May 9, 2004 Gail Davidson Vancouver, British Columbia Lawyers Against the War (LAW) http://www.lawyersagainstthewar.org/ Hi Gail, This will be a bit rough. Here is my last status report from September 16, 2003. http://pegc.no-ip.info/_UPDATES_/PEGC_20030916_project_status.txt A lot has happened since then, and I will try to summarize briefly in terms of a) cases of interest, and b) project activities. CASES * Al Odah / Rasul, Hamdi, and Padilla are all submitted for decision by the Supreme Court. The oral arguments went pretty well, and the government was thoroughly outclassed on briefs. The two most significant briefs from PEGC's narrow perspective were the OMC Defense Counsels' brief in Al Odah, which pretty well demolished the idea that Guantanamo Bay is out of US jurisdiction and also discussed 18 USC 2441 at some length -- stopping just short of addressing the actual criminal offenses being committed. Then there was my own brief, which was an absolute nightmare to write, but turned out pretty well in the end I think; but then went through six weeks of high anxiety in the clerk's office because they refused to accept a pro se filing -- despite the fact that there is in fact no bar to it in the rules. In the end, Don Rehkopf, who is the co-chair of the NACDL military law committee and is also civilian defense counsel for Senior Airman Al Halabi who is on trial for "espionage at Guantanamo" saved the day by volunteering to join my brief as Counsel of Record pro bono publico. What the court will think of my brief is anyone's guess, but if they read it I don't see how they could honestly ignore 18 USC 2441 or pretend that the Geneva Conventions are not in force. The Gherebi case is stayed pending the outcome in the others, and will probably come forward in the Fall. My analysis of the likely results is that a) I don't see how the court can possibly rule in favor of the government in any of these cases, because the government took such an extreme (and utterly dishonest!!) position that I don't see how any honest judge could "defer" to it -- yet it's very likely that at least two of them will, namely Thomas and Scalia. But I also doubt that they will come down with a clear ruling in favor of the detainees, except for Padilla perhaps. I think the most likely result is they will try to find some "balanced compromise" in each case which grants the detainees at least some relief. Depending on the particulars, I would expect 6-3 or 7-2 majorities if the compromise leans in favor of the detainees, 5-4 with the liberals in the minority writing furious dissents if it leans the other way. But who knows? I do think the Abu Ghraib scandal has very likely doomed the governments case, indeed, I think that the scandal is the beginning of the end for the administration, though sadly, the Republican Party is still stubbornly making excuses and lying for them and a lot of people are still swallowing the BS. But I've been watching them unravel for two and a half years now, and both their credibility and their policies are utterly bankrupt. If the people just wake up and get the real picture there could be a democratic landslide, but sad to say, the people just aren't very well equipped to see reality. * The Guantanamo "Espionage Cases" The prosecution in the Yee case self-destructed. Yee was exonerated, but ordered to be silent. It looks a lot like the Al Halabi case is headed for the same result -- the next hearing is Tuesday, and Don Rehkopf appears to be licking his chops. I'm actually going to try to attend in person since it's local. Al Halabi and Yee are friends and worked together at Gitmo. the Al Halabi team wants to depose Yee but the government is doing everything they can to stonewall them. Mehalba is being held without bail in Boston... not sure when his trial starts. These cases are of continuing interest to me because I definitely smell a rat, and I suspect it ties in directly with what's coming to light at Abu Ghraib. I think these folks were prosecuted to shut them up or to make examples of them -- and I have yet to see anything that made me think they were spies. The strongest smell I get is that they were framed. * Swift v. Rumsfeld There will be a ruling on the governments motion for a stay pending the outcome in the supreme court on Monday. From what the judge said Friday and the state of affairs over Abu Ghraib, I think the trial will go forward. I've been considering trying to intervene... but decided to wait and open contact with Prof. Neal Katyal of Georgetown Law, who is co-counsel with Swift and also acted as Counsel of record on. A copy of the letter I sent him is attached below, and he responded with some interest, so we're discussing a few things. * Abu Ghraib No surprise to me, but huge because it finally broke the indifference of the press and the public to reality. The President and Vice-President clearly bear the ultimate responsibility: all of this nonsense is based on the false authority of the 11/13/2001 "military order" that caused me to start my project, and it has the President's signature on it. If they survive this, it won't be their fault, it will be the fault of the press and the public. The Republicans are trying to do damage control and setting up Rumsfeld as a sacrificial lamb -- which is actually good because it's just going to make them all look worse in the end. They are in a death spiral. I mean to see them all in prison one day. * The CIA leak No news here, but see my letter to Katyal. I am still thinking of trying to contact the prosecutor in the case with my evidence, but events have slowed me down, and now Abu Ghraib has me recalibrating everything. * 4th and DC Circuit misconduct complaints Still haven't filed these, but I still might. I doubt they will get any traction, so I haven't wanted to spend time on them, but on the other hand, I really would like to let the judges know that I care. So then there is the project. * The Web site has been less visible since my silly problem with the phone company because Google quit indexing me, but it's still there, it's still got a ton of information, and I continue to maintain the news digests and archive. And this week I got a huge break by being linked on Juan Cole's site and Google has now resumed indexing the PEGC site. * The PEGC Updates have been very successful -- I get a lot of very positive feedback on them. There are still only about 70 people on the distribution list, but it's a very select audience that includes a number of the attorneys that are directly involved in the various cases, and some key people at various rights organizations, including the ICRC in Geneva and Washington. * The investigation... I've got more than enough evidence, and now Abu Ghraib is blowing the doors off. The problem remains the same: how to bring the charges and make them stick. * The future... I'm about six months away from going broke. That means I need to find a job, a grant, or incorporate as a non-profit and raise funds -- and I've talked to a few people locally about the last two, but the thing is I need help with it. Fund raising just isn't something I'm good at, and it takes time -- and the project takes up most of my time, and I still think it's more important than I am -- the stakes right now are just immense. But I also see a need for the Geneva Project long term, and it really should be a small non-profit with at least part time legal staff, an administrator, and a small staff of dedicated researchers / writers / investigators. The major human rights orgs have a weakness: they are all afraid of getting the government mad at them. Amnesty and HRW have done a great job documenting the violations, but even now they weakly call for reforms when they should be demanding prosecution under 18 USC 2441. What I have in mind is sort of a Simon Weisenthal operation but focused on IHL violations in general and direct legal action aimed at forcing prosecutions under domestic laws. And that's one other task on my plate right now. I am going to present a copy of my amicus brief to the ICRC for their archive -- and when I do, I am going to make some recommendations for improvements to the Geneva Conventions based on the problems we've seen in the habeas cases. So I don't know what you are meeting about, but there are two things you might consider in regard to PEGC.... perhaps LAW would be interested in incorporating and taking over the PEGC name? Perhaps someone knows someone who gives grants to worthy causes or would be willing to join me as a fund-raiser? I've never asked the people on my list for money, but I do think I could get some.. and I also think that we could expand the list pretty quickly if I had someone to help me with that end of things. Or maybe someone knows someone who could use a good researcher / analyst / polymath and is hiring?? Regards, Charly * * * Charles Gittings Oakland, California cbgittings@sbcglobal.net +1-510-923-1688 Project to Enforce the Geneva Conventions (PEGC) http://PEGC.no-ip.info/ PEGC Update http://PEGC.no-ip.info/PEGC_Update.html