7 Guantanamo detainees have been returned to Afghanistan and freed.

The AP has conducted an investigation into what happens when these "vicious killers" -- many of whom turned out to be harmless farmers kidnapped and sold to Americans -- are returned.

Through interviews with justice and police officials, detainees and their families, and using reports from human rights groups and local media, The Associated Press was able to track 245 of those formerly held at Guantanamo.

The findings are very interesting. I hope you'll follow the link and read them.

Glenn Greenwald and Scott Lemieux, in their analyses of Judge Robertson's decision in Hamdan, seem to me to miss a glaring flaw in the opinion. Robertson's reasoning on why Hamdan does not have a constitutional right to seek the Great Writ is flawed in its focus. It accepts that an allegation by the executive that a detainee is an enemy alien is sufficient to strip a person of his constitutional right to seek habeas relief. Lemieux writes:

Under the circumstances, the decision is actually about as good an outcome for opponents of arbitrary detentions as could be expected. Robertson held that Congress has not suspended the writ of habeas corpus for American citizens--it lacks the power to suspend the writ because there is not an ongoing "rebellion or invasion."

Actually, I think that is not so. Judge Robertson's reasoning actually puts aliens at much greater risk of lacking habeas rights than they would otherwise have been. I'll explain why I think so on the flip.

Federal Judge James Robertson has ruled in Hamdan v. Rumsfeld that Salim Ahmed Hamdan cannot challenge his confinement at Guantanamo because of the Military Commissions Act passed in September, which prevents the detainees from bringing habeas challenges.

It was Judge Robertson who granted Mr. Hamdan’s habeas petition in November 2004, abruptly halting his war crimes trial in the middle of proceedings at Guantánamo by ruling that the process was fatally flawed.

But in his decision Wednesday, the judge said circumstances had changed fundamentally with enactment of the new law. And not only is Mr. Hamdan barred from a challenge under the habeas statute, the judge said, he cannot follow the usual second avenue to bring a habeas challenge — invoking the Constitution — because it is unclear that noncitizens at Guantánamo have that right.

The opinion is here (pdf). TalkLeft reader Scribe addresses the decision in this diary.

Today, in federal court, the ACLU and Human Rights First argued its case that Secretary of Defense Donald Rumsfeld should be held accountable for the torture and abuse of detainees in U.S. military custody.

Today’s hearing marked the first time a federal court has considered whether top U.S. officials can be held legally accountable for the torture scandal in Iraq and Afghanistan.

Background:

The ACLU and Human Rights First filed the lawsuit in March 2005 on behalf of nine innocent civilians who were detained by the United States military in Iraq and Afghanistan. While in U.S. custody, the men were subjected to abuse, torture and other cruel and degrading treatment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions, death threats, and restraint in contorted and excruciating positions. All of the men were released without charge.

Via law prof Michael Froomkin at Discourse. Net, the Bush Administration is rushing plans for new prison construction at Guantanamo.

The Miami Herald reports:

The Pentagon is invoking emergency authority to fast-track funding of a comprehensive war-crimes court compound at Guantánamo Bay, Cuba, according to a letter to Congress obtained by The Miami Herald.

Department of Defense spokesmen would not say when -- if ever -- the Pentagon had last invoked similar authority.

The text of the Pentagon's November 17 letter attempting to justify the plan is here (pdf.) The proposal itself is here (pdf.)

Froomkin says:

Hard to escape the feeling that the rush here is that once the Democrats are in Congress they won't allow this sort of travesty, and Rumsfeld wants to, as Menachem Begin used to put it, "make facts" on the ground.

I'd add that they are probably going to try to house as many detainees there as possible before January when the Dems take reign. It will be a lot harder to get the detainees out of Gitmo once situated there than it will be to prevent new arrivals.

Two months ago, TalkLeft introduced you to Majid Khan, a Baltimore resident who was detained in secret overseas prisons before he was moved to Guantanamo. Earlier this month, TalkLeft chided the government's effort to preclude Khan's defense lawyers from talking to him.

An editorial in today's Appleton Post-Crescent takes up the cause:

The reason [for preventing contact between attorney and client], as offered by an "information review officer for the National Clandestine Service," is because he was held in a "top secret" program and "may have come into possession of information, including locations of detention, conditions of detention and alternative interrogation techniques." And the government wouldn't want his attorney to reveal any of that information in court because of national security.

So the U.S. captured Khan, put him in a hiding spot for three years, finally allowed him legal representation to — we presume — defend himself, but doesn't let him talk to that legal representation because the U.S. captured him and put him in a hiding spot for three years.

Give it up, President Bush. When you've lost Appleton, Wisconsin, you've lost pretty much everyone.

The Washington Post has a historical review of truth serum. It concludes:

In the 21st century, however, the answer appears to be: No. There is no pharmaceutical compound today whose proven effect is the consistent or predictable enhancement of truth-telling.

It traces the modern day concept of truth serum to the drug scopalamine, and says:

Law Prof Mark Denbeaux and team have completed their report on the review hearings (pdf) undertaken at Guantanamo:

In the wake of the Supreme Court’s decision that the United States Government must provide adequate procedures to assess the appropriateness of continued detention of individuals held by the Government at Guantánamo Bay, Cuba, the Department of Defense established the Combatant Status Review Tribunals (“CSRT”) to perform this mission.

Three detainees at Guantanamo have been released and sent to Albania. It was determined they were no longer enemy combatants. Were they ever?

The Wall St. Journal reports (free link):

John Altenburg said that when he accepted the job as “appointing authority” for the military commissions, he expected Guantanamo trials to start in short order—and that he’d be back at his job at the Washington law and lobbying firm Greenberg Traurig by mid-2005. Instead, the military commissions collapsed under a concerted assault by military and civilian defense attorneys, who eventually won a landmark Supreme Court decision in June declaring the entire project unlawful.

....No one has been selected to fill the slot, and it could remain vacant until the likely new defense secretary, Robert Gates, takes office.

Michael Ratner, President of the Center for Constitutional Rights, the primary group lodging the Complaint in Germany requesting that war crime charges be filed against Donald Rumsfeld, was on Democracy Now today.
A portion of the transcript (with my emphasis):

AMY GOODMAN: We go first to Michael Ratner, the president of the Center for Constitutional Rights, joining us now from Berlin. Democracy Now! welcomes you, Michael. Can you explain the lawsuit and the major news conference that you held today? The world, for the first time, really, picking up this story.

MICHAEL RATNER: I think that's right, Amy. This is the first time they're really picking it up. The press conference was well attended. This is news all over the world. I mean, one of the things we noticed wbout this lawsuit was the number of groups willing to join. The Center for Constitutional Rights, we have a major group of human rights organizations under the title FIDH, the International Federation of Human Rights, which has 140 branches. We have Theo Van Boven, the former rapporteur for the United Nations on torture has joined the suit, Nobel Prize winners and others. It's really -- it’s taken off. I think people are tired, really tired and angry over what the United States has perpetrated in the name of fighting the so-called war on terror.

The ACLU reports today (received by e-mail):

In response to an ongoing lawsuit brought by the American Civil Liberties Union, the CIA has acknowledged the existence of two documents authorizing it to detain and interrogate terrorism suspects overseas. For more than two years, the CIA had refused to either deny or confirm the existence of the documents and had argued in court that doing so could jeopardize national security.

....The two documents in question are a directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees, and a Justice Department legal analysis specifying interrogation methods that the CIA may use against top Al-Qaeda members.

You can view the disclosure letter from the CIA here.

ACLU Executive Director Anthony Romero notes: