS Cole," will be prosecuted before a military commission.

"I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years," Holder said. "The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures."

Holder continued, "I want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties. Federal rules allow us to seek the death penalty for capital offenses, and while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."

Holder's announcement drew mostly favorable comment from civil liberties groups that have opposed the use of military commissions.

Human Rights First hailed the "decision to move the trials of the 5 Guantanamo detainees accused in the 9/11 conspiracy from the discredited Guantanamo military commissions and into federal courts to face justice."

The American Civil Liberties Union called the action a "major victory for due process and the rule of law," but also criticized the administration for continuing "to use the illegitimate military commissions system to prosecute some Guantánamo detainees, including the defendant accused in the attack on the U.S.S. Cole."

Today at the Mayflower Hotel in Washington, D.C. the Federalist Society is holding their National Lawyers Convention, but one speaker will be notably absent from the event. Amidst growing calls for a full investigation of torture of detainees in American custody, John Yoo, author of the most infamous of the Department of Justice "torture memos," cancelled his scheduled appearance at the Federalist Society Convention. Yoo's withdrawal is a sign that pressure is building to hold accountable those who provided legal cover for torture.

Yet, while John Yoo has withdrawn from the conference, the lead counsel in his defense, Miguel Estrada, is still scheduled to speak on the panel "Professional Responsibility: The Role of Government Attorneys and the Global War on Terror." An interesting topic given that just last week, Daniel Levin who served from 2004-05 as the acting head of the Office of Legal Counsel in the Department of Justice stated on a panel at American University's Washington College of Law:

"I personally am not opposed to criminal investigation of the conduct of myself and others during the period in question, because I think any government employee is appropriately subject to investigation of their conduct while they are serving in the government."

The Department of Justice has been investigating the infamous "torture memos" since 2004. A report on the findings was expected from the DOJ's Office of Professional Responsibility by June of this year. It was supposedly prepped for release in August when Holder released the Inspector General's report, yet we are still waiting to hear from the Justice Department on exactly who authorized the use of torture by American men and women.

With former DOJ officials in agreement that the conduct of the lawyers in the Office of Legal Counsel who wrote the "torture memos" is worthy of investigation, it is time for Attorney General Holder to act. Alliance for Justice (AFJ) is mobilizing thousands of people to call the Department of Justice today urging the Attorney General to release the long-awaited OPR report and authorize a full investigation of those who ordered, designed, and justified torture. For more information on the memos and the lawyers behind them, see "Tortured Law," a new AFJ documentary.