Friday, April 24, 2009

The “Disappeared”

By William Fisher

At least three dozen detainees who were held in the CIA's secret prisons overseas appear to be missing – and efforts by human rights organizations to track their whereabouts have been unsuccessful.

The story of these “ghost prisoners” was comprehensively documented last week by Pro Publica, an online investigative journalism group.

In September 2007, Michael V. Hayden, then director of the CIA, said, "fewer than 100 people had been detained at CIA's facilities." One memo released last week confirmed that the CIA had custody of at least 94 people as of May 2005 and "employed enhanced techniques to varying degrees in the interrogations of 28 of these."

Former President George W. Bush publicly acknowledged the CIA program in September 2006, and transferred 14 prisoners from the secret jails to
Guantanamo. Many other prisoners, who had "little or no additional intelligence value," Bush said, "have been returned to their home countries for prosecution or detention by their governments."

But Bush did not reveal their identities or whereabouts -- information that would have allowed the International Committee for the Red Cross to find them -- or the terms under which the prisoners were handed over to foreign jailers.

The U.S. government has never released information describing the threat any of them posed. Some of the prisoners have since been released by third countries holding them, but it is still unclear what has happened to dozens of others, and no foreign governments have acknowledged holding them.

Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights (CCR), which represents Majid Khan, a former ghost detainee at Guantánamo, told us, “The Obama administration must change course from its ‘forward-looking’ path because it leaves too many critical questions unanswered, including those about the fate of ghost prisoners held by the United States. The United States is strong enough to examine the CIA and other agencies' activities, to punish individuals who violated our laws, and to ensure that our nation does not slip to the dark side again.”

Pro Publica reported that former officials in the Bush administration said that the CIA spent weeks during the summer of 2006 -- shortly before Bush acknowledged the CIA prisons and suspended the program -- transferring prisoners to Pakistani, Egyptian and Jordanian custody.

The organization said the population inside the program had been shrinking since the existence of the prisons was detailed in a Washington Post article in November 2005. Renewed diplomatic relations between the U.S. and Libya in May 2006 made it possible for the CIA to turn over Libyan prisoners to Moammar Gadhafi's control.

Joanne Mariner, director of the Terrorism and Counterterrorism Program at Human Rights Watch, said, “If these men are now rotting in some Egyptian dungeon, the administration can't pretend that it's closed the door on the CIA program."

"Making the Justice Department memos on the CIA's secret prison program public was an important first step, but the Obama administration needs to reveal the fate and whereabouts of every person who was held in CIA custody," she said.

The Red Cross has had access to and documented the experiences of only the 14 so-called “high value detainees” who were publicly moved out of the CIA program and into the prison at Guantanamo Bay.

In June 2007, human rights groups released the names of three dozen people whose fates remained unknown.

"Until the U.S. government clarifies the fate and whereabouts of these
individuals, these people are still disappeared, and disappearance is one of the most grave international human rights violations," said Margaret Satterthwaite, a law professor at New York University. "We clearly don't know the story of everyone who has been through the program. We need to find out where they are and what happened."

In a related development, the American Civil Liberties Union (ACLU) has asked the Obama administration to make public records pertaining to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan.

The ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the number of people currently detained at Bagram and their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy. Bagram houses far more prisoners than Guantánamo, in reportedly worse conditions and with an even less meaningful process for challenging their detention, yet very little information about the Bagram facility or the prisoners held there has been made public," said Melissa Goodman, staff attorney with the ACLU National Security Project.

She told us, "Without transparency, we can't be sure that we're doing the right thing – or even holding the right people – at Bagram."

Recent news reports suggest that the U.S. government is detaining more than 600 individuals at Bagram, including not only Afghan citizens captured in Afghanistan but also an unknown number of foreign nationals captured thousands of miles from Afghanistan and brought to Bagram.

Some of these prisoners have been detained for as long as six years without access to counsel, and only recently have been permitted any contact with their families. At least two Bagram prisoners have died while in U.S. custody, and Army investigators concluded that the deaths were homicides.

"When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake," said Jonathan Hafetz, staff attorney with the ACLU National Security Project. "Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit ‘other Gitmos' to continue elsewhere."

The ACLU's request is addressed to the Departments of Defense, Justice and State, as well as the Central Intelligence Agency (CIA).

A federal judge recently ruled that three prisoners being held by the U.S. at Bagram can challenge their detention in U.S. courts, in habeas corpus suits brought by a group of human rights legal advocates.

The prisoners, who were captured outside of Afghanistan and are not Afghan citizens, have been held there for more than six years without charge or access to counsel. The Obama administration is appealing the ruling.

The Third Branch: Alive and Well!

By William Fisher

As the debate heats up over what to do about recent disclosures of widespread abuse of war-on-terror prisoners, the “third branch” of the U.S. government – the Judiciary -- continues to assert its independence from the other two branches – the Executive and the Legislative.

In one recent decision, a federal court has refused the Obama Administration’s efforts to delay a hearing for a Guantanamo prisoner. In a second, another federal court has ordered the release of a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

In the Guantanamo case, a federal judge has denied the Justice Department's motion to dismiss or delay a challenge to the unlawful detention of Mohammed Jawad, a Guantánamo prisoner who has been held in U.S. custody since he was a teenager.

In February, the government filed a motion continuing Bush administration efforts to deny Jawad his right to challenge his detention in federal court until after the Guantánamo military commission case against him is complete, even though President Obama has ordered a halt to all military commission proceedings.

"Today's ruling is vindication of the right to challenge indefinite detention," said Jonathan Hafetz, staff attorney with the American Civil Liberties Union (ACLU) National Security project and counsel in Jawad's habeas case.

Hafetz told us, “Mohammed Jawad's case embodies the complete injustice and failure of Guantanamo. Mr. Jawad has been unlawfully detained for more than six years based on evidence that a military commission judge ruled was the product of torture. Yet, the government persists in imprisoning Mr. Jawad. We intend to vigorously contest that detention in federal court in light of the district judge's recent ruling that his case must proceed promptly.”

He added that the court order “emphasizes the importance of independent judicial review for prisoners who have been held for years with no legal recourse. A prompt habeas hearing is especially necessary because Mr. Jawad's mental and physical well-being continue to be jeopardized by the harsh conditions in which he is being held at Guantánamo. This order upholds Mr. Jawad's right to have his day in court."

The Supreme Court ruled last year that Guantanamo detainees have the right to challenge their imprisonment in U.S. civilian courts. The decision was one of several major rebukes by the High Court to the Bush Administration.

In the order, U.S. District Court Judge Ellen S. Huvelle of the District of Columbia said that earlier cases asserting the right of prisoners to challenge their detention require "prompt adjudication of Guantánamo detainees' habeas cases."

Jawad has been in U.S. custody since he was captured when he was possibly as young as 14, and is one of two Guantánamo prisoners the U.S. is prosecuting for war crimes allegedly committed when they were children.

Jawad's former military commission prosecutor, Lt. Col. Darrel Vandeveld, submitted a 14-page statement in support of the ACLU's habeas corpus challenge stating that the flaws in the commission system make it impossible "to harbor the remotest hope that justice is an achievable goal." Lt. Col. Vandeveld's statement describes torture Jawad suffered in U.S. custody.

In the second court decision, the Defense Department has been ordered to release a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

The photos' release is in response to a Freedom of Information Act lawsuit filed by the ACLU in 2004 and will include images from prisons in Iraq and Afghanistan at locations other than Abu Ghraib, the ACLU said. The photos will be made available by May 28.

"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," according to Amrit Singh, a staff attorney with the ACLU.

"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.

Since the ACLU's FOIA request in 2003, the Bush administration had refused to disclose these images, the ACLU said. The administration claimed that disclosure of such evidence would generate outrage and would violate U.S. obligations toward detainees under the Geneva Conventions, the ACLU said.

But, in September of 2008, a U.S. Appeals Court ruled that disclosure of the photos was required, thus rejecting the Bush administration's position. The court ruled that there was significant public interest in disclosure of the photographs. The Bush administration's appeal to the full appeals court was denied on March 11 of this year.

"The disclosure of these photographs serves as a further reminder that abuse of prisoners in U.S.-administered detention centers was systemic," said Jameel Jaffer, director of the ACLU National Security Project. "Some of the abuse occurred because senior civilian and military officials created a culture of impunity in which abuse was tolerated, and some of the abuse was expressly authorized. It's imperative that senior officials who condoned or authorized abuse now be held accountable for their actions."

Conservative critics are forever seeking ways to attack “activist judges” (read Liberal). But these two decisions are neither conservative nor liberal. They are the result of what judges are supposed to do: follow the law.

It’s refreshing to know that they’re still in business.