The U.S. government has lost eight out of 15 habeas petition cases in which Guantánamo inmates alleged they or witnesses against them were forcibly interrogated, reports ProPublica, in an analysis jointly published with The National Law Journal.

The report by the investigative journalism nonprofit assesses the effect of mistreatment allegations on detainees' lawsuits by looking at 31 published decisions, which resolve the claims of 52 captives who alleged they were wrongfully detained. Fifteen of those published decisions were found to contain allegations of mistreatment, ranging from verbal threats to physical abuse labeled as torture, but because large portions of some of the decisions were redacted, the report notes that there may be other cases in which inmates alleged forcible interrogation.

The judges in these cases rejected government evidence that had been coercively obtained, using forcible interrogations. "Even in the seven cases the government won, the judges didn't endorse aggressive methods," ProPublica reports, noting that in six of those cases, the judge disbelieved the detainees' allegations of mistreatment.

The report continues:

The 15 decisions offer the most detailed accounting to date of how information obtained from the Guantánamo inmates through controversial tactics is standing up in court. They come in cases initiated by detainees seeking release via a writ of habeas corpus, not cherry-picked by prosecutors. Criminal law experts say the judges' opinions help explain why the government has decided not to pursue criminal convictions against some detainees. Such evidence would pose even greater problems in criminal trials, for which requirements of proof are more demanding.

The Obama administration has already said that at least 48 of the remaining 176 prisoners at Guantánamo will be held indefinitely because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. They've said that coercion-tainted evidence is one obstacle.

The report also notes that the government was successful in only one out of fifteen cases in arguing that the taint of government coercion was eliminated by a subsequent change in location, interrogator or circumstance.

In all, 53 habeas cases have been decided, of which the government has lost 37, "most because it couldn't produce enough reliable evidence that the men were al-Qaida or Taliban militants," according to the report. More than 50 habeas suits are still pending.

The report includes two in-depth charts, one documenting "How Judges are Ruling in Cases Where Mistreatment is an Issue" and one containing updated information on all detainees whose lawsuits have been decided by federal judges.

In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department's Website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.

I would like to offer a different take -- in part at the 50,000-foot level, but in part a worm's-eye view.

At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice-a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.

Before I get to those factors, it's important to focus on who is "the public" for the purpose of this inquiry. Is it only the American electorate, as Mr. Kris suggested ("the American people need to understand, and have confidence in, all of the tools in the toolbox")? Or does it include people in other democracies, whether or not they have chosen to ally with us in the struggle with al Qaeda? Or does it extend to people who are either quite neutral, or worse yet, favorably disposed to al Qaeda? Let's assume we are talking about a population that at least shares our core values about the rule of law.

So what affects public confidence in the administration of justice?

• Outcomes that are objectively accurate are a good starting place. That only persons who are guilty are found guilty. And of course that the guilty are actually convicted.

• That sentences are within reason.

• That proceedings are conducted with reasonable dispatch.

A system that failed any of these three tests would hardly earn public confidence, however you define the public.

Taking only these three factors into account, how do the military commissions stack up?

Given the handful of cases to date, it does seem that no innocent persons have been convicted, and -- since there have been no acquittals--it is obvious, conversely, that no guilty person has been acquitted.

Sentencing presents a tougher question. Certainly the few sentences that have been handed down have not been draconian. Indeed, some might argue that if anything they have been too lenient, although it is hard to carry the day on that point given the protracted periods of pretrial confinement the accused have experienced. The government tried without success to have the commission reconsider Salim Hamdan's receipt of credit for time served.

Reasonable dispatch is an even harder case to make. Admittedly, the impediments to conducting trials by military commission have been daunting. Because the Bush Administration elected to proceed as it did, without legislation other than the Authorization for Use of Military Force (rather than amending the military commission aspects of the Uniform Code of Military Justice), litigation was certain. The novelty and nature of the issues made Supreme Court review highly likely, with the delay that entails given the Court's reluctance to convene in extraordinary sessions. In addition to its fundamental error of proceeding by Military Order in November 2001, the Bush Administration also reduced its own chances of success in the inevitable litigation by failing to make impracticability findings that any reasonable observer would accept as justifying a departure from civilian procedure or even court-martial procedure, as the Court noted in Hamdan v. Rumsfeld.

And yes, when Congress got into the act by passing the Military Commissions Act of 2006, it ensured further delay since the legislation proved defective, as the Court held in Boumediene v. Rumsfeld, requiring yet additional legislation in 2009.

But set all of that aside. Have the commissions proceeded-allowing for these delays-with what any reasonable observer can call reasonable dispatch-or can we expect that going forward? I think not. Why is that? One explanation is the sheer inconvenience of the place of trial (never mind the expense, as General Charles C. Krulak, retired Commandant of the United States Marine Corps observed a week ago in an extraordinary letter to the editor of The Washington Post). General Krulak commented: "The real absurdity of the Guantanamo boondoggle is that we never needed to spend a dime to create it." He also wrote: "the greatest cost of Guantanamo has been to American global leadership and credibility as a nation that respects the rule of law."

I know of no place under the U.S. flag in which sheer geography imposes such hurdles on counsel and other trial participants. No, it's not easy to make time to visit any client who is behind bars, but in what other setting is the mere act of visiting such a production, with access so pervasively controlled by the government? And I don't mean just getting into the counsel-interview room: I mean getting to the place of detention itself. It may be only 100 miles or so as the crow flies from Miami to Guantanamo, but it might as well be thousands of miles away.

No wonder these cases have taken forever to move forward. Remember, every motion session involves flying in a substantial case of characters: prosecutors, defense counsel, court reporters, translators, paralegals, security personnel, and judges.

Adding to the delay has been the Defense Department's delay in generating the detailed rules to govern the proceedings.

Even if one were to subtract all time attributed to the effective advocacy of detainee counsel such as present Acting Solicitor General Neal Katyal, it is impossible to justify the parade-like pace of these proceedings.

So far I've discussed accuracy in results, reasonableness of sentences, and timeliness. Are there other factors that bear on public confidence in the commissions?

Mr. Kris mentioned certainty as a factor militating in favor of civilian trials. That's true. Numerous observers have commented on the fact that the participants in the Guantanamo commissions seem to be making it up as they go along. We simply don't have a body of military commission precedent on which to draw. Earlier this year, one motions session was convened before the Pentagon issued a manual to replace the outdated one issued in 2007 to implement the 2006 Military Commissions Act. Is it difficult to have confidence in legal proceedings where the rules are announced in midstream. This kind of thing in turn builds in further delay-see above. Mr. Kris thinks uncertainty will recede over time. Maybe it would, if we were willing to give these cases an eternity.

How rules of law are made is itself the kind of thing that contributes to or detracts from public confidence. For those of us who thought we were actively participating in the legislative process that led to enactment of the 2006 MCA, it was a bitter experience to learn that the key elements were being worked out behind closed doors. Much the same happened with the 2009 legislation. But that's Congress, and perhaps there's no difference between what happened in 2006 and 2009-with the target off the radar screen-and how legislation is typically made in this town.

But the legislation was not the end of it. There were also massive implementing rules, about the size of the Montgomery County telephone directory. Numerous students of the military commissions-myself included-were appalled when the Bush Administration mostly dispensed with notice-and-comment rulemaking for the pre-MCA commissions. Earlier this year, the current Administration dispensed with public comment entirely in promulgating the 2010 Manual for Military Commissions, and failing even to issue an explanatory memorandum-which you and I both know exists-setting forth what had changed from the 2007 version. Observers were on their own in trying to find and understand the changes. So much for transparency in structuring the administration of justice by military commissions.

Public access to legal proceedings is another potent factor in fostering or eroding public confidence. Where the place of trial is remote and subject to stringent governmental access controls, one would think those in positions of responsibility would bend over backwards to accommodate and indeed, facilitate, public knowledge of the proceedings. (Remoteness also works a hardship on victims.) What, then, to make of the Defense Department's recent decision to exclude four journalists-including the Miami Herald's indefatigable Carol Rosenberg, the doyenne of the Guantanamo press corps-on the ground that they had published the name of an interrogator who was called as a witness. Their having done so was said to have violated the Guantanamo media ground rules, but the witness was widely known to have been prosecuted by court-martial and indeed had gone public with the media in his own defense. It is preposterous for the Pentagon to have excluded these journalists, partially if not substantially decapitating the Guantanamo press corps, and thereby depriving the American, Canadian and world public of the benefit of their insights. I hope the Pentagon public affairs apparatus relents and that the federal courts do not have to become involved, but whatever the dénouement, public confidence cannot have been served by this episode.

A legal system that is entitled to respect makes it decisions and the parties' submissions available in an organized fashion and a timely manner. I invite you to visit the Defense Department's website for military commissions and draw your own conclusions. The National Institute of Military Justice, which I head, responded by creating a Military Commission Reporter series to give the bench and bar access to the decisions in user-friendly law-reporter format. Why didn't the government do this itself?

What are we and others to make of the fact that Congress elected not to confer military commission appellate jurisdiction on our specialized appellate court for military cases, the U.S. Court of Appeals for the Armed Forces? Does a conscious choice like this-routing cases to another court that seems to have been selected only because it has been highly deferential to the Executive and Congress in Guantanamo-related cases-suggest forum-shopping on the grandest scale? What impact does this kind of transparent legislative ploy have on public confidence here or elsewhere?

Finally, our military commission system revolves around an official called a Convening Authority ("CA"), who decides which cases should be prosecuted. The CA is a familiar figure in American military justice, but military commissions do not have to do with maintaining good order and discipline within our forces; they have to do with punishing non-soldiers on the opposing side. Such an arrangement offends settled human rights norms to which our NATO allies subscribe. If part of what we are after is to earn public confidence among the democratic countries with which we share so much, and on which we rely, having a CA-be he who he may (the incumbent has a sterling reputation)--run the show is self-defeating. The power to make prosecutorial decisions should be vested in an independent prosecutor. This is 2010, not 1942.

Could some of these conditions be fixed in a way that was more likely to foster public confidence? Of course. However, at a certain point it becomes too late; an institution becomes tarnished beyond repair. In the case of the military commissions, it's too late.

I will close with one last, disturbing thought. Increasingly we have seen United States citizens engaging in conduct that is not reasonably distinguishable from the kinds of conduct for which we have chosen the military commission as a forum. Unless we are willing to change our rules and subject holders of U.S. citizenship to trial by military commissions, and I hope we are not, this pattern injects an arbitrary discrimination that will be increasingly hard to justify.

[image via U.S. Army]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

Sen. Charles E. Grassley and conservative organizations, such as Keep America Safe are accusing nine Department of Justice attorneys of being "terrorist sympathizers." The Washington Post's Carrie Johnson reports that conservatives opposed to the administration's efforts to shutter Guantanamo Bay "have trained their fire on an unusual target: political appointees in the Obama Justice Department who represented detainees earlier in their careers." Johnson notes that Grassley has been badgering the DOJ "for months" about releasing the names of those attorneys. Keep American Safe, a group The Post describes as being affiliated with Vice President Dick Cheney's daughter, Liz Cheney has piled on with an over-the-top YouTube video called "DOJ: Department of Jihad?"

The video, The Post reports, has now garnered criticism from both Democrats and Republicans. The newspaper cites as an example George Washington University law school professor Orin Kerr's blog post for the Volokh Conspiracy that said the video was akin to something "former Senator Joseph McCarthy would have used ... if he were alive today." Kerr, winner of a prestigious Federalist Society award and a former prosecutor in the DOJ's Criminal Division, as part of the Attorney General's Honor Program, is hardly a staunch backer of much of the administration's policy on terrorism. A former Bush White House attorney Reginald Brown scored the video as being "beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court."

For more on what he describes "a smearing of Justice Department lawyers," see Adam Serwer's recent article for The American Prospect. 

Picking Cotton

Our Memoir of Justice and Redemption

By Jennifer Thompson-Cannino and Ronald Cotton, with Erin Torneo

[Available Here]

[Editors' Note: After the break, this post includes the author's first-hand account of a violent crime that may not be appropriate for all readers.]

As I travel across America telling our story, one of the most common questions I hear is, "How long did it take you two to write your book"? It took 25 years.

In July of 1984, I attended Elon College, a small school nestled beside Burlington, N.C. Living off-campus, I studied hard, worked two jobs, and dated my long-term boyfriend. It was a particularly hot summer, with both the temperature and humidity consistently high. My boyfriend and I spent one of those sticky, July days together playing tennis and later going out to dinner. We planned to attend a party that night, but a raging headache sent me home around 9 p.m. and I went to bed under a loud and rattling air conditioning unit hanging over my bed. I never heard the break-in, but the clock read 3 a.m. when I sensed a presence in the room. The sound of feet sliding on carpet and a brush against my left arm sharpened my consciousness.

"Who is it? Who's there?" I asked. In the blink of an eye he was on top of me, and I felt a cold, sharp object go to me throat. My screams were quickly muffled with a gloved hand and the violent command "Shut up or I'll kill you!" Every nerve ending was on high alert; I knew that my life was in grave danger, and there was nothing I could do to prevent him from killing me. Images of my mother and father filing into the morgue flashed through my mind. I would never see another sunset, tell my family that I loved them, attend graduate school or be a mom. I could not defend myself, and this horrible monster knew it.

The next thirty minutes were surreal. As he held me down and raped me, my spirit and soul slowly began to die. But I made a decision that would ultimately save my life. I must stay present. Take notes. Remember everything! Pay attention. Make a plan. I studied him. Etched in my memory forever was this face - a face I hated.

I tricked him into getting off of me - letting me make us a drink - and ran for my life. A brave neighbor let me in with seconds to spare before he could seize me again. But my nightmare had only just begun. Through the next day I would be subjected to a rape kit to collect evidence left behind, would learn that he had raped another woman within an hour of destroying my life, and ended up at the police department to help offer leads. I remembered everything about this beast, and I wanted him caught and off the streets. A composite sketch was done, newspapers ran the picture, and a suspect was detained. His name was Ronald Cotton, a young black male with a sketchy past and a knack for attracting the attention of the police.

I was able to identify my rapist in a photo lineup and a physical lineup. Both times, I pointed out Ronald Cotton. I knew it and the police knew it, but now we had to prove it to a jury. In January of 1985, State v. Cotton went to trial. After two weeks of trial and forty-five minutes of jury deliberation, Ronald Cotton was found guilty of all counts and sentenced to life plus fifty-four years in prison. Justice prevailed! I thought. A toast to the system! Ronald Cotton would be locked away forever and if there was a God, he would die there.

A second trial in 1987 would bring new information to light. Cotton's team wanted to introduce evidence that a man named Bobby Poole had confessed to the other rape for which Cotton was now being prosecuted. The judge barred the evidence, though, and the jury never got the chance to hear these lies. Once again Ronald was found guilty of all charges, and received another two life sentences. Justice prevailed again! Or so I thought.

Life moved forward. I married in 1988 and became a mother to triplets in the spring of 1990. But by March of 1995, once again my life resembled a train wreck. A DNA test was performed using some of the evidence gathered during the investigations of Cotton's crimes. And they revealed that Ronald was, in fact, innocent; the DNA belonged to Bobby Poole.

I was paralyzed with guilt, shame and fear. I cried throughout the days, became fearful with every shadow, phone call, or car that passed my house. It took two years before I had the courage to do the right thing and ask for forgiveness. With mercy, grace and without hesitation, Ronald gave me that gift and released me from a pain that had haunted me for 13 years.

Since then, Ronald and I have outspokenly advocated for reform. We have worked hard to advance justice and bring to light the human flaws that sometimes get in the way.

As Ronald was awaiting trial that summer and fall of 1984, Bobby Poole continued his reign of terror on the good people of Burlington, and six other women had their lives forever altered. And Ronald wrongfully served 11 years in prison for crimes of which he was, in fact, innocent. As a nation and a people, we must do better at delivering justice.

Justice at Guantánamo

One Woman’s Odyssey and Her Crusade for Human Rights

By Kristine A. Huskey

[Available Here]

"Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."

My colleagues and I at the white-shoe law firm of Shearman & Sterling began representing Kuwaiti citizens detained at Guantánamo in March of 2002, just six months after 9/11. Then, it was worse than controversial to do so, it was considered unpatriotic. We were called terrorists by some and The Washington Post printed a letter to the editor suggesting that we be sent to Cuba to join our clients. Because Guantánamo really was a legal black hole back then, we sued the government on behalf of our clients and wound up before the Supreme Court in the case, Rasul v. Bush, which ultimately held in 2004 that the detainees had a statutory right to habeas. We had won! When we went to Guantánamo for the first time -- soon after Rasul -- we ecstatically told our clients about the ruling that would allow them a fair hearing and eventually to go home. But, Congress intervened twice -- first with the Detainee Treatment Act in 2005, and then with the Military Commissions Act in 2006 -- all in attempt to cut off the basic right of these imprisoned men to challenge their detention.

Following our "win" in Rasul, we had four more years of litigation and countless visits to Guantánamo to deliver bad news to our clients -- men who had not seen or spoken with their families in years, men who had been abused and tortured and who had participated in hunger strikes to protest the injustice of their situation. One of my most upbeat and ever-optimistic clients wrote out his last will and testament and sliding it across the small card table, quietly told me that he just "couldn't take it anymore." Then in 2008, the Supreme Court ruled in Boumediene that the Guantánamo detainees had the constitutional right to habeas -- the right to challenge their detention -- a right which couldn't be taken away by Congress or the lower courts. We had won, again! But, the Department of Justice intervened and delayed, slowing the habeas litigation down to a crawl such that in the year and a half since the Court concluded the detainees were entitled to "prompt habeas hearings" only 41 detainees have had habeas hearings. In bittersweet victory, federal judges have determined that in 32 of those cases, the government's evidence did not justify the detentions. Some of those men are still at Guantánamo today.

When President Obama signed an executive order -- just two days after taking office -- requiring the closure of Guantánamo within one year, we rejoiced. We had won, big time! But, Congress and the fear-mongering talking heads intervened by passing legislation and inciting public opinion that would make closing Guantánamo and transferring the men to their home countries or other safe countries extraordinarily difficult.

Some people have remarked that the title of my book "Justice at Guantánamo" is an oxymoron and sadly, I couldn't agree more. I wrote the book -- a memoir -- because I wanted to tell the story of Guantánamo and how it came to be. I wanted to tell the story of my clients and me-as human beings. The book is far from a legal text, rather it is the human side of Guantánamo-an attempt to reveal the cost to the men there and the difficulties and discoveries I encountered as a young attorney. The book ends with my HOPE that President Obama would make good on his word. Yet, Obama's promise of change has atrophied into empty rhetoric.

This January is a significant month for Guantánamo observers: January 11th marked the 8th year of its existence and January 22nd was the deadline for its closure. The latter date passed without much fanfare by the government. No new deadline has been set for the prison's closure nor has any official plan been announced for dealing with the men still detained there. It is time to close the detention center, not by transporting it to Illinois, but by really closing it and all U.S.-run prisons outside the law. Justice at Guantánamo and an end to the injustice it has come to represent is long overdue.

The Supreme Court added a habeas case to its docket and asked the Solicitor General to weigh in on whether it should review a case involving lawsuit lodged against the Vatican. In Magwood v. Culliver, the high court will consider whether a second habeas petition to a new death sentence is constitutionally permissible, SCOTUSblog reports. The justices also asked the Solicitor General to offer her views in Holy See v. Doe, involving an Oregon lawsuit seeking damages over alleged sexual abuse by a Portland, Ore. priest.

The justices, without comment, rejected several cases including a trademark challenge to the NFL's Washington Redskins' name and a former high school student's First Amendment case.

In Harjo v. Pro-Football, Inc., a group of Native Americans sued the Washington football team in 1992 arguing that its name violates a provision of trademark law, which bars registration of names that "may disparage ... persons, living or dead, ... or bring them into contempt, or disrepute," The Washington Post reports. Lower federal courts had rejected the lawsuit, in part, claiming it had been filed too late.

In McComb v. Crehan, the Supreme Court, also without comment, declined to review a federal appeals court ruling that upheld Nevada public high school officials' decision to silence Brittany McComb's commencement speech after she veered from prepared text into a discussion of her Christian beliefs.

An attorney for Ali Saleh al-Marri (pictured) provided newly declassifid videos of al-Marri's six-year detention at a Charleston, S.C. military brig to The Post and Courier of Charleston, which are now available here.

"These videos show ... al-Marri[ ] struggling with his six years of solitary confinement, hiding under a metal bed without a mattress and circling his tiny windowless cell for hours," reports The Post and Courier. "Other videos later in al-Marri's incarceration show him bantering easily with brig staff as they place blackout goggles, earmuffs and chains on him before taking him out of his cell."

Adam Serwer highlighted this "kicker" from The Post and Courier's story:

A day after he took office, President Barack Obama reversed the Bush administration's enemy combatant stance and ordered al-Marri transferred from military custody to the courts. Before al-Marri agreed to plead guilty, al-Marri sat with investigators for hours, Savage said. In this less-threatening setting, al-Marri verified some of the government's accusations against him and steered the government away from errors in its intelligence.

"It was a lesson in building trust and having open communications is beneficial to the United States and al-Marri," he said. "In the interrogations, they got nothing."

Under the current administration, al-Marri was tried in federal court and recently sentenced to eight years.

A.) The government will not appeal a federal court order to release Guantanamo detainee Fouad Rabia.

B.) A distinguished, bipartisan group is urging trials in federal court for detainees.

C.) The town of Amherst, Mass. passed a resolution welcoming "cleared" Guantanamo detainees.

D.) For a total of $1.26 million, the government settled a case with five men alleging abuse at a New York detention facility in the wake of 9/11.

(H/T to Daphne Eviatar at The Washington Independent for unearthing most of these stories.)

The Supreme Court will hear argument tomorrow in Wood v. Allen, an Alabama state capital case in which the petitioner, Holly Wood, challenges his death sentence for fatally shooting his ex-girlfriend out of jealousy while she was sleeping in her home.

Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.

Mr. Wood challenged his sentence in state post-conviction proceedings on the ground that he had received ineffective assistance of counsel under Strickland v. Washington during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments. He argued that (1) defense counsel was deficient in failing to develop and introduce the mitigation evidence; and (2) there was a reasonable probability that but-for that deficiency, he would not have received a death sentence. The evidence adduced at two state evidentiary hearings on the claim strongly suggested that counsel's omission was due more to professional inexperience and poor communication among defense counsel, than a calculated, tactical decision by the defense team. (Experienced defense counsel's testimony was largely unhelpful in this regard in that, due to the passage of time, they recalled little, if any, of the actual tactical decisions made during the penalty phase.)

Nonetheless, the state court denied the ineffective assistance claim on the ground that Mr. Wood had not shown deficiency, instead concluding that "counsel thoroughly reviewed [the competency] report and determined that nothing in that report merited further investigation," and "could have decided against seeking another mental health evaluation, in order to prepare other, more promising, defenses for trial." The court also held that there was no reasonable probability that introduction of evidence of Mr. Wood's mental deficiencies would have changed the jury's recommendation. Alabama's appellate court affirmed and the state supreme court denied a request for review.

Mr. Wood turned next to federal court for relief, filing a habeas corpus petition in federal district court raising the same ineffective assistance claim. After reviewing the state record, the district court granted the writ, finding "nothing in the record to even remotely support a finding that counsel made a strategic decision not to let the jury at the penalty stage know about Wood's mental condition." Thus, the district court ordered the state either to vacate Mr. Wood's death sentence and resentence him to life without the possibility of parole, or to the conduct a new sentencing hearing consistent with Strickland.

A divided panel of the Eleventh Circuit reversed, finding (1) the evidence "amply supports" the state courts' finding that the decision not to introduce mitigation evidence based on mental deficiency was an informed, tactical one, and (2) regardless, Mr. Wood suffered no prejudice. The dissent noted that the majority's conclusion was "pure speculation" that disregarded direct evidence to the contrary and, given the close margin of the jury's death penalty vote, there is a reasonable probability that the failure to introduce the mitigation evidence impacted the sentence he received.

In granting certiorari, the Supreme Court agreed to evaluate the merits of the Eleventh Circuit's ruling. But in order to do so, the Court also agreed to consider a threshold issue regarding the level of deference federal courts must give to state factual findings in resolving federal habeas petitions. This issue of statutory interpretation has vexed and divided lower federal courts since the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") rewrote the standards that govern federal habeas review. Remarkably, until now, the Court has not provided guidance on the matter.

The debate on the level of deference centers on the interaction of two sections of AEDPA, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). Section 2254(d)(2) provides that a federal court may grant a writ of habeas corpus where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Section 2254(e)(1), by contrast, provides that "a determination of a factual issue made by a State court shall be presumed to be correct" by a federal court and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The parties, as well as circuit courts, disagree as to how to reconcile these two provisions.

In reversing the district court's grant of the writ, the Eleventh Circuit interpreted the two provisions as supplementing one another. In other words, in determining whether the state court's adjudication of Mr. Wood's ineffective assistance claim was "based on an unreasonable determination of the facts" within the meaning of § 2254(d)(2), the court presumed, under § 2254(e)(1), those factual findings to be correct absent Mr. Wood's ability to rebut that presumption by clear and convincing evidence. Because, the majority determined, Mr. Wood could not rebut the presumption of correctness of the state courts' factual findings regarding the tactical nature of counsel's performance, the claim failed on the ground that the state courts' ruling was not based on an unreasonable determination of the facts. Respondents argue that this interpretation of the interplay between §§ 2254(d)(2) and 2254(e)(1) is correct and consistent with AEDPA's purpose to restrict federal habeas review of criminal judgments.

Mr. Wood, and the ACLU as amicus curiae, on the other hand, argue that the two provisions are independent, though complementary: § 2254(d)(2) should govern federal review when, as here, all of the relevant factual findings occurred in state court, either at trial or in postconviction proceedings; § 2254(e)(1)'s heightened deference should govern review of state factual findings only when the petitioner seeks to rebut those findings in federal court by introducing new evidence. In the latter case, the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Thus, petitioner and amicus argue, the Eleventh Circuit erred in conflating the standards set forth under the two provisions. To interpret the provisions as the Eleventh Circuit has, the ACLU further argues, restricts federal habeas review beyond what is constitutionally permissible under the Suspension Clause.

The issue is a tricky one, with both parties finding support from the canons of statutory interpretation. Guidance from the Court on the issue is long overdue and, though seemingly academic, may have a significant impact on litigants such as Mr. Wood: While the state courts' factual finding that defense counsel's decision not to investigate evidence of his mental deficiencies was tactical may qualify as "unreasonable" under § 2254(d)(2), it may be a more difficult task to rebut that finding by clear and convincing evidence under § 2254(e)(1), particularly where defense counsel, themselves no longer recall their own decision-making. Thus, for Mr. Wood and others like him, the availability of habeas relief - a literal matter of life or death - may ultimately turn on the level of deference given to state court factual findings, as articulated by the relationship between these two statutory provisions.