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Boumediene and a challenge to war crimes trial

Civilian and military defense lawyers for a Guantanamo Bay detainee facing war crimes charges, relying on the Supreme Court’s new ruling on captives’ rights, demanded on Wednesday that a top Pentagon official begin a formal probe of his claim that the evidence against him was obtained by torture.  If no promise to investigate is made by Friday, the attorneys said, they would ask a federal judge in Washington next Monday to order such a probe.  The letter was by attorneys for Binyan Mohamed, an Ethiopian who was living in Britain as a refugee before being captured either in Afghanistan or Pakistan and turned over to the U.S. military. (In court papers, Mohamed is listed as Benjamin Mohammed Al Habashi.)

The letter (available here) was sent to Susan J. Crawford, the Pentagon’s senior official (“Convening Authority”) in charge of the military commission system that is preparing to hold  trials on war crimes charges at Guantanamo. Crawford must approve any charges before they may be tried. Although military prosecutors proposed two charges on May 25 against Mohamed — terrorism conspiracy and materially supporting terrorism, Crawford has not yet signed off on them. 

In their letter, Mohamed’s counsel argued that she should not allow the charges to go forward at least until after she had probed his claims of torture.  The letter said that an aide to Crawford had told them on June 9 that she believed their challenges “are best resolved through the formal military commission process” — a view that his lawyers said would be a violation of the Military Commissions Act of 2006.  They also argue that Crawford has a duty under a treaty, the Convention Against Torture, to look into his torture claim.

Mohamed has had a habeas challenge to his capture and detention pending in U.S. District Court in Washington.  It has been on hold until the Supreme Court ruled on the detainees’ rights cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) — the cases decided June 12.  The Mohamed petition is Al Habashi v. Bush (District Court docket 05-765), pending since April 2005 and now before Judge Emmet G. Sullivan.

Writing to Crawford, Mohamed’s counsel said: “We are now writing to advise you that, unless you inform us by 5 p.m. EST on Friday, June 20, that you agree to these reasonable requests [for an investigation of torture claims], we will ask District Judge Sullivan…to order the Convening Authority to take the requested actions.”een

It added: “As we have previously stated, no branch of the U.S. government has held a proper, and public, investigation into the evidence that Mr. Mohamed has been tortured and is being held based on that torture, and the torture and abuse of others.  This, despite the legal requirement that such an investigation take place, and our repeated requests for such an investigation.”

Mohamed’s lawyers suggested that some of the evidence against him was derived from torturing of two leaders of the 9/11 terrorist attack plan, Khalid Sheikh Mohamed and Abu Zubaydah.