Warren Hill Too Mentally Disabled To Execute, But …

Warren Hill

Warren Hill

Warren Hill, who came within an hour of being executed by the state of Georgia in February, has filed a habeas petition at the US Supreme Court.  It was the Supreme Court that banned execution of those with “mental retardation” in 2002, although it was left to the states to decide how to determine a defendant’s intellectual disability.

As you may recall from previous posts, Warren Hill was found to be “mentally retarded” by a “preponderance of the evidence” by a Georgia state judge. This finding would have exempted him from execution in other states. But Georgia, and only Georgia, requires proof of “mental retardation” to be “beyond a reasonable doubt.”

Earlier this year, the three mental health experts who had originally testified for the state – thereby creating “reasonable doubt” about Hill’s “mental retardation” claim – took a second, deeper look, and they now agree that Hill is in fact disabled to the extent that it would be unconstitutional to execute him. So now that all 7 experts who have examined him are of the unanimous opinion that Hill is “mentally retarded,” his lawyers have gone back to court to establish that the “beyond a reasonable doubt” threshold has been reached.


A Tale of Two Taliban

(Originally posted on Daily Kos)

In the last month, a spotlight has fallen on two sharply different terrorism cases that illuminate the best and worse of America’s efforts to defeat Al Qaeda:

  • The case of Mohammed Jawad, conducted with the gloves off, is a disaster.
  • The case of Bryant Vinas, conducted within the law, appears to be triumph.

Mohammed Jawad was detained in Kabul in December 2002 after a grenade was thrown at US soldiers, injuring three members of a patrol. Jawad’s age has not been established with any degree of certainty but it is not disputed that he was a minor at the time of the attack. According to Afghan government, he may have been as young as twelve.

Although the US government has yet to produce any credible evidence that Jawad was responsible for the attack – in July 2009 US District Court Judge Ellen Huvelle described the government’s case as “an outrage” and “riddled with holes” – he was labeled as a terrorist and eventually transferred to Guantanamo Bay. Read Amnesty International’s report on Jawad’s case.

Jawad was subjected to a range of so-called enhanced interrogation techniques including forced sleep deprivation and physical abuse. Judge Huvelle, who eventually heard Jawad’s habeas corpus petition, threw out every statement he made in US custody as “a product of torture”. On July 30, she ordered that Jawad be released by August 21.

Jawad has been illegally detained for more than six and a half years. Worse still – the United States tortured a child. And for what? Jawad could offer no actionable intelligence. The government can’t even prove he committed a crime. His detention has cost the American taxpayer hundreds of thousands of dollars. It is a lose-lose scenario emblematic of the dark side approach promoted by Dick Cheney.

Bryant Neal Vinas, alias Bashir al-Ameriki, a twenty-six year old Hispanic man from Long Island, converted to Islam in 2004 and travelled to Pakistan to make contact with Al Qaeda in late 2007 or early 2008.

Vinas received weapons training from Al Qaeda with a particular concentration on explosives. In September 2008, he took part in a rocket attack on a US military base in Afghanistan.

Vinas even agreed to undertake a suicide bombing, although his handlers let him off the hook. He was, in short, a terrorist who engaged in hostile acts against the United States.

In November 2008, he was arrested in Peshwar by the Pakistani authorities. Because Vinas was an American citizen he was not shipped to Guantanamo or Bagram but instead treated like an ordinary criminal and transferred to the custody of the FBI.

Vinas’ case was handled entirely within the American criminal justice system. He was interviewed by FBI investigators within the constraints of domestic US law and with all the protections that the US constitution affords US citizens.

Operating within these constraints experienced FBI agents were able to persuade Vinas to cooperate with the US authorities and provide valuable and timely intelligence regarding potential terrorist plot.

Federal prosecutors were able to build a strong case against Vinas successfully charging him with conspiracy to murder U.S. citizens, providing information to a terrorist organization, and receiving “military-type training” from a Al-Qaeda.

Vinas eventually pled guilty to these charges. He has agreed to appear as a key witness in a number of other terrorist trials and is currently a protected witness in the federal witness protection program living inside the United States.

What a contrast exists between these two cases – one effectively and efficiently handled within the law and the other, a Kafkaesque nightmare in which a minor has been abused and incarcerated for more than six years to no purpose whatsoever.

