Transcripts For WHUT Democracy Now 20130222

Further participation. Terror courts rough justice at Guantanamo Bay. Today, and our special with former military prosecutor the tennis shirt stuart couch. Well speak with wall street journal jess bravin, author of the after this of timber 11 attacks. All of that and more coming up. This is democracy now , democracynow. Org, the war and peace report. Im amy goodman. The number of gun deaths that have taken place in the United States since the december shooting rampage in newtown, connecticut has topped 2100. The website slate along with the twitter feed said that documented 2141 deaths in just over two months. That is more than 79 newtown massacres. Meanwhile and analysis by usa today has found more than 900 people died in Mass Shootings over the past seven years, most killed by people they knew. Those mass killings accounted for less than 1 of all gun related homicides. The director of mayors against illegal guns told the paper in the latest violence making headlines, three people died after shooting sparked a fiery crash in las vegas, nevada thursday. Authorities say a maserati collided with a taxi after the sports car driver was hit by shots fired from another vehicle. Among those killed was the rap artist kenneth cherry jr. , known as kenny clutch. On thursday, Vice President joe biden continued his push for lawmakers to take action on gun control the speech in danbury, connecticut where he met with families of the newtown shooting victims. I can imagine how we will be judged as a society if we do nothing. I can predict what will be written of us 20, 30 years from now if we dont act. When i think about all of the courage to have shown, it is not too much as the political establishment in this country, democrats and republicans, state legislators, governors, to show some political courage, too. India has suffered its worst bombing after a series of blasts killed 16 people. The bombs were detonated close together in a crowded shopping area. Dozens of people were wounded. Officials there are reportedly probing whether a militant group is behind the attack. The governments recent execution of it and islamist militant is seen as a possible motive. The syrian capital of damascus has seen one of its bloodiest days in nearly two years of fighting between Government Forces and rebels seeking the ouster of president bashar al assad. The death toll from a series of bomb blasts in the city thursday as risen to a least 83 people, most of them civilians. The syrian observatory for human rights said more than 60 of the victims died in a blast that apparently targeted the Ruling Baath Party headquarters. More than 20 more were killed by three other car bombings in the northern district, most of them soldiers, according to the group. Hundreds of people were injured in the attacks. The u. N. Announced thursday that u. S. Arab league envoy Lakhdar Brahimi will continue attempting to broker peace in syria, at least through the end of the year. The nine nations refuse to pay compensation to victims of cholera in haiti despite claims it is at fault for an epidemic that claimed nearly a thousand lives. The cholera outbreak that sickened roughly 620,000 haitians has been linked to u. N. Peacekeepers who responded to haitis devastating 2010 earthquake. But the u. N. Says it will not pay hundreds of names of dollars sought by thousands of victims and family members. The u. N. Spokesperson made the announcement thursday. In november 2011, a claim for compensation was brought against the United Nations on behalf of victims of the cholera outbreak in haiti. To date, the United Nations advised the clemens representatives that the claims are not receivable, pursuant to section 29 of the convention and the privileges and immunities of the United Nations. The secretary general again expresses its profound sympathy for the terrible suffering caused by the cholera epidemic and calls on partners in haiti and the International Community to Work Together to ensure Better Health and a Better Future for the people of haiti. The lead lawyer for the cholera victims, mario joseph, responded to that announcement saying lawyers defending five prisoners on trial for orchestrating the 9 11 terror attacks will be allowed to visit their clients in their topsecret guantanamo prison compound for the first time, the judge ruled thursday. The suspects including accused 9 11 mastermind Khalid Sheikh mohammed are jailed in camp 7, a maximumsecurity facility reserved for those formerly held in secret cia prisons overseas. All five of the men were held in such prisons abroad and reportedly tortured before arriving at guantanamo in 2006. Defense lawyers had asked for permission to stay for two nights in cells next to their clients in order to witness conditions there. A judge rejected the request but said they can stay for up to 12 hours. Well have more on guantanamo is we spend the hour with one of the First Military officers assigned to prosecute prisoners there. Nato leaders are reportedly considering a plan to continue funding an Afghan Security force of 352,000 troops for another four years, reversing previous plans to reduce afghan troop levels at the end of 2014. The cost of funding the current number of Afghan Security forces is roughly 6. 5 billion per year, the bulk of its is provided by the United States. A plan backed by nato last year would have reduced the number of Afghan Security forces by roughly one third, cutting the annual cost down by about 2 billion. But nato officials now appear to be wavering on that plan, saying funding at the current troop levels could continue after foreign combat troops leave next year. Nato secretarygeneral Anders Rasmussen said no decision has been made but stressed the plan would be economically feasible. I felt confident that we will be able to finance Afghan Security forces of that size. We set the goal to reach the level of 352,000 Afghan Security forces, soldiers, and police. And the International Community has pledged to help finance that because a Security Force of that size goes will be on the Financial Capacity of the afghan government. In the u. S. , a powerful winter storm is moving northeast after blasting much of the countrys midsection thursday. Parts of nebraska, oklahoma, and kansas saw more than a foot of snow. Wichita, kansas saw the second highest of all on record with more than 14 inches over two days. In another sign of climate turmoil, government forecasters say drought is continuing in more than half the country and is expected to persist or deepen. More than twothirds of the u. S. Is currently classified under conditions ranging from abnormally dry to exceptional drought, according to the National Oceanic and atmospheric ministration. Russian Police Detained two University Professors who donned a lot of us inside moscows bank of the drug thursday in honor of the russian punk group pussy riot. Video footage shows the women laying flowers on the altar before having their masks yanked off by security. Thursday marked the First Anniversary of pussy riots protest outside christ the savior cathedral where they saying a punk prayer condemning russian leader vladimir putin. Two members of the group are serving twoyear terms for the protest in remote penal colonies. A third member was released on appeal. She spoke outside the church about the impact of their protest a year ago. The situation in russia has changed. First of all, a lot of people learned about this problem, this people earlier who did not attention to social problems, problems with the church withputin. They saw the court process, how he sat in the aquarium, so much injustice happen. Now many are critical of putin the state authorities because they see all this injustice. A judge presiding over the case of accused hacker Jeremy Hammond has opted not to recuse herself from his case despite claims she is a conflict of interest. Jeremy hammonds attorneys had filed a motion for judge Loretta Preska to step down, saying her husband was a kind of stratfor, the private Intelligence Firm hammond is accused of targeting. Hammond could face a life term for lead to turning over millions of stratfor emails to wikileaks. In a statement from solitary confinement this week, have responded to the suicide last month of fellow Internet Freedom activist aaron swartz, who was weeks before a trial date for downloading a trove of articles from the nonprofit jstor. Jeremy hammond wrote newly obtained documents meanwhile show how the fbi had closely monitored aaron swartz, collecting information from his social media profiles, tracking his blog posts, and at one point seeking to locate aaron swartz, his vehicles, drivers license information and pictures. New Research Says Corporate News outlets largely ignored sundays massive Climate Change rally in washington, d. C. , which organizers had called the largest in u. S. History. Tens of thousands of people rallied against the keystone xl will pipeline and in favor of curbing Greenhouse Gas emissions. But the Group Fairness and accuracy in reporting said none of the sunday talk shows that they even mentioned the protest. Abc world news and cbs evening news each gave less than 50 words, what the washington protests covered the protest. The New York Times limited its coverage to a business section story about the political implications of president obamas decision on whether to approve the pipeline. Fair wrote the former owner of a georgia Peanut Company and several of its employees have been indicted on felony charges over a salmonella outbreak that killed nine people and sickened more than 700 in 2009. Federal prosecutors said the peanut corp. Of america knowingly shipped contaminated peanut products around the country, sparking one of the deadly salmonella outbreaks in u. S. History. Honor Stewart Parnell and three others are accused of misleading customers after lab tests found salmonella in their products. After being informed containers of peanut meal were covered in rat feces and dust, parnell reportedly wrote clean them all and shipped them. A new study has found one third of all seafood samples taken across the u. S. Are fraudulently labeled. In some places, roughly half the samples were found to be a different type of fish than customers thought they were buying according to the group oceana, which tested more than 1200 seafood samples. Certain types of fish were more commonly mislabeled than others. The out of 120 samples of red snapper, only seven were labeled correctly. The group found this species that are considered potentially risky for pregnant women and children because of their high mercury content were being sold to customers who ordered safer types of fish. Report author Kimberly Warner described the findings. The most troubling substitutions we found were for a species that can cause health problems. Our prime example was we found one that we should have been quite hundred 84 was actually a skylark, which is something that can cause acute and serious adjusted affects if he or the just a couple of ounces. Rock this is democracy now , democracynow. Org, the war and peace report. Im amy goodman with juan gonzalez. Welcome to all our listeners and viewers from around the country and around the world. Today we spend the hour taking an inside look at the Guantanamo Military prison where 166 men remain locked up. Many have been held for over a decade without charge. Our first guest today was one of the First Military officers assigned to prosecute prisoners at guantanamo. Stuart couch joined the marines in 1987, enrolled in moscow, become a military prosecutor and rose to the rank of Lieutenant Colonel. He eventually left active duty but returned after the september 11 attacks. A friend of his, michael horrocks, died on september 11. Horrocks was the copilot of United Airlines flight 175 from the second airplane hit the World Trade Center two months after the attacks, president bush issued an order creating military commissions to try prisoners captured abroad. The 10 a kernel patchs first assignment was the prosecution of a man named Mohamedou Ould Slahi. A one. Mohamedou ould slahi was described as the highest value detainee at Guantanamo Bay. The case would change the life of couch of him at the center of a National Debate around torture, interrogations and ethics. His story is featured in the new book, terror courts rough justice at Guantanamo Bay. It is by wall street journal reporter jess bravin. Later in the show, we will be joined by jess. First, lieutenantcolonel stuart couch joins us from Charlotte North Carolina where he works as an immigration judge, to democracy now talk about the first day you went to guantanamo and what you found. It was in october 2003, shortly after i had joined the office of military commissions. On that particular day, i was waiting to watch the interrogation of one of the detainees who had been assigned to me to prosecute his case. This was a detainee particularly cooperative and involved in some very serious activities in the gulf region. As i was waiting in a room next to his interrogation room, i heard some loud heavy metal rock music playing down the hallway. I went to investigate. I thought it was a couple of guards that were off duty and did not realize we are getting ready to conduct the interview. So i walked down a hallway and as i reached the room where the source of the music was coming out, the door was cracked. I looked into the room and all i could see was a strobe light flashing. The rest of the lights in the room were out. From the flashing strobe lights, i could see a detainee in orange cid did seated on the floor and shackled hand to feet and rocking back and forth. There were two civilians who asked me what i was doing. I said, i am lieutenantcolonel couch. You need to turn that down. What is going on . They basically told me to move along and shut the door in my face. There was a judge advocate reservist with me and i said, did you see that . His Immediate Response was, well, yes, that is approved. That there was evidence of course interrogations going on in guantanamo. What did you do at that point . A started mulling it over. For me it was a degree of a flashback. Before i become a lawyer, i was a naval aviator in the marine corps, a c130 pilot. Part of that training as an aviator we were sent to a School Called sear school, conducted by barista perlman of the fence and into these to help train aviators for how to conduct themselves if there ever taken into captivity by the enemy. Basically, the course is based upon Lessons Learned of the treatment of aviators in the war in vietnam and also the treatment of our own pows the suffered in korea. And so what i saw occurring on that day in october 2003 was right out of the playbook. It was precisely the same treatment i had received their and so having had that experience, my immediate concern was if this is how the evidence is been collected in some of our cases, it is going to be inadmissible brief as it is going to be at least coercive and out worst torture that precipitates that information. So its that time i was still becoming acquainted with the military commissions process that had been set so at that time most of becoming acquainted with the military commissions, a process that have been set up, the rules. The evidence. It was significantly different than what i was used to both in civilian and military court martials. In my view, this incident sort of crystallized for me very quickly that their report on the problems with some of the evidence we were to use. This was in 2003 before the of a great photos were revealed to the world and where before there was real discussions of possible mistreatment or torture of prisoners in u. S. Custody. Could you talk about when he began to get the case of Mohamedou Ould Slahi and what you found as you begin to deal with that particular case . Not long after i join the office in august 2003, the Mohamedou Ould Slahi case was presented to me. To our knowledge at that time, he was one of the very few detainees held at Guantanamo Bay that had a 9 11 connection. As i was studying over the different statements that he had made, the intelligence reports that had come out of his interrogations, i could see a trend where he was uncooperative for a long time, but then beginning in the later part of the summer of 2003, i saw where he began to give up significant information. Again, as a prosecutor, my view was past conduct. What evidence i had a past conduct, and what was going to be his connection of 9 11, if any. The vast majority virtually all of the evidence i have against him at that time were his own statements as well as statements of another detainee. To determine the veracity of that information, i had to find out, why is he saying the things he is saying about his own conduct . I applauded it out over a chart on a timeline and i could see a definite point where he went from giving no information given a lot of affirmation. He went from giving no information to getting a lot of information. If these were the kinds of interrogation techniques applied to Mohamedou Ould Slahi corp. , then we might very well have a significant problem with the body of evidence we were able to present as to his guilt. Could you go into details of some of his interrogations and what they reported . At that time, i was not privy to what it thinks were applied in his interrogations. All i had were the intelligence reports that came out that stated what emissions he had maine. I do want to make sure i am clear on this that none of the information im going to talk about today is classified at this point. It has all been subject to congressional inquiry and is a matter of congressional record. I requested information to tell me, ok, give me the circumstances of the interrogation and interviews where Mohamedou Ould Slahi was giving this information, again, in preparation for the day down the road that i would have to present this evidence in court with the concern of this is the credibility of the information. That information was not provided to me. I had a criminal investigator that was working on this case. As we began to discuss these matters, he had the same concerns that we might have a problem with the evidence. I would note he is also a former marine as well. We have a lot of commonality on how we view the world. This criminal investigator had unofficial sources of information on the intelligence side. It was kind of this dividing line between the Law Enforcement efforts at guantanamo and the intelligence efforts at guantanamo. My investigator had sources of information on the intelligence side, and he was able to start receiving documents and information that painted, for like a better term, the rest of the story. In other words, what was the nature of these interrogations. And that information was coming out piecemeal. Over the subsequent eight or nine months, it became clear that what had been done to Mohamedou Ould Slahi amount to torture, specifically he had been subjected to a mock execution. He had since rigoberta nation. He had environmental manipulation, that is, cell too cold or hot. At one point he was taken off of the island and driven around in a boat to make him believe he was being transferred to a foreign country for interrogation. E was presented with a ruse that the u. S. Had taken custody of his mother and brother and were being brought to guantanamo. It was on a letter with fake letterhead from the state department, i believe it was. In the letter, there was a discussion that his mother would be the only female detainee held at guantanamo and concerns for her safety. So any one of these individual things i dont believe it is as a legal matter rose to the level of torture, until i got evidence of an email between one of the officers responsible for the guards who were guarding slahi and a military psychologist. There was this discussion over this email about the fact slahi was experiencing hallucinations. And the psychologist, and she was giving her opinion as to this concern raised, it was clear to me she was aware the circumstances of slahis detention had been set up to where he would experience these types of mental breakdown. At that point i am done some research. We had another lawyer in the office, another prosecutor it was very experienced in international law. I discussed the issue with him. Under the United Nations convention against torture and other cruel, inhuman or degrading punishment or treatment, it is a treaty that was ratified by the u. S. And 1996, and under that tree there is a definition of torture. Under that definition of torture, it includes mental suffering. As i put it altogether what i saw was the fact slahi only began to give information after all these different interrogation techniques have been applied to him and i can to the occlusion we had knowingly set him up for mental suffering an order for him to provide information. He was also sexually humiliated . He was. The evidence i saw apparently, he had an issue about the fact he had been unable to import and his wife impregnate his wife. The interrogator somehow learn that and again to capitalize on that with various issues related to sexuality. There was a room set up with photographs of male and female genitalia on the walls, a baby crib, just some kind of, you know, bizarre types of efforts related to his sexual hang up, if you will. Were going to take a break and come back to this discussion and the joint as well as with lieutenantcolonel stored couch, by the author of the book called, terror courts rough justice at Guantanamo Bay. Jess bravin from the wall street journal will join us. Back in a moment. [music break] [laughter] [applause] this is democracy now , democracynow. Org, the war and peace report. Im amy goodman with juan gonzalez. Stuart couch, if you could, talk to us about your decision to tell your superiors you did not feel you could prosecute this case because of the issues of possible torture . Well, juan, it was sort of an incremental thing. I was receiving this information from a criminal best to gator that he was bleeding from his unofficial sources. After setting the tonesetting the u. N. Torture provision, i found was an article that said any evidence derived as a result of torture was inadmissible in any proceeding. And so i was trying to figure out, ok, what is any proceeding . As i could tell from the source material behind you and torture convention, i came to the legal conclusion that included a military commission as we were conducting them at that time under the order of november 2001. I then turned to the ethical concern about what information did i need to be able to turn over to a defense counsel defenseslahi in the future . I would note at that time slahi not have Defense Council because we not gone through the formal process of bringing a charge against him. I reviewed the pertinent ethical obligations. Under the discovery provisions of the president s military order at that time, it was evidence of his guilt known to the prosecution and the detainees would have a full and fair trial. So it was a very broad construct, if you will, for discovery. As i looked at the ethical obligations that we have in the u. S. Under the aba model rules and specifically under the rules of professional conduct, the bar and the state of north carolina, i concluded if i was in possession of information that is given to his defense counsel would allow his defense counsel to utilize those protections under article 15, i have that obligation to turn over to that defense counsel what i knew. And again, that was perspective. I was wrestling with his legal issue and with this ethical issue. Ultimately, one sunday when i was in church, in all kind of came to gather. I describe myself as an evangelical christian. I was attending a church service, a baptism of a child. Anyone whos ever been to one of the services nose at the end of the baptism, all of the congregants in the church stand up and the pastor goes back and forth with basically the tenants of the christian faith. One of those is we would respect the dignity of every human being. It was at that time when i was professing that on sunday, beg the question to me, if this is what you believe as a christian, then how does that and for how youre going at the other six days of the week . And for how youre going to behave the other six days of the week . That was the moral point of what i did next. What i did was i went and met with the chief prosecutor for the office of military commission and told him my legal opinion, i told him my ethical opinion, and then i stated i have a moral reservations at this point of what has been done to slahi is reprehensible. To nott moment aloni was going purchase of pay. I reduced those positions into writing in the next few days. I provided them to the chief prosecutor. After few days i was told to transfer the case to someone else and for me to get busy on other cases. In that memorandum, you not only raised the question, you said if these techniques are deemed to be torture and the Geneva Convention that would also constitute criminal violations of the war crimes act. Un on to say as a practical matter im morally opposed to the interrogation techniques employed with this detainee and for that reason alone refuse to participate in this prosecution in any manner. That must have been a bomb for you to put that into a memorandum to your supervisors. What was the reaction . He was not happy about it. And his name was . That was colonel bob swan. He was not happy about it. I felt like putting it into a memorandum was what i had to do to allow him to make an informed decision about the reservations i had. My hope was that memorandum would be shared with higher authorities in the department of defense even if he did not agree with my legal reasoning or my ethics opinion or my moral reservations, for that matter, at least to present to someone, hey, this is a potential issue that could be raised and we need to be able to address that. To my knowledge, that memorandum was never shared outside the office because of the defense never saw it, either . Well, at this point, slahi has never been charged in a military commission. He does have a council that represents and for a habeas corpus petition he has brought in federal court, but where that memorandum went after that point i dont know. We are talking to Lieutenant Colonel stuart couch, retired u. S. Marine corps prosecutor who served in the office of military commissions from 20032006. He now serves as an immigration judge freed were joined by jess bravin who focuses on this case and others in his new book, terror courts rough justice at Guantanamo Bay. He writes for the wall street journal. Talk about the defense of what has been taking place at guantanamo and what these terror courts are, why you chose not only to write articles about this but a book. I chose to write a book because to me it perhaps was the biggest legal story in decades and i had a chance to follow it as it unfolded. The journal sit me down in october 2001 to cover the legal aftermath of 9 11. As all kinds of things were happening including a bill that became known as the patriot act, i got wind of work in the Bush Administration to authorize military tribunals, called military commissions, to prosecute people behind 9 11. That was the plan. I thought it was an astounding development because this type of justice is sort of an ad hoc sort of trial that occasionally has been held by the u. S. During or after wartime. These had not been held since world war ii. It was a dormant area of law that said they might be very much alive. The president bush issued the order in november 2001. It was a remarkable document because it laid out a concept of trial that would be unrecognizable in modern courtrooms. It was drafted from a document that fdr signed in 1942, shortly after pearl harbor, that had authorized a single specific trial of eight nazi saboteurs, a secret trial held in part of the Justice Building that was approved secretly and six of the eight were electrocuted within days, two later had their sentences commuted. It was a remarkable incident in the 1940s. This document that president bush signed envision a similar type of proceeding not as one trial for a handful of people who have been picked up during a sabotage operation inside the u. S. , but as a permanent new form of justice moving forward, one that would be walled off from the existing federal courts and any kind of congressional oversight. That was the legal origin. That was in place before the u. S. Had captured anyone, before guantanamo had been selected as a place to hold them. It was a legal story. What i have done over the past year since then is cover the way that project has unfolded and what is going on now in some ways is very different from what could have taken place under the initial order. On the other hand, in some ways it is tied to that because the people who are subject to those trials are people like mr. Slahi. He has not been charged and one else has been willing to take how long has he been held . The decade. The interesting thing, the fascinating account, not only you go into the history military commissions from the time of George Washington until now, but you also detail behind thescenes battles that occurred within the Bush Administration, the executive order that bush signed that apparently he did not even bother to read very carefully. As you explained, he was on his way to his ranch in texas at the time. But really the battles that occurred between david addington, john you, attorney general ashcroft, there was a real tugofwar within the administration over these military commissions. That is right because the commissions project was not something that arose because the Justice Department or the Defense Department or the cia said, gosh, we dont know how were going to deal with this terrorist organization. Our Justice System is incapable of handling it and we just dont know how to handle it. We need to create something brand to solve this problem. It did not arise that way. It was a top down idea. There were a number of people whove been thinking about this for many years, in fact, since the 1980s following the pan am 103 bombing, the airliner that blew up over scotland. It was a topdown kind of idea. Other people in the administration were big fans, as you point out, attorney general ashcroft. Some found it surprising when they learn that in the book because right after 9 11, people who were there at the time and remember, he was the face of the administrations response and highly criticized by civil libertarians for what they said was a harsh reaction to 9 11. Behind the scenes, he was trying to preserve the Justice Departments authority to handle criminal prosecutions. His critics, people in the Defense Department and some other said, well, it is just a turf battle over which would have this very important commission. But he was against it. His own staff was opposed to the idea of setting up alternative to regular prosecution. A new note in the book that unlike other times of major decisions this was not circulated among key officials said that condoleezza rice, National Security adviser, and secretary of state colin powell had no idea of the decision until it was later announced . They learned about from cnn. Even more important for the way this issue played out was that the cia was not informed about it. What has characterized this project for its entire history has been conflict between cia and department of defense over the access to evidence. And given what later happened with the cia and a seconand a st prison, from my reporting and talking to cia officials, they were quite comfortable with the existing pre 9 11 setup here in new york and Southern District york, very expressed prosecutors and judges that deal with sensitive cases. The cia has worked with them for years and comfortable they could handle important classified evidence and still get their trials under way. The cia had no involvement in setting up military commissions, did not know the military officers involved and did not have a high regard for a bunch of unknown midlevel people, reservists, and so forth, and was very an corporative with military commissions all the way uncooperative with military commissions all the way. They did not want to know what evidence there was and they felt they had a duty to present the defense with anything that could be exculpatory, ran into roadblocks after roadblock. To this day, the cia continues to have a somewhat conflicting relationship with military commissions as recently as a few weeks ago when apparently a cia sensor unknown to the military judge briefly blocked the on the transmission from the guantanamo court room. Explain. There are military commissions. They are a modified version of a richly what was envisioned. There are many changes that make them significantly less unfair that what could have occurred. T in a highsecurity courtroom down there, proceedings take place behind a soundproof glass. If youre in the press watching or watching the video feed here on the mainland, there is a 40 second delay. What youre saying happening 40 seconds in the future from what youre hearing. That is so Government Centers can cut the feed of what they deem to be secret information is released in the courtroom by a witness or lawyer or what have you. That button has been pushed several times. Up until now it had always been pushed by the corn security officer. Most recently it was done by selling the judge did not even know was listening and we assume it was the cia because it had classification authority, as they say in government speak, over this information. To be fair, a military judge has concluded the center was in error. And what was said was put back on record. There has not actually been said anything said that has been kept out. The trajectory from president bush to president obama, what president obama did . President bushs initial order which envisioned this sort of legal time machine going back to 1942, the Supreme Court threw out that project in 2006 and a very long almost 80page opinion by Justice John Paul stevens said the Bush Administration had misread the Legal Precedents and the president lacked authority to set up this system. A number of things happened after that the the end result was a bill that Congress Passed in 2006, the military commissions act which authorized a version of military commissions, which did not look anything like u. S. District courts but was also considerably more fair than what president bush initially had in mind. One reason was that bush orders said no one convicted here has any appeal to federal courts, and i will have the last word. The statute says the federal courts to get final oversight and military commission. President obama did not support that and thought it was not fair enough. He made a lot of statements during 2008 campaign for president suggesting tremendous skepticism for military commissions and saying the existing military Justice System, one colonel couch was trained in another military lawyers, that either of those systems would be a better way to go. Once he took office, he got a lot of advice, conflicting advice over this, and chose to take a sort of middle path. He asked what changes in the military commissions are needed to make them fair enough . A number were proposed involving how your Second Amended and a few other things. He sent those to congress in 2009. Those changes were adopted and the military commissions were reauthorized. Now we are basically on commissions 3. 0, which looks something in between what president bush had in mind but not district court. We will come back to this discussion after break. Jess bravin is the author of, terror courts rough justice at Guantanamo Bay. The book has just been published. Grasso joined by Lieutenant Colonel stuart couch, speaking to us from charlotte. Now immigration judge, was at guantanamo. We will talk about some other cases at guantanamo. Stay with us. [music break] this is democracy now , democracynow. Org, the war and peace report. Im amy goodman with juan gonzalez. Our guests in charlotte, north carolina, lieutenantcolonel stuart couch, here in new york, jess bravin, author of the new book, terror courts rough justice at Guantanamo Bay. One of the things that you raise in your book is the relative independence, military commissions and the military prosecutors, much more so than many people might have expected, and specifically also highlight the salim hamdan case, the supposed driver of osama bin laden. As a demonstration of how the military commissions exhibited enormous independence. It is the signature case for this up for so far because it is the first one that ended up going to trial, the first case that went to the Supreme Court in 2006. It was the first contested try that yielded a conviction and also the First Military commissions conviction to be examined by federal court. It really is the premier way to look at this whole idea of prosecuting suspected terrorists through a new Justice System. Hamdan pena california was the driver of osama bin laden. He never denied it. Salim hamdan was the driver of osama bin laden. He never denied it. One of the most serious suspects were held secretly by the cia somewhere else. The military prosecutors had to pick from those available to them. After several candidates were removed for various political or other reasons, they settled on prosecuting salim hamdan a sort of a stand in for osama bin laden. Hamdan had the trust of bin laden, was a bodyguard as well as driver, and they have photos of him with bin laden carrying a rifle and so on. That was the first guy who went up. His lawyers challenged the validity of military commissions entirely and say it was illegal for president bush to set up the system. After he won in a case called hamdan vs. Rumsfeld, as rumsfeld was quite unhappy to be the loser in that case after it was decided he met with his top advisers and said, and the First Defense secretary to lose the case to a terrorist . He was not pleased. Once congress enacted the military commissions act salim hamdan was a mentally charged again and prosecuted. The death trial that i covered in 2008 showed a lot of things. It showed how perhaps the authors of this project did not really know what they were going to get from it because many of the people in the Bush Administration quite agitated and was strong academic pedigrees did not have a lot of military experience or even courtroom experience. Many who spoke to me expected the military to be a topdown organization that got the message and carried out the mission. Instead, the military live court in particular is a culture that feels it has an independent duty to carry out its own legal code books and does not view itself as an arm of a political administration. So salim hamdan was acquitted of the most serious charge brought against him which was conspiracy. Furthermore, the charge was convicted of was something called Material Support for terrorism. The government prosecutor at guantanamo asked for 30 years to life. Send a message to Anyone Around the world who might contemplate providing Material Support to terrorism and they will have tremendous price to pay. The jury made up of six military officers, rank of colonel or lieutenantcolonel equivalent, spent less than two hours deliberating and sentenced salim hamdan to 5. 5 months plus time served. I remember being in the courtroom and things done because when they said, years . It turned out to be a token sentence and he was then released in early 2009 and back home in yemen. It turned out the military jury, as had been suggested by defenders of military of the beginning, was quite independent and not simply there to rubberstamp any kind of conviction. I interviewed the foreman of the jury after that. That story has a fascinating, because salim hamdan was released, back home, but he was convicted. Technically, he was crime, whice thing to have on your record. So his attorneys continue to appeal and said his conviction on his record is invalid and made a number of arguments the military goes court upheld the conviction. Then he got to come into the regular u. S. Court system, and made a number of arguments in october and the d. C. Court of appeals vacated the conviction of salim hamdan because the panel said Material Support for terrorism was not a war crime read it may be a crime under domestic civilian law, but never has been understood as a war crime at the time thats salim hamdan committed this act. They vacated the conviction. This tremendous case that began this project in 2004 when salim hamdan was first brought into court, which is Supreme Court once, when back to trial and not comment on the conviction from both obama and mccain to the 2008 campaign, all of this went through and in the and it turns out to be a complete legal nullity because the conviction was invalid. The jenna kernel stuart couch, could you discuss the case of the austrian egyptian prisoner at guantanamo, and if you could sum up how you feel today having participated in and then pulled out of the prosecution at guantanamo because of the issues of torture . The case of habib is very complex, but briefly was an individual, he was in the egyptian nationality but had obtained australian citizenship. I was asked to review the evidence in that case to determine what charges could be brought based upon the evidence i was presented. I could not see a charge because nearly being affiliated with al qaeda it does not rise to the level of an offense under the law of armed conflict. Ultimately, habib was released back to australia within a couple of weeks of the final assessment that we made in this case. Although he was held for years. He was. As to your second question about how i feel about military commissions now, what i would say is i am familiar with some of the participants in the current iteration of military commissions. The chief prosecutor brigadier mark martins and some of the defense attorneys, in my view, each one of these groups of people are doing their level best to work within this process that has been established and that tension is a healthy one when it comes to arriving at justice. So least my confidence is within the people that i know are participating in the process and i believe are doing their level best to see that justice is done, especially in these cases of the 9 11 conspirators. It is my opinion these criminal prosecutions of the 9 11 conspirators are the most significant criminal prosecution in history of the nation. And the legacy of torture . There are 166 men still being held at guantanamo, but the message that went out around the world about the United States . As far as the detainees still being held, the Supreme Court has reaffirmed the Customer International law that they can be held until the end of hostilities. The Supreme Court has uniformly held that in the cases involving guantanamo that they have decided in recent years. That said, they can be held to the end of hostilities. As to the issue of torture, what i would say is a policy that permits that, a policy that allows torture to occur for lack of a better term, is un american. And my hope would be that with the issues raised about torture in the past few years that there will be this robust discussion with in this fashion discussion on a political and social level and likely like to say in the south, they can bring some clorox to sunlight to this issue. Thank you for being with us. [captioning made possible by democracy now ]