Thursday, February 19, 2009

Will Holder Deliver the Change We Can Believe In?

By William Fisher

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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