Saturday, February 28, 2009


By William Fisher

Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the Supreme Court to hear their case even though al-Marri was suddenly transferred to the civilian justice system after more than five years in solitary confinement in a military brig.

According to American Civil Liberties Union attorney Jonathan Hafetz, the case is far too loaded with potential precedent-setting issues to simply disappear “on the eve of a dispositive ruling” by the Supreme Court.

There are two principal reasons, Hafetz told us. “First, al-Marri could be detained as an “enemy combatant” again if acquitted at trial. Second, absent a Supreme Court review, this power could be used again against other legal residents or American citizens in the future, absent a definitive ruling from the high court that it is illegal.”

Marri, legally in the U.S. on a student visa, was arrested in 2003 and accused of being a member of an al Qaeda “sleeper cell” in the U.S. But before his trial could begin, then President George W. Bush declared him an “enemy combatant” under sweeping new powers claimed by the president following the 9/11 terrorist attacks on the World Trade Center and the Pentagon. He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned ever since.

Then, in a move that surprised many observers, the new administration of President Barack Obama took swift action to have him indicted for “material support” of terrorism by a civilian grand jury for trial in a federal court, and moved to dismiss al-Marri’s pending litigation before the U.S. Supreme Court.

Acting Solicitor General Edwin S. Kneedler, the government’s lawyer, petitioned the court to dismiss the case and issue an order "as expeditiously as possible" to allow the government to transfer Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because Marri was challenging a status he no longer had -- a person held by the military without charges. "No live controversy remains in this case," the government filing said.

But the ACLU’s Hafetz told us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said Marri's defense lawyers “will continue to pursue this case to make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial. It is critical that the Court hears al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants’."

“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.

Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.

The Qatari native journeyed to Illinois, purportedly to begin work on a master's degree at the same college that had awarded him a bachelor’s degree earlier. His arrival came a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.

After multiple interrogations by the Federal Bureau of Investigation (FBI), Marri was indicted for credit card fraud and making false statements to his interrogators. But before his trial could begin, he was designated an “enemy combatant” and transferred to military control.

In 2005, Bush administration officials filed a sworn statement in a South Carolina court saying that Marri had personally met Osama bin Laden and Khalid Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and volunteered to become a martyr in the U.S. The filing alleged that Marri was in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi. U.S. authorities said that Hawsawi gave him more than $10,000 to finance his trip to Illinois.

However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.

The transfer of Marri's case has triggered ambivalence among human rights and legal advocacy groups. Most of these commentators generally applaud the move -- which seems to agree with their position that federal courts should be the venue for trials of suspected terrorists. But at the same time, many have expressed dismay that the move may short-circuit a hearing and a once-and-for-all decision by the Supreme Court.

"In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values," Attorney General Eric H. Holder Jr. said.

The al-Marri case bears a striking resemblance to one involving Jose Padilla, the only U.S. citizen to be designated as an “enemy combatant” by then President Bush and imprisoned by the military with charges or trial.

In the Padilla case, then Attorney General John Ashcroft interrupted a trip to Russia to convene a press conference, where he accused Padilla of conspiring to detonate a "dirty bomb" on American soil.

The Bush administration initially declared Padilla an “enemy combatant” and held him in military custody for three years, but then sought to avoid a Supreme Court review of his case, and in 2005 -- on the eve of a high court habeas corpus hearing where the government would have to present evidence to justify his continued detention – the Department of Justice (DOJ) petitioned for his release to face criminal indictment in U.S. courts. He was abruptly transferred to a civilian jail

The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers.

Padilla was never charged with planning to detonate a “dirty bomb.” By the time of his trial, in 2007, he was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. The “dirty bomb” allegation had been dropped. Padilla was convicted and sentenced to 17 years and four months in prison.

The ACLU’s Hafetz agrees on the similarities, but points out that, in the Marri case, the Court “has already agreed to hear the case and the fact that it is happening again -- after years of illegal detention followed by charges only on the eve of a dispositive ruling on this issue by the Supreme Court -- underscores the need for review.”

“It will be important to see whether the Obama administration is rejecting this illegal and egregious detention policy of the Bush administration or just indicting now to duck Supreme Court review and perpetuate that policy--a move that would defy, not honor, the rule of law,” he told us.

Thursday, February 26, 2009


By William Fisher

In a stunning reversal, Britain’s government admitted yesterday that it participated in the ‘extraordinary rendition’ to Afghanistan of two terror suspects captured in Iraq by the U.S.

U.K. Defense Secretary John Hutton told Britain's House of Commons that the two individuals were captured by U.K. forces in Iraq, transferred to U.S. detention and later moved to a U.S. detention facility in Afghanistan.

His admission contradicts the British Government’s earlier assertions that there were only two cases involving detainee rendition. That statement involved the Indian Ocean island of Diego Garcia, a British territory, which the government admitted had twice been used by the U.S. as a refueling stop for the secret transfer of terrorism suspects.

Apologizing to lawmakers for the error, Hutton said, "I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my department," Hutton told lawmakers. "I must stress that this was based on the information available to ministers and those who were briefing them at the time."

At the time, the U.S. denied using the island for extraordinary rendition flights, but later acknowledged that it had misled the British government. British Foreign Secretary David Miliband later released a statement declaring that the U.S. had studied a list of 391 flights compiled by British human rights groups and lawmakers and that no other cases had been found.

Hutton told lawmakers that the two men are still being held in Afghanistan. He said the U.S. has given assurances that they are being held "in a humane, safe and secure environment."

It was unclear if the men were being held along with some 600 others at the U.S. military prison at Bagram Air Force Base, near Kabul. That base has been the target of recent charges from human rights groups that it has become Afghanistan’s Guantanamo Bay, that many prisoners have been locked up there for years without charges or access to lawyers, and that some have been tortured and abused.

Hutton’s disclosure comes on the heels of a firestorm caused by a lawsuit brought in the U.K. by British resident Binyam Mohamed, who was arrested in Pakistan in 2002, and who charged that British intelligence was complicit with the CIA in rendering him to Morocco, then to Bagram, and finally flying him to Guantanamo Bay, Cuba.

Mohamed was held there since 2004 before his release and return to the U.K. earlier this week. No charges were ever filed against him. Until shortly before his release, he had been on a hunger strike at the Caribbean military prison.

The lawsuit he filed in the U.K. – similar to a separate suit brought in the U.S. -- has caused a furor in Britain, where officials asked the British High Court not to make public documents that Mohamed’s lawyers say substantiate his treatment. Opposition spokesmen there claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Miliband, denied there was any threat.

Mohamed’s U.S. lawyer, Steven Watt, a staff attorney in the Human Rights program of the American Civil Liberties Union (ACLU), told this reporter, “It’s about time the U.K. came clean. News of Britain’s complicity with the CIA has been slowly leaking out for several years. We now know more than enough to conclude that the U.K. has played a role.”

“Both countries are still trying to keep this information secret, either to avoid political embarrassment or to cover up some egregious human rights abuses,” he said.

Asked by this reporter about the timing of the Defense Minister’s announcement and apology, Watt said, “Maybe they finally want to make a clean breast of it.”

In a related development, newly-confirmed CIA Director Leon Panetta said Wednesday that President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will ensure they are not tortured or abused.

"If it's someone we are interested in, there is no purpose to rendering anyone, particularly if it's a high-value target," Panetta said.

Panetta added that he believes prisoners should only be handed over to countries that have a legitimate legal interest in them, such as their home country or a country where charges are pending against them.

Panetta seemed to be trying to distance himself from statements he made during his congressional confirmation hearing earlier this month. He told lawmakers that the Obama administration intended to continue rendering prisoners captured in the war on terrorism.

Panetta said the administration would rely on a long-standing policy to first secure “diplomatic assurances” from the country that the prisoner would not be tortured or have his human rights violated. But human rights groups point out that such assurances have proved to be virtually worthless in the past, when suspects have been flown to countries with egregious human rights records.

Panetta said the Obama administration would "make very sure" that prisoners are not mistreated after they are rendered. Asked by the Associated Press exactly how that would be done, Panetta said, "Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that," he said. "No. 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen."

The White House is currently reviewing the extraordinary rendition policy and program.

Panetta said he does not believe additional prisoners will be sent to Guantanamo this year. In his first week in office, Obama ordered the prison closed within a year, but no decision has yet been made public on what to do with the roughly 250 inmates still there. Only a handful have been charged with a crime, and those trials have been suspended while the Obama administration reviews its legal options.

Tuesday, February 24, 2009

What About Bagram?

By William Fisher

While human rights and legal advocacy groups applauded President Barack Obama’s decision to close the military prison at Guantanamo Bay within a year, many immediately raised another thorny question: “What About Bagram?”

Their answer came as a shock and a surprise. In a brief filing in federal court last week, lawyers from President Barack Obama’s Department of Justice (DOJ) said they would adopt the same position taken by the Bush administration -- that detainees held at the Bagram air base in Afghanistan have no right to challenge their detention in U.S. courts.

The U.S. government is holding more than 600 prisoners at Bagram. Some claim they are victims of “extraordinary rendition” by the U.S. Central Intelligence Agency (CIA), while many more say they have been tortured and abused at the facility just outside Kabul.

Marjorie Cohn, president of the National Lawyers Guild, told IPS, “In Boumediene v. Bush, the Supreme Court held that Guantánamo detainees have a right to habeas corpus to challenge their detention but it did not limit that right to Guantánamo. Justice Kennedy said the Court would not look kindly on the executive who imprisons people in other countries to avoid the jurisdiction of U.S. courts.”

She added, “The Obama administration is reportedly sending detainees to Bagram instead of Guantánamo. It is alarming that hundreds of people in U.S. custody in Iraq and Afghanistan will evidently be denied access to courts to review their ‘enemy combatant’ designations.”

Barbara Olshansky, lead counsel for three Bagram detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."

She said she hoped that the Obama administration was merely signaling it was still working on its position regarding the detainee issue.

The U.S. District Court held a hearing in early January on separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan. At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.

That policy will now be reviewed in U.S. court, where advocacy groups will argue that Bagram detainees should have the same rights as those in Guantanamo, including the right to a hearing before a neutral judge.

The issue will likely generate even more contention in coming months, as
Obama deploys thousands of extra U.S. troops to Afghanistan and a $60-million expansion doubles the capacity of the Bagram Theatre Internment Facility (BTIF).

Some observers are saying they are not surprised by the Obama Administration’s decision to follow the Bush model, pointing out that this is the second time that’s happened during the month since the new president took office.

In a controversial case in San Francisco earlier this month, Obama lawyers declined to change the earlier Bush Administration’s invocation of the “state secrets privilege” to attempt to prevent a federal court from ever hearing a lawsuit brought by an Ethiopian-born British resident who claims he was a victim of “extraordinary rendition.”

Binyam Mohamed, who until yesterday was a prisoner at Guantanamo Bay, Cuba, is attempting to sue a company known as Jeppesen Dataplan – a subsidiary of The Boeing Corporation – for providing knowingly providing the Central Intelligence Agency (CIA) with logistical support for the aircraft it used in his “extraordinary rendition.”

Mohamed was released from Guantanamo and returned to the United Kingdom yeserday, with no charges ever filed against him. He had been on a hunger strike at the Caribbean military prison.

A separate lawsuit he filed in the U.K. has caused a furor there, where officials refused to make public documents that Mohamed’s lawyers say show that their client was kidnapped and tortured in several secret prisons, and that the U.K. authorities were complicit with the C.I.A. in his treatment. Opposition spokesmen in Britain claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Milliband, denied there was any threat.

As he arrived back in the country, the 30-year-old claimed he was tortured while being held on suspicion of terrorism with the full knowledge of British intelligence.
Speaking from London's RAF Northolt, Mohamed's lawyer, Clive Stafford Smith, said he was "100 per cent certain" that the truth about his client's treatment would be made public.

A United Nations report last week singled out the Bagram facility for criticism. While the Red Cross was allowed to visit detainees, the report said, the Red Cross findings are kept secret and the U.S. military has denied UN requests for similar visits.

"There are reports that some persons have been in detention at Bagram for as
long as five years," the report says. "Some ex-detainees allege being subjected to severe torture, even sexual abuse. Ex-detainees also allege that they were held in cages containing between 15 to 20 men and that two detainees died in questionable circumstances while in custody."

In a briefing paper, Amnesty International urged President Obama and his administration to discontinue what it calls the "unlawful detention policies" of the Bush administration and ensure that detainees held at Bagram have access to U.S. courts so they may challenge their detentions.

The paper, entitled, “Out of sight, out of mind, out of court?,” argues for the right of Bagram detainees to judicial review. The organization sent to the paper to the new U.S. administration.

"Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the briefing paper said.

"In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared."

Amnesty said among Bagram's some 600 detainees were Afghan nationals, but also individuals of other nationalities.

"Some have been held for years," it said. "The U.S. authorities must now ensure that all U.S. detentions in Afghanistan comply with international law."

During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.

At Bagram, prisoners’ cases are reviewed by the U.S. military every six months.

The next major detention question likely to face the Obama Administration is what to do with Ali Saleh Kahlah al-Marri, the last ‘enemy combatant imprisoned in the United States. Al-Marri has been held in isolation at a naval brig in South Carolina for more than five years. He has never stood trial or been convicted of any crime.

On September 10th, 2001, al-Marri, who is a citizen of Qatar, arrived in the United States with his wife and children. He had a student visa and said he was here to study computer programming at a university in Peoria, Illinois. That December, he was arrested as a material witness in the 9/11 attacks. In June 2003, al-Marri was supposed to stand trial. But President Bush ordered the military to seize him and hold him indefinitely, thus keeping al-Marri out of court but also putting him into legal limbo.

During the first month of the Obama Administration, there has been virtually no mention of the al-Marri case.

Terms of Confinement

By William Fisher

A leading human rights organization charges that contrary to recent U.S. Government reports that found prisoners at Guantanamo Bay, Cuba, being treated humanely, “The men at Guantánamo are deteriorating at a rapid rate” due to “harsh conditions that continue to this day, despite a few cosmetic changes to their routines.”

The Center for Constitutional Rights (CCR) released a report on the current conditions in Camps 5, 6, and Echo following a press conference convened late last week by Admiral Patrick M. Walsh, the vice chief of naval operations. In his own report on conditions at Guantanamo, delivered to the White House, Walsh determined that conditions at the base meet the standards of the Geneva Conventions.

CCR’s report, “Conditions of Confinement at Guantanamo: Still in Violation of the Law,” disputes that conclusion. It covers conditions at Guantánamo in January and February 2009 and includes new eyewitness accounts from attorneys and detainees. The authors address what they call the continuing abusive conditions at the prison camp, including conditions of confinement that they say violate U.S. obligations under the Geneva Conventions, the U.S. Constitution and international human rights law.

CCR Staff Attorney Pardiss Kebriaei said the GITMO detainees “are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year, or even another day, this has to end.”

“Detainees at Guantanamo have continued to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, and physical abuse and threats of violence from guards and Immediate Reaction Force (IRF) teams,” the report charged.

It claimed the majority of the men being detained “are in isolation. They go weeks without seeing the sun. Fluorescent lights, however, remain on 24 hours a day in Camp 5.” According to the report, “improvements” cited by the military are, by and large, public relations activities rather than meaningful improvements in detainees’ conditions.

The CCR report takes issue with two recent U.S. government pronouncements. On February 13, Colonel Bruce Vargo, commander of the Joint Detention Group at Guantánamo, stated that, “There are no solitary confinement detention areas” at GITMO and “Detainees typically are able to communicate with other detainees either face-to-face or by spoken word from their cells throughout the day.”

CCR attorneys say this means that the men can yell through the metal food slot in the solid steel doors of their cells when it is left open and through the crack between the door and the floor.

The organization also challenged Admiral Walsh’s conclusion that "all detainees are well protected from violence." Walsh said guards or others who engaged in abuse were reprimanded or immediately relieved of their jobs, depending on the nature of the offense.

But Walsh’s report acknowledged that the continued detention of prisoners who have been approved for release has spawned widespread frustration and anxiety, which has led to protests and friction with guards. Fifty-nine detainees have already been cleared for release but remain at the prison because the U.S. says it cannot find countries to accept them.

"We conclude that certainty regarding the detainees' future has a direct correlation to detainee behavior and, therefore, conditions inside the camp population."

Walsh led a 13-day investigation at the military prison, interviewing staff and detainees and conducting announced and unannounced inspections round the clock.

He said he substantiated allegations of abuse that included insults and the preemptive use of pepper spray. Walsh’s report focused on current conditions at Guantanamo and was not an attempt to review its seven-year history.

But CCR and other human rights and civil liberties groups said that solitary confinement has led to the deterioration of the physical and psychological health of detainees, some of whom are force-fed because they are on hunger strikes.

A spokesman for the International Committee of the Red Cross, the only organization with unfettered access to the prisoners, said the group supports the recommendations for increased socialization for all detainees but disagreed with Walsh's conclusion that force-feeding is in compliance with the Geneva Conventions.

"For ICRC it is an issue of human dignity," said Bernard Barrett, a spokesman for the agency. "Freely made choices and the preservation of human dignity are critical."

Their report details multiple cases of abuse occurring in the last month and a half. One detainee in Camp 6 wrote to his attorney in January 2009, “As I told you, we are in very bad condition, suffering from aggression, beating and IRF (Immediate Reaction Force) teams, as well as the inability to sleep except for a few hours. Soldiers here are on a high alert state and if one of us dares to leave his cell and comes back without any harm, he is considered as a man who survived an inevitable danger.”

The CCR report said hunger strikes continue among a large number of men at Guantanamo. “Hunger strikers are brutally force-fed using a restraint chair and often unsanitary feeding tubes, and are beaten for refusing food, a practice that continued within the last month and a half.” Force-feeding hunger strikers is considered by the World Medical Association to be a violation of medical ethics and has continued unabated since President Obama’s Executive Order.

“Detainees are still denied access to communal prayer,” the CCR report said. “Military officials continue to classify hearing a call to prayer through a food slot as communal prayer, which does not comport with the requirements of Islam.” It adds, “There has been no Muslim chaplain at Guantanamo since 2003, despite repeated requests.”

The report also charged that detainees are “subject to body search procedures that require the men to subject themselves to a scanner that visually strips the men naked each time they leave their cells for attorney meetings or recreation. This humiliating and degrading experience, particularly given the men’s strong religious background, has led them to stay in their cells all day, refusing attorney meetings and recreation entirely.”

The CCR report recommends closing Camps 5, 6 and Echo immediately, ending solitary confinement and the religious abuse of detainees, stopping the use of IRF teams and all other physical abuse of detainees, ending the feeding of individuals against their will or under coercive circumstances,allowing detainees immediate access to independent medical and psychological professionals and ceasing the practice of forcible medication.

CCR Executive Director Vincent Warren called on President Barack Obama to “quickly remedy and end the Guantánamo created by his predecessor (former President George W. Bush), not embrace a whitewash of it.”

During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.

CCR has been responsible for organizing and coordinating more than 500 lawyers across the country in order to represent the men at Guantanamo.

Friday, February 20, 2009


By William Fisher

The administration of U.S. President Barack Obama must take a leadership position in championing human rights in the Middle East and North Africa by using U.S. economic and trade leverage and confronting the growing global threat of authoritarianism being promoted by Arab regimes.

This is the view of the Cairo Institute for Human Rights Studies (CIHRS), whose recent annual report concludes that the region has witnessed a “grave deterioration of human rights while reform faces a dead end,” fuelled by increasingly repressive actions by many Arab countries acting in concert with the Arab League.

Moataz El fegiery, CIHRS Executive Director, told us, “Arab governments are turning the United Nations and the Arab League into platforms for exporting repression. The Arab League supports war criminals, anti-democratic coups, and restrictions on freedom of expression.”

In its first annual report, “From Exporting Terrorism to Exporting Repression”, CIHRS finds that “the status of human rights in the Arab region in 2008 has increasingly worsened. Attacks on the limited public and political liberties that exist have escalated in most countries in the region.”

“Advocates of reform and respect for human rights are the primary targets of repression” while “liberators have become executioners and weapons of resistance increasingly used against innocent civilians,” the report concludes.

It notes that while Islamists are no longer the central targets of repression, there is “rising religious extremism” triggered by ruling regimes allying with Salafis. Salafism is a movement that believes Islam was perfect and complete during the days of Muhammad and his companions, but that undesirable innovations have been added over the later centuries due to materialist and cultural influences. It seeks to revive a practice of Islam that more closely resembles the religion during the time of Muhammad.

The report says that, while “Islamists are less frequently targeted, there is an increase in repression of reformists, human rights defenders and activists, the independent press and electronic media, leaders of protest movements, and of other forms of political action in Arab countries. This has been accompanied by earnest attempts to export increasing domestic repression outside the Arab region through the international mechanisms of the UN and the Euro-Mediterranean Partnership Initiative.”

“Arab governments have made large individual and concerted efforts to silence independent non-governmental organizations or erase them from public visibility completely” while simultaneously “undermining their ability to promote human rights and provide protection for victims of rights violations,” the report charges.

The report documents the situation in 12 Arab countries and territories: Egypt, Tunisia, Algeria, Morocco, Saudi Arabia, Bahrain, Syria, Iraq, the Occupied Palestinian Territories, Sudan, Lebanon, and Yemen.

It notes that in 2008 the Arab League “has become more expressive of authoritarian tendencies than any time in the past.”

The League “joined the leaders of the military coup in Mauritania in undermining the right of the Mauritanian people to democratically choose its leaders, and it rose in support of the Sudanese regime as the latter sought to evade accountability for the ongoing massacres in Darfur and in preventing Sudanese officials from appearing before the International Criminal Court. It has also become a platform from which to launch attacks on freedom of expression, particularly attacks on satellite and electronic media.”

The report states that “The Palestinian people have been a target of grave abuses, carried out in the shadow of the continuing criminal practices of the Israeli Occupational Forces and the bloody internal conflict between Hamas and Fatah.”

For the first time, the report adds, “the number of Palestinians killed as a result of internal fighting has exceeded the number killed as a result of Israeli attacks. Fatah and Hamas have outdone one another in their maltreatment of prisoners from the other side, engaging in the worst types of abusive practices.”

The report says that “Iraq remains the site of the gravest human rights abuses, which have led to the deaths of thousands of civilians, whether killed by American occupation forces, the Iraqi authorities, ongoing terrorist activity, or as part of the continued ethnic and communal violence and conflict.”

“Iraq is facing even further deterioration: Political and security arrangements are not standing on a firm foundation and rules for an equitable distribution of power and oil wealth have not been agreed upon. This may open additional fronts in the war or lead to the partition of Iraq.”

The report charges that “the Sudanese regime has shown a blatant disregard for the lives and suffering of the Sudanese people and for relevant international and regional resolutions, continuing its brutal attacks on villages and refugee centers in Darfur -- practices which have continued even after the President was indicted by the International Criminal Court.”

The regime in Sudan has also “continued to terrorize every national citizen or organization that refused to remain silent about the ongoing massacres in Darfur,” the report states.

The report notes “increased ethnic, religious, and sectarian tensions in several countries, especially in light of systematic discrimination against Shiites in Bahrain and Saudi Arabia, and confrontations with Kurds in Syria. It also points to rising sectarian tension in Egypt due to growing religious bigotry, fostered by a climate in which religion is exploited politically by both the government and Islamist groups.”

At the same time, the Egyptian government “refuses to address long-standing problems that intensify discrimination against Copts and other groups. The report also notes that religious freedoms are also subject to repressive measures in Saudi Arabia and Algeria.

The report notes that “political and civil rights in Egypt have been greatly eroded after the authorities used all possible means, legal and illegal, to disqualify the majority of candidates from the Muslim Brotherhood and other opposition parties from running in local elections, and to prevent them from filing out their candidacy papers.”

“The elections themselves were carried out amid a broad arrest campaign targeting the Muslim Brothers and their candidates.”

The report points to “a general lack of independence and guarantees of justice in judicial systems throughout the region, as well as the plethora of exceptional courts. Democracy advocates, human rights defenders, minorities, bloggers, and journalists have all been subject to unfair trials in most countries.”

In addition, it claims that “those responsible for torture and grave police abuses are usually not subject to any form of judicial accountability and punishment.”

The report states that “the majority of ruling Arab regimes are gradually losing their political legitimacy as a result of their long-standing failure to resolve development problems and advance Arab societies, and for their refusal to base their legitimacy on free democratic choice. In fact, they are seeking to repair their tattered legitimacy by allying with Salafis, a move which only strengthens religious extremism and portends to the further erosion of human rights.”

Asked by this reporter what the Obama Administration could do to improve the human rights situation in Arab states, CIHRS Executive Director El fegiery voiced four priorities:

The U.S. should “mainstream human rights issues in any American diplomatic dialogue with the Arab states; use U.S. economic and trade leverage to encourage Arab States to step forward in human rights; promote international justice and civilian protection in the whole region without double standards; and be aware of the growing threat of global authoritarianism that is promoted by Arab Regimes in coalition with other famous hard abusers like China and Russia.”

Thursday, February 19, 2009

Will Holder Deliver the Change We Can Believe In?

By William Fisher

As U.S. Attorney General Eric Holder prepared for his first trip to the military prison at Guantanamo Bay, Cuba, next week, human rights advocates suffered a stinging defeat when a federal appeals court ruled that 17 Chinese Muslims scheduled for release from the Caribbean detention center could not enter the U.S. and must remain in custody.

The Chinese prisoners, known as ethnic Uighurs, have been detained at Guantanamo without charge for over seven years, despite the fact that the U.S. government no longer considers the men “enemy combatants” and has admitted that it does not have the authority to detain them.

Last October, a federal circuit court ruled that the 17 must be released immediately and admitted into the U.S. The Bush Administration appealed that decision to the U.S. Court of Appeals for the District of Columbia. Earlier this week, the appeals court ruled that the Uighurs’ admission to the U.S. was an immigration matter and that only the executive and legislative branches of government have jurisdiction over entry to this country.

Jameel Jaffer, Director of the American Civil Liberties Union National Security Project, called the appeals court decision “a disappointing step back towards the Bush administration’s unlawful Guantánamo policies.”

He said, “These men were cleared for release but have been held without charge in a system that utterly disregards the fundamental tenets of due process. This decision only underscores how important it is that the Obama administration act quickly to dismantle the Bush administration’s misguided national security policies and to close Guantánamo altogether. The Bush administration’s proposition that individuals can be held indefinitely in a legal black hole is an idea that the Obama administration should reject immediately.”

Prof. David Cole of Georgetown University Law Center summed up the views of many leading legal scholars regarding the “war on terror” and related issues. He told us, “If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed.”

Another human rights group that has been deeply involved in defending GITMO detainees, Human Rights First (HRF), said in a statement that it “regrets” the D.C. Circuit Court's ruling.

"This decision puts into stark relief the human costs of the Bush Administration's misguided Guantanamo policies, and underscores the urgency for the new administration to act to set it right," said Elisa Massimino, HRF’s CEO.

"These men were wrongly detained at Guantanamo for nearly seven years despite the lack of any evidence of their involvement with al Qaeda or the Taliban, or that they engaged in any conduct suggesting ill will toward the United States. There is no evidence that they pose a security threat, and if the U.S. Supreme Court's decision establishing the constitutional right of detainees to challenge their detention in a court of law means anything at all, then justice requires their release," she said.

"President Obama is unlikely to succeed in closing Guantanamo without the cooperation of other countries. And that cooperation depends in part on a demonstrated willingness to chart a new course," said Massimino. "The executive orders were a first step toward signaling this change. Resettling the Uighurs in the United States would send another important message, increasing the likelihood that other countries will accept some Guantanamo prisoners themselves."

The Bush Administration said that it would not return the Uighurs to China for fear they would be mistreated or even tortured, and that it had been unable to find any other countries willing to accept them. Although Albania had previously admitted several Uighurs, that country fell out of favor with the Chinese and other countries are reportedly fearful of Chinese retaliation.

These developments took place as Attorney General Eric H. Holder Jr. announced that he will make his first visit to Guantanamo, next week as part of his effort to determine how to handle the 245 remaining terrorism suspects detained there.

"We need to have our feet on the ground to really see what is going on down at the facility, to see how people are being detained, to talk to people down there about the interrogation techniques that are being used," Holder said.

An executive order issued by President Obama directed authorities to close the controversial prison within one year. Obama put the Attorney General in charge of a multi-agency task force to review case files and figure out whether prisoners can be released, sent to other countries, charged with crimes in U.S. courts or handled through the military commission process.

The Attorney General characterized the trip as "an important first step as we try to resolve the issues that the president has put before me as the chairman of those review committees."

In related “war on terror” developments, Attorney General Holder has ordered a review of all government claims invoking the state secrets privilege.

A spokesperson for the Department of Justice (DOJ) said that each state secrets claim will be reviewed to make sure the privilege was invoked only in lawful situations. "It is vital that we protect information that if released could jeopardize national security, but the department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," the DOJ said.

The DOJ announcement came on the same day that government lawyers invoked the state secrets privilege before the U.S. Court of Appeals for the Ninth Circuit in a controversial case known as Mohamed v. Jeppesen.

Binyam Mohamed and four others who are prisoners at Guantanamo Bay are attempting to sue Jeppesen Dataplan, a Boeing subsidiary, for its alleged role in knowingly providing the CIA with logistical support for the U.S. extraordinary rendition program that took them to countries where they were tortured.

The Bush administration previously intervened in the case, asserting the state secrets privilege, and a lower court judge threw out the lawsuit. It was appealed to the 9th Circuit, where the Obama DOJ chose not to change the government's position. The Appeals Court has not yet ruled on whether the case will be thrown out again or allowed to proceed.

Congress has now become involved in the state secrets controversy. In the House of Representatives, Congressmembers have reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bi-partisan State Secret Protection Act of 2009 would curb abuse of the privilege while providing protection for valid state secrets.

In the Senate, Senators Ted Kennedy, Massachusetts Democrat, and Arlen Specter, Pennsylvania Republican, have introduced similar legislation.

The legislation would require courts to examine the evidence for which the state secrets privilege is claimed, in order to determine whether the executive branch has validly invoked the privilege. The court must look at the actual evidence, not just government affidavits about the evidence, and make its own assessment of whether information is covered by the privilege.

The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance In September, a secrecy "report card" released by revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."

Saturday, February 14, 2009


By William Fisher

Three human rights groups have released documents that they say reveal close cooperation between the Department of Defense (DOD) and the Central Intelligence Agency (CIA) in rendering terrorism suspects to secret prisons, creating ‘ghost prisoners’ by concealing their identities from the Red Cross, and delaying their release to counter negative publicity about their treatment at Guántanamo Bay.

Close to a thousand pages of documents were obtained through a Freedom of Information Act lawsuit brought by Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and New York University’s Center for Human Rights and Global Justice (CHRGJ). The suit, dating from 2004, seeks the disclosure of government documents relating to secret detention, extraordinary rendition, and torture.

At a press conference last week, the groups revealed that the newly released documents confirm the existence of ‘black site’ prisons at Bagram Air Base in Afghanistan and in Iraq; affirm the DOD’s cooperation with the CIA’s “ghost” detention program; and show one case where the DOD sought to delay the release of Guantánamo prisoners who were scheduled to be sent home in order to avoid bad press.

“These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” said Margaret Satterthwaite, Director of the CHRGJ. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise,” she said.

While most of the documents simply contain news articles, there were several significant disclosures from the DOD.

A February 2006 email to members of the DOD's Transportation Command discusses how to deal with the bad press the U.S. was receiving over its detention facilities. It said the U.S. was “getting creamed” on human rights issues sparked by “coverage of the United Nations Rapporteur's report on Guantanamo, plus lingering interest in Abu Ghraib photos.” These developments add up to “the U.S. taking a big hit on the issues of human rights and respect for the rule of law, the email said.” It cited criticism of the U.S. in blogs and discussion boards.

"America has lost its prestige," a blogger from Yemen wrote. "Every year the world waits for the annual U.S. State Department report on human rights. Today, it is America that awaits the world's opinion of its human rights policy. From Gitmo, to Abu Ghraib, to secret prisons in Europe, the world accuses America of not respecting human rights."

To temper the bad PR, the email suggests delaying the release of prisoners at Gitmo" for 45 days or so until things die down. Otherwise we are likely to have a hero's (sic) welcome awaiting the detainees when they arrive."

The email adds, “It would probably be preferable if we could deliver these detainees in something smaller and more discreet than a T tail (a larger aircraft with a T-shaped tail wing).”

“It is astonishing that the government may have delayed releasing men from Guantánamo in order to avoid bad press,” said CCR attorney Gitanjali Gutierrez, who represents many of the men held in Guantánamo and has made 30 trips to the base since 2004. “Proposing to hold men for a month and a half after they were deemed releasable is inexcusable. The Obama Administration should avoid repeating this injustice and release the innocent individuals with all due haste.”

In a second document, one heavily redacted page mentions an "undisclosed detention facility" at Bagram.

Another highlights how the Geneva Conventions can be interpreted to allow the CIA and the DOD to ‘ghost’ detainees' identities so they can be denied a visit from the International Committee of the Red Cross. The organizations charged that the document, entitled “Applicability of Geneva Conventions to ‘Ghost Detainees’ in Iraq” shows that the DOD interpreted the ‘security internee’ provisions of the Geneva Conventions to allow for ‘ghosting’ of detainees by prohibiting the International Committee of the Red Cross (ICRC) from visiting. It also shows that the DOD recognized that indefinitely prohibiting the ICRC from visiting or failing to notify the ICRC of the existence of detainees was illegal under the Geneva Conventions, the groups said.

A 2005 document labeled a “Detainee Update” presentation dealt with “Internment Serial Number Policy (ISN). The organizations said, “It shows that the DOD did not, as a matter of course, register detainees with the ICRC until they had been in custody for up to 14 days and that authorization was sought to hold some individuals for up to 30 days without ISN/registry with ICRC to ‘maximize intelligence collection’,” even though “there is some disagreement as to legal basis to go beyond 14 days.”

The groups said these policies “demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.”

Records from a Detainee Senior Leadership Oversight Council meeting contain references to a previously unreleased section of the Church Report and discuss the need for the DOD to develop and enforce guidelines governing their relationship with ‘Other Government Agencies’, including the CIA, in order to regulate interrogation and other operations overseas.

The organizations claimed that these documents demonstrate that the DOD and CIA were in an ad hoc relationship, “apparently unconstrained by formal guidelines.”

The lawsuit is based on Freedom of Information Act (FOIA) requests dating back to 2004. Previous government releases also included documents largely already in the public record, including, in one instance, a copy of the Geneva Conventions. This is the first time the DOD has provided any documents in response.

“Out of thousands of pages, most of what might be of interest was redacted,” said Tom Parker, Policy Director for Counterterrorism, Terrorism and Human Rights, for AIUSA.

“While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests. We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.”

In his first week in office, President Barack Obama signed an order closing the Guantanamo detention facility in Cuba within a year and prohibiting CIA secret prisons. However, the order allows the CIA to detain people temporarily. Obama also pledged increased openness and transparency during his administration.

It is not known whether the Pentagon or the CIA still holds ‘ghost detainees,’ Satterthwaite said, referring to people housed at secret facilities.

Friday, February 13, 2009

To Investigate Bush or Not

By William Fisher

With growing public support for a public investigation of crimes that may have been committed by the administration of former president George W. Bush in waging its “global war on terror,” policy makers and legal experts are deeply divided on how to proceed – and President Barack Obama seems ambivalent about whether to proceed at all.

The President has said his view is that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen, but that, generally speaking, I’m more interested in looking forward than I am in looking backwards."

Before his nomination to be Obama’s Attorney General, Eric Holder appeared to take a stronger view. He said, “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.”

But at his confirmation hearing before the Senate, Holder appeared to temper his response to be similar to Obama’s position.

Obama’s initial reaction was to a proposal from the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, for a "truth commission" to investigate abuses of detainees, politically inspired moves at the Justice Department, and whole range of decisions made during the Bush administration. At the time, Obama said he had not seen the Leahy proposal.

Such a “truth commission” is one of several ideas being offered by those who see a comprehensive look-back as essential to cleansing the U.S. justice system and restoring America’s reputation in the world.

Leahy said the primary goal of the commission would be to learn the truth rather than prosecute former officials, but said the inquiry should reach far beyond misdeeds at the Justice Department under Bush to include matters of Iraq prewar intelligence and the Defense Department.

The panel he envisions would be modeled after one that investigated the apartheid regime in South Africa. It would have subpoena power but would not bring criminal charges, he said.

Among the matters Leahy wants investigated by such a commission are: the firings of U.S. attorneys, treatment and torture of terror suspect detainees, and the authorization of warrantless wiretapping. He said that witnesses before such a commission might have to be granted limited immunity from prosecution to obtain their testimony.

Other Democrats have called for criminal investigations of those who authorized certain controversial tactics in the war on terror. Republicans have countered that such decisions made in the wake of the 2001 terror attacks should not be second-guessed.

An arguably stronger measure has been proposed by House Judiciary Committee Chairman John Conyers, a Michigan Democrat, and nine other lawmakers. The measure would set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million. It would investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition. The panel's members would come from outside the government and be appointed by the president and congressional leaders of both parties.

This body would be much like the 9/11 Commission, set up after the Sept. 11 2001 attacks, to examine failures within government anti-terror efforts. The Commission’s investigation did not lead to any prosecutions.

Human rights advocacy groups and many legal experts have been more forceful in their proposals.

For example, Amnesty International is urging its supporters to press lawmakers to investigate the U.S. government's abuses in the war on terror and hold accountable those responsible. The organization is calling on Obama and Congress to create an independent and impartial commission to examine the use of torture, indefinite detention, secret renditions and other illegal U.S. counterterrorism policies.

But the organization does not necessarily see a conflict between a 9/11-type body and a “truth and reconciliation” commission. Amnesty International’s Tom Parker told us, “I don’t think the two approaches are mutually exclusive. Both could go forward at the same time. The immunities that may have to be granted by a Truth and Reconciliation Commission would not be absolute.”

Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”

“On the other hand”, he said, “I believe our paramount need as a country is for a full and fair airing of the historical record; democracies depend, I think, on an unblinking understanding of their past.”

“One would hope that immunity might be granted as narrowly as possible and that efforts would be undertaken to allow the Justice Department to preserve its investigative integrity based on independently developed evidence. Should push come to shove, however, I think history is more important than prosecution,” he added.

Brian J. Foley, Visiting Associate Professor at Boston University law school, takes a harder line. He told us, "Until we have Truth and Reconciliation Commissions rather than prosecutions for drug offenders and others accused of non-violent crimes whom we promiscuously throw into our overcrowded prisons, we should not bestow 'justice lite' on our political leaders. It appears that laws designed with government actors in mind were broken. There should be prosecutions."

And Georgetown University’s David Cole, one of America’s preeminent constitutional lawyers, believes the Obama administration or Congress “should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.” It should have “a charge to assess responsibility, not just to look forward.”

This divergence of viewpoints – from doing nothing to appointing a special prosecutor – is putting President Obama in an uncomfortable position. The most recent Gallup Poll shows that a sizable majority of Americans favors an investigation into Bush-era misconduct. But Obama appears reluctant to take any action that might further divide the country. Moreover, he may be loath to antagonize Republicans, whose support he may need on many other issues in the future.

The Democratically-controlled Congress does not need the president in order to act – it can hold extensive hearings, grant itself subpoena power and in effect take whatever action it desires short of legislation, which would require the President’s signature. But Congressional Democrats may well be reluctant to overtly defy the wishes of the president, who is the leader of their party.

So the form of the Bush-era retrospective – if there is to be one -- is yet very much a work in progress that will continue to put pressure on the young Obama Administration.

Wednesday, February 11, 2009

A Call to End All Renditions

Marjorie Cohn

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her new book, Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), will be published in April 2009. Her articles are archived at

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year.

Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.
Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.

Monday, February 09, 2009


By William Fisher

President Barack Obama yesterday cast doubt on his promise to put an end to secret government by allowing his Justice Department to follow a path frequently taken by his predecessor.

Before a Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that a lawsuit brought on behalf of Guantanamo Bay detainee Binyan Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security

If the appeals court agrees, it will mean that the alleged victims will not have their day in court. The court has not yet ruled on the case.

The defendant in the civil lawsuit is known as Jeppesen Dataplan, a subsidiary of aerospace giant Boeing, which is alleged to have knowingly provided the CIA with the chartered aircraft used to “render” terror suspects to countries where they were tortured.

ACLU attorney Ben Wizner, who argued today on behalf of Mohamed and the other appellants, told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."

The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”

This appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.

In a statement, Anthony D. Romero, ACLU Executive Director, said, “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same.”

He added, “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

The Mohamed case stems from a federal lawsuit filed in 2007 by the ACLU against Jeppesen on behalf of five victims of the United States government's "extraordinary rendition" program. The suit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly “disappear” the five men to detention and interrogation.

According to the ACLU, shortly after the suit was filed, “The government intervened and inappropriately asserted the “state secrets privilege,” claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public.”

The case was dismissed in February 2008, and the ACLU then appealed to the U.S. Court of Appeals for the Ninth Circuit in the San Francisco Bay area.

According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."

The case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.

The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K.

But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”

The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.

But, in a statement last week, the State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”

After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.

The ACLU last week sent a letter to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.

The ACLU’s Romero said, "The latest revelation is completely at odds with President Obama's executive orders that ban torture and end rendition, as well as his promise to restore the rule of law."

It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security. Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.

Wednesday, February 04, 2009

A No-Brainer for the Supremes?

By William Fisher

In what promises to be the first major test of the Obama Administration’s new approach to the rule of law, the Supreme Court will soon hear what could be one of the most consequential cases in U.S. history. It will be asked to answer the question: Can an American president declare a legal U.S. resident an ‘enemy combatant’ and hold him indefinitely without charge or trial?

The legal U.S. resident in question is Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003. Al-Marri is the only remaining person held in the United States as an "enemy combatant." He is being represented by lawyers from the American Civil Liberties Union (ACLU).

The case, Al-Marri v. Spagone, is a habeas corpus action, challenging al-Marri's indefinite detention. The defendant in the case is Navy Commander Daniel Spagone, who runs the Navy brig in South Carolina where Al-Marri is being held by the military.

The central pre-Supreme Court question is what position the new Obama administration will take when it files its brief, currently due on March 23.
The Supreme Court will hear oral arguments during the last week of April and is expected to hand down its ruling in June. The brief filed by the government in the lower courts during the Bush Administration defended the president’s authority to designate ‘enemy combatants’ and to detain them indefinitely.

The ACLU says that the Al-Marri case “provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law."

Jonathan Hafetz, ACLU’s lead attorney on the Al-Marri case, told IPS, “This is one of most extreme examples of the Bush Administration’s abuse of executive power. It is a case where President Bush sought to push the outer limits of the Constitution. It is legally and morally indefensible.”

A separate case, Al-Marri v. Gates, is contesting al-Marri's abusive treatment and conditions of confinement at the Navy brig.

Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States in September 2001with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification.

Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, President George W. Bush declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism." That same day, the military took custody of al-Marri and incarcerated him in the Navy brig, where he has been detained without charge ever since.

At stake in Al-Marri v. Spagone is whether the President can order the military to seize and detain indefinitely, without charge or trial, individuals lawfully residing in the United States, including American citizens, based on government assertions that they planned to commit terrorist activities.

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge.

But in July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a narrowly divided decision that the President had legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country."

The ACLU says Al-Marri's detention represents “one of the gravest expansions of executive detention power since September 11.” The United States was founded on the principle that “individuals living in this country cannot be imprisoned without charge and that civilian government must remain supreme over the military. Al-Marri's detention represents a radical departure from that celebrated legal tradition—one that was never authorized by Congress and that violates the Constitution.”

According to the ACLU, documents recently obtained through a Freedom of Information Act request reveal that standard operating procedures developed for Guantánamo Bay “were secretly applied at the Navy brig in an effort to create a prison beyond the law within the United States. Today, al-Marri remains in virtual isolation at the Brig, denied even meaningful communication with his family.”

In its brief, the ACLU asks the Court to overturn a federal appeals court decision giving the president sweeping power to deprive individuals living in the United States of their most basic constitutional rights by designating them "enemy combatants." “It is clearly illegal to imprison legal residents of the United States without trial. It is also the type of false choice between our safety and our ideals that has pervaded America’s approach to fighting terrorism for the past eight years,” said the ACLU’S Hafetz. “We are confident that upon review, the Court will strike down this radical departure from our nation's most basic values and traditions.”

Former United States Attorney General Nicholas Katzenbach, former FBI Director William Sessions and numerous former generals, admirals and diplomats joined the ACLU in urging the U.S. Supreme Court to reject the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. These and other top military and civilian leaders have filed friend-of-the-court briefs.

The former diplomats argue in their brief that, “Based on our professional experience in the diplomatic service of this country, American diplomatic credibility and effectiveness in many areas of international relations suffer from the widely shared perception that the U.S. has abandoned the rule of law. Indefinite detention without criminal charge or trial is, for most people, the essence of this abandonment.”

They add, “Accordingly, a decision upholding our government’s right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism.”

The second Al-Marri case, Al-Marri v. Gates, contests al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant." During the first sixteen months of his military confinement, al-Marri was held incommunicado and subjected to a range of highly coercive interrogation measures, including being held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death.

Al-Marri is the second U.S. person to have been held as an enemy combatant within the United States. The first was José Padilla, a United States citizen. Padilla was arrested in Chicago in May 2002, and was detained as a material witness until June 2002, when President Bush designated him an illegal enemy combatant and transferred him to a military prison, arguing that he was thereby not entitled to trial in civilian courts.

Padilla was held for three-and-a-half years as an "enemy combatant" after his arrest on suspicion of plotting a radioactive "dirty bomb" attack. That charge was dropped when his case was moved to a civilian court after pressure from civil liberties groups.

In August 2007, Padilla was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. He was sentenced to 17 years and four months in prison.

What does the Padilla case tell us? It, and dozens of other similar cases, tells us that federal courts are more than capable of conducting trials of people accused of terrorism. It tells us that there is no need – let alone any Constitutional right of the president of the United States – to toss any U.S. citizen or lawful resident into a military prison and hold him for years without charge or trial.

And it tells us that our government needs to be a lot more careful about how our interrogators obtain “evidence” – because if it’s coerced, no court will allow it.

We can only hope the Supremes will share that view.


By William Fisher

Legal experts and human rights advocates are challenging the public to remember Guantanamo’s “child soldiers” when GITMO detainees are characterized as “the worst of the worst.”

Since the iconic detention center in Cuba opened in 2002, some 22 juveniles have been imprisoned there. And contrary to the UN’s Rights of the Child protocol, all but three have been housed with the general population, despite their being obliged to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."

Former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and many other senior Bush Administration officials have repeatedly described all the Guantanamo detainees as “the worst of the worst.”

Two “child soldier” cases in particular are being highlighted by human rights advocates.

Mohammed El-Gharani, a Chadian national and Saudi resident, was just 14 years old when he was seized by Pakistani forces in October 2001, in a raid on a mosque in Karachi, Pakistan, 700 miles from the battlefields of Afghanistan.

El-Gharani’s defense lawyers charge he was treated with appalling brutality. They say that, after being tortured in Pakistani custody, he was sold to U.S. forces, who flew him to a prison at Kandahar airport, where, he said, one particular soldier "would hold my penis, with scissors, and say he'd cut it off."

They claim his treatment did not improve in Guantánamo. Subjected relentlessly to racist abuse, because of the color of his skin, he was hung from his wrists on numerous occasions, and was also subjected to a regime of "enhanced" techniques to prepare him for interrogation -- including prolonged sleep deprivation, prolonged isolation and the use of painful stress positions -- that clearly constitute torture.

As a result of this and other abuse, including regular beatings by the guard force responsible for quelling even the most minor infractions of the rules, El-Gharani became deeply depressed, and tried to commit suicide on several occasions.

But last month, just days before President Barack Obama’s inauguration, a federal judge, Richard Leon, ruled that the government had not proven that el Gharani was an enemy combatant and said he must be released and sent home “forthwith”. Judge Leon said the government had relied mainly on information from two other detainees at Guantánamo Bay whose reliability and credibility was questionable. He is unlikely to be released soon, however, because it is not clear if the government of Chad will accept him.

Over the past month, federal judges in Washington have been moving ahead with case-by-case reviews of about 200 detainee legal challenges. The review by civilian courts on the U.S. mainland are happening because of a Supreme Court ruling in June 2006 which gave terror suspects the right to challenge their detention in federal court.

The administration of President George W. Bush had said that Gharani had stayed in an al-Qaeda guest house in Afghanistan, had fought in the battle of Tora Bora -- from where Osama bin Laden escaped in late 2001 -- and had served as a courier for senior al Qaeda operatives. He was also accused of being a member of a London-based al-Qaeda cell.

The other "child soldier" at Gitmo is Omar Khadr. He was taken into custody in Afghanistan at the age of fifteen, and was in the midst of his trial when President Obama’s first executive orders suspended all Military Commission proceedings for 120 days pending a case-by-case review of all GITMO cases and mandated an inter-agency task force to review the Military Commission system and alternatives for prosecutions.

Khadr was born in Toronto, and is the only citizen of a Western country currently detained by American authorities in Cuba. He was captured after a four-hour firefight in the village of Ayub Kheyl, Afghanistan, and has spent the past six years at Guantanamo. He is charged with war crimes, providing support to terrorism and throwing a grenade that killed a US soldier.

But, according to Gabor Rona, International Legal Director for Human Rights First, “The case against him was unraveling as the trial proceeded.” Unintentionally released US Military documents revealed that original reports said that Kadr was not the person who threw the grenade, and additional testimony by government witnesses has proven "unreliable.”

But Rona told us that “There was little expectation that the mere failure to prove its case would cause the prosecution much trouble. A verdict of ‘Guilty’ was almost assumed.”

He said Khadr’s case “should be dismissed in its entirety.” He points out that Khadr was 15 years old at the time he was taken into custody. “If his trial proceeds -- and no matter in what forum it proceeds -- it will be the first instance of a child soldier being prosecuted in a U.S. court for conduct in wartime. This would be contrary to international legal principles, which counsel rehabilitation and protection, rather than punishment of, child soldiers.”

He added, “The conduct with which he is charged – defending against an attack by American soldiers – is not a crime under the laws of war. Prosecution an individual for conduct that was not a legal violation at the time of its commission is, itself, a war crime in international law, as well as a violation of the U.S. Constitution.”

Canada's Prime Minister, Stephen Harper, has steadfastly refused to intervene in the Kadr case, and has declined to seek extradition to Canada while legal proceedings were on-going. However, Rona told IPS that Canada and the U.S. are now reported to be discussing Khadr’s possible repatriation to Canada. “Whether this will happen and if so, under what conditions, is uncertain,” he said.

According to recent reliable polling, 64 per cent the Canadian people have expressed the desire to have Kadr returned to Canada, and international and domestic organizations such as Amnesty International and the Canadian Bar Association have pressed the Conservative minority government to bring Kadr home.

Rona told us, “The issue of Child Soldiers is notable mainly when Western societies take umbrage about the recruitment of adolescents to fight in civil wars. The outrage curiously subsides when the child is one of our own, ‘recruited’ in this case by his father, a notorious Al-Qaeda sympathizer. Prime Minister Harper, however, appears deaf to the entreaties of UNICEF and other advocates for children.”

He added, “As Americans contemplate a decade of abuse of their Constitution and increasingly urge that Mr. Bush and his associates be held accountable for their illegal actions at home and abroad, Canadians should also hold Mr. Harper accountable for trampling on the rights of one of his fellow-citizens.”

Tuesday, February 03, 2009


By William Fisher

A prominent law professor is charging that the Defense Department is issuing questionable data on the number of Guantanamo detainees who have been released “and then returned to the battlefield” because the government “is now in a position where they have to find some bad guys -- even if they have to invent them by naming people who were never there.”

Their ultimate aim, Professor Mark Denbeaux of the Seton Hall University law school told IPS, “is to foment fear among American voters and limit the freedom of the Obama Administration to release any of the detainees still imprisoned."

Denbeaux heads the law school’s Center for Policy and Research. The Center has issued a report which it says “rebuts and debunks” the most recent claim by the Department of Defense (DOD) that 61 “former Guantánamo detainees are confirmed or suspected of returning to the fight.” The report is one of a series produced by the Center’s faculty and law students. Professor Denbeaux says the Center has determined that “DOD has issued 'recidivism' numbers 43 times, and each time they have been wrong --this last time the most egregiously so.”

He told IPS, “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo—much less were they released from there.”

He added, “They have counted people as 'returning to the fight' for their having written an Op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival. The DOD has revised and retracted their internally conflicting definitions, criteria, and their numbers so often that they have ceased to have any meaning -- except as an effort to sway public opinion by painting a false portrait of the supposed dangers of these men.”Denbeaux charged that the Defense Department has issued numbers 43 times, and said these numbers conflict with each other. He noted that the government’s numbers are “seriously undercut by the DOD statement that 'they do not track' former detainees.”

“Time and time again, the Department of Defense, the Executive Branch, and other government officials have claimed publicly that Guantánamo Bay detainees who have been released have "returned to the battlefield" where they have then been re-captured or killed,” Denbeaux declared.

The Seton Hall report attempts to correct what it characterizes as errors in the latest DOD report, which was issued in mid-January. That report alleged that 61 detainees have returned to the battlefield.

The Seton Hall report notes that in each of its 43 attempts to provide the numbers of the recidivist detainees, the Department of Defense has given different sets of numbers that are contradictory and internally inconsistent with the Department's own data.

It says that DOD’s most recent press statement identifies no names, dates, places nor any conduct by released detainees. “The raw numbers that are cited are unsupported, inconsistent with all other statements and appear to be presented to support the internal Department of Defense purposes,” the report says.

Previous DOD reports have said the numbers of recidivist detainees have been “one, several, some, a couple, a few, 5, 7, 10, 12, 15, 12-24, 25, 29, and 30,” the Seton Hall group contends.

But it adds that 82% of DOD’s publicly made claims “contain qualifying language,” including terms such as: "at least"; "somewhere on the order of"; "approximately"; "around"; "just short of"; "we believe"; "estimated"; "roughly"; "more than"; "a couple"; "a few"; "some"; "several"; and "about."

Department of Defense statements about the number of recidivist detainees which do not identify the detainee, the act of recidivism, the place, or the time, are especially unreliable, Seton Hall’s report declares. It claims that in the two instances in which DOD provided written support –July 12 2007 and May 20 2008, their previous oral assertions were repudiated. For instance, the report says, in DOD’s July 12, 2007 press release, “the 30 recidivists reported by DOD in April 2007 is reduced to five.”

DOD’s report of July 2007 identified seven prisoners by name, but the Seton Hall group says that “as many as two of those seven named were never in Guantanamo, and two of the remaining five were never killed or captured anywhere. Of the three remaining, one was killed in his apartment in Russia by Russian authorities. None of them is alleged to have left their homeland or attacked Americans on a battlefield or otherwise.”

Meanwhile, Newsweek magazine is reporting that The Pentagon “is preparing to declassify portions of a secret report on Guantanamo detainees that could further complicate President Obama's plans to shut down the detention facility.”

The publication says that the report “will provide fresh details about 62 detainees who have been released from Guantanamo and are believed by U.S. intelligence officials to have returned to terrorist activities.”

One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, has already received widespread media attention when Pentagon officials publicly asserted that he has recently reemerged as a deputy commander of Al Qaeda in Yemen, Newsweek reports..

Previously known publicly as Guantanamo detainee No. 372, Al-Shihri is alleged to have been involved in an unsuccessful attack on the U.S. embassy in Yemen last September.

Newsweek says, “The decision to release additional case studies from the report is in effect a warning shot to the new president from officials at the Pentagon and U.S. intelligence agencies who are skeptical about some of his plans. Some Pentagon officials, including ones sympathetic to Obama's goals, note the political outcry would be deafening should another example like Al-Shihri become public six months from now—and it turns out to be a Guantanamo detainee released under Obama's watch rather than by the Bush administration.”

It adds, "The last thing Obama wants is for one of these guys [at Guantanamo] to get released and return to killing Americans."

According to Newsweek, some counter-terrorism experts have raised questions about the significance of the Pentagon's figures, noting that the number of so-called "recidivist" detainees represents only a small portion, about 12 per cent, of the approximately 520 detainees who have been released from Guantanamo since the detention facility was opened in January 2002. This compares with recidivism rates of as high as 67 percent in state prisons in the United States, according to Justice Department figures.

“There have also been concerns that Bush administration holdovers were deliberately playing up the cases in recent weeks in an effort to undercut Obama. One former senior U.S. counter-terrorism official noted to Newsweek that the Pentagon waited until the day after Obama
signed his executive order mandating the closure of Guantanamo to confirm Al-Shihri's renewed Al Qaeda ties,” Newsweek reports.

Approximately 240 detainees remain at Guantanamo. Human rights groups and defense lawyers contend there is little or no evidence of terrorist involvement against scores of them. This is also the opinion of some federal judges who in recent weeks have ordered the Pentagon to release some of them.

The Obama administration has given itself a year to shut down the facility, and is hoping that European countries including Portugal, Spain and Germany, will agree to take some of these detainees. The Bush Administration was able to identify only two countries willing to take released detainees – Albania and Sweden.