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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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'Corrupt and Rigged': 9/11 Defense Lawyer Say Austin Broke Rules by Blocking Plea Deals
"We have had an unprecedented act by a government official to pull back what was a valid agreement," said an attorney representing tortured 9/11 suspects imprisoned at Guantánamo Bay.
Aug 07, 2024
Attorneys representing alleged 9/11 planners imprisoned at Guantánamo Bay argued Wednesday that U.S. Defense Secretary Lloyd Austin's move to block plea deals for three defendants violated Pentagon rules and belied the corruption of the military commission system established during the George W. Bush administration.
"We have had an unprecedented act by a government official to pull back what was a valid agreement," Walter Ruiz, who represents defendant Mustafa al-Hawsawi, said at a hearing at Guantánamo, according toCNN.
"For us, it raises very serious questions about continuing to engage in a system that seems so obviously corrupt and rigged," Ruiz added.
Last week, the Department of Defense announced that Brig. Gen. Susan Escallier, the convening authority for the Guantánamo military commissions, "has entered into pretrial agreements" with al-Hawsawi, alleged 9/11 mastermind Khalid Sheikh Mohammed, and Walid bin Attash.
The long-anticipated agreement—under which the three men would be spared execution by pleading guilty—came amid years of stalled legal proceedings in a case complicated by the U.S.' torture of the defendants and government efforts to cover it up.
While welcomed by advocates of closing the prison and some victims' families, Escallier's move also sparked a firestorm of criticism from numerous U.S. lawmakers, 9/11 first responders, and victims' relatives.
Last Friday, Austin withdrew the plea agreements. Speaking at a press conference on Tuesday, he explained that he has "long believed that the families of the victims, our service members, and the American public deserves the opportunity to see military commission trials carried out in his case."
"I'm deeply mindful of my duty to all those whose lives were lost or changed forever on 9/11, and I fully understand that no measure of justice can ever make up for their loss," Austin added. "So this wasn't a decision that I took lightly."
Eugene Fidell, a military law professor at Yale University and co-founder of the National Institute of Military Justice, told CNN that Austin's move "was illegal."
According to the network:
One of the primary issues pointed to on Wednesday by defense counsel was a regulation laid out in the military's Manual for Military Commissions, which says the convening authority can withdraw a pretrial agreement before the accused begins "performance of promises" or if the accused does not hold up their end of the deal. Gary Sowards, a defense attorney for Mohammad, said in court that Austin did not have authority under that regulation because his client had "begun very important, substantive, specific performance.'"
Sowards acknowledged that motions for discovery on the issue of potential unlawful influence by Austin, which would "seek to explore how he was coerced and influenced," could take a year or two to litigate. But the issue of the Manual for Military Commissions regulation is "a simple reading of about 12 lines of text," he said, and a decision on it should be able to be expedited.
Prosecutor Clayton Trivett Jr. told the commission Wednesday that the government needed to "work through the issues raised in these motions" so that the prosecution's position can be "fully articulated."
Sowards retorted, "'We want to consult with people'—that sounds like, 'We want to get our stories together.'"
Some legal experts doubted whether the government would ever be able to try, let alone convict, the 9/11 suspects. Military judges and prosecutors have cited defendants' torture in declining to proceed with cases against them. Many men and boys were tortured at CIA "black sites," Guantánamo, and military prisons including Abu Ghraib. At least dozens of detainees died.
Wells Dixon, a lawyer with the Center for Constitutional Rights who represented convicted terrorist Majid Khan, told CNN that the prosecution's unwillingness "to allow evidence about the defendants' torture and abuse to be aired in court" will make it extremely difficult to secure death sentences for the men.
"If Secretary Austin says that a 9/11 case is going to proceed to trial, and a verdict, and possibly a sentencing, then he is either hopelessly ill-informed or is lying to victims' family members," he added.
Accusations of military commission corruption go back decades.
In 2004, three military prosecutors—Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf—requested transfers from the commissions after concluding they were rigged.
"They were told by the chief prosecutor at the time that they didn't need evidence to get convictions," Clive Stafford Smith, an attorney who represented more than 70 Guantánamo detainees, toldThe Nation in 2008.
That year, former Guantánamo chief prosecutor Col. Morris Davis said that then-Pentagon General Counsel William Haynes told him that "we can't have acquittals."
Atlantic staff writer Graeme Wood asserted this week that "there is a way to clean up this mess."
"Now that Austin has assumed the power of the convening authority, he can restore the agreement he tore up on Friday—to reverse the reversal and bring these sordid proceedings to the end they were until recently already destined for," he wrote. "If he instead wants to extend the life of the commissions, slouching toward a trial that will never happen, then the pointless sacrifice of money and time will continue."
"For the families in search of finality, each minute of delay is a minute stolen, and for the defendants, each is a minute gained," Wood added. "The defendants have already cheated the hangman. The best way to end their run is to take that bitter deal, and bring these commissions to a well-deserved end."
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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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