These two cases could not make it any plainer. Our criminal justice system not only can handle complex terrorism cases, it actually does a substantially better job of it than the cack-handed shadow warriors unleashed by the Bush administration.

The real tragedy is that this lesson seems to be lost on the Obama White House. Jeh Johnson’s admission before Congress that the administration may consider detaining individuals acquitted by the Military Commissions seems to set the stage for further miscarriages of justice and for yet further damage to America’s battered international reputation.

We don’t need to keep going down this path. There is a better way. We know how to do this smarter and we know how do this right. Just ask Bryant Vinas.

Obama Embracing Bush Legacy

The Obama administration is reportedly close to finalizing the outlines of a new preventative detention regime likely to be crafted along the lines proposed by Matthew Waxman in a paper released last week by the Brookings Institute.

Waxman’s paper tries to reconcile the supposed need for some form of administrative detention without trial with the Supreme Court’s Boumediene v Bush decision affirming the habeas rights of Guantanamo detainees and he proposes introducing legislation to create a new category of administrative detention subject to periodic judicial review.

An increasingly familiar pattern is once again being repeated. The administration ‘discovers’ that the issues it is facing are tougher than it had anticipated, sees some merit in the approach adopted by the Bush administration, promises to make some minor adjustments to preexisting conditions, and finally undertakes to implement this revised policy with a sensitivity the previous administration lacked.

However, such changes amount to little more than putting lipstick on a pig. Closing Guantanamo was always going to require taking some unpopular and morally courageous decisions but the President who declared in his inaugural address that he rejected the false choice between our safety and our ideals has sadly gone AWOL.

To codify administrative detention would be to perpetuate a system that has to date incarcerated more innocent people than it has men of violence on the basis of half-truths and innuendo.

The ordered release last week of Syrian-born detainee Abd Al Rahim Abdul Rassak al Janko provided further proof of the flimsy grounds on which many of the detainees at Guantanamo have and continue to be held.

Al Janko freely admitted staying for five days at a guest house run by Al Qaeda in 2000 and for a further 18 days at an Al Qaeda-run camp as a refugee making his way towards Europe. However, Al Qaeda militants suspected Al Janko of being a US spy and he was detained for three months and tortured until he admitted to these charges.

Al Janko was then handed over to the Taliban and imprisoned for a further 18 months. Having nowhere else to go, he remained behind in the prison after it was abandoned by the Taliban and was discovered there by US forces when they occupied Kandahar in the fall of 2001.

US soldiers also found a video which showed Al Janko being tortured by members of Al Qaeda. In true Kafkaesque style the video has been used by government lawyers as proof of his association with the group.

The Al Janko case demonstrates that arguments that the Obama administration will do a better job of separating the wheat from the chaff than their predecessors hold little water. In his scathing dismissal of the case, District Court Judge Richard Leon described administration lawyers as “taking a position that defies common sense” and it should be noted that this administration has fought Al Janko’s release tenaciously through the courts despite its manifest flaws.

We should not ignore the fact that it took a real court to make an effective determination about Al Janko’s status, and that this administration flunked that same test. Creating a legal framework for indefinite detention is a profound mistake. Since 1783 there has only been one standard in the United States for incarceration and that is conviction in a court of law.

Twice before in our history this standard has been ignored in times of crisis – during the Civil War and during World War II. The suspension of habeas corpus and the internment of Japanese Americans left a lasting stain on two of America’s most successful presidencies. The detention regime created at Guantanamo by President Bush added a third to a rather less illustrious presidency.

It is not too late to prevent the Obama administration repeating this mistake. Amnesty International USA has launched an online action campaign to petition President Obama to reconsider. We need your help to prompt a change of direction before fear mongering once again overcomes the angels of our better nature. Please visit our site today and add your voice to the thousands already raised in protest.

Another Blow to Illegal Detention

Judge John Bates took a stand for human rights and common sense when he ruled yesterday that foreign prisoners held in the U.S. prison at Bagram airbase in Afghanistan who had been brought there from outside Afghanistan may challenge their continued detention in the U.S. courts.

The petition before the U.S. District Court had been brought by four inmates at Bagram seeking to extend the Supreme Court’s Boumediene decision, that recognized habeas corpus rights for detainees at Guantanamo, to detention facilities in Afghanistan.

The four inmates include Amin al-Balri, a Yemeni national, who was detained in Thailand; Redha Al-Najar, a Tunisian, who was detained in Pakistan; Fadi al Maqaleh, a Yemeni national, who was detained in an undisclosed location outside Afghan borders; and Haji Wazir, an Afghan national, who was apprehended in Dubai.

Judge Bates noted that three of the four petitioners had no connection with Afghanistan prior to their transfer to Bagram. He added that although practical obstacles existed in resolving a detainee’s right to habeas corpus in a war zone, these obstacles were of the U.S. government’s choosing since it had opted to render them to this location:

“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Applying the functional, multi-factor, detainee-by-detainee test mandated by the Supreme Court in its Boumediene decision, Judge Bates upheld the habeas rights of all but Haji Wazir. Disappointingly, the judge held that as an Afghan national, even one apprehended outside the country, Wazir could legitimately be held as an enemy combatant.

However, the process used by U.S. forces in Afghanistan for determining whether an individual can be classified as an enemy combatant was also criticized, with Judge Bates labeling it “inadequate” for the task at hand and even less thorough than the discredited Combatant Status Review Tribunals established in Guantanamo.

Although Judge Bates did not seek to expand the scope of his ruling beyond the petition before him, it can nevertheless be seen as a body blow to the global war doctrine previously espoused by the Bush administration.

If the judgment stands, individuals detained outside a military theater – for example, the fictional terrorist financier in the Philippines posited by Senator Lindsay Graham during Solicitor-General Elena Kagan’s confirmation hearing – should henceforth be destined for the criminal justice system rather than a prisoner of war camp.

Furthermore, an unsubstantiated accusation will no longer be enough to condemn such a detainee to endless years in limbo. Thursday was not just a good day for the Constitution of the United States, it was a red letter day for the Magna Carta as well!

Troy Davis Gets Hearing

The U.S. Court of Appeal for the Eleventh Circuit has scheduled oral arguments for December 9 in the case of Troy Davis.   This was something that Davis’ lawyers requested, and that the state of Georgia argued against.

The main question before the Court will be whether Davis has met the conditions required to file a second, or successive, habeas corpus petition; the underlying question, of course, is whether Davis is innocent.

Stay tuned …

"A Hole in the Law?"

Earlier today, the Supreme Court heard oral arguments in Bell v. Kellya Virginia case that has important implications for death penalty litigation.

The issue in the case is complex.  Under federal law, federal courts are required to give great deference to state court rulings on claims raised in a federal  habeas petition that have already been adjudicated in state courts.  So, a federal court will NOT consider whether the state court’s decision was right or wrong, but only whether it was “unreasonable”. 

But what if the petitioner brings new evidence on a claim to the federal court, evidence the state court never considered?  Does the federal court still have to be deferential, despite the fact that it has more information at its disposal?  Or can it proceed as if the claim is new, and rule on its merits, not just on the reasonableness of the state court’s judgment?

Bell is claiming that a federal court wrongly deferred to a state court’s ruling on his claim of ineffectiveness of counsel.  Bell argues that although his claim was heard by a state court – which denied him relief – the ineffectiveness of counsel claim he raised in the Court of Appeals for the Fourth Circuit was based on new evidence and thus should have decided on the merits.  Instead, the Fourth Circuit – erroneously, Bell contends – deferred to the state court’s original ruling.  Essentially, the new evidence was never a factor.

So, in a somewhat spirited debate, the Supreme Court today faced an important question: 

If the Court rules in favor of Bell, there is a risk, as Justice Alito noted today, that prisoners’ attorneys will simply need to “find some additonal mitigation evidence” to get a review on the mertis.  Yet, if the Court finds this risk to be too great, and rules that the Fourth Circuit was right to defer to the state court’s judgment, there is a risk that legitimate new evidence will never be heard by a federal court.  This, as Justice Souter suggested today, would be “a very clear hole in the law.”  If the Court accepts that this hole exists, it will be more difficult in future cases to have new evidence heard, or to overturn state court judgments that are not clearly unreasonable (even if they might be wrong).