JURIST - Paper Chase: Sunday, December 16, 2012

[JURIST] A judge for the US District Court for the Middle District of Pennsylvania [official website] on Friday approved a settlement of almost $18 million in a lawsuit brought by juveniles who were allegedly wrongfully incarcerated by two judges. The county judges, Mark Ciavarella and Michael Conahan, were accused of taking bribes from Robert Mericle, a real estate developer who built youth detention centers, in exchange for wrongfully incarcerating the juveniles. The settlement Friday was only with Mericle, but both judges are named as defendants in the civil case as well. Most of the 1,600 minors and parents involved will receive from the settlement between $500 and $5,000 dollars each. Ciavarella and Conahan were both convicted of multiple counts including racketeering, money laundering and conspiracy following separate criminal trials last year. Ciavaralla was sentenced to 28 years and Conahan was sentenced to 17 1/2 years [JURIST reports] for their involvement in the scandal. Mericle is currently awaiting a criminal trial [case profile] for charges of concealing and failing to report a felony and conspiracy to defraud the US of income taxes.

In 2010, federal prosecutors announced [JURIST report] that they would not retry juveniles after the Pennsylvania Supreme Court in 2009 reversed [opinion, JURIST report] more than 6,000 juvenile convictions issued by Ciavarella between 2003 and 2008. The ruling came weeks after Ciavarella and Conahan were indicted [JURIST report] by a federal grand jury. Both judges withdrew guilty pleas months earlier after a federal judge rejected their plea agreement [NYTimes report, JURIST op-ed], stating that the prison sentences would be too lenient.

[JURIST] Guantanamo detainee Shaker Aamer [NY Times background] has filed a defamation lawsuit claiming that British agencies MI5 and MI6 [official website] had given the US statements the agencies knew to be false. While Aamer has been cleared for release from Guantanamo, he has not been returned to the UK yet. Aamer was detained in Afghanistan for allegedly fighting at an al-Qaeda stronghold, which Aamer denies, stating that he was performing charity work. Among the false information [BBC report] his lawyers claim the US interrogators received were allegations that Osama bin Laden directly paid Aamer and that Aamer had recruited fighters for al-Qaeda. Aamer's lawsuit is being brought by Reprieve [advocacy website], a legal charity focused on prisoners' rights. The suit names Foreign Secretary William Hague [official website], who supervises MI6, and Home Secretary Theresa May [official website], who supervises MI5. The lawsuit is also receiving support [press release] from British comedian Frankie Boyle. Aamer is originally from Saudi Arabia, but is married to a British citizen, and has four British children. He had been given permission to live in the UK indefinitely when he was arrested in 2001.

Aamer is the last UK resident being held at Guantanamo, and he was the center of a high-profile Amnesty International (AI) [advocacy website] campaign pushing for him to receive a fair trial or to be released so he may return to his family in the UK. AI has denounced [JURIST report] the detention Aamer at Guantanamo Bay, calling it a "mockery of justice." In November 2011 AI urged [JURIST report] the US and the UK to work towards the release of Aamer. AI UK Director Kate Allen called on Hague and US officials to give a specific timetable for Aamer's release. The Hague and the US have been in discussions over Aamer's release, but no formal indications of a release have been made. The UK agrees that if Aamer is released, they will be wiling to accept him, as they did with former detainee Binyam Mohammed [JURIST report]. Aamer is one of 16 Guantanamo Bay detainees for whom the UK government announced a settlement agreement [JURIST report] for allegations of torture. Those allegations prompted the UK to launch an investigation into torture allegations in May 2010, as well as issue a ruling that state intelligence agencies cannot use secret evidence [JURIST reports] in their defense against abuse. Aamer has been described as an activist within Guantanamo, negotiating with US military officials over camp conditions and organizing hunger strikes when conditions did not improve.

[JURIST] A federal judge for the US District Court of Appeals for the District of Columbia Circuit [official website] on Friday affirmed [opinion, PDF] a denial of a petition for habeas corpus from Guantanamo Bay [JURIST backgrounder] detainee Khirullah Khairkhwa [NY Times backgrounder]. The US District Court for the District of Columbia [official website] originally denied [opinion, PDF] Khairkhwa's petition for habeas corpus on May 27, 2011, finding that Khairkhwa was a senior member of the Taliban, and had served as a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor of Kabul and a member of the Taliban's highest governing body, and thus was lawfully detained. On appeal, Khairkhwa argued first, that the government had to demonstrate that he had "fought or engaged in armed conflict or hostilities against the United States or its allies" and second, that if he were released from Guantanamo, he would post a threat in the future to the United States. The appellate court rejected both arguments, stating:

In order to detain individuals who were part of the Taliban or al-Qaeda forces, proof that the individuals also actively engaged in combat against the United States and its allies is unnecessary...In modern warfare, commanding officers rarely engage in hand-to-hand combat; supporting troops behind the front lines do not confront enemy combatants face to face; supply-line forces, critical to military operations, may never encounter their opposition. As to Khairkhwa's other point—that a person may not be detained unless the evidence also shows that he would pose a danger to the United States if released—Awad squarely rejected the argument. Khairkhwa recognizes this, but insists that Awad was wrongly decided. What he fails to recognize is that one three-judge panel of this court may not overrule another three-judge panel.

Khairkhwa has been detained at Guantanamo for over ten years.

Habeas corpus petitions at Guantanamo Bay have generated much controversy. In September, a judge for the US District Court for the District of Columbia rejected [JURIST report] new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Chief Judge Royce Lamberth expressed skepticism about the restrictions [JURIST report], which in some cases require a lawyer to sign a memorandum of understanding (MOU) [memorandum, PDF] to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. In August the DOJ filed a brief [JURIST report] with the court asserting that the government should decide when a Guantanamo prisoner is granted continued regular access to legal counsel absent a detainee's ongoing habeas or other legal challenge. The challenge to the new restrictions was brought by six Guantanamo detainees, two of whose habeas petitions were denied and four dismissed with the possibility of reconsideration. At the time of the hearing lawyers for only six of the 170 detainees at Guantanamo had signed the MOU. In the 10 years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted, and in the past few months there have been several calls by the UN and various foreign governments for some long-held Guantanamo detainees to be returned to their home countries, including Egypt, Canada and Kuwait [JURIST reports].