Salon has an excerpt today from "My Heart Became Attached: The Strange Odyssey of John Walker Lindh. "

Salon contributor Mark Kukis retraces John Walker Lindh's footsteps from Yemen to Pakistan, a face-to-face meeting with Osama bin Laden, fighting with the Taliban, and his eventual dramatic capture by U.S. forces. The book is based on dozens of interviews with Lindh's ex-roommates, teachers, friends and government sources.

My Heart Became Attached
The Strange Odyssey of John Walker Lindh

by Mark Kukis

As of this posting, Amazon has only five left in stock.

From an editorial in today's New York Times, Injustice in Guantánamo:

The Bush administration has already denied each of the Guantánamo detainees one basic right guaranteed in the civilian justice system: a speedy trial. Now it appears determined to deny many more. Before these prosecutions go any further, the administration should overhaul its procedures until it has a system capable of exonerating the innocent, and of showing a skeptical world that those who are convicted are in fact guilty.

On August 2, 2003, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) passed a resolution regarding lawyers' participation in the tribunals. We just received the full text today:

WHEREBY a Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 F.R. 57833 (Nov. 16, 2001), and its implementing instructions issued April 30, 2003, defined the proceedings for representing the accused in Military Commissions at Guantanamo Bay;

WHEREBY the Military Commission Instructions impose severe limitations on defense counsel and deny due process and attorney-client confidentiality and privilege;

WHEREBY such limitations make it impossible for counsel to provide adequate or ethical representation, and representation before such a commission would make it necessary for a criminal defense attorney to contract away his or her client’s rights, including the right to zealous advocacy;

THEREFORE BE IT RESOLVED that NACDL deems it unethical for a criminal defense lawyer to represent a person accused before these military commissions;

Patrice Lumumba Ford is one of the defendants in the Portland 7 alleged terrorism case (Mike Hawash is another.) Ashcroft is seeking to prevent New York lawyer Stanley Cohen from representing him-- based on a secret affidavit that claims Cohen has a conflict due to his prior representation of Sheik Mohamed Abdirahman Kariye, the prayer leader at the Islamic Center of Portland, who is also known as Masjed As-Saber.

The defense has filed a motion for access to the sealed affidavit, demanding to know what evidence there is to link Kariye to the alleged terror cell plot. A hearing will be held August 22 on the Government's motion to bar Cohen from the case.

The government's motion claims Kariye provided money and other support to the local Muslims who allegedly tried to travel to Afghanistan to fight against the allied forces that overthrew the country's Taliban regime. Kariye also helped start a Muslim charity in the United States the Global Relief Foundation that the government accuses of funding terrorism.

Despite these allegations, the government has not charged Kariye with any terrorism-related crimes.

Our view: How can Cohen respond to the allegations without knowing what facts or mistruths the Government is relying upon? Lawyers should not be barred from representation based on secret evidence.

The Rocky Mountain News has a full page article today on defense lawyers balking at the rules the Administration has proposed for military tribunals. A few weeks ago, when the National Association of Criminal Defense Lawyers ( NACDL) was in Denver for its annual meeting, we were one of five NACDL leaders who went to the Rocky Mountain News offices to meet with its Editorial Board. The paper recorded the meeting and now has printed much of the transcript, along with photos (only our's appears in the online version, but the print version has a picture of outgoing NACDL President Larry Goldman as well.)

We're thrilled to see the issue get such detailed coverage. We hope you'll give it a read. Major thanks to Vincent Carroll, Editor of the Rocky Mountain News editorial pages, for allowing NACDL to express its opinion and for publishing our views. And to NACDL Media Affairs Director Dan Dodson who arranged the meeting.

Bump and Update: The ABA House of Delegates will be debating and voting on a resolution criticizing several of the proposed rules for military tribunals today, so we are bumping up this post from Sunday:

**************
Saturday, at the ABA Criminal Justice Section Council meeting in San Franscisco, the Council took up the issue of the proposed rules for military tribunals. On August 2, the NACDL Board of Directors unanimously voted to oppose the rules in a resolution that said it would be unethical for a criminal defense lawyer to represent an accused before these military commissions in their present form because the restrictions imposed upon defense counsel make it impossible for counsel to provide adequate or ethical representation.

The ABA Task Force on the Treatment of Enemy Combatants, chaired by Neal Sonnett of Miami, joined with the Criminal Justice Section, NACDL and other bar groups in the preparation of a comprehensive report and resolution that will be presented this Tuesday to the House of Delegates. You can read a non-lawyer description here.

The Resolution calls upon the Government to make seven modifications in the tribunal rules. The resolution passed the Criminal Justice Section by a wide margin, and now moves on to the House of Delegates. Here they are in long form.

1. The government should not monitor privileged conversations, or interfere with confidential communications, between any defense counsel and client;

2. The government should ensure that CDC who have received appropriate
security clearances are permitted to be present at all stages of commission
proceedings and are afforded full access to all information necessary to prepare a defense, including potential exculpatory evidence, whether or not used, or intended to be used, at a trial;

3. The government should ensure that CDC are able to consult with other attorneys, seek expert assistance, advice, or counsel outside the defense team,
and conduct all professionally appropriate factual and legal research, subject to their duty not to reveal or disseminate classified or protected information or to such other conditions as the presiding officer of a military commission may determine are required by the circumstances in a particular case after notice and hearing;

Once again, we see how our Government can barter away the threat of a long jail sentence and presto, there's the light of liberty at the end of the tunnel. The Guardian reports the U.S. and the two British detainees at Guantanamo (and perhaps one Australian) are in the midst of plea negotiations.

According to the report, which originated in the Wall Street Journal, here's the deal:

The two Britons, Moazzam Begg and Feroz Abassi, provide information to the U.S. They plead guilty to war crimes. They renounce Osama and terrorism. They say they were well treated at Guantanamo. In exchange, they get a reduced jail sentence.

That happens all the time in federal criminal courts. But this isn't federal criminal court. This is the military. The men are being held as enemy combatants. So here's the kicker: They have to make this decision on their own, without the help of a civilian defense lawyer. Because, as we know, the Administration holds that enemy combatants aren't entitled to a lawyer.

Clive Stafford Smith, a lawyer who has applied to the Pentagon to represent the British inmates, said the report confirmed what he had learnt - that the Mr Begg and Mr Abassi, were being put under pressure to strike a plea deal before they were allowed to see a civilian lawyer.

Major John Smith, a US military lawyer involved in the cases, denies there are ongoing plea negotiations, although he acknowledges plea deals are permissible under military tribunals. He says the men would be allowed to meet with a military defense lawyer and a civilian lawyer if they chose to do so before having to make a decision. He denies there have been any talks of pleas with the men.

Robert Levy, senior fellow at the CATO Institute, reviews the Jose "Dirty Bomber" Padilla case in a smart op-ed in today's Chicago Times. By now, we're all familiar with the facts: Padilla, an American citizen, has been declared an enemy combatant and held in a military brig for over a year without charges or access to counsel.

Padilla may deserve the treatment he is receiving--perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney.

Congress must first set the rules. Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution.

James Madison, in Federalist No. 47, put it succinctly: ''The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.''

We are letting Bush, Ashcroft and Rumsfeld, our own favorite axis of evil, take all the power. They are weakening the judiciary, both by taking power away from federal judges and by nominating only conservatives who agree with them to the bench. Their cronies dominate Congress. Unless we get our act together and vote this triumverate out in 2004, we won't recognize our own system of justice in five or ten years--it truly will have become a system of injustice.

Give a little to the Democrats, give often and do your part to get out the vote.

From the Oregonian:

Maher "Mike" Hawash's deal with the government allows him to avoid what could have amounted to a life sentence in exchange for becoming a chief witness against his alleged co-conspirators. The deal calls for a 7- to 10-year federal prison term, which will be determined by a federal judge after the trial of the others.

Hawash pleaded guilty to providing material support and services to the Taliban.

In exchange for testimony, federal prosecutors agreed to drop charges of conspiring to levy war against the U.S. and conspiring to provide material support for terrorism. He will serve a minimum of seven years in federal prison under the deal, which was approved by U.S. Attorney General John Ashcroft.

We'll wait to see more before we comment. But as one reader e-mailed us, the issue is:

Has Mike Hawash caved-in to pressure and agreed to 7 years in prison? Or has he got 7 years because - despite everything his friends and family knew about him - he was secretly a spy?

Our prior Hawash coverage is here. We recommend this post , questioning the Government's use of the material witness statute against Hawash.

We can't say we're surprised to read that Al Qaeda official al-Zawahri is threatening the U.S. if it harms the Guantanamo detainees:

An audio tape purportedly of top al Qaeda official Ayman al-Zawahri warned the United States on Sunday it would pay a high price if it harmed any of the detainees at Guantanamo Bay in Cuba.

The voice on the tape, broadcast by the Dubai-based Arabic television Al Arabiya, also told the United States that the "real battle" against it has not started yet.

"America has announced it will start putting on trial in front of military tribunals the Muslim detainees at Guantanamo and might sentence them to death...," said the voice, which Al Arabiya television identified as Zawahri's.
"I swear in the name of God that the crusader America will pay a dear price for any harm it inflicts on any of the Muslim detainees...."

Is it just our imagination, or does it seem like Al Qaeda is rising again, along with the Taliban. It's not looking so certain to us that we won the war instead of just a battle.

The nation's largest criminal defense organization, the National Association of Criminal Defense Lawyers ( NACDL) voted today that the Administration's rules for military tribunals make it ethically impossible for lawyers to participate in them.

"We took the position that it is unethical for a lawyer to represent a client under current conditions for military tribunals, and if a lawyer chose to do so, he or she must contest all of those unethical conditions," said Barry Scheck, the incoming president of the National Association of Criminal Defense Lawyers.

The organization will issue the ethics statement to its 11,000 members. Lawyers are not legally bound by the organization's positions, but state bar associations sometimes adopt the same reasoning for their rules.

We voted for the resolution condemning the procedures. There was a long debate, at which numous facets of the issue were debated, but the bottom line was, almost all of us felt that these regulations posed the most dangerous threat to due process, justice and the mission of the legal profession that any of us had ever seen. Not only could we not accept the rules, most of us felt that the rules must be actively opposed.

The American Bar Association will be voting on the tribunal procedures at its annual meeting next week in San Francisco. As a member of the ABA Criminal Justice Section Council, we'll be at that meeting as well.

What's so bad about the rules contained in Military Commission Instruction No. 5? If it's not apparent from the rule, scroll down to Annex B and read the affidavit that civilian defense lawyers must sign to be allowed to participate.

Here's more with specifics of the objectionable provisions of the rule.

NACDL's annual meeting begins tonight in Denver. One of the issues we will be taking up is whether lawyers should represent detainees at Guantanamo in military tribunals. Here's a summary of the issue and why the Government's announced restrictions on civilian lawyers who represent the detainees pose an ethical dilemma for lawyers.

As we've highlighted before, the reason the Lackawanna Six (also called the Buffalo Six) pleaded guilty to terrorism charges was because of threats from the Justice Department. Why would they plead guilty if they weren't guilty?

Defense attorneys say the answer is straightforward: The federal government implicitly threatened to toss the defendants into a secret military prison without trial, where they could languish indefinitely without access to courts or lawyers. That prospect terrified the men. They accepted prison terms of 61/2 to 9 years.

"We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us," said attorney Patrick J. Brown, who defended one of the accused. "So we just ran up the white flag and folded. Most of us wish we'd never been associated with this case."

The mainstream media is now covering the issue of how terrorism cases are tilted towards the prosecution.

The Lackawanna case illustrates how the post-Sept. 11, 2001, legal landscape tilts heavily toward the prosecution, government critics contend. Future defendants in terror cases could face the same choice: Plead guilty or face the possibility of indefinite imprisonment or even the death penalty. That troubles defense attorneys and some legal scholars, not least because prosecutors never offered evidence that the Lackawanna defendants intended to commit an act of terrorism.

"The defendants believed that if they didn't plead guilty, they'd end up in a black hole forever," said Neal R. Sonnett, chairman of the American Bar Association's Task Force on Treatment of Enemy Combatants. "There's little difference between beating someone over the head and making a threat like that."

Read the Lackawanna prosecutor's response to the assertion....although he says there was no "explicit threat, "he hardly issues a denial. It's more like an explanation why it was justified.

This is a thorough article on the Lackawanna case....and on some others. The next article in the series will focus on Jose Padilla, the American citizen who has been held in a military brig in South Carolina for over a year, with no charges and no access to his lawyer.