By William Fisher
The administration of U.S. President Barack Obama must take a leadership position in championing human rights in the Middle East and North Africa by using U.S. economic and trade leverage and confronting the growing global threat of authoritarianism being promoted by Arab regimes.
This is the view of the Cairo Institute for Human Rights Studies (CIHRS), whose recent annual report concludes that the region has witnessed a “grave deterioration of human rights while reform faces a dead end,” fuelled by increasingly repressive actions by many Arab countries acting in concert with the Arab League.
Moataz El fegiery, CIHRS Executive Director, told us, “Arab governments are turning the United Nations and the Arab League into platforms for exporting repression. The Arab League supports war criminals, anti-democratic coups, and restrictions on freedom of expression.”
In its first annual report, “From Exporting Terrorism to Exporting Repression”, CIHRS finds that “the status of human rights in the Arab region in 2008 has increasingly worsened. Attacks on the limited public and political liberties that exist have escalated in most countries in the region.”
“Advocates of reform and respect for human rights are the primary targets of repression” while “liberators have become executioners and weapons of resistance increasingly used against innocent civilians,” the report concludes.
It notes that while Islamists are no longer the central targets of repression, there is “rising religious extremism” triggered by ruling regimes allying with Salafis. Salafism is a movement that believes Islam was perfect and complete during the days of Muhammad and his companions, but that undesirable innovations have been added over the later centuries due to materialist and cultural influences. It seeks to revive a practice of Islam that more closely resembles the religion during the time of Muhammad.
The report says that, while “Islamists are less frequently targeted, there is an increase in repression of reformists, human rights defenders and activists, the independent press and electronic media, leaders of protest movements, and of other forms of political action in Arab countries. This has been accompanied by earnest attempts to export increasing domestic repression outside the Arab region through the international mechanisms of the UN and the Euro-Mediterranean Partnership Initiative.”
“Arab governments have made large individual and concerted efforts to silence independent non-governmental organizations or erase them from public visibility completely” while simultaneously “undermining their ability to promote human rights and provide protection for victims of rights violations,” the report charges.
The report documents the situation in 12 Arab countries and territories: Egypt, Tunisia, Algeria, Morocco, Saudi Arabia, Bahrain, Syria, Iraq, the Occupied Palestinian Territories, Sudan, Lebanon, and Yemen.
It notes that in 2008 the Arab League “has become more expressive of authoritarian tendencies than any time in the past.”
The League “joined the leaders of the military coup in Mauritania in undermining the right of the Mauritanian people to democratically choose its leaders, and it rose in support of the Sudanese regime as the latter sought to evade accountability for the ongoing massacres in Darfur and in preventing Sudanese officials from appearing before the International Criminal Court. It has also become a platform from which to launch attacks on freedom of expression, particularly attacks on satellite and electronic media.”
The report states that “The Palestinian people have been a target of grave abuses, carried out in the shadow of the continuing criminal practices of the Israeli Occupational Forces and the bloody internal conflict between Hamas and Fatah.”
For the first time, the report adds, “the number of Palestinians killed as a result of internal fighting has exceeded the number killed as a result of Israeli attacks. Fatah and Hamas have outdone one another in their maltreatment of prisoners from the other side, engaging in the worst types of abusive practices.”
The report says that “Iraq remains the site of the gravest human rights abuses, which have led to the deaths of thousands of civilians, whether killed by American occupation forces, the Iraqi authorities, ongoing terrorist activity, or as part of the continued ethnic and communal violence and conflict.”
“Iraq is facing even further deterioration: Political and security arrangements are not standing on a firm foundation and rules for an equitable distribution of power and oil wealth have not been agreed upon. This may open additional fronts in the war or lead to the partition of Iraq.”
The report charges that “the Sudanese regime has shown a blatant disregard for the lives and suffering of the Sudanese people and for relevant international and regional resolutions, continuing its brutal attacks on villages and refugee centers in Darfur -- practices which have continued even after the President was indicted by the International Criminal Court.”
The regime in Sudan has also “continued to terrorize every national citizen or organization that refused to remain silent about the ongoing massacres in Darfur,” the report states.
The report notes “increased ethnic, religious, and sectarian tensions in several countries, especially in light of systematic discrimination against Shiites in Bahrain and Saudi Arabia, and confrontations with Kurds in Syria. It also points to rising sectarian tension in Egypt due to growing religious bigotry, fostered by a climate in which religion is exploited politically by both the government and Islamist groups.”
At the same time, the Egyptian government “refuses to address long-standing problems that intensify discrimination against Copts and other groups. The report also notes that religious freedoms are also subject to repressive measures in Saudi Arabia and Algeria.
The report notes that “political and civil rights in Egypt have been greatly eroded after the authorities used all possible means, legal and illegal, to disqualify the majority of candidates from the Muslim Brotherhood and other opposition parties from running in local elections, and to prevent them from filing out their candidacy papers.”
“The elections themselves were carried out amid a broad arrest campaign targeting the Muslim Brothers and their candidates.”
The report points to “a general lack of independence and guarantees of justice in judicial systems throughout the region, as well as the plethora of exceptional courts. Democracy advocates, human rights defenders, minorities, bloggers, and journalists have all been subject to unfair trials in most countries.”
In addition, it claims that “those responsible for torture and grave police abuses are usually not subject to any form of judicial accountability and punishment.”
The report states that “the majority of ruling Arab regimes are gradually losing their political legitimacy as a result of their long-standing failure to resolve development problems and advance Arab societies, and for their refusal to base their legitimacy on free democratic choice. In fact, they are seeking to repair their tattered legitimacy by allying with Salafis, a move which only strengthens religious extremism and portends to the further erosion of human rights.”
Asked by this reporter what the Obama Administration could do to improve the human rights situation in Arab states, CIHRS Executive Director El fegiery voiced four priorities:
The U.S. should “mainstream human rights issues in any American diplomatic dialogue with the Arab states; use U.S. economic and trade leverage to encourage Arab States to step forward in human rights; promote international justice and civilian protection in the whole region without double standards; and be aware of the growing threat of global authoritarianism that is promoted by Arab Regimes in coalition with other famous hard abusers like China and Russia.”
Friday, February 20, 2009
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 OpenTheGovernment.org 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."
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 OpenTheGovernment.org revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."
Saturday, February 14, 2009
DOD, CIA COOPERATED IN DETAINEE ABUSE
By William Fisher
Three human rights groups have released documents that they say reveal close cooperation between the Department of Defense (DOD) and the Central Intelligence Agency (CIA) in rendering terrorism suspects to secret prisons, creating ‘ghost prisoners’ by concealing their identities from the Red Cross, and delaying their release to counter negative publicity about their treatment at Guántanamo Bay.
Close to a thousand pages of documents were obtained through a Freedom of Information Act lawsuit brought by Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and New York University’s Center for Human Rights and Global Justice (CHRGJ). The suit, dating from 2004, seeks the disclosure of government documents relating to secret detention, extraordinary rendition, and torture.
At a press conference last week, the groups revealed that the newly released documents confirm the existence of ‘black site’ prisons at Bagram Air Base in Afghanistan and in Iraq; affirm the DOD’s cooperation with the CIA’s “ghost” detention program; and show one case where the DOD sought to delay the release of Guantánamo prisoners who were scheduled to be sent home in order to avoid bad press.
“These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” said Margaret Satterthwaite, Director of the CHRGJ. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise,” she said.
While most of the documents simply contain news articles, there were several significant disclosures from the DOD.
A February 2006 email to members of the DOD's Transportation Command discusses how to deal with the bad press the U.S. was receiving over its detention facilities. It said the U.S. was “getting creamed” on human rights issues sparked by “coverage of the United Nations Rapporteur's report on Guantanamo, plus lingering interest in Abu Ghraib photos.” These developments add up to “the U.S. taking a big hit on the issues of human rights and respect for the rule of law, the email said.” It cited criticism of the U.S. in blogs and discussion boards.
"America has lost its prestige," a blogger from Yemen wrote. "Every year the world waits for the annual U.S. State Department report on human rights. Today, it is America that awaits the world's opinion of its human rights policy. From Gitmo, to Abu Ghraib, to secret prisons in Europe, the world accuses America of not respecting human rights."
To temper the bad PR, the email suggests delaying the release of prisoners at Gitmo" for 45 days or so until things die down. Otherwise we are likely to have a hero's (sic) welcome awaiting the detainees when they arrive."
The email adds, “It would probably be preferable if we could deliver these detainees in something smaller and more discreet than a T tail (a larger aircraft with a T-shaped tail wing).”
“It is astonishing that the government may have delayed releasing men from Guantánamo in order to avoid bad press,” said CCR attorney Gitanjali Gutierrez, who represents many of the men held in Guantánamo and has made 30 trips to the base since 2004. “Proposing to hold men for a month and a half after they were deemed releasable is inexcusable. The Obama Administration should avoid repeating this injustice and release the innocent individuals with all due haste.”
In a second document, one heavily redacted page mentions an "undisclosed detention facility" at Bagram.
Another highlights how the Geneva Conventions can be interpreted to allow the CIA and the DOD to ‘ghost’ detainees' identities so they can be denied a visit from the International Committee of the Red Cross. The organizations charged that the document, entitled “Applicability of Geneva Conventions to ‘Ghost Detainees’ in Iraq” shows that the DOD interpreted the ‘security internee’ provisions of the Geneva Conventions to allow for ‘ghosting’ of detainees by prohibiting the International Committee of the Red Cross (ICRC) from visiting. It also shows that the DOD recognized that indefinitely prohibiting the ICRC from visiting or failing to notify the ICRC of the existence of detainees was illegal under the Geneva Conventions, the groups said.
A 2005 document labeled a “Detainee Update” presentation dealt with “Internment Serial Number Policy (ISN). The organizations said, “It shows that the DOD did not, as a matter of course, register detainees with the ICRC until they had been in custody for up to 14 days and that authorization was sought to hold some individuals for up to 30 days without ISN/registry with ICRC to ‘maximize intelligence collection’,” even though “there is some disagreement as to legal basis to go beyond 14 days.”
The groups said these policies “demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.”
Records from a Detainee Senior Leadership Oversight Council meeting contain references to a previously unreleased section of the Church Report and discuss the need for the DOD to develop and enforce guidelines governing their relationship with ‘Other Government Agencies’, including the CIA, in order to regulate interrogation and other operations overseas.
The organizations claimed that these documents demonstrate that the DOD and CIA were in an ad hoc relationship, “apparently unconstrained by formal guidelines.”
The lawsuit is based on Freedom of Information Act (FOIA) requests dating back to 2004. Previous government releases also included documents largely already in the public record, including, in one instance, a copy of the Geneva Conventions. This is the first time the DOD has provided any documents in response.
“Out of thousands of pages, most of what might be of interest was redacted,” said Tom Parker, Policy Director for Counterterrorism, Terrorism and Human Rights, for AIUSA.
“While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests. We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.”
In his first week in office, President Barack Obama signed an order closing the Guantanamo detention facility in Cuba within a year and prohibiting CIA secret prisons. However, the order allows the CIA to detain people temporarily. Obama also pledged increased openness and transparency during his administration.
It is not known whether the Pentagon or the CIA still holds ‘ghost detainees,’ Satterthwaite said, referring to people housed at secret facilities.
Three human rights groups have released documents that they say reveal close cooperation between the Department of Defense (DOD) and the Central Intelligence Agency (CIA) in rendering terrorism suspects to secret prisons, creating ‘ghost prisoners’ by concealing their identities from the Red Cross, and delaying their release to counter negative publicity about their treatment at Guántanamo Bay.
Close to a thousand pages of documents were obtained through a Freedom of Information Act lawsuit brought by Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and New York University’s Center for Human Rights and Global Justice (CHRGJ). The suit, dating from 2004, seeks the disclosure of government documents relating to secret detention, extraordinary rendition, and torture.
At a press conference last week, the groups revealed that the newly released documents confirm the existence of ‘black site’ prisons at Bagram Air Base in Afghanistan and in Iraq; affirm the DOD’s cooperation with the CIA’s “ghost” detention program; and show one case where the DOD sought to delay the release of Guantánamo prisoners who were scheduled to be sent home in order to avoid bad press.
“These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” said Margaret Satterthwaite, Director of the CHRGJ. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise,” she said.
While most of the documents simply contain news articles, there were several significant disclosures from the DOD.
A February 2006 email to members of the DOD's Transportation Command discusses how to deal with the bad press the U.S. was receiving over its detention facilities. It said the U.S. was “getting creamed” on human rights issues sparked by “coverage of the United Nations Rapporteur's report on Guantanamo, plus lingering interest in Abu Ghraib photos.” These developments add up to “the U.S. taking a big hit on the issues of human rights and respect for the rule of law, the email said.” It cited criticism of the U.S. in blogs and discussion boards.
"America has lost its prestige," a blogger from Yemen wrote. "Every year the world waits for the annual U.S. State Department report on human rights. Today, it is America that awaits the world's opinion of its human rights policy. From Gitmo, to Abu Ghraib, to secret prisons in Europe, the world accuses America of not respecting human rights."
To temper the bad PR, the email suggests delaying the release of prisoners at Gitmo" for 45 days or so until things die down. Otherwise we are likely to have a hero's (sic) welcome awaiting the detainees when they arrive."
The email adds, “It would probably be preferable if we could deliver these detainees in something smaller and more discreet than a T tail (a larger aircraft with a T-shaped tail wing).”
“It is astonishing that the government may have delayed releasing men from Guantánamo in order to avoid bad press,” said CCR attorney Gitanjali Gutierrez, who represents many of the men held in Guantánamo and has made 30 trips to the base since 2004. “Proposing to hold men for a month and a half after they were deemed releasable is inexcusable. The Obama Administration should avoid repeating this injustice and release the innocent individuals with all due haste.”
In a second document, one heavily redacted page mentions an "undisclosed detention facility" at Bagram.
Another highlights how the Geneva Conventions can be interpreted to allow the CIA and the DOD to ‘ghost’ detainees' identities so they can be denied a visit from the International Committee of the Red Cross. The organizations charged that the document, entitled “Applicability of Geneva Conventions to ‘Ghost Detainees’ in Iraq” shows that the DOD interpreted the ‘security internee’ provisions of the Geneva Conventions to allow for ‘ghosting’ of detainees by prohibiting the International Committee of the Red Cross (ICRC) from visiting. It also shows that the DOD recognized that indefinitely prohibiting the ICRC from visiting or failing to notify the ICRC of the existence of detainees was illegal under the Geneva Conventions, the groups said.
A 2005 document labeled a “Detainee Update” presentation dealt with “Internment Serial Number Policy (ISN). The organizations said, “It shows that the DOD did not, as a matter of course, register detainees with the ICRC until they had been in custody for up to 14 days and that authorization was sought to hold some individuals for up to 30 days without ISN/registry with ICRC to ‘maximize intelligence collection’,” even though “there is some disagreement as to legal basis to go beyond 14 days.”
The groups said these policies “demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.”
Records from a Detainee Senior Leadership Oversight Council meeting contain references to a previously unreleased section of the Church Report and discuss the need for the DOD to develop and enforce guidelines governing their relationship with ‘Other Government Agencies’, including the CIA, in order to regulate interrogation and other operations overseas.
The organizations claimed that these documents demonstrate that the DOD and CIA were in an ad hoc relationship, “apparently unconstrained by formal guidelines.”
The lawsuit is based on Freedom of Information Act (FOIA) requests dating back to 2004. Previous government releases also included documents largely already in the public record, including, in one instance, a copy of the Geneva Conventions. This is the first time the DOD has provided any documents in response.
“Out of thousands of pages, most of what might be of interest was redacted,” said Tom Parker, Policy Director for Counterterrorism, Terrorism and Human Rights, for AIUSA.
“While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests. We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.”
In his first week in office, President Barack Obama signed an order closing the Guantanamo detention facility in Cuba within a year and prohibiting CIA secret prisons. However, the order allows the CIA to detain people temporarily. Obama also pledged increased openness and transparency during his administration.
It is not known whether the Pentagon or the CIA still holds ‘ghost detainees,’ Satterthwaite said, referring to people housed at secret facilities.
Friday, February 13, 2009
To Investigate Bush or Not
By William Fisher
With growing public support for a public investigation of crimes that may have been committed by the administration of former president George W. Bush in waging its “global war on terror,” policy makers and legal experts are deeply divided on how to proceed – and President Barack Obama seems ambivalent about whether to proceed at all.
The President has said his view is that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen, but that, generally speaking, I’m more interested in looking forward than I am in looking backwards."
Before his nomination to be Obama’s Attorney General, Eric Holder appeared to take a stronger view. He said, “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.”
But at his confirmation hearing before the Senate, Holder appeared to temper his response to be similar to Obama’s position.
Obama’s initial reaction was to a proposal from the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, for a "truth commission" to investigate abuses of detainees, politically inspired moves at the Justice Department, and whole range of decisions made during the Bush administration. At the time, Obama said he had not seen the Leahy proposal.
Such a “truth commission” is one of several ideas being offered by those who see a comprehensive look-back as essential to cleansing the U.S. justice system and restoring America’s reputation in the world.
Leahy said the primary goal of the commission would be to learn the truth rather than prosecute former officials, but said the inquiry should reach far beyond misdeeds at the Justice Department under Bush to include matters of Iraq prewar intelligence and the Defense Department.
The panel he envisions would be modeled after one that investigated the apartheid regime in South Africa. It would have subpoena power but would not bring criminal charges, he said.
Among the matters Leahy wants investigated by such a commission are: the firings of U.S. attorneys, treatment and torture of terror suspect detainees, and the authorization of warrantless wiretapping. He said that witnesses before such a commission might have to be granted limited immunity from prosecution to obtain their testimony.
Other Democrats have called for criminal investigations of those who authorized certain controversial tactics in the war on terror. Republicans have countered that such decisions made in the wake of the 2001 terror attacks should not be second-guessed.
An arguably stronger measure has been proposed by House Judiciary Committee Chairman John Conyers, a Michigan Democrat, and nine other lawmakers. The measure would set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million. It would investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition. The panel's members would come from outside the government and be appointed by the president and congressional leaders of both parties.
This body would be much like the 9/11 Commission, set up after the Sept. 11 2001 attacks, to examine failures within government anti-terror efforts. The Commission’s investigation did not lead to any prosecutions.
Human rights advocacy groups and many legal experts have been more forceful in their proposals.
For example, Amnesty International is urging its supporters to press lawmakers to investigate the U.S. government's abuses in the war on terror and hold accountable those responsible. The organization is calling on Obama and Congress to create an independent and impartial commission to examine the use of torture, indefinite detention, secret renditions and other illegal U.S. counterterrorism policies.
But the organization does not necessarily see a conflict between a 9/11-type body and a “truth and reconciliation” commission. Amnesty International’s Tom Parker told us, “I don’t think the two approaches are mutually exclusive. Both could go forward at the same time. The immunities that may have to be granted by a Truth and Reconciliation Commission would not be absolute.”
Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”
A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”
“On the other hand”, he said, “I believe our paramount need as a country is for a full and fair airing of the historical record; democracies depend, I think, on an unblinking understanding of their past.”
“One would hope that immunity might be granted as narrowly as possible and that efforts would be undertaken to allow the Justice Department to preserve its investigative integrity based on independently developed evidence. Should push come to shove, however, I think history is more important than prosecution,” he added.
Brian J. Foley, Visiting Associate Professor at Boston University law school, takes a harder line. He told us, "Until we have Truth and Reconciliation Commissions rather than prosecutions for drug offenders and others accused of non-violent crimes whom we promiscuously throw into our overcrowded prisons, we should not bestow 'justice lite' on our political leaders. It appears that laws designed with government actors in mind were broken. There should be prosecutions."
And Georgetown University’s David Cole, one of America’s preeminent constitutional lawyers, believes the Obama administration or Congress “should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.” It should have “a charge to assess responsibility, not just to look forward.”
This divergence of viewpoints – from doing nothing to appointing a special prosecutor – is putting President Obama in an uncomfortable position. The most recent Gallup Poll shows that a sizable majority of Americans favors an investigation into Bush-era misconduct. But Obama appears reluctant to take any action that might further divide the country. Moreover, he may be loath to antagonize Republicans, whose support he may need on many other issues in the future.
The Democratically-controlled Congress does not need the president in order to act – it can hold extensive hearings, grant itself subpoena power and in effect take whatever action it desires short of legislation, which would require the President’s signature. But Congressional Democrats may well be reluctant to overtly defy the wishes of the president, who is the leader of their party.
So the form of the Bush-era retrospective – if there is to be one -- is yet very much a work in progress that will continue to put pressure on the young Obama Administration.
With growing public support for a public investigation of crimes that may have been committed by the administration of former president George W. Bush in waging its “global war on terror,” policy makers and legal experts are deeply divided on how to proceed – and President Barack Obama seems ambivalent about whether to proceed at all.
The President has said his view is that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen, but that, generally speaking, I’m more interested in looking forward than I am in looking backwards."
Before his nomination to be Obama’s Attorney General, Eric Holder appeared to take a stronger view. He said, “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.”
But at his confirmation hearing before the Senate, Holder appeared to temper his response to be similar to Obama’s position.
Obama’s initial reaction was to a proposal from the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, for a "truth commission" to investigate abuses of detainees, politically inspired moves at the Justice Department, and whole range of decisions made during the Bush administration. At the time, Obama said he had not seen the Leahy proposal.
Such a “truth commission” is one of several ideas being offered by those who see a comprehensive look-back as essential to cleansing the U.S. justice system and restoring America’s reputation in the world.
Leahy said the primary goal of the commission would be to learn the truth rather than prosecute former officials, but said the inquiry should reach far beyond misdeeds at the Justice Department under Bush to include matters of Iraq prewar intelligence and the Defense Department.
The panel he envisions would be modeled after one that investigated the apartheid regime in South Africa. It would have subpoena power but would not bring criminal charges, he said.
Among the matters Leahy wants investigated by such a commission are: the firings of U.S. attorneys, treatment and torture of terror suspect detainees, and the authorization of warrantless wiretapping. He said that witnesses before such a commission might have to be granted limited immunity from prosecution to obtain their testimony.
Other Democrats have called for criminal investigations of those who authorized certain controversial tactics in the war on terror. Republicans have countered that such decisions made in the wake of the 2001 terror attacks should not be second-guessed.
An arguably stronger measure has been proposed by House Judiciary Committee Chairman John Conyers, a Michigan Democrat, and nine other lawmakers. The measure would set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million. It would investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition. The panel's members would come from outside the government and be appointed by the president and congressional leaders of both parties.
This body would be much like the 9/11 Commission, set up after the Sept. 11 2001 attacks, to examine failures within government anti-terror efforts. The Commission’s investigation did not lead to any prosecutions.
Human rights advocacy groups and many legal experts have been more forceful in their proposals.
For example, Amnesty International is urging its supporters to press lawmakers to investigate the U.S. government's abuses in the war on terror and hold accountable those responsible. The organization is calling on Obama and Congress to create an independent and impartial commission to examine the use of torture, indefinite detention, secret renditions and other illegal U.S. counterterrorism policies.
But the organization does not necessarily see a conflict between a 9/11-type body and a “truth and reconciliation” commission. Amnesty International’s Tom Parker told us, “I don’t think the two approaches are mutually exclusive. Both could go forward at the same time. The immunities that may have to be granted by a Truth and Reconciliation Commission would not be absolute.”
Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”
A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”
“On the other hand”, he said, “I believe our paramount need as a country is for a full and fair airing of the historical record; democracies depend, I think, on an unblinking understanding of their past.”
“One would hope that immunity might be granted as narrowly as possible and that efforts would be undertaken to allow the Justice Department to preserve its investigative integrity based on independently developed evidence. Should push come to shove, however, I think history is more important than prosecution,” he added.
Brian J. Foley, Visiting Associate Professor at Boston University law school, takes a harder line. He told us, "Until we have Truth and Reconciliation Commissions rather than prosecutions for drug offenders and others accused of non-violent crimes whom we promiscuously throw into our overcrowded prisons, we should not bestow 'justice lite' on our political leaders. It appears that laws designed with government actors in mind were broken. There should be prosecutions."
And Georgetown University’s David Cole, one of America’s preeminent constitutional lawyers, believes the Obama administration or Congress “should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.” It should have “a charge to assess responsibility, not just to look forward.”
This divergence of viewpoints – from doing nothing to appointing a special prosecutor – is putting President Obama in an uncomfortable position. The most recent Gallup Poll shows that a sizable majority of Americans favors an investigation into Bush-era misconduct. But Obama appears reluctant to take any action that might further divide the country. Moreover, he may be loath to antagonize Republicans, whose support he may need on many other issues in the future.
The Democratically-controlled Congress does not need the president in order to act – it can hold extensive hearings, grant itself subpoena power and in effect take whatever action it desires short of legislation, which would require the President’s signature. But Congressional Democrats may well be reluctant to overtly defy the wishes of the president, who is the leader of their party.
So the form of the Bush-era retrospective – if there is to be one -- is yet very much a work in progress that will continue to put pressure on the young Obama Administration.
Wednesday, February 11, 2009
A Call to End All Renditions
Marjorie Cohn
Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her new book, Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), will be published in April 2009. Her articles are archived at www.marjoriecohn.com.
Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year.
Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.
Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.
Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).
The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.
Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.
“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.
If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.
Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”
This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.
One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”
Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.
In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”
But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.
Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”
The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.
Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.
When Sen. Christopher (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”
There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.
Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.
The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her new book, Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), will be published in April 2009. Her articles are archived at www.marjoriecohn.com.
Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year.
Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.
Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.
Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).
The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.
Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.
“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.
If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.
Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”
This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.
One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”
Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.
In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”
But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.
Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”
The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.
Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.
When Sen. Christopher (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”
There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.
Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.
The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.
Monday, February 09, 2009
THE PATH MORE TAKEN…
By William Fisher
President Barack Obama yesterday cast doubt on his promise to put an end to secret government by allowing his Justice Department to follow a path frequently taken by his predecessor.
Before a Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that a lawsuit brought on behalf of Guantanamo Bay detainee Binyan Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security
If the appeals court agrees, it will mean that the alleged victims will not have their day in court. The court has not yet ruled on the case.
The defendant in the civil lawsuit is known as Jeppesen Dataplan, a subsidiary of aerospace giant Boeing, which is alleged to have knowingly provided the CIA with the chartered aircraft used to “render” terror suspects to countries where they were tortured.
ACLU attorney Ben Wizner, who argued today on behalf of Mohamed and the other appellants, told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
This appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.
In a statement, Anthony D. Romero, ACLU Executive Director, said, “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same.”
He added, “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
The Mohamed case stems from a federal lawsuit filed in 2007 by the ACLU against Jeppesen on behalf of five victims of the United States government's "extraordinary rendition" program. The suit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly “disappear” the five men to detention and interrogation.
According to the ACLU, shortly after the suit was filed, “The government intervened and inappropriately asserted the “state secrets privilege,” claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public.”
The case was dismissed in February 2008, and the ACLU then appealed to the U.S. Court of Appeals for the Ninth Circuit in the San Francisco Bay area.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
The case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K.
But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But, in a statement last week, the State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
The ACLU last week sent a letter to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
The ACLU’s Romero said, "The latest revelation is completely at odds with President Obama's executive orders that ban torture and end rendition, as well as his promise to restore the rule of law."
It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security. Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.
President Barack Obama yesterday cast doubt on his promise to put an end to secret government by allowing his Justice Department to follow a path frequently taken by his predecessor.
Before a Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that a lawsuit brought on behalf of Guantanamo Bay detainee Binyan Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security
If the appeals court agrees, it will mean that the alleged victims will not have their day in court. The court has not yet ruled on the case.
The defendant in the civil lawsuit is known as Jeppesen Dataplan, a subsidiary of aerospace giant Boeing, which is alleged to have knowingly provided the CIA with the chartered aircraft used to “render” terror suspects to countries where they were tortured.
ACLU attorney Ben Wizner, who argued today on behalf of Mohamed and the other appellants, told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
This appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.
In a statement, Anthony D. Romero, ACLU Executive Director, said, “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same.”
He added, “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”
The Mohamed case stems from a federal lawsuit filed in 2007 by the ACLU against Jeppesen on behalf of five victims of the United States government's "extraordinary rendition" program. The suit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly “disappear” the five men to detention and interrogation.
According to the ACLU, shortly after the suit was filed, “The government intervened and inappropriately asserted the “state secrets privilege,” claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public.”
The case was dismissed in February 2008, and the ACLU then appealed to the U.S. Court of Appeals for the Ninth Circuit in the San Francisco Bay area.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
The case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K.
But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But, in a statement last week, the State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
The ACLU last week sent a letter to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
The ACLU’s Romero said, "The latest revelation is completely at odds with President Obama's executive orders that ban torture and end rendition, as well as his promise to restore the rule of law."
It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security. Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.
Wednesday, February 04, 2009
A No-Brainer for the Supremes?
By William Fisher
In what promises to be the first major test of the Obama Administration’s new approach to the rule of law, the Supreme Court will soon hear what could be one of the most consequential cases in U.S. history. It will be asked to answer the question: Can an American president declare a legal U.S. resident an ‘enemy combatant’ and hold him indefinitely without charge or trial?
The legal U.S. resident in question is Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003. Al-Marri is the only remaining person held in the United States as an "enemy combatant." He is being represented by lawyers from the American Civil Liberties Union (ACLU).
The case, Al-Marri v. Spagone, is a habeas corpus action, challenging al-Marri's indefinite detention. The defendant in the case is Navy Commander Daniel Spagone, who runs the Navy brig in South Carolina where Al-Marri is being held by the military.
The central pre-Supreme Court question is what position the new Obama administration will take when it files its brief, currently due on March 23.
The Supreme Court will hear oral arguments during the last week of April and is expected to hand down its ruling in June. The brief filed by the government in the lower courts during the Bush Administration defended the president’s authority to designate ‘enemy combatants’ and to detain them indefinitely.
The ACLU says that the Al-Marri case “provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law."
Jonathan Hafetz, ACLU’s lead attorney on the Al-Marri case, told IPS, “This is one of most extreme examples of the Bush Administration’s abuse of executive power. It is a case where President Bush sought to push the outer limits of the Constitution. It is legally and morally indefensible.”
A separate case, Al-Marri v. Gates, is contesting al-Marri's abusive treatment and conditions of confinement at the Navy brig.
Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States in September 2001with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification.
Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, President George W. Bush declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism." That same day, the military took custody of al-Marri and incarcerated him in the Navy brig, where he has been detained without charge ever since.
At stake in Al-Marri v. Spagone is whether the President can order the military to seize and detain indefinitely, without charge or trial, individuals lawfully residing in the United States, including American citizens, based on government assertions that they planned to commit terrorist activities.
In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge.
But in July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a narrowly divided decision that the President had legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country."
The ACLU says Al-Marri's detention represents “one of the gravest expansions of executive detention power since September 11.” The United States was founded on the principle that “individuals living in this country cannot be imprisoned without charge and that civilian government must remain supreme over the military. Al-Marri's detention represents a radical departure from that celebrated legal tradition—one that was never authorized by Congress and that violates the Constitution.”
According to the ACLU, documents recently obtained through a Freedom of Information Act request reveal that standard operating procedures developed for Guantánamo Bay “were secretly applied at the Navy brig in an effort to create a prison beyond the law within the United States. Today, al-Marri remains in virtual isolation at the Brig, denied even meaningful communication with his family.”
In its brief, the ACLU asks the Court to overturn a federal appeals court decision giving the president sweeping power to deprive individuals living in the United States of their most basic constitutional rights by designating them "enemy combatants." “It is clearly illegal to imprison legal residents of the United States without trial. It is also the type of false choice between our safety and our ideals that has pervaded America’s approach to fighting terrorism for the past eight years,” said the ACLU’S Hafetz. “We are confident that upon review, the Court will strike down this radical departure from our nation's most basic values and traditions.”
Former United States Attorney General Nicholas Katzenbach, former FBI Director William Sessions and numