Monday, May 04, 2009

Torture Detainees = Shoot Obama in Foot

By William Fisher

The Pentagon says there are up to 100 prisoners in Guantanamo who are too dangerous to release but who cannot be tried in U.S. federal courts.

They cannot be tried because much of the evidence against them is based on hearsay, which judges would likely refuse to allow. Or because they were held illegally as “enemy combatants” while being stripped of any rights they may have had. Or because what we know about these people and their plans was learned through the CIA’s “enhanced interrogation techniques” (have you ever heard of a less descriptive euphemism?). Chances are most Federal judges would also find such “evidence” inadmissible.

Former Vice President Cheney tells us the government’s use of “enhanced interrogation techniques” (including waterboarding) was NOT torture (didn’t the memos from the Justice Department’s Office of Legal Counsel tell us so?). He also claims these techniques yielded actionable intelligence that disrupted numerous terrorist plots to kill more Americans.

So far, we have not seen a shred of evidence to prove that claim. We have only the word of the former Veep. And, given the magnitude of the lies he and the rest of the Bushies have sold us over the past eight years, why on earth would any of us believe a single thing Cheney had to say?

The result of W’s presidential power-grab is that we are now faced with the prospect of being unable to prosecute accused terrorists in our Federal justice system, or of having to obtain plea deals that will greatly lighten the sentences meted out to these miscreants.

The al-Marri case illustrates the point. As noted in a Washington Post editorial this morning, “Nearly six years ago, President George W. Bush declared Ali Saleh Kahlah al-Marri an enemy combatant and had him swept out of federal court and into a U.S. Navy brig so he could be interrogated without the legal protections afforded by the criminal justice system. Bush said the Qatari national, arrested as a material witness in Illinois in December 2001, possessed critical intelligence that ‘would aid U.S. efforts to prevent attacks by al-Qaeda on the United States’."

The consequence of Bush’s action? Instead of being put on trial for providing material support for terrorism – and facing a 30-year prison sentence – Marri was allowed to plead guilty only to conspiracy to provide material support, which carries a 15-year sentence (and even less if he is given credit for the five years he spent in the Navy brig).

Why did the Justice Department have to accept this plea deal?

Because government lawyers were concerned about the release of classified evidence and the impact of possible testimony regarding Marri's mental state after prolonged solitary confinement.

Because he was interrogated using those famous “enhanced interrogation techniques” --defense lawyers said in court papers that interrogators threatened Marri, telling him he would be transferred to Saudi Arabia or Egypt, where he would be sodomized and forced to watch the rape of his wife.

And because Marri was allegedly recruited to come to the U.S. by no less a storied figure than Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks, to organize a terrorist sleeper cell. KSM would have been a likely witness for Marri if the case were ever to find its way into a courtroom.

And speaking of KSM, it is also questionable that he will ever see the inside of a Federal courtroom. That’s not because anyone’s afraid that a jury would be sympathetic to him, but because of the headlines he would make by describing his own torture in U.S. custody. It’s likely that KSM and many other defendants would use the courts as platforms from which to expose yet more sensational details about their treatment.

So what to do with the hundred or so detainees at Guantanamo who the Pentagon says are too dangerous to release but who, like Marri and probably KSM, cannot be tried in civilian courts?

The Obama Administration was quick to declare the “enemy combatant” designation as illegal and to order an end to “enhanced interrogation techniques.” But the genie is out of the bottle and can’t be stuffed back in. The likely consequence is that most of the victims of these techniques will never be tried in civilian courts – even though our criminal justice system is demonstrably well-equipped to try them.

So what federal prosecutors are left with now is the grim reality of trying to reach plea deals with the accused, or freeing them, or trying them in settings where the rules of evidence are less stringent.

Less stringent? Read Military Commissions 2.0. -- some tweaked version of the totally failed system that produced exactly two convictions in eight years.

Defense Secretary Robert M. Gates has acknowledged that a return the commissions remains an option. But most legal scholars and human rights advocates say there is no amount of tweaking that will repair this deeply flawed system.

And, as if this Obama Administration legal migraine wasn’t enough, it is also having to deal with the question of where to put these prisoners as they await trial?

Gates has already asked Congress for $50 million to build a new prison – a new GITMO.

But where? Virtually every voice in Congress is already belting out the NIMBY aria. You can bet that every member of Congress will be running, not walking, away from the opportunity to make an earmark out of this new construction project.

Mercifully, George W. Bush couldn’t run for reelection last November. But he still managed to shoot the Obama Administration – and all the rest of us -- in the foot.


By William Fisher

British High Court judges are expected to rule this week on whether a document by the U.S. Central Intelligence Agency can be publicly disclosed, thus opening the courthouse door to a lawsuit charging that the U.K. Government was complicit in facilitating the rendition of a British resident by the CIA, which tortured and secretly imprisoned him at Guantánamo Bay.

Lawyers acting for David Miliband, the British foreign secretary, last week made a last-ditch attempt to block the release of the CIA information, which reportedly shows what British authorities knew about the mistreatment of British resident Binyam Mohamed.

The information is a seven-paragraph summary of CIA documents, described earlier by Lord Justice Thomas and Mr. Justice Lloyd Jones as containing nothing, which could "possibly be described as 'highly sensitive classified U.S. intelligence'".

In a ruling earlier this year, the High Court judges said: "Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials ... relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be."

However, David Mackie, a senior government lawyer, told the two judges that Miliband had been told by Obama administration officials that the disclosure of the seven paragraphs "could likely result in serious damage to U.K. and U.S. national security".

The claim was made despite Obama's recent decision to release detailed information about CIA interrogation techniques, including waterboarding.

Lawyers for Mohamed say Obama's action means it is highly unlikely that the president would object to the disclosure of the CIA summary.

This latest move in the long-running case in the High Court comes as a federal appeals court in the U.S. gave the legal green light to a case brought there by five men including Mohamed and another UK resident, Bisher al-Rawi, who say they were tortured under the CIA's extraordinary rendition program.

The five former Guantánamo Bay detainees are suing Boeing subsidiary Jeppesen Dataplan for allegedly providing flights to secret prisons overseas, where the abuse is said to have happened.

In what may become a landmark decision, a federal appeals court recently 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, but not to dismiss an entire suit.

The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.

"This is a tremendous step forward," said Mohamed’s lawyer, Clive Stafford Smith, director of the U.K.-based legal charity Reprieve, referring to the decision in the U.S. case.

"Binyam Mohamed, Bisher al-Rawi (another plaintiff) and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit," he told IPS.

Reprieve’s renditions investigator Clara Gutteridge said: "It is inconceivable that Jeppesen acted alone. People in the highest echelons of the U.S. – and in some cases the U.K. – governments have authorized illegal rendition flights and must also be held accountable."

The U.S. suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).

During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. The appeals court has now reversed that decision.

But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," Ben Wizner, staff attorney with the American Civil Liberties Union (ACLU) National Security Project, told IPS. Wizner argued the case for the plaintiffs.

"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. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law," he said.

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."

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins wrote.

Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."

The U.S. Appeals Court ruling means that the government can assert the “state secrets” privilege for specific pieces of evidence, but not to end a case before it begins.

That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.

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 United States 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.

During the administration of former President George W. Bush, the government asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.


By William Fisher

The probability that some Guantanamo detainees will soon be released into the U.S. will place the administration of President Barack Obama in the eye of a major political hurricane.

Republicans and some Democrats in Congress have expressed strong opposition to the administration’s reported plan to allow some of the 17 Chinese Uighurs to resettle in the U.S. as part of Obama’s pledge to shut down the controversial prison within a year.

Secretary of Defense Robert Gates has confirmed the plan for the first time, though he added that a final decision had not been made. He said he understood that almost any administration move on Guantanamo was likely to be controversial. Seven has been the reported as the number of Uighurs the administration wants to release into the U.S.

Gates told a Senate appropriations subcommittee last week, "I fully expect to have 535 pieces of legislation before this is over saying, 'Not in my district, not in my state,' " He was referring to the number of senators and members of the House.

But Gates said the Uighurs would face persecution if they were returned to China. He added, "It's difficult for the State Department to make the argument to other countries they should take these people that we have deemed in this case not to be dangerous if we won't take any of them ourselves."

There are currently 17 Uighurs who have been imprisoned at Guantanamo since they were arrested in Pakistan in 2002. While these Muslim men have been declared to pose no threat to U.S. security and have been cleared for release, they remain at the notorious prison because no other countries have offered them asylum. A U.S. appeals court has ruled that admission to the U.S. is a matter of immigration law over which regular U.S. courts have no jurisdiction. That decision has been appealed to the U.S. Supreme Court, which is now considering the matter.

The Uighurs are primarily from northwestern China. China has been criticized for repressing Uighur religious rights and freedoms.

Before their capture, the Uighurs had traveled to Afghanistan, where they received firearms training at a camp reportedly run by a Uighur separatist.

There are about 240 inmates at Guantánamo. As many as 60, if freed, cannot go back to their homelands because they could face abuse, imprisonment or death. They are from Azerbaijan, Algeria, Afghanistan, Chad, China, Saudi Arabia and Yemen.

Several European nations, including Portugal and Lithuania, have said they will consider taking such detainees. Some nations, such as Germany, are divided on the issue. France has recently agreed to accept one prisoner and the European Union has said it would consider accepting others. British Justice Secretary Jack Straw said last week that his country would consider taking Guantánamo Bay detainees if the U.S. asks for such help to close the detention center.

''We will do our best to help and support the policy of the Obama administration to close Guantánamo Bay,'' Straw said. ''If we're asked, of course we'll consider'' accepting detainees, he said.

Some European leaders argue that if the detainees are to be released anywhere, it should first be in the United States.

Many legal scholars and most human rights advocates are pressing the Obama Administration to release cleared prisoners into the U.S.

Professor Francis A. Boyle of the University of Chicago Law School told IPS, “Obviously the United States government cannot return them to China, where they will be persecuted, which would violate our obligations under international law. And they certainly cannot be detained indefinitely, which would violate their international human rights, which the Bush administration has already done grievously now for a number of years. The lawful and humanitarian alternative would be to grant them political asylum and admit them into the United States.”

And Jonathan Hafetz, an attorney with the American Civil Liberties Union, told IPS, "It is a violation of basic human rights and our Constitution that the United States is continuing to imprison people, such as the Uighurs, who it acknowledges are innocent and present no danger. These men were swept up by mistake, sold to the U.S. for bounty, and rendered to Guantanamo where they have spent years in prison under often brutal conditions."

He added, "If we are to restore the rule of law, the Uighurs must be released in the United States. Keeping innocent people behind bars at an off-shore prison undermines not only our core values but our security as well."

Release of cleared prisoners is seen as a crucial step to the Obama Administration’s plans to close the prison and relocate the detainees.

To win their freedom, the Uighurs filed suit against the government. Last year, a U.S. district court ordered their release. The decision was appealed by the Bush administration, and was overturned by the U.S. Court of Appeals. Lawyers for the Uighurs have now appealed to the Supreme Court.

Members of a Uighur community in Northern Virginia have offered to help the detainees to resettle there.

In 2006, the U.S. released five Uighurs to Albania. After pressure from Beijing, which also urged other countries with Uighur communities not to accept the released detainees, Albania declined to take any more. Four remain in Albania and one has recently been granted asylum in Sweden.

Within Guantanamo, Uighurs are not considered a grave threat and are allowed privileges such as television, that are not available to other detainees.

Meanwhile, the Obama Administration is continuing to struggle with the issue of what to do with the 50 to 100 detainees at Guantanamo who Secretary Gates told Congress were considered too dangerous to release but could not be tried in U.S. civilian courts because evidence against them was based on hearsay or was obtained through torture.

Gates told Congress that the administration might continue to use the controversial military commissions set up by former President Bush, and later approved by Congress, to prosecute some of the detainees. President Obama ordered a 120-day halt to all military commission trials during his first days in office. That moratorium comes to an end in mid-May.

Lawmakers of both political parties have become increasingly vocal in asserting that the administration announced it would close Guantánamo before it had a plan for housing and prosecuting some detainees and releasing others.

“The question of where the terrorists at Guantánamo will be sent is no joking matter,” according to Senator Mitch McConnell of Kentucky, the Republican leader. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.”

Members of Congress were already playing the NIMBY (Not in My Backyard) game, pleading with Gates not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”

Gates has asked for $50 million in case a facility needs to be built quickly to house the detainees. He said he is aware that such a facility would be unpopular with lawmakers.

Republicans in Congress say Guantánamo should remain in operation and are mobilizing to fight the release of any detainees into the United States.

Critics of the administration’s actions have tended to label all Guantanamo detainees as “terrorists,” although many have been cleared for release and there is substantial evidence that other detainees were “sold” to the U.S. military for cash while others were simply “in the wrong place at the wrong time” and should never have been imprisoned in the first place.