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Palestinians Seek US Appeals Court Review of Biden Genocide Complicity Case
"The U.S. is providing the bombs for this genocide," said one plaintiff. "I have lost countless friends and neighbors... When will the courts uphold the law and stop the horror?"
Aug 30, 2024
Six weeks after a three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed a lawsuit filed by Palestinians, Palestinian Americans, and rights groups accusing senior Biden administration officials of complicity in Israel's Gaza genocide, plaintiffs in the case on Thursday asked the full federal appellate court to revisit their suit.
The plaintiffs' petition—which was filed by the Center for Constitutional Rights (CCR) and the law firm Van Der Hout LLP—requests an en banc rehearing of their case, in which U.S. President Joe Biden, Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin are defendants. To win such a rehearing, a case must involve a matter of "exceptional importance" or be inconsistent with previous court rulings.
"With unconditional U.S. support, Israel has killed about 40,000 Palestinians, injured more than 90,000, forcibly displaced 2 million, and pushed large segments of Gaza into famine," CCR said in a statement. "Israel's actions, which followed numerous expressions of eliminationist intent by its leaders, have led many legal experts and scholars to conclude that it is committing genocide, the most serious human rights crime."
"With unconditional U.S. support, Israel has killed about 40,000 Palestinians, injured more than 90,000, forcibly displaced 2 million, and pushed large segments of Gaza into famine."
Plaintiff Ayman Nijim said: "Just this week, my brother's apartment building in Gaza was completely destroyed—the second time he lost his home, after our family house was obliterated in 2009. The U.S. is providing the bombs for this genocide. I have lost countless friends and neighbors, so many that I couldn't know where to start to grieve. When will the courts uphold the law and stop the horror?"
The lawsuit—originally filed in November in the U.S. District Court for the Northern District of California in Oakland—sought to stop the Biden administration from aiding Israel's bombardment of Gaza. Billions of dollars worth of U.S.-supplied weapons have played a critical role in Israel's war and have been used in some of the deadliest Israel Defense Forces massacres of Palestinians.
While the court found that "the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law," it dismissed the case on jurisdictional grounds in late January. The 9th Circuit subsequently granted an expedited appeal in the case, which was heard by the three-judge panel in June and dismissed the following month.
"For almost 11 months we have witnessed the intentional destruction of the Palestinian people in Gaza made possible by these officials," CCR senior staff attorney Pam Spees said on Friday. "With this ruling, the panel has said our courts are too small to do the job they were assigned at the founding—to be a co-equal branch in our government and a check and balance on presidential power."
"If the 9th Circuit doesn't course-correct here, it will be giving this and future presidents license to violate the law at will in the realm of foreign relations," Spees added.
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'Dirty Move': Pentagon Chief Ditches Plea Deals With Tortured 9/11 Defendants
One lawyer warned it will not only "push 9/11 victim family members over an emotional cliff," but likely lead "prosecutors to resign and defendants to seek dismissal of all charges for unlawful command influence."
Aug 03, 2024
U.S. Defense Secretary Lloyd Austin on Friday withdrew plea agreements the Pentagon had reached with three men accused of planning the September 11, 2001 terrorist attacks and detained in Guantánamo Bay, the American military prison in Cuba infamous for torture.
"I have determined that... responsibility for such a decision should rest with me," Austin wrote to Brig. Gen. Susan Escallier, the convening authority for the legally dubious Guantánamo Bay military commissions. "Effective immediately, in the exercise of my authority, I hereby withdraw from the three pre-trial agreements that you signed on July 31."
The U.S. Department of Defense confirmed Wednesday that Escallier "entered into pretrial agreements" with Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi. The Pentagon did not share details of the deal, but it was reported that in exchange for ruling out the death penalty, the suspects agreed to plead guilty and spend the rest of their lives in prison.
The Center for Constitutional Rights (CCR), which has represented detainees at the prison, stressed that the deals were not only "a substantial step toward ending military commissions and the extralegal nightmare of Guantánamo," but also "inevitable because the 9/11 case was never going to be tried" through a process that has "never provided justice or accountability for anyone."
Others had also emphasized that point. U.S. Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said on social media Wednesday that "after all these years, the victims of 9/11 and their families deserve justice and closure. The Bush administration's disastrous decision to torture detainees and set up untested military commissions made a fair trial impossible."
As The New York Timesreported Thursday:
Valerie Lucznikowska, whose nephew was killed in the World Trade Center, said she had been to the Guantánamo Bay prison several times to watch pretrial hearings, but had stopped going out of frustration with the legal process.
"The plea agreements should have been done a long time ago," she said. "The system has not worked for a long time."
Ms. Lucznikowska belongs to the group September 11th Families for Peaceful Tomorrows, many of whose members oppose the death penalty. Her own opposition was both moral and practical, she said.
"If the death penalty stayed as the prime object of the trial, there was no way it would come to a conclusion within my lifetime," she said.
She added: "Guantánamo Bay prison is a stain on America. How are we going to get rid of the stain? We're not going to. But let's get it over with."
However, other relatives of victims and U.S. lawmakers, as well as the union representing New York City firefighters, had criticized the agreements. House Committee on Oversight and Accountability Chair James Comer (R-Ky.) even launched an investigation into "what involvement the White House had in negotiating and/or approving the recently announced plea deal."
After the Pentagon's Friday announcement, September 11th Families for Peaceful Tomorrows released a statement calling out Austin for canceling deals that, while "not the justice originally hoped for," had "offered a path to finality, and a modicum of justice and accountability for the crimes of 9/11."
"That the secretary has now overreached and undertaken direct oversight of the 9/11 commission is cause for enormous concern," the group said. "While we understand there are family members who are opposed to plea agreements, the reality stands that the 9/11 accused were tortured and several were sodomized. If any entity is at fault for the inability to prosecute this case with a slam dunk, it's the torturers. Because of the torture, the 9/11 accused will not be put to death. And any administration official or member of Congress who says otherwise is either uninformed, or politically pandering."
"The men who perpetrated the death of thousands on September 11th; men who have never uttered a word of remorse, should be justly punished. But what happened this week to 9/11 families is emotional whiplash," the group continued. "We will recover. We have been working for justice for the death of our loved ones for 23 years. Our larger concerns today are for this country, for the future of our children and grandchildren when legal principles are compromised. We ask that Secretary Austin meet with the 9/11 prosecution team, learn the deep complexities and flaws in the case, and come to his own conclusion that pretrial agreements will provide the finality and accountability we all deserve."
J. Wells Dixon, a senior staff attorney at CCR who specializes in challenging unlawful detentions at Guantánamo, decried the "dirty move" by Austin and accused him of "robbing victim family members of their only chance for justice and accountability for 9/11."
The Pentagon chief's "astounding decision" will not only "push 9/11 victim family members over an emotional cliff," but likely have legal consequences, Dixon warned. "Wait for prosecutors to resign and defendants to seek dismissal of all charges for unlawful command influence."
Daphne Eviatar, director of Amnesty International USA's Security With Human Rights program, similarly said Saturday that "this is a terrible development. The victims of the 9/11 attacks deserve accountability for the horrendous crimes committed after waiting more than 20 years."
"The defendants, who were brutally tortured and mistreated by U.S. agents and then detained without trial for more than 20 years, deserve a fair judicial resolution of their cases," Eviatar argued.
"The death penalty should have been taken off the table long ago," she added. "It is shameful for the defense secretary after all these years to intervene now to prevent the resolution of this case, at a time when the United States should be making every effort to acknowledge, account for, and finally end the abuses of the post-9/11 'war on terror.'"
John Knefel, a senior writer at Media Matters for America, also responded critically to Friday's news, saying that "this development is 100% in alignment with the history of Gitmo in general and the military commission system specifically—ad hoc, arbitrary, capricious. A repulsive apparatus, and one wholly fitting of U.S. empire."
This post has been updated with comment from Amnesty International September 11th Families for Peaceful Tomorrows.
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Pentagon Announces 'Long-Overdue' Plea Deals With Tortured 9/11 Defendants
"This should be the beginning of the end of the Guantánamo Bay detention center," said one Amnesty International campaigner.
Jul 31, 2024
Forced into a legal corner due to the torture of men accused of planning the September 11, 2001 attacks on the United States, the Pentagon on Wednesday announced it has reached plea agreements with three top 9/11 suspects, who will spend the rest of their lives in prison and avoid execution.
The U.S. Department of Defense said in a statement that Brig. Gen. Susan Escallier, the convening authority for the legally dubious Guantánamo Bay military commissions, "has entered into pretrial agreements" with alleged 9/11 mastermind Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi.
Although the Pentagon statement said that "the specific terms and conditions of the pretrial agreements are not available to the public at this time," The New York Timesreported that news of the deal was revealed in a recent letter from military prosecutors to relatives of 9/11 victims.
"In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet," the letter, which was signed by Rear Adm. Aaron C. Rugh, explained.
Responding to the news, the Center for Constitutional Rights (CCR)—which has represented and advocated for Guantánamo detainees—said that "these plea agreements are a substantial step toward ending military commissions and the extralegal nightmare of Guantánamo."
"They were also inevitable because the 9/11 case was never going to be tried before a military commission," CCR continued. "The military commissions at Guantánamo have never provided justice or accountability for anyone. Rather, for the last two decades, they have provided a veneer of legal process that serves only to maintain the unacceptable status quo and cover up the torture and abuse of detainees."
"But as illustrated by the military commission cases of our clients David Hicks and Majid Khan, they have also been a way out of Guantánamo," the group added. "Ironic, because it is ultimately men like our clients Guled Duran and Sharqawi Al Hajj, who committed no offense and are approved for transfer, who remain in detention indefinitely. This has been a central, ugly truth of Guantánamo since it opened in January 2002."
The case against the plea deal trio and other 9/11 defendants—who have been imprisoned by the U.S. military for more than 20 years—was mired in pretrial delays. Defense lawyers asserted that the defendants' torture in CIA "black sites" and at Guantánamo, and the government's subsequent cover-ups, invalidated prosecution evidence against them.
The five 9/11 defendants—the three who struck plea deals plus Ammar al-Baluchi and Ramzi bin al-Shib—were all captured in Pakistan in late 2002 and early 2003 before being turned over to the United States and transferred to CIA black sites, including the notorius "Salt Pit" outside Kabul, Afghanistan, where suspected militant Gul Rahman was tortured to death in November 2002. In 2006, the five were transferred to Guantánamo Bay.
All five men were tortured. Mohammed was waterboarded 183 times and subjected to other tortures approved under the George W. Bush administration's euphemistically named "enhanced interrogation" program. Al-Hawsawi suffered a shredded rectum resulting from sodomization during so-called "rectal hydration" and has had to manually reinsert parts of his anal cavity to defecate.
In 2012, Col. James L. Pohl, then the presiding military commission judge, prohibited all testimony related to the defendants' capture, imprisonment, and torture. According to a May 2016 court filing, Pohl conspired with military prosecutors to destroy evidence in Mohammed's case.
Over the years, numerous Guantánamo prosecutors resigned over what they called a corrupt military commission system designed to guarantee convictions. In 2008, former lead prosecutor Col. Morris Davis blasted the 9/11 trials as "rigged from the start," claiming he was told by a top Bush administration lawyer that acquittals were unacceptable. At least four other military prosecutors asked to be removed from the commissions over perceived unfairness.
This isn't the first time that U.S. torture has stymied military plans to prosecute 9/11 suspects.
In 2004, then-Guantánamo prosecutor Col. Stuart Crouch—whose Marine Corps buddy initially piloted one of the planes that was hijacked and crashed into the World Trade Center on 9/11—refused to prosecute Mohamedou Ould Slahi, who allegedly helped organize the plane's hijacking, citing his torture.
Five years later, Susan J. Crawford, the top Bush administration official in charge of deciding which Guantánamo detainees to bring to trial, declared that the U.S. "tortured" Mohammed al-Qahtani, the alleged would-be 20th 9/11 hijacker, and blocked his prosecution.
More recently, in 2021, all but one member of the military jury convened to hear the case against Guantánamo detainee and alleged terrorist plotter Majid Khan recommended total clemency after the accused testified how he endured torture including rape, being hung from a ceiling beam, and being waterboarded while he was held at a CIA black site in Afghanistan.
Military prosecutors and defense lawyers had been in talks about a possible plea deal for the 9/11 suspects since at least last year. In recent years, people including U.S. Senate Judiciary Chair Dick Durbin (D-Ill.), 9/11 survivors and victims' relatives, and Ted Olsen—the former Bush solicitor-general who once defended the indefinite detention and torture of Guantánamo prisoners—have called for plea agreements and the prison's closure. However, President Joe Biden reportedly balked at the idea of sparing the defendants' lives.
While many Republican U.S. lawmakers condemned Wednesday's plea agreements as a betrayal to relatives of 9/11 victims, rights groups called the deals a big step toward justice and closure.
"This is an incredibly welcome and long-overdue step," Yumna Rizvi, a senior policy analyst at the Center for Victims of Torture, said on social media. "The Biden administration can and should #CloseGuantanamo."
Daphne Eviatar, director of the Security with Human Rights program at Amnesty International USA, said in a statement: "This is welcome news. Finally, after more than 20 years, there will be some accountability for the 9/11 attacks, and justice for the victims and survivors of those horrific crimes. We are also pleased that there is finally an outcome for at least some of the accused, who were tortured and then languished in detention without trial for more than two decades."
"This should be the beginning of the end of the Guantánamo Bay detention center," she added. "We urge the Biden administration to release the remaining detainees who have not been charged with crimes, and close the facility once and for all."
There are 19 men still imprisoned without charge in Guantánamo. Sixteen have been cleared for release, some of them for many years.
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