Friday, May 29, 2009

Mr. Common Law’s Next Adventure

By William Fisher

I know, I know. Now that President Obama has chosen a nominee for the Supreme Court, I’m supposed to be writing about Sonia Sotomayor.

I will, I will.

But before he disappears into the flinty wilderness of the rural New Hampshire he loves so dearly, let me first say a few words about David Souter.

My few words are about his few words.

He spoke his few words at a recent seminar at Georgetown University on the independence of the judiciary, one of a series convened by retired Supreme Court Justice Sandra Day O'Connor.

His few words were on a subject rarely covered in any depth by the mainstream media, but one whose importance to the future of our country cannot be over-stated.

Souter spoke of the spectacular ignorance of the American electorate about the government they select people to serve in. And the consequences of that ignorance.

The Republic "can be lost, it is being lost, it is lost, if it is not understood," Souter said, citing surveys showing that large majorities of the public cannot name the three branches of government. Or who don’t even know there are three branches of government.

Souter’s trepidation has been borne out by dozens of other embarrassing surveys over recent years. Virtually every one of them has concluded that our young people know virtually nothing – and are being taught virtually nothing – about the way the country they live in is organized and governed. And these results are as true for college grads as they are for middle school youngsters.

For example, in one survey, fifty percent of Americans famously were able to name four characters from “The Simpsons,” but only two out of five were able to name all three branches of our federal government. And no more than one in seven could find Iraq on a map.

In his best-selling book, “Just How Stupid Are We?” author Rick Shenkman writes that such uninformed voters are misusing, abusing, and abdicating their political power. He argues that we must reform ourselves before we can begin to reassert that power.

The paradox here is that, over the past half century, the U.S. population has seen huge increases in their formal educational achievements. Yet their levels of political knowledge have remained static. The result is that today's college graduates know no more about politics than high school graduates knew back in 1950.

I find it unfortunate that our poor test scores relative to young people in other countries are usually lamented only in terms of our under-achievements in science, math and technology.

There is no argument that these subjects are critical to America’s ability to compete in the increasingly globalized environment of the future. But education is about a lot more than competing. It is about learning. And if are young people are content with being uninformed, they will surely get the country they’ve asked for.

Many observers – including me – were mightily heartened by the record-breaking participation of young voters during the 2008 Presidential campaign. But I have a nagging feeling that many of them were excited and moved to action by the personality, rhetoric and compelling life narrative of Barack Obama.

That kind of enthusiasm won’t teach them much about our country and its institutions, but it’s a start. Taking the next step will involve restoring Civics 101 to our educational agenda. Even if we have to choose it over football.

Justice Souter is painfully aware of that imperative. He said we have to start with the “reeducation of a substantial part of the American population." What is needed, he added, is "the restoration of the self-identity of the American people."

At 69, Souter has little patience for talking the talk. He is more about walking the walk. And, as if to provide all of us with a real life example, he has joined a committee sponsored by the New Hampshire Supreme Court Society that is dedicated to developing a civic education curriculum for New Hampshire's public school classrooms.

When he parts with the Supremes at the end of the current term, Souter plans to return to his hometown of Weare, New Hampshire. In retirement, we should not be at all surprised to find this most down-to-earth common-sense judge teaching that new course in Civics 101.

"If I can do it, you can do it too," Souter told his audience.

Yes, we can!

Sunday, May 24, 2009

Shhhhhh…It’s Still a (State) Secret

By William Fisher

“My Administration is also confronting challenges to what is known as the ‘State Secrets’ privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government.”

Thus spoke President Obama in his national security speech last week.

Which makes an odd coincidence ever odder. The odder coincidence is that in the same week as the President was arguing for more transparency in government and railing against the idea of protecting information “merely because it reveals the violation of a law or embarrasses the government” – he was invoking it yet again.

In a bid to squelch a U.K. court case involving alleged British complicity with the CIA in the rendition, imprisonment and torture of a British resident, the Foreign Office presented a letter urging continuing secrecy from – yes, you guessed it -- the Obama Administration.

From an ‘unnamed official’ in the Obama Administration.

The Foreign Office refused to disclose to the British High Court judges who the letter was from or to whom it was written, to say nothing of its contents, which were heavily redacted. The Foreign Office refused to explain why. They simply said their reasons for secrecy must also remain suppressed.

Here’s the back-story:

In 2002, an Ethiopian citizen and British resident named Binyam Mohamed became one of the CIA’s “frequent flyers.” He was arrested in Pakistan, allegedly stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.

Then he was allegedly once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured. He was eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo.

Mohamed was released from GITMO in February 2009, while he was on a hunger strike. He claims he was offered his freedom earlier if he agreed to confess to terror-related crimes. He refused.

He is currently attempting to sue the British Government, and specifically its intelligence service, MI5, for being complicit with the CIA in helping to facilitate his rendition.

When Mohamed’s case first came to the British courts, British Foreign Secretary David Miliband said the U.S. threatened to stop sharing intelligence with the Brits if details of the case were to be disclosed. He later denied there was any such threat.

But by this time, the case had caused a firestorm in Britain, with the Loyal Opposition accusing the government of doing a great job of living up to its caricature of being America’s poodle.

The British High Court judges were equally outraged. They said the refusal by U.S. to disclose evidence that could prove a British resident held at Guantánamo Bay was tortured was"deeply disturbing."

The court said there was "no rational basis" for the American failure to reveal the contents of documents essential to the Mohamed’s defense.

In a particularly damning passage, Lord Justice Thomas and Justice Lloyd Jones said the documents provided the "only independent evidence" capable of helping Mohamed and his defence. Suppressing the material "would be to deny him the opportunity of timely justice in respect of the charges against him," which was a principle dating back to "at least the time of Magna Carta and which is a basic part of our common law and of democratic values."

The Court ordered the British Government to turn over 42 documents, which it has thus far largely failed to do. When Mohamed’s lawyer, Clive Stafford Smith, pressed the issue by going back to Court for another hearing, Miliband’s lawyers continued to oppose disclosing any documents that might reveal the extent of U.K. government complicity in Mohamed’s treatment.

There will be another hearing in about a month, at which time the judges will finally decide whether Mohamed’s suit can go forward.

Stafford Smith says, “This official secrecy is becoming increasingly ridiculous, and way out of line with what the public expects from their democratically elected government.”

“The British people rightly expect to be able hold their government accountable for any wrongdoing, and this deliberate secrecy is preventing them from doing that. If this letter truly represents the view of the Obama Administration, why not reveal the author? Why are both governments so afraid of basic transparency in this matter?”

Why indeed?

The back-story gets even more complicated.

In 2007, the American Civil Liberties Union filed a lawsuit in the U.S. on behalf of five men, including Mohamed, who claimed they were victims of rendition, torture and imprisonment without charge.

The suit charged that a company known as Jeppesen Dataplan, a Boeing subsidiary, helped the CIA to facilitate the renditions by providing it with support and logistical services. It charged that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to CIA aircraft and crews.

Lawyers for the Bush Administration intervened in the case in 2007, invoking the so-called “state secrets privilege.” It argued that the suit could not go forward because it would involve presenting evidence that would compromise U.S. national security. The court agreed, and halted the suit.

The case bounced around on appeal until 2008, when the Ninth Circuit Court of Appeals heard arguments for and against going forward with the suit. Human rights advocates were shocked when Obama Justice Department lawyers declined to change the Bush-era position and followed the same road as its predecessor.

But the appeals court disagreed. In what may yet become a landmark decision, the judges finally ruled that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, not to dismiss an entire suit.

In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."

The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.

Following the Appeals Court decision, Ben Wizner, a staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs, told me, "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court.”

The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.

If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the U.S. government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.

Meanwhile, as the Binyam Mohamed fire continues to burn out of control in the U.K., the Obama Administration is nearing completion of its review of use of the State Secrets practice. Obama says, “I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.”

The importance of telling us – and the British High Court – took on added significance yesterday, thanks to a Sunday New York Times piece by Eric Schmitt and Mark Mazzetti desribing how the U. S. is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan.

Obama continues to insist that “we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable.”

Well, I would say the Binyam Mohamed story is about as uncomfortable as it gets. It’s time for the President to fess up. That will be change we can believe in.

Friday, May 22, 2009

A Tale of Two Tales

By William Fisher

President Barack Obama cautiously minced his way yesterday through a political minefield filled with imminent explosions from human rights advocates, national security hawks, and a Congress terrified by the potential political backlash of any move to bring Guantanamo Bay prisoners to the U.S. for trial or detention.

The President defended his decisions to close the iconic naval base in Cuba, halt “enhanced” interrogation practices, and complete a case-by-case review of Guantanamo detainees to determine how to treat each one.

Obama’s remarks came against the backdrop of a major bipartisan revolt in Congress, which has refused to appropriate funds for the closing of Guantanamo until the president assures members that no terrorists will be “released in our neighborhoods” and presents them with a detailed plan for closing the Caribbean prison facility.

Obama spoke in a setting designed to underline traditional U.S. beliefs in the rule of law: The National Archives, which houses the Declaration of Independence, the Bill of Rights, and the Constitution.

Almost immediately following Obama’s speech, in another Washington venue a few minutes away, former vice president Dick Cheney delivered a speech at the conservative American Enterprise Institute, where he uncompromisingly defended the detention, interrogation and national security policies adopted by the George W. Bush Administration. Cheney criticized the Obama Administration for policy decisions that are making America less safe.

While the Obama speech was light on details, he outlined five categories of Guantanamo detainees his administration is attempting to deal with: those who can be tried in Federal courts; those who have violated the laws of war and should be prosecuted before “improved” Military Commissions; those who have been cleared of wrongdoing ordered released; those who can safely be transferred to other countries; and – most contentiously – those can not be prosecuted in either civilian or military courts but who are deemed to present clear threats to U.S. national security, and thus must remain in custody.

It is particularly the latter category that has caused the Congressional blowback, as well as criticism from both the human rights and conservative communities. Obama said that, unlike his predecessors, his team was attempting to craft a legitimate legal framework for this category of prisoners, including judicial and congressional oversight.

He termed as “irrational” the Congressional and public fear regarding bringing Guantanamo detainees to the U.S. for trial, imprisonment or release.

“This is fodder for 30-second commercials designed to frighten the American people,” he said, vowing never the put the safety of the American people at risk.

The Senate on Wednesday voted 90 to 6 to block funding for the shutdown of Guantanamo and to bar the transfer of detainees to the United States and its territories. The six voting against the measure were all Democrats.

Conservative Senator John Thune, Republican of South Dakota, summed up much of the Congressional opposition to Obama’s funding request. “The American people don’t want these men walking the streets of America’s neighborhoods,” he said, adding, “The American people don’t want these detainees held at a military base or federal prison in their back yard, either.”

But the “not in my backyard” chorus was also joined by leading Congressional Democrats. Senator Harry Reid, the Senate Democratic majority leader from Nevada, vowed that Congress “will never’’ allow detainees from the prison to be released on American soil.

But Michele A. Flournoy, the under secretary of Defense for policy, said “I think there will be some that need to end up in the United States. I think this is a case where we need to ask members of Congress to take a more strategic view.’’

The fear of releasing Guantanamo detainees into the U.S. was stoked Wednesday by Congressional testimony from Robert Mueller, director of the Federal Bureau of Investigation (FBI). He told the House Judiciary Committee he was concerned about Guantanamo detainees being transferred to U.S. prisons.

"The concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing, radicalizing others," Mueller said, as well as "the potential for individuals undertaking attacks in the United States." He also said there were also potential risks to putting detainees in maximum security prisons.

The reactions from leaders of human rights organizations – with many of whom Obama met earlier this week – was predictable.

Tom Malinowski, Washington advocacy director of Human Rights Watch, said his organization thought that suspects who must be detained for long periods should be tried in the U.S.

"The more we try to create something new, the greater the risk of challenge and defeat," he said. "In the short term, it may be easier to detain potentially dangerous people if you design a system specifically for that purpose. But in the longer term, the risk of having to release those people is greater because the system could collapse."

Michael Ratner, president of the Center for Constitutional Rights,
said, "The president wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name."

Anthony Romero, executive director of the American Civil Liberties Union, said his organization and others will fight Obama in court, and are angry that he and other Democrats have allowed themselves to fall victim to what critics consider Republican "fear-mongering" about bringing accused terrorists to US soil.

He said, "We welcome President Obama's stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture. But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today."

“President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America’s security,” said Kenneth Roth, executive director of Human Rights Watch. “But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”

Other civil libertarians were equally outspoken.

"The president is going to have to spend political capital; he will have to lean on people and call out the political cowards," said John D. Hutson, a retired Navy admiral and judge advocate general who advised Obama on detention policy during his presidential campaign. "He is going to have to regain the high ground and the initiative. He had the initiative and it slipped away."

Professor Francis A. Boyle of the University of Illinois law school, told us, “There are extremely complicated and important issues of U.S. Constitutional Law, international law, human rights and civil liberties at stake here. And yet Members of Congress are more interested in grand-standing for votes and scare-mongering the American people than resolving them fairly and equitably and in accordance with principle.”

“What needs to be understood by our policymakers is that Guantanamo doesn't make us safer but in fact is counterproductive in fighting terrorism," Prof. Brian Foley of Boston University law school told us.

Opposition to Obama’s plan was strengthened by disclosure of an unreleased Pentagon report that concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.
Past Pentagon reports on Guantánamo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail.
In two related developments:

A federal judge ruled Tuesday night that the president can continue to hold some prisoners at Guantanamo Bay indefinitely without them being charged. Judge John Bates curbed the Obama administration's definition of who can be held, but ruled that Congress in the days after Sept. 11, 2001 gave the president the authority to hold anyone involved in planning, aiding or carrying out the terrorist attacks.

An administration official said that for the first time, a Guantanamo detainee is being sent to the U.S. to stand trial in a criminal court. Ahmed Khalfan Ghailani, a Tanzanian captured in Pakistan in 2004, had been indicted by a federal grand jury in New York on allegations that he took part in attacks on two U.S. embassies in Africa in 1998.

Tuesday, May 19, 2009

Pelosi’s Loss; Our Gain

By William Fisher

Congressional Democrats and many Washington journalists are predicting that House Speaker Nancy Pelosi’s current dispute with the Central Intelligence Agency may ultimately hasten the push toward the last thing Republicans want -- a comprehensive investigation of prisoner detention and interrogation during the administration of former President George W. Bush.

The Pelosi controversy centers on whether the House’s top Democrat was briefed in 2002 by the Central Intelligence Agency (CIA) that waterboarding and other abusive interrogation techniques were being used when she was chair of the House Intelligence Committee.

Pelosi says the CIA told her waterboarding was not being used; she has accused the agency of misleading Congress. The CIA claims it informed her, as well as a small number of other Congressional leaders.

While President Barack Obama appears to be ambivalent about a comprehensive look-back, many of Pelosi’s House colleagues – and much of the media -- are ramping up their calls for an independent 9/11-type commission to investigate not only what Pelosi knew and when she knew it, but what happened to detainees during the Bush years.

If there is a full-blown investigation of Bush-era policies, it is sure to drill down into the CIA’s activities following the terrorist attacks of September 11, 2001, and in the year-long run-up to the 2003 U.S. invasion of Iraq.

There is little dispute that the CIA played a major role in the interrogation of terror suspects during that period. Public disclosure of what the CIA did – and testimony about who authorized, approved, and implemented it -- is likely to be a major embarrassment for Republicans who controlled the White House and both chambers of Congress at the time.

A recent Senate hearing on torture provides a measure of just how embarrassing such revelations could be.

That hearing revealed two claims that went largely unreported in mainstream media accounts.

The first claim was intended to debunk the widely-held view that the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) were at odds about the effectiveness of harsh interrogation practices. Testimony at the hearing suggested that the two agencies were in agreement.

The second claim was that CIA operatives were responsible for the application of abusive interrogation practices. But testimony asserted that these interrogations were carried out by private contractors, and that CIA personnel present at the time agreed with the FBI that the so-called “enhanced techniques” were unnecessary and counterproductive.

Both these claims came from a former FBI special agent, Ali Soufan, an interrogator who helped question Abu Zubaydah — the first high-value detainee in American custody. Soufan spoke to the Senate committee from behind a partition that concealed his identity to protect his personal security.

Soufan testified that he had built a relationship with Abu Zubaydah using traditional FBI interrogation technques and was getting valuable information.

He said both agencies wanted to continue this approach, but were overruled by “headquarters.” But the identity and location of the “headquarters” and the identity of the CIA contractors remains shrouded in mystery.

Soufan told the Senate hearing that after the FBI was asked to leave, CIA contractors waterboarded Zubaydah 183 times in a single month.

He testified that the people on the ground who pushed hardest for abusive interrogations were CIA contractors. "The interrogation team was a combination between FBI and CIA, and all of us had the same opinion that contradicted with the contractor. The contractors had to keep requesting authorization to use harsher and harsher methods," he said.

In his written testimony, Soufan said contractors used nudity, sleep deprivation, loud noise and temperature manipulation against Zubaydah. The timeline indicates that this was done before the Justice Department had provided written legal authority to use these techniques.

He also testified that the CIA contractors had no interrogation experience.

In the recently released Justice Department memos defining torture, there is no mention of CIA contractors, and that may help explain why there have been no lawsuits against them. Another is the secrecy that has traditionally enveloped all CIA activities, including its interrogation program.

President Barack Obama and Attorney General Eric Holder have granted immunity to CIA operatives who believed they were acting under legal opinions approved by the Justice Department. But the Obama Administration has said nothing about contractors.

CIA Director Leon Panetta has now barred contractors from carrying out interrogations. But even if the identities of the CIA contract interrogators were known, suing them might present formidable legal challenges. For example, the Military Commissions Act passed by Congress in 2006 includes a provision that immunizes contractors from lawsuits.

While some in the human rights community believe that provision to be unconstitutional, it has not yet been tested in any U.S. court. However, there are a number of civil lawsuits ongoing or pending against military contractors, including Blackwater and CACI.

What is known is that CIA contract interrogators attended the school used by the Army to conduct a program known as SERE, an acronym for Survival, Evasion, Resistance and Escape. The SERE program was designed to train Army Special Forces personnel to resist torture if they were captured

It is also known that two military psychologists, James Mitchell and Bruce Jessen, who were key figures in designing the SERE program, left the CIA to create a private company called Mitchell Jessen & Associates, located in Spokane, Washington. That company then won a contract from the CIA to help it “reverse engineer” SERE so that it could be used to interrogate suspected terrorists

There is a growing body of evidence suggesting that the Mitchell-Jessen program – which employed most of the techniques now considered to be torture – was initiated before the Justice Department’s Office of Legal Counsel (OLC) issued its memos confirming the legality of these techniques.

That evidence suggests that while the Bush White House, the Vice President’s office and Justice Department lawyers were beginning to build the legal framework for torture, the two psychologists were already designing the interrogation techniques.

In an article on Vanity Fair's Web site reported that the high-value detainee Mitchell appears to have helped interrogate in March 2002 was Abu Zubaydah. Similar reports have appeared elsewhere; for example, in an article by Mark Benjamin in, and by The New Yorker magazine’s Jane Mayer, in her book, “The Dark Side.”

The Vanity Fair article says that, “as Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the CIA team began building a coffin in which they planned to bury the detainee alive.”

It continues: “CIA superiors reportedly overruled the suggestion to bury Zubaydah.” But according to Vanity Fair, Mitchell, along with fellow psychologist, Bruce Jessen, "reverse-engineered the tactics inflicted on SERE trainees":

“The C.I.A. put them in charge of training interrogators in the brutal techniques, including waterboarding at its network of "black sites,” the magazine says. In a statement, Mitchell and Jessen are quoted as saying, "We are proud of the work we have done for our country," the magazine reported.

Allegedly under Mitchell's guidance, interrogators used waterboarding with "far greater frequency than initially indicated" -- a total of 183 times in a month for Khalid Sheikh Mohammed – the alleged mastermind of the 9/11 attacks -- and 83 times in a month for Abu Zubaydah.

And media reports suggest that the main focus of the Zubaydah interrogation was to establish a connection betweeen al-Qaeda and Saddam Hussein’s regime in Iraq.

The CIA was secretly granted broad authority by President Bush days after 9/11 to target terrorists worldwide. Both the military and the spy agency were therefore following a policy approved at the highest levels of the Bush Administration.

The roles played by Mitchell, Jesson and other health professionals in the CIA interrogation programs have caused a firestorm in the psychologist community. Under pressure from many of its members, the American Psychological Association has passed a resolution barring its members from participating in similar programs in the future.

A cornucopia of politically charged information is virtually certain to surface if the Pelosi-CIA contretemps leads to formation of a commission to conduct an independent investigation.

If such a commission is formed, much of its work will likely be conducted behind closed doors. The public may initially learn very little about the details because virtually all the CIA-related material will be classified and it will probably take considerable time for a declassified version of the body’s report to become available publicly.

But many in Washington are saying that, even absent an official investigation, much more information about the CIA’s detention and interrogation practices is likely to find its way to the media in dribs and drabs.

About which we should all say: Bring it on!”



By William Fisher

The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.

Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.

But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.

While the idea of such a new court system is generally supported by conservatives, that support is far from universal.

Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.

Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as “the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!”

Fein believes the regular Federal court system should be the venue for terrorism trials.

He told IPS, “Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA).”

CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.

Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."

He said the Obama administration “has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell’s 1984!”

Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.

Prof. Francis Boyle of the University of Illinois law school agrees. He told IPS, “The proposal to establish a ‘National Security Court’ here in the United States would constitute a U.S. Constitutional abomination.”

“It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic,” he said, adding,

“U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind,” he said.

A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told IPS,

“The basic problem with National Security Courts is similar to that with military commissions or other second-tier systems not offering the full panoply of basic human rights and civil liberties to defendants: they posit a category of people (suspected terrorists) purportedly not entitled to basic constitutional and human rights including a full and genuine presumption of innocence with the associated opportunities to fairly defend themselves.”

He added, “These have been the very concerns prompting the U.S. to routinely object when such courts are used by other countries.”

He said, “The bottom-line is that such courts – like military commissions applying outside of the usual circumstances (real-world war, with battlefields etc) – are neither needed nor a good idea. They would risk being broadened and subjected to mission creep, but even if they can be limited to the circumstances contemplated would be an alarming step along the road toward a very different country indeed from what our founders envisioned.”

“The rule of law, by contrast, has proven to be a pretty good idea, along with its associated notions of human rights/civil liberties,” he said.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, believes the establishment of National Security Courts “would be a terrible mistake.”

He told IPS that these new courts “would institutionalize many of the worst features of Bush administration policies, perpetuating both indefinite detention and trial of terrorism suspects outside the established federal criminal courts.”

He added, “National security court proposals are riddled with constitutional flaws including reliance on secret evidence, elimination of core constitutional safeguards like the right to confront one's accusers, and the absence of protections against the use of evidence obtained by coercion. While they might be sold as a reform measure, national security courts are part of an agenda to continue the failed Guantanamo system rather than to end it.”

Brian J. Foley, Visiting Associate Professor at the Boston University law school, says U.S. detention policy “needs rethinking.”

He told IPS, “The current Guantanamo system has rules that are too soft and allow roundups of suspected terrorists based on unreliable evidence. Interrogating these people using harsh methods leads to false confessions and other statements calculated to end the abuse. Threatening them with trial by what amounts to a kangaroo court will also cause many to confess falsely.”

He says the result is that “U.S. anti-terror officials end up with a false picture of the enemy and waste their time chasing false leads and phantoms, which can distract them from actual terrorists. If the U.S. is to have a special court system for terrorists, it should be focused on coming to accurate results, not simply politically expedient convictions.”

Foley sees the current debate as an “opportunity for policymakers to think really hard about accuracy and about how rules can foster accuracy.”

He explains: “Most discussions right now are 'rights'- based. Accuracy, though, should be the focus on any such new court system”

He said he is “not convinced that alleged terrorists and war criminals and war criminals should not be tried in our regular courts. It would be easier to tinker with the existing system (which has developed slowly over the years) if necessary rather than building an entirely new one.”

Mark Shulman, a professor at the Pace University law school, sees an ominous similarity between the current discussion and the experiences of other countries.

“National security or terrorist courts in other countries offer troubling lessons, mostly because of their implications for the respect for civil liberties generally -- not only of the accused, but of the wider population,” he said, adding,

“Existing proposals to create such a court in the United States inadequately account for this risk, or explain how it would be minimized or mitigated. “Emergency systems in other countries have invariably reduced civil liberties for the general population.”

He emphasized that “it is important to recognize that these emergency systems in such diverse jurisdictions as Great Britain, Malaysia, and South Africa have diminished freedoms for society as a whole.”

Saturday, May 16, 2009

Lawyers, Human Rights Groups Outraged by Obama GITMO Decision

By William Fisher

Human rights advocates are outraged by President Barack Obama’s decision to prosecute some Guantanamo detainees through the same Military Commissions he criticized during his campaign as a “flawed” system that “has failed to convict anyone of a terrorist act since the 9/11 attacks.”

The White House said Friday that the Commissions would be used to prosecute terrorism suspects who can’t be tried in the civilian criminal justice system, but added that detainees would have expanded legal rights to make the proceedings fairer.

The Military Commission system, rebuked several times by the Supreme Court as unconstitutional, was a centerpiece of the Bush administration’s strategy for fighting “the global war on terror.”

Critics representing both the Left and the Right said Obama’s decision was an unnecessary compromise of American values.

Bruce Fein, a prominent conservative who was a senior official in the Justice Department under President Ronald Reagan, told IPS, “The entire structure of military commissions is flawed. It combines judge, jury, and prosecutor in the same branch -- the very definition of tyranny according to The Federalist Papers.”

He said,” Military Commissions are used to whitewash torture and sister outrages against the Fifth Amendment and due process.”

Other constitutional scholars expressed similar views.

Professor David Cole of Georgetown University law school told IPS, “You have to wonder why the Obama administration would want to saddle itself with a process that is deeply tainted by the way the Bush administration sought to use it. Surely it would be better in terms of the acceptability of the verdicts around the world, to make a clean break and use the regular courts or the military court-martial system.”

Professor Francis A. Boyle of the University of Illinois law school characterized the Military Commissions as “Kangaroo courts” that are too deeply flawed to be “fixed.”

He told IPS, “The laws of war would permit (Guantanamo detainees) to be prosecuted in either a U.S. Federal District Court organized under Article III of the United States Constitution or in a military court-martial proceeding organized under the Uniform Code of Military Justice. To do otherwise would be a war crime. What is the Obama administration afraid of? An acquittal? There were acquittals at Nuremberg.”

Marjorie Cohn, president of the National Lawyers Guild, told IPS, “Military commissions deny the accused basic due process and are not necessary to try terrorism-related offenses. The U.S. civil and military courts, which provide due process protections that comply with the Constitution, can effectively protect classified information through the Classified Information Procedures Act.”

And Brian J. Foley, Visiting Associate Professor at the Boston University School of Law, told IPS, “The system is fatally flawed because it was built to result in convictions -- why else rig the rules to allow evidence that regular courts would reject as unreliable?”

He added, “The only people Obama is winning points with by this decision is the hard right wing (which is a waste of his time, because they will find reasons to hate him, anyway) -- he's thumbing his nose at his political base as well as at the world.”

Human rights organizations were equally damning in their condemnation of the Obama decision.

Jonathan Hafetz, an attorney with the American Civil Liberties Union, called the military commission system a “failed experiment that must be ended not revived if American justice and the rule of law is to be restored.”

He told IPS, “There is no legitimate reason for continuing to circumvent the established method of trying terrorism suspects in our ordinary federal courts. No proposed improvements to the military commission system will cure their endemic flaws or their lack of legitimacy in the eyes of the world.”

“After years of working with these bizarre commissions, it is clear to us that they simply do not work,” said Zachary Katznelson, legal director of Reprieve, a UK-based legal charity that represents a number of Guantanamo detainees.

He told IPS, “As a constitutional lawyer, Obama must know that he can put lipstick on this pig - but it will always be a pig.”

Amnesty International USA researcher Rob Freer said the Military Commission system was “conceived and developed as part of an unlawful detention regime, to facilitate convictions while minimizing judicial scrutiny of the executive’s treatment of detainees.”

“No amount of tinkering with their rules can fix this discredited system,” he said.

Chip Pitts, President of the Board of Directors of the Bill of Rights Defense Committee, told IPS, “This a terrible day for the rule of law. I have to conclude that political considerations played a major role in this decision. Obama believes he must compromise in order to achieve his larger goals -- health care, education and energy independence. But you don't compromise your basic principles."

The Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to defend Guantanamo detainees, said in a statement, “Today’s announcement is an alarming development for those who expected that the Obama administration would end Bush’s dangerous experiments with our legal system.”

And Elisa Massimino, CEO of Human Rights First, argued that federal courts are capable of handling the cases and warned that "tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions."

But Obama’s decision was seen as a political win by some observers of Congress and by many conservative Republicans who have worried that Obama was seen as “too soft” on terrorism.

For example, David B. Rivkin Jr., a Washington lawyer who was an official in the Reagan administration, told The New York Times that the decision suggested the Obama administration “was coming to accept the Bush administration’s thesis that terror suspects should be viewed as warriors, not as criminals with all the rights accorded them in American courts.”

In Congress, the Senate Republican leader, Mitch McConnell of Kentucky, an outspoken critic of Obama’s plan to close Guantánamo, called the decision to use the military commissions “an encouraging development.”

Sen. Lindsey Graham, a conservative Republican from South Carolina and a member of the Armed Services Committee, called Obama's decision a step toward strengthening U.S. detention policies that have been derided worldwide. He said, “I applaud the president's actions today."

And Sen. Joe Lieberman, an Independent from Connecticut, also welcomed Obama's decision. He said, “The president "has reinforced that we are at war, and that the laws of war should apply to these prisoners."

White House officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases. They also said questions surrounding the brutal treatment of some detainees had become an obstacle.

The Military Commission system was set up after the military began sweeping detainees off the battlefields of Afghanistan in late 2001. It has been the subject of repeated legal challenges from human rights organizations because it denied defendants many of the rights they would be granted in a civilian courtroom. When he was a U.S. Senator, Obama voted against the Military Commissions Act of 2006, which established the current system.

In several landmark decisions, the U.S. Supreme Court has ruled that this system, first established by executive order by former President George W. Bush, was unconstitutional.

Thursday, May 14, 2009


By William Fisher

President Barack Obama’s decision yesterday to object to the planned release of photos showing abuse of prisoners in U.S. custody in Iraq and Afghanistan has drawn quiet praise from the military and some in Congress – and outspoken scorn from human rights advocates, a number of legal scholars and religious leaders, and many on the left of his Democratic Party.

The release, originally scheduled for May 28, was ordered by a federal appeals court in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The Obama Justice Department initially indicated it had run out of legal options and would comply with the court order.

But yesterday, the president made a 180-degree U-turn and ordered his lawyers to go back to court to appeal the decision. It is likely the case will eventually make its way to the Supreme Court.

The White House said the President “strongly believes that the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing U.S. forces, and making our job more difficult in places like Iraq and Afghanistan.”

Photographs released in 2006 of detainees being abused and humiliated at the Abu Ghraib military prison in Iraq sparked widespread outrage and led to convictions for several prison guards and the ouster of the prison’s commander. The Pentagon shut down the prison in the wake of the scandal but it reopened under Iraqi control earlier this year.

It is being widely reported in the U.S. press that two factors played significant roles in the president’s turnabout. One factor was objections from top military leaders, concerned that release of the images would inflame the Muslim world at the moment when the U.S. is planning to draw down its troops from Iraq and initiate a new counter-insurgency strategy in Afghanistan. The second factor is Obama’s scheduled June 4 speech in Egypt; some in the Administration were reportedly worried that the photos would blunt the president’s message of reconciliation with the Muslim community by providing fresh fodder for the anti-American press in the Middle East.

Those said to be making this case to the White House include Robert Gates, the secretary of defense; Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff; Gen. David Petraeus, the CENTCOM commander; Gen. Ray Odierno, the U.S. commander in Iraq; and Gen. David McKiernan, the outgoing U.S. commander in Afghanstan.

Some influential members of Congress have also been urging Obama not to release the photos. They include Senator Lindsay Graham, a conservative Republican from South Carolina and a long-time military lawyer in the Air Force Reserve; and Senator Joe Lieberman, an Independent from Connecticut. Graham is a member of the Senate Armed Services Committee. Lieberman is chairman of the Senate Homeland Security Committee.

The two Senators wrote to Obama on March 7, “Releasing these old photographs of detainee treatment now will provide new fodder to al-Qaeda’s propaganda and recruitment operations, undercut the progress you have made in our international relations, and endanger America’s military and diplomatic personnel throughout the world.”

Support for the Obama decision has also came from some veterans’ groups. David Rehbein, the national commander of the American Legion, wrote in the Wall Street Journal that nothing good can come from the release of the photographs.

“Other than self-flagellation by certain Americans, riots and future terrorist acts, what else do people expect will come from the release of these photographs?” he asked.

But this reasoning has failed to impress human rights groups and some religious leaders, many on the Left of the Democratic Party, and some spokesmen for the Right.

Anthony D. Romero, Executive Director of the ACLU, which originally brought the FOIA lawsuit, said, “The Obama administration’s adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the president’s stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government.”

Other human rights groups were similarly outraged. Stacy Sullivan, counterterrorism adviser at Human Rights Watch, said, "We understand President Obama's concern about protecting U.S. military personnel serving in Iraq and Afghanistan, but the real danger comes not from the knowledge that abuse happened but the sense that those responsible for planning and authorizing it haven't been held accountable.”

Human Rights First argues that releasing the photos is vital. The group says it has set up a nonpartisan inquiry to “evaluate the full cost of abuses, look at how we got there, and come up with safeguards so we don’t repeat the same mistakes.”

Amnesty International USA’s executive director, Larry Cox, said,
“Today’s decision to hold the torture photos only points more firmly to the urgent need for an investigation to expose, prosecute and finally close the book on torture. The American people have been lied to, and government officials who authorized and justified abusive policies have been given a pass.”

Criticism of Obama’s decision also came from some Conservatives. Bruce Fein, Chairman of the American Freedom Agenda and a senior Justice Department official during the administration of President Ronald Reagan, told us, “The more things change, the more they stay the same. To maintain that the more grisly the abuses or torture revealed by the photos, the greater the urgency of secrecy to prevent infuriating foreigners is a page from George Orwell's 1984.”

Some religious leaders are also critical of Obama’s decision. Rev. Richard Killmer, Executive Director of the National Religious Campaign Against Torture, told us, “President Obama promised to make his administration ‘the most open and transparent in history.’ It is unfortunate that he appears to have chosen to backpedal on that promise on the issue of U.S.-sponsored torture. Not only should he allow the release of these photos, but he should also move to establish a Commission of Inquiry to investigate and report on our use of torture since 9/11.”

Legal scholars are also expressing opposition to Obama’s decision. Typical is Prof. Francis Boyle of the University of Illinois law school. He told us, “This tragic, misguided, and unprincipled reversal seems to be consistent with the fact that instead of getting a real ‘change’ on policies under the Obama administration, the American people are experiencing continuity across the board with those of the discredited and criminal Bush administration when it comes to international law, human rights, and U.S. constitutional law related thereto.”

A similar view comes from Marjorie Cohn, President of the National Lawyers Guild. She told us, “President Obama's about-face on releasing the photos belies his commitment to transparency. Those who authorized the mistreatment depicted in the photos have not been punished. By refusing to make the photos public, the administration is withholding evidence that could be used to bring the real culprits to justice."

And Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, told The Washington Post he thought Obama faced an uphill legal battle. "They should not be able to go back time and again and concoct new rationales" for withholding what have been deemed public records, he said.

Criticism of the Obama decision has also become viral among liberals in the blogosphere, For example, Cenk Uygur, writing in the left-leaning Huffington Post, said, “This is an unbelievable moment. Dick Cheney's PR offensive over the last month actually worked. Barack Obama just crumbled and will follow Cheney's command to not release the new set of detainee abuse pictures.”

Wednesday, May 13, 2009

“Torture Memos” an “Ethical Trainwreck”

By William Fisher

“An ethical train wreck” was the phrase used by one witness to describe the legal reasoning behind the Justice Department’s recently released memos justifying the use of waterboarding and other forms of “enhanced interrogation techniques.”

The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee today.

Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the American public in a "near avalanche of falsehood" on the subject of detainee treatment.

"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.

The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.

He told the subcommittee – the first congressional panel to address allegations of torture -- that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.

He added that the issue was one that senior Bush Administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.

Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of September 11, 2001, said that Justice Department memos on “enhanced interrogation techniques” were "unsound, even unreasonable." He called for a "thorough public inquiry" into the issue.

"The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information," Zelikow said.

"This was a mistake, perhaps a disastrous one. It was a collective failure,” he said.

The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI), Ali Soufan, who interrogated some suspected al-Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.

Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.

He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.

Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al-Qaeda."

"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.

A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.

Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not “evil” people, but simply those who were trying to protect the American people from the next terrorist attack on the U.S.

He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.

Prof. Luban disagreed with that reasoning. He told the committee he thought it “impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law." He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions."

Luban concluded that memos written by Justice Department lawyers in the administration of former president George W. Bush "cherry pick" legal precedents and fail to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.

"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.

Three Bush-era lawyers, all working in the DOJ’s Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama Administration. The so-called “torture memos” were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.

The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.

Today’s testimony came amid calls for these lawyers – and their superiors – to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a “truth commission” to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice. An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.

President Obama’s reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that “no one is above the law,” he has said repeatedly that his inclination is to look forward, not backward.


By William Fisher

Human rights advocates and legal scholars fear that the administration of U.S. President Barack Obama may resurrect the Military Commissions designed by their predecessor to try Guantanamo detainees after Obama’s 120-day moratorium on proceedings expires on May 20.

That possibility appeared to moved a step closer to reality when Guantanamo’s chief judge refused to delay a May 27 pre-trial hearing for Ahmed Al-Darbi, 34, a Saudi Arabian accused of providing material support for terrorism and participating in a conspiracy to commit murder and other crimes. Military authorities also allege that he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He has been a U.S. prisoner since 2002, first at Bagram Air Field in Afghanistan, and since 2003 at Guantanamo.

Darbi’s hearing will be the first commission session since President Obama took office and ordered the freeze on war court proceedings. The Guantanamo judge, Army Col. James Pohl, ruled that defense lawyers had ample notice to prepare for the one-day hearing.

Judge Pohl’s ruling ordering the May 27 hearing noted that
“There has been no change in the statutory or regulatory scheme governing military commissions."

In setting that date, Pohl said he was "not trying to influence the Administration's review" and would consider adjusting or canceling the hearing if there "are changes between now and May 27.”

The major issue at the al-Darbi hearing is how much evidence might be presented at his military trial in a bid to show that he was tortured into confessing crimes he now denies. Darbi's lawyer, Ramzi Kassem of the Yale University law school, is trying to prevent Pentagon prosecutors from using as trial evidence dozens of the Saudi's self-incriminating statements, which the lawyer claims were obtained through brutal treatment during interrogations at Bagram Air Base in Afghanistan and at Guantanamo Bay.

Darbi's attorney has requested that two documentary films describing a climate of abuse at the time of Darbi's interrogations be introduced as evidence.

During his first week in office, President Obama ordered a case-by-case review of all detainees held at Guantanamo. Al-Darbi’s lawyer told us he doesn’t know if Darbi’s case has been reviewed by Obama Administration.

But he was certain that his client could not find justice at a Military Commission trial, whether it was held in Guantanamo or in the U.S.

He told us, “The (George W.) Bush administration decided on using the Guantanamo Bay naval base in Cuba because they considered it a law-free zone, but the courts decided otherwise. Now that the Obama Administration has pledged to close the base, they seem to be thinking of moving the Military Commissions to the U.S. mainland, perhaps with a few detainee protections added.”

However, he added, “There is no amount of tinkering that will make Military Commissions ‘better’. This is a system designed to produce convictions, not justice.”

Kassem also said, “There is no reason to revert to this failed system. We already have a proven criminal justice system in the U.S. That system has demonstrated over 120 times that it is well equipped to try people accused of terrorism and to deal with national security matters. Why should we need to invent another system?”

Al-Darbi has also filed a habeas corpus petition in federal court in Washington, D.C.

The Defense Department says Darbi is the brother-in-law of one of the 9/11 hijackers aboard American Airlines Flight 77, which crashed into the Pentagon. While Darbi is not accused of involvement in 9/11, military authorities say he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He also allegedly met Osama bin Laden and trained in an Afghan al Qaeda camp.

The Bush-era Military Commissions have had a bumpy history. In a series of orders in 2001 and 2002, the Bush administration created a system of tribunals that specifically did not adhere to the standards set out in the Geneva Convention, arguing that as "non-state actors'' the suspects were not entitled to that kind of protection; the system was also declared to be beyond review by federal courts.

The government then established a prison camp at Guantánamo Bay Naval Base in Cuba to hold these prisoners away from federal court jurisdiction, arguing that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment -- did not apply to foreigners being held outside the U.S. as enemy combatants.

But, in 2004, the Supreme Court disagreed, in a case known as Rasul v. Bush. And in another decision in June 2006, Hamdan v. Rumsfeld, the high court struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and the Geneva Conventions.

In response, the Bush Administration and Congress effectively rewrote the law, by passing the Military Commissions Act of 2006. The measure broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include non-citizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.

In place of habeas proceedings, it said detainees could challenge their imprisonment only through hearings known as combatant status review trials. It allowed evidence seized in the U.S. or abroad without a search warrant to be admitted in trials. And while the bill barred the admission of evidence obtained by cruel and inhuman treatment, it made an exception for any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act banning torture.

But, in a June 2008 decision in the case of Boumediene v. Bush, the Supreme Court overturned those portions of the law, finding that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention in United States courts. In a harsh rebuke of the Bush administration, the Court rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

Meanwhile, human rights groups continue to oppose trials under the Military Commissions Act. Amnesty International says, “Any trials of Guantánamo detainees should be conducted before US federal civilian courts in trials that meet international standards.”

The organization called on the Obama administration to abandon the commissions altogether, withdraw all charges under the Military Commissions Act (MCA), and transfer to the U.S. mainland any Guantánamo detainee who was to be charged, bring him before a civilian judicial authority, and promptly charge him with specific offences under applicable federal law.

The American Civil Liberties Union (ACLU) expressed a similar view. Its executive director, Anthony D. Romero, said, "The Obama administration's purported plans to resuscitate the Guantanamo military commissions and ship them onto American soil is fatally flawed. The military commissions are built on unconstitutional premises and designed to ensure convictions, not provide fair trials. Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable; there is no such thing as 'due process light.' Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless”.

Sunday, May 10, 2009


By William Fisher

Civil libertarians are condemning a call by two influential U.S. senators for the White House to block the impending release of photographs showing detainees being abused by U.S. military personnel at the notorious Abu Ghraib prison in Iraq and at other American detention facilities in the Middle East and elsewhere.

The plea to intervene to stop the expected May 28 release of the photos came in a letter to President Barack Obama from Senators Joseph Lieberman and Lindsey Graham.

"The release of these old photographs of past behavior that has now been clearly prohibited will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country's image, and endanger our men and women in uniform," the Senators wrote.

Release of the photos is expected in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.

"We urge you in the strongest possible terms to fight the release of these old pictures of detainees in the war on terror, including appealing the decision of the Second Circuit in the ACLU lawsuit to the Supreme Court and pursuing all legal options to prevent the public disclosure of these pictures," the senators wrote.

Their letter said, “We know that many terrorists captured in Iraq have told American interrogators that one of the reasons they decided to join the violent jihadist war against America was what they saw on Al-Qaeda videos of abuse of detainees at Abu Ghraib.”

As a result of the ensuing actions by Congress, “America’s soldiers, sailors airmen and marines have made great progress in improving detention and interrogation procedures,” they wrote.

Senator Graham is a conservative Republican from South Carolina, a member of the Armed Services Committee, and a military lawyer in the U.S. Air Force Reserve. Lieberman was a lifelong Democrat until he lost his party’s primary contest in 2006, after which he ran and won as an Independent from Connecticut. He is chairman of the powerful Senate Homeland Security Committee. The two senators were among the most ardent supporters of the recent unsuccessful presidential campaign of Senator John McCain.

Civil libertarians were virtually unanimous in their opposition to withholding the photographs.

Gabor Rona, International Legal Director of Human Rights First, told IPS, ”Sen. Lieberman and Graham's claims might carry more weight had the US government been consistently honest about the mistreatment it authorized. But as long as the American people are kept in the dark about what crimes were committed in their name, they cannot intelligently exercise their democratic right and obligation to call for corrective measures.”

He added, “To elevate fear of al-Qaeda's reactions over faith in our democratic ideals and structures is unfortunate and counterproductive.”

Marjorie Cohn, President of the National Lawyers Guild, told IPS, “The more evidence that emerges to document the Bush policy of torture and abuse, the more likely that investigations and prosecutions will take place."

Professor Francis A. Boyle of the University of Illinois Law School told IPS, “The release of these photos will further document torture, abuse and other war crimes inflicted by U.S. military personnel in Iraq, the orders for which go all the way up the military chain of command to the Commander in Chief President Bush, the Secretary of Defense Donald Rumsfeld, and Lt. Gen. Ricardo Sanchez, none of whom has yet been held accountable.”

He said, “Senators Lieberman and Graham are simply running interference for all three of them. Yet under the terms of the Four Geneva Conventions of 1949 and the Convention against Torture, the Obama administration has an obligation to open an investigation and to prosecute them. Failure to do so is a war crime in its own right.”

"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," said attorney Amrit Singh of the American Civil Liberties Union (ACLU), the organization that originally brought the lawsuit under the Freedom of Information Act (FOIA).

"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse,” she said.

Lieutenant General Ricardo S. Sanchez, now retired, served as the V Corps commander of coalition forces in Iraq from June 2003 to June 2004. When he retired in November 2006, he called his career a casualty of the Abu Ghraib scandal.

The disagreement over release of the photos reflects conflicting assessments of which is more dangerous and objectionable -- the release of the photographs or the abusive behavior that they depict. It also turns on unresolved questions concerning the scale of prisoner abuse by U.S. personnel, and the nature of the public accounting that can or should be required.

The original Abu Ghraib photos were first exposed to the public in a 2006 segment of the television program, “Sixty Minutes,” and shortly thereafter in an extensive article by investigative reporter Seymour Hersh in The New Yorker magazine.

The images showed Iraqi prisoners hooded, with electrodes attached to their bodies, being menaced by dogs, forced to walk with dog collars around their necks, and made to form pyramids of naked bodies. Existence of the images was first reported by a low-level U.S. Army soldier.

The military conducted more than a dozen investigations of the abusive practices, which then Defense Secretary Donald Rumsfeld attributed to the aberrations of “a few bad apples.” A number of low-level soldiers were convicted and sentenced to terms in military prisons, a few others were given official reprimands, and the brigadier general who was in charge of the prison was demoted to colonel.

The Defense Department investigations concluded that no one higher up in the military or civilian leadership of the Pentagon bore any responsibility for the abuses.

While the contents of the new photos have not been made public, it is known that members of Congress viewed them in a classified setting when the original Abu Ghraib images were released. Some have said publicly that the new photos paint an even grimmer picture of prisoner abuse, not only at Abu Ghraib but also at other U.S.-controlled prisons in the Middle East.

It is unclear whether the new crop of photos includes those taken by psychologist Philip Zimbardo. As an expert witness in the defense of an Abu Ghraib guard who was court-martialed, he had access to many of the images of abuse that were taken by the guards themselves. Zimbardo assembled some of these pictures into a short video. Many of the images are explicit and gruesome, depicting nudity, degradation, simulated sex acts, and guards posing with decaying corpses.

Zimbardo’s images may be viewed at

The original Abu Ghraib photos were broadcast around the world long before it became known that U.S. authorities, including the Central Intelligence Agency (CIA), were using waterboarding and other “enhanced interrogation techniques” at the Navy detention center at Guantanamo Bay, Cuba, in Afghanistan, and at secret prisons in Eastern Europe and elsewhere.

Saturday, May 09, 2009

The Latest Political Third Rail: Terrorists in our Neighborhoods

By William Fisher

As lawmakers amped up the outcry against releasing Guantanamo “terrorists in our neighborhoods,” France agreed to accept a “cleared” Guantanamo prisoner and human rights groups continued to press for release of 17 Chinese Uigurs who the U.S. government has declared to be no threat to American national security.

The Democratic-led House Appropriations Committee last week passed a bill to fund the wars in Iraq and Afghanistan but stripped more than $50 million that President Barack Obama had requested for closing the prison and starting the relocation of its 240 prisoners.

Lawmakers of both parties demanded that the Obama Administration present a plan for closing Guantanamo and detailing what would be done with its inmates.

Republican lawmakers said the issue is an example of Obama's weakness on national security and accused the president of endangering Americans. They proposed legislation titled the "Keep Terrorists Out of America Act," which would bar moving Guantanamo prisoners to any U.S. facility unless approved by the receiving state's governor and legislature.

"Our constituents don't want these terrorists in their neighborhoods," said House Minority Leader John A. Boehner, a Republican from Ohio.

Several Democrats have also joined Republicans in saying they do not want Guantanamo prisoners in their states or districts.

Administration officials have not said where the detainees would go, but they rejected the idea that Americans would face any risks from closing the prison by January.

"We are not going to put at risk the safety of the people of this country," Attorney General Eric H. Holder Jr. told a Congressional hearing.

Some observers said that, in the Congressional pushback against Guantanamo detainees, lawmakers appeared be conflating two separate groups of prisoners: Those who have been cleared for release because they do not pose a threat to U.S. national security, and others who will be detained in the U.S. to await trials in federal courts, or who can not be tried but are deemed too dangerous to release.

In the former category are 17 Chinese ethnic Uighurs who the U.S. says pose no security risk, but who have been detained without charge for over seven years at Guantánamo Bay. Their continued detention was found unlawful by a federal district court in January.

The court ordered the Uighurs released into the U.S. because they cannot be returned to China given the threat of torture there, and because no other country has agreed to accept them. But a U.S. Appeals Court reversed that decision when it held that federal courts have no jurisdiction over immigration law and thus are powerless to order the men released into the U.S. even if their continued detention is illegal.

The Uighurs’ lawyers, including the Center for Constitutional Rights (CCR), a legal advocacy group, has asked the Supreme Court to hear the case.

In a friend-of-the-court brief filed yesterday, the American Civil Liberties Union (ACLU) joined the CCR’s plea.

Jennifer Chang Newell, a staff attorney with the ACLU Immigrants' Rights Project, said, “The Constitution requires that where a federal court has found a detainee's imprisonment to be illegal, the court must have the power to order his release – including release into the United States when necessary to end the unlawful detention. Permitting the government to hold these men indefinitely violates the Constitution and threatens to render habeas corpus a dead letter."

Uighurs are a Turkic ethnic group living in Eastern and Central Asia.

In related developments, the government announced that two long-imprisoned GITMO detainees would soon be released.

As indicated by French President Nicolas Sarkozy during President Obama’s recent visit to Europe, France will take in one GITMO detainee -- an Algerian who has been held prisoner by the U. S. at Guantanamo since 2002. And the U.S. government agreed last week to release a Yemeni surgeon who reportedly treated al-Qaida wounded at Tora Bora in Afghanistan. That decision came as part of a new review ordered by President Obama to empty the Guantanamo prisons by January 2010.

The Algerian, Lakhdar Boumediene, 43, was arrested along with five other Algerians in 2001 in Bosnia, suspected in a bomb attack plot against the U.S. Embassy in Sarajevo. A U.S. federal judge ruled in November that the evidence against Boumediene was not credible and ordered him set free.

Boumediene is well known in legal circles because it was in his name that civil liberties attorneys argued at the U.S. Supreme Court the most recent case of prisoners’ right to seek their release through habeas corpus petitions. The court ruled in favor of the detainees in the case, Boumediene v. Bush.

The detainee the U.S. government has now agreed to release is Ayman Batarfi, 38, a Yemeni surgeon who reportedly treated al Qaida wounded at Tora Bora in Afghanistan. The government’s decision came as part of a case-by-case review ordered by President Barack Obama to empty the prison camps here by January 2010.

Batarfi had told a military review panel in 2005 that he was a humanitarian worker who found himself at the battle of Tora Bora in 2001 while Osama bin Laden was in the area, according to a Pentagon transcript. He said he did not respect the al Qaida leader, who he called "a coward."

Batarfi is the third detainee whose release has been ordered during the Obama administration. In addition to Boumediene and Batarfi, an Ethiopian-born British resident, Binyam Mohammed, was sent back to the U.K. a month into the Obama administration.

Along with five other GITMO detainees, Mohamed has filed lawsuits both in the U.S. and the U.K. In the U.S., he is suing a subsidiary of the Boeing company, Jeppesen Dataplan, for being complicit with the U.S. Central Intelligence Agency (CIA) in facilitating his rendition and torture. While the government invoked the so-called “state secrets privilege” to keep the case out of court, a federal appeals court has ruled that the suit should proceed.

His U.K. lawsuit charges that British intelligence services cooperated with U.S. authorities in his rendition and torture. The suit has caused a diplomatic furor in Britain, where the Foreign Secretary, David Miliband, intimated that evidence of British complicity had to be kept secret under threat from the U.S. to stop sharing intelligence with Britain if details were disclosed in court.

But the British High Court announced last week that it will reopen its judgment that details of the torture of the former Guantanamo Bay detainee must be kept secret.
Clive Stafford Smith, director of the legal charity Reprieve, one of Mohamed’s attorneys, told us, “It is long past time that this evidence was made public. How can it be that two governments that purport to uphold the rule of law be working together to cover up crimes committed against Binyam Mohamed?”

In the Batarfi case, a major factor in the decision of the Justice Department was a federal judge’s finding that the government improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases.

The judge said the government had censored parts of the records, showing that the witness, a fellow detainee, was being treated for a serious psychological problem. That witness provided information in the government's case for detaining Batarfi.

There are nearly 100 Yemenis among the approximately 240 Guantánamo captives. Bush administration officials never succeeded in negotiating a repatriation agreement for those who had been earlier approved for release.

Thursday, May 07, 2009

Psychologists Complicit in Torture, Physicians’ Group Charges

By William Fisher

A leading human rights organization is charging that an American Psychological Association (APA) task force formed to advise the U.S. military on prisoner interrogations was “stacked with Defense Department and Bush Administration officials” and “rushed to conclusions that violated the Geneva Convention.”

In the wake of newly released internal APA documents indicating that the organization’s 2005 ethics task force on national security interrogations developed its policy to conform to Pentagon guidelines governing psychologist participation in interrogations, said Physicians for Human Rights (PHR).

The organization is calling for an independent, outside investigation of the APA and a probe by the Defense Department’s Inspector General into whether any federal employees exerted influence over the APA's Presidential Task Force on Psychological Ethics and National Security (PENS).

The director of PHR's Campaign Against Torture, Nathaniel Raymond told us, “The APA’s ethics task force on national security interrogations produced a report that was rushed, secret, and being driven to already-reached conclusions – conclusions that violated the Geneva Convention.”

“The APA made ethics subservient to law by following guidelines set out by the Pentagon. Members of the task force had long-standing ties to the Pentagon, and the task force was stacked with Defense Department and Bush Administration officials. There were clear conflicts of interest,” he said, adding, “The APA needs to explain how that happened. And the Pentagon’s Inspector General needs to look into how this was allowed to happen.”

The charges of APA conflicts of interest came after a series of task force emails were posted online by and ProPublica, a not-for-profit investigative journalism organization.

PHR said the emails indicate that the APA's ethics task force developed its ethics policy to conform to Pentagon guidelines.

"These serious allegations require an independent investigation to determine whether APA leadership engaged in unethical conduct," said Steven Reisner, Ph.D., PHR Advisor for Psychological Ethics. "The American public deserves to know if there were inappropriate contacts or conflicts of interest between APA officials and the Pentagon," he said.

The task force found it to be "consistent with the APA Ethics Code" for psychologists to consult with interrogators in the interests of national security. While noting that psychologists do not participate in torture and have a responsibility to report it, and should be committed to the APA ethics code whenever they "encounter conflicts between ethics and law," the task force
decided that "if the conflict cannot be resolved ... psychologists may adhere to the requirements of the law."

PHR has been a longstanding and outspoken critic of the APA's PENS policy governing psychologist involvement in interrogations, calling for a "bright line" prohibition against health professional participation in interrogations. Though the APA membership passed a 2008 referendum banning psychologists from facilities that violate US and international human rights law, PHR believes that the PENS policy must be immediately revoked.

Riesner said it was time to “put a psychologist's ethical obligations to human rights principles ahead of following orders."

The recently released Senate Armed Services Committee report detailing detainee abuse by the Department of Defense confirms that psychologists rationalized, designed, supervised, and implemented the Bush Administration's torture program.

"The Senate Armed Services Committee report confirms that psychologists were central to the Bush Administration's use of torture," said PHR’s Raymond.

"In the context of these revelations, the American public needs to know why a supposedly independent ethics policy was written by some of the very personnel allegedly implicated in detainee abuse," he said.

Stephen Soldz, a board member and spokesman for another advocacy group, Psychologists for Social Responsibility, said, "These emails show that several of the military psychologists formulating APA ethics policy were giving themselves get-out-of-jail-free cards.”

He charged that their report concluded that it was ethical to follow military policy while the Justice Department Office of Legal Counsel (OLC) memos allowing torture were still in effect.".

The memoranda prepared by OLC lawyers provided the rationale for the Bush Administration’s assertion that “enhanced interrogation techniques” were legal.

PHR has repeatedly called for an end to the use of the SERE tactics by U.S. personnel, the dismantling of the Behavioral Science Consultation Teams (BSCT) teams, and a full Congressional investigation of the use of psychological torture by the U.S. Government.

SERE, the military's “Survival, Evasion, Resistance and Escape program” was developed to train American soldiers to cope with torture if captured by the enemy. Its developers warned officials as early as 2002 that “reverse-engineering” SERE techniques for use on detainees could be ineffective and dangerous, a recent Senate Armed Services Committee report revealed,

The report also noted that the same psychologists who helped develop the SERE program were complicit in the very interrogation policies and practices they warned against.

Dr. Jeffrey Kaye, a San-Francisco-based psychologist who has written extensively on the role played by medical professionals in prisoner treatment, told us, “APA's ties to the Pentagon are of long-standing, going back at least to the Cold War.”

He said, “Any inquiry should make the historical connection between the work of CIA and SERE psychologists and the role of coercive interrogation used in psychologically ‘breaking down’ a human being.”

He said that there is a long history of collaboration between psychologists and the military, which includes several former APA presidents. These men were the “institutional godfathers” for a later generation of psychologists who continue to be deeply involved in interrogation techniques, he said.

In an article accompanying ProPublica’s publication of the APA task force’s extensive email exchanges, Sheri Fink of ProPublica posed the question, “Is it possible for psychologists to uphold the ethical tenets of their profession while working within a system of interrogation that violates those tenets? Does it matter if they raised objections to the system of interrogation but cooperated with it anyway?”

The Senate report said that in 2002, a psychiatrist and a psychologist who worked at the U.S. military prison at Guantánamo Bay, Cuba, prepared a list of harsh interrogation techniques that ended up influencing interrogation policy not only at Guantánamo, but also in Afghanistan and Iraq.

In the same memo, they warned that these methods were likely to result in inaccurate tips and could harm detainees. Those warnings disappeared as the memo moved up the chain of command.

The board of the APA, the largest membership organization for psychologists, who are employed in great numbers by the Department of Defense, quickly adopted the task force's report as the organization's official policy.

But last year, members of the APA successfully petitioned for a vote on whether to ban psychologists from working in detention settings where international law or the U.S. Constitution are violated. The membership passed the proposal.

Some psychologists have filed complaints with the APA and state licensing boards against colleagues who were allegedly involved in abusive interrogations.


By William Fisher

Hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist, according to the American Civil Liberties Union (ACLU).

The organization cited a recent report by the Department of Justice Office of the Inspector General (OIG), which found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate.

The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.

The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”

The audit confirmed estimates that the terror watchlist contains 1.1 million names as of December 2008, and that many of them are out of date.

OIG auditors reviewed 68,669 of those identities and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.

Attorney General Eric Holder, whose Justice Department oversees the FBI, told a Senate subcommittee this morning that he has not yet read the IG report, but has been told by the FBI that all of the concerns and problems raised in the report have been addressed.

“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told us.

“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”

The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.

It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”

The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).

The Terrorist Screening Center, which also began operations in 2003 and is managed by the FBI, was established to serve as the U.S. government’s consolidation point for information about known or suspected international and domestic terrorists.

“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why Congressman John Lewis and Senator Edward Kennedy have problems when they try to fly.”

And Caroline Fredrickson, director of the ACLU Washington Legislative Office, said "Members of Congress, nuns, war heroes and other 'suspicious characters,' with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape."

"Congress needs to fix it, the Terrorist Screening Center needs to fix it, or the next president needs to fix it, but it has to be done soon, " she urged, adding,

“This report strongly suggests that hundreds of thousands of people are being wrongly identified as terrorists,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This is yet more confirmation of what we’ve been saying for years – that the watchlist is not only unfair for travelers, but it is also a waste of scarce resources. It is time for Congress to haul the watchlist policymakers up to Capitol Hill to answer some tough questions.”

The ACLU is recommending a series of controls on the watch lists. These include due process, a right to access and challenge data upon which listing is based, tight criteria for adding names to the lists, and rigorous procedures for updating and cleansing names from the lists.

The group also called on the president to issue an executive order requiring the lists to be reviewed and limited to only those for whom there is credible evidence of terrorist ties or activities. The review should be concluded within 3 months, the group said.

The OIG report also found that putting people on the watchlist was as problematic as getting them off. The Inspector General’s recommendations included establishing timeframe requirements for headquarters units to process watchlist nominations, modifications, and removals; reevaluation of watchlist records that are not sourced to a current terrorism case, and creation of a process to modify and remove known or suspected terrorists placed on the watchlist.

“We believe that the FBI’s failure to consistently nominate subjects of international and domestic terrorism investigations to the terrorist watchlist could pose a risk to national security,” the OIG report said, adding that “FBI field offices’ frequent failure to modify watchlist records indicates a problem with training on and understanding of the importance of the watchlist process.”