The Guantanamo Bay detainees lost a lawsuit challenging their confinement Tuesday in the D.C. Court of Appeals, which ruled that the U.S. has no legal jurisdiction over the naval base in Cuba.

The three-judge panel said that the 16 detainees at Guantánamo who brought the lawsuit had no recourse to American courts as they had never entered United States territory.

Today's ruling was another in a series from the courts, several of them favorable to the administration, as the government's aggressive techniques in the fight against terrorism are being challenged on a wide front in the federal judiciary.

The 16 plaintiffs, through their lawyers, had argued that because the United States controls the 45-square-mile base on the southeastern tip of Cuba, it had sovereignty over the base.

But the judges disagreed and upheld the decision of a federal trial judge last summer.

While the lawyers argued that Guantánamo "is in essence a territory of the United States," the judges of the United States Court of Appeals for the District of Columbia Circuit said that was not so in strict legal terms. "Cuba — not the United States — has sovereignty over Guantánamo Bay," the panel said, citing the lease agreement between Cuba and United States that explicitly reserves sovereignty to Havana.

For that reason, the judges said, the prisoners "cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them."

Update: Today's New York Times Editorial,

Forsaken at Guantánamo In refusing to let the Guantánamo detainees challenge their confinement, the administration is trampling on their rights. It is also damaging America's reputation for fairness. The administration should rethink its policies, and the Supreme Court should reverse yesterday's unfortunate decision.

Mother Jones has picked up on TalkLeft's criticism of the CIA taking custody of Al Qaeda detainee Khalid Shaikh Mohammed's 7 and 9 year old sons, flying them to America to interrogate them about their father and his activities and using them as pawns to get their father to talk:

LAW AND JUSTICE : Halfpint Hostages

The capture of Khalid Shaikh Mohammed made headlines around the world last week, with the alleged Sept. 11 mastermind being snatched from his bed in Pakistan and shipped off to a US military prison in Afghanistan.

As it turns out, though, while Mohammed was settling into his cell at Bagram Air Force Base, the CIA was taking his sons, aged seven and nine, into custody as well. Held by Pakistani authorities since last fall, the boys have now been transferred to a secret location in America, where the CIA is interrogating them and using them to force their father to talk, Olga Craig of London's Daily Telegraph reports. As one CIA official puts it, Mohammed's children are a valuable tool in the war on terror:

"'His sons are important to him. The promise of their release and their return to Pakistan may be the psychological lever we need to break him.'"

Though the CIA insists the boys are being given "the best of care," the pundits at TalkLeft are horrified that Washington is holding Mohammed's children hostage -- no matter what his crime.

" ... what Mohammed is really being told is that something awful will befall his sons if he doesn't cooperate. Legal? Probably. It's also morally bankrupt. But let's leave the father out of this for the moment. Our concern is the kids.
...

We didn't realize that enemy combatant status was hereditary. A lawyer and a guardian ad litem should be appointed for these kids immediately. The kids should be returned home without delay to whatever family they have left. This is taking 'sins of the father' to an unprecedented and unconscionable level."

Thanks, Mother Jones. We think this issue needs more media coverage and debate.

A federal judge ruled today that detainee Jose Padilla can meet with defense lawyers despite government concerns.

U.S. District Judge Michael Mukasey rejected the government's plea to reverse his decision last year allowing lawyers to consult with Jose Padilla, 31, who was designated an enemy combatant by the White House last summer. Before Padilla can see a lawyer for the first time since June, ground rules have to be worked out between the sides and possibly the judge. A hearing was set for the end of the month.

Three New York Times Reporters, Raymond Bonner, Don Van Natta and Amy Waldman, examine Questioning Terror Suspects in a Dark and Surreal World:

Senior American officials said physical torture would not be used against Mr. Mohammed, regarded as the operations chief of Al Qaeda and mastermind of the Sept. 11 attacks. They said his interrogation would rely on what they consider acceptable techniques like sleep and light deprivation and the temporary withholding of food, water, access to sunlight and medical attention.

You think that's not so bad, right? Read on:

American officials acknowledged that such techniques were recently applied as part of the interrogation of Abu Zubaydah, the highest-ranking Qaeda operative in custody until the capture of Mr. Mohammed. Painkillers were withheld from Mr. Zubaydah, who was shot several times during his capture in Pakistan. Routine techniques include covering suspects' heads with black hoods for hours at a time and forcing them to stand or kneel in uncomfortable positions in extreme cold or heat, American and other officials familiar with interrogations said. Questioners may also feign friendship and respect to elicit information. In some cases, American officials said, women are used as interrogators to try to humiliate men unaccustomed to dealing with women in positions of authority.

Have you wondered where Ramzi Binalshibh was taken? Now we know. A secret CIA base in Thailand. Ouch.

Intelligence officials also acknowledged that some suspects had been turned over to security services in countries known to employ torture. There have also been isolated, if persistent, reports of beatings in some American-operated centers. American military officials in Afghanistan are investigating the deaths of two prisoners at Bagram in December.

Here are some details provided by CIA officials on the treatment of one detainee whom they thought had information.

What is known is that the questioning was prolonged, extending day and night for weeks. It is likely, experts say, that the proceedings followed a pattern, with Mr. Faruq left naked most of the time, his hands and feet bound. While international law requires prisoners to be allowed eight hours' sleep a day, interrogators do not necessarily let them sleep for eight consecutive hours.

Mr. Faruq may also have been hooked up to sensors, then asked questions to which interrogators knew the answers, so they could gauge his truthfulness, officials said.

The Western intelligence official described Mr. Faruq's interrogation as "not quite torture, but about as close as you can get." The official said that over a three-month period, the suspect was fed very little, while being subjected to sleep and light deprivation, prolonged isolation and room temperatures that varied from 100 degrees to 10 degrees. In the end he began to cooperate.

Techniques vary from country to country.

American and foreign intelligence officials have acknowledged that suspects have been sent to Jordan, Syria and Egypt. In addition, Moroccan intelligence officials have questioned suspects and shared information with their American counterparts.

In one case in Morocco, lawyers for three Saudis and seven Moroccans accused of plotting to blow up American and British ships in the Strait of Gibraltar last summer said their clients were tortured. Moroccan officials denied that physical torture was used but acknowledged using sleep and light deprivation and serial teams of interrogators until the suspects broke.

....In Cairo, leaders of several human rights organizations and attorneys who represent prisoners said torture by the Egyptian government's internal security force had become routine. They also said they believed that the United States had sent a handful of Qaeda suspects to Egypt for harsh interrogations and torture by Egyptian officials.

"In the past, the United States harshly criticized Egypt when there was human rights violations, but now, for America, it is security first — security, before human rights," said Muhammad Zarei, a lawyer who had been director of the Cairo-based Human Rights Center for the Assistance of Prisoners."

Ouch again.

Why is this just now coming to light? It screams "torture" at us, but we're willing to hear what Secretary Rumsfeld has to say before we get really angry.

Military coroners have determined that the deaths of two detainees while in U.S. custody in Afghanistan were homicides, CNN has confirmed.

A criminal investigation into the December deaths of the two men is in its final stages, but a U.S. military source said it is not clear whether anyone will be charged. One senior military official said, "This investigation may not go well for us.

The men died shortly after arriving at Bagram air base north of the Afghan capital, Kabul. The first man died December 3 of a pulmonary embolism and the second one December 10 of a heart attack. Autopsies found that "blunt force trauma" was a contributing factor in both cases, military sources said.

U.S. military police run the Bagram detention facility.

Sunday night we posted that we thought Ramzi Binalshibh had cooperated with his interrogators in a foreign country and ratted out Khalid Shaikh Mohammed . This article in Monday's Washington Post agrees and describes how it happened. Time magazine has a different version.

Sources tell Time that agents had been led to his hideout through the earlier arrest of an Egyptian in Quetta who had been in contact with Mohammed. Neighbors, wary of the lone Arab who appeared in their working-class area, tipped off the police, hoping for a reward. Phone records led them to Rawalpindi, where investigators say Mohammed had been hiding for 10 days before his arrest.

The London Sun shares Time's view and has an article describing the neighbor informant and the 17 million pound reward money he is receiving, saying he chose to relocate to Leiceister in England over going to the U.S. And that Osama has put out a contract on the informant.

It's difficult to reconcile such inconsistent versions of what led to Mohammed's capture. And on the topic of Mohammed's interrogation, we've seen articles announcing there would be no torture; there would be psychological torture only;and they would stop just short of torture.

It seems like there is some dissembling going on.

Khalid Shaikh Mohammed, arrested in Pakistan and turned over to U.S. authorites, is believed to be a mastermind of the Sept. 11 attacks. He is being interrogated as we write. But instead of being flown to the U.S. or Guantanamo, he has been flown overseas , probably to Afganistan.

The intelligence information Mohammed is believed to possess -- including, perhaps, the locations of bin Laden's hideouts as well as details of al Qaida operations and structure -- makes him much more valuable for interrogation as an enemy combatant, the source said, adding that questioning will likely take place overseas.

Being flown overseas? Why? Undoubtedly because overseas countries like Afganistan allow torture to be administered during interrogations.

But let's draw the dots. Who else is being interrogated overseas? Ramzi Binalshibh. The U.S. says Ramzi has been talking (again, why...torture, perhaps?)--that's the reason they gave for not wanting to make him available to Moussaoui's lawyers, even though he might have information that would exculpate Moussaoui.

Remember when Ramzi was arrested, after being secretly taped during an interview about the 9/11 attacks on al Jazeera television with another Al Qaeda member? That other Al Qaeda member was Khalid Shaikh Mohammed.

Mohammed was arrested in Pakistan on a "law enforcement tip." Time Magazine reports,

Sources tell Time that agents had been led to his hideout through the earlier arrest of an Egyptian in Quetta who had been in contact with Mohammed. Neighbors, wary of the lone Arab who appeared in their working-class area, tipped off the police, hoping for a reward. Phone records led them to Rawalpindi, where investigators say Mohammed had been hiding for 10 days before his arrest.

We suspect the tip was one emanating from Ramzi Binalshibh--and again, we question whether it was obtained via torture. Torture is an unacceptable violation of human rights that should not be countenanced by the U.S. wherever it takes place. We have no business being complicit in it. It demeans us all.

Update: Atrios, in a comment over at Oliver Willis, says, "Once we give our state the power to decide who is naughty and who is nice without any due process, and torture them, then unless we've decided that ours is the only state that has that right - Because We're Special - we can't criticize others for doing so."

While the military says they were prepared for suicide attempts by detainees at Guantanamo Bay, psychologists say conditions at the prison are partially to blame:

In the course of one week in mid-February, three detainees tried to kill themselves, raising the number of suicide attempts to 19 since detainees were brought to the island in January 2002. Nine of those attempts have been recorded since mid-January.

The suicide attempts -- most by hanging using clothes or bedsheets -- involve 16 detainees. Three have made multiple attempts. None of the suicide attempts has been successful, though at least one detainee is in serious but stable condition at the base hospital.

... experts in correctional psychology say the problem is likely heightened by the hopelessness and stress some of the detainees may experience because of a long confinement with no foreseeable end, and by prison rules that forbid contact with families and lawyers.

What did the military expect when they made plans to lock people up indefinitely, thousands of miles from their home countries, without giving them the protection of prisoner of war statutes, access to lawyers, telephone contact with family members, or even charging them with a crime?

"As far as they know, they're going to be there forever," said Michael Ratner, president of the New York-based Center for Constitutional Rights. "It must give people a sense of desperation. . . . This is like a Devil's Island."

Particularly when you add in the stress resulting from the military's "aggressive interrogation techniques." How does this bode for U.S. servicemen and women who will be undoubtedly be captured in hostile countries once the war officially begins? Typical of the way this country operates, those who cooperate with their captors will receive favorable treatment. What about the non-terrorist captive who has no information with which to barter? He's apparently out of luck.

The detainees are held in one-person cells inside three maximum-security blocks -- known as Camps I, II and III -- which replaced the open-air holding pens, known as Camp X-Ray, that were used when detainees arrived on the island. An undetermined number of detainees who have cooperated with interrogators will be transferred sometime this month to a fourth prison building, a new minimum-security facility capable of holding as many as 200 inmates. It has large, communal housing bays and common rooms where detainees can gather to play games or socialize, according to Army Lt. Col. Bill Costello, a spokesman for the joint military task force that runs the prison.

Once again we are being kept in the dark. Officials won't disclose the nature of the suicide attempts or the identities of those detainees who attempt it. They won't discuss the size of their medical staff. Or whether they are going to change their interrogation methods. But they want us to believe they have a handle on it. We're not buying it--any more than we buy their explanation that many of the suicide attempts are fake and manipulative. We hope the human rights organizations keep pressing for details. "No comment" is simply not an acceptable response.

Jeffrey Steinborn, a criminal defense attorney in Seattle, has these thoughts on why we should all care about the Adminstration's treatment of the detainees, including U.S. Citizens like Jose Padilla:

Remember Pastor Niemoller. His message was simple but reflects what appears to be an inevitable rule of history -- if you don't stand up for those whom we all most detest, it won't be long before there's no one to stand up for us. What I have observed in some 35 years as a soldier in the war on drugs is that the U.S. government hones and polishes its techniques -- pre conviction forfeiture without effective due process, trial by ambush, erosion of the bill of rights . . . etc -- by using them on those for whom the fewest will speak up. Having polished these techniques and getting them accepted by the public as legitimate law enforcement techniques, they then turn them against the rest of us. Drug dealers have been a convenient target for a long time. Look how far the government has been able to push the constitution in the name of the war on drugs. Now we have someone even more easily branded as unworthy of due process. Of course Pastor Niemoller was talking about a situation where people were targeted for overtly religious or ethnic reasons and exterminated. We're much too modern and sophisticated for that. We now target them because they're evil. And, instead of killing the detested folks we now just lock them up forever. Nor do we have to tattoo them anymore -- now we have DNA. The whole system is a bit more expensive than just killing everyone, but reasonably effective.

That's where we defense lawyers come in and do our job as an essential institution in a democracy. We are the last few who will stand up. True, we despise this enemy, and fear his undemocratic terror tactics. The point of our system is that it's strong enough and flexible enough to survive this sort of threat, so long as we don't abandon our basic due process principles. And, of course, there is no evidence that we are going to make ourselves any safer even if we do give up a bit of liberty. Do you trust the Bush crime family to know where to draw the line? Operation Pipe Dreams suggests that they don't. With domestic law enforcement turned over to an administration that covers the breasts on statues I don't think we can afford to take their word for it when they single out a person and claim that person has engaged in conduct that exempts him/her from due process. To the contrary, that's the point where due process becomes the most important.

Anyone who thinks the line between military action and police action still has some significance in this society isn't paying attention to current law enforcement techniques. For more than a decade the military has been heavily involved in domestic drug law enforcement. The posse comitatus act is a shadow of its former self. In Washington, where I live, the government regularly uses military personnel and equipment to conduct routine two-bit marijuana investigations. The military is trained and equipped for domestic law enforcement of all kinds. They have learned the drill by practicing on drug suspects. This line has already been breached. Allen is not just being paranoid when he fears that the war on terrorism will extend to the war on drugs. Drugs were co-opted into the war on terrorism almost immediately. Remember the super bowl adds following 911? The fact that drug dealers are tried and convicted in courts doesn't answer the question. The real danger here is in the erosion of the rights that once made that trial process fair. The erosion process is pretty subtle, particularly if you're not directly involved in it. But for many accused of drug dealing it's only one step away from what the administration now does with those it labels "terrorists." It just looks a little better on the surface.

It seems to me if there's not enough evidence to convict persons at a trial, then there's not enough evidence to detain them indefinitely without counsel. It reminds me of the system they have in the terribly modern country of Singapore. Accused have the right to counsel so long as counsel would not interfere with the investigation. And, of course, until the accused confesses, counsel would indeed interfere with the investigation. Meanwhile they lock you up incommunicado, and throw a little cold water on you now and then when you think about sleeping. Sooner or later you confess and then you get a lawyer. I wonder what we do to the detainees we call terrorists?

Jeff Steinborn
"Fight Terrorism -- Smoke Homeland Grown"

The Government has provided a rare update on the Guantanamo detainees. Of course they are trying to put the best possible spin on it, but we're having a hard time buying into some of their statements.

The Government has been offering "rewards" to the prisoners. If the prisoners want to "eventually" return to their native countries, they are told they should be good and earn the rewards. The rewards range from a soccer ball to an extra blanket to "an extra serving of rice and lentils for the feast of Eid-al-Adha, a Muslim holiday."

The Government says there are 650 detainees from 41 countries at Guantanamo Bay in single-man cells. Over 58% have received one of the 23 available rewards. Only 6% have cooperated with the Government. Yet a Government spokesman says, "We believe the rewards and penalties program has helped us increase the amount and quality of the information."

The Government refuses to answer questions about the rash of suicide attempts by the detainees. Five of them tried to hang themselves in the last month. One is still hospitalized in serious condition. (He was probably one of the two of the 650 who have been allowed to phone home.)

Amnesty International asks a good question. Is it only rewards being handed out, or is the lack of cooperation being punished by more than withholding of rewards? Is the "rewards system" connected to the suicide attempts? The Government's answer is this: "Military officials say penalties amount to an absence of rewards."

If in over a year, only six percent of the 650 detainees have cooperated, and no criminal charges have been brought against any of them, despite forced interrogations of all of them without counsel, why can't they go home now? How much is it costing us to continue to house them? At what point does the government admit they are not Al Qaeda terrorists and have no relevant information to share?

There's a nice profile of Donna Newman, court-appointed lawyer for Jose Padilla, in the New York Times, Speaking for Terror Suspect, and for the Constitution.

We heard Donna speak in November at the National Association of Criminal Defense Lawyers' board meeting in San Francisco. We don't think she'll lose either.

For a good and concise summary of the issues involved, check out this article in the Philadelphia Inquirer. (Thanks to Jim Capozzola of Rittenhouse for sending it to us.)

More than two dozen men arrived at the U.S. prison at Guantanamo Bay in Cuba on Friday, bringing the total number of detainees at the naval base up to about 650.

The Pentagon released figures on suicide attempts at the prison camp. There have been 15 suicide attempts in the past year since the camp opened. Five prisoners tried to hang themselves withing the past three weeks.

Amnesty International is calling for an investigation to determine whether interrogation techniques are causing the suicide attempts.

The Government would not disclose exactly how many new prisoners arrived or what country they came from.

"The detainees, treated by the U.S. government as enemy combatants, are being held indefinitely without being formally charged or tried, and they are interrogated without access to lawyers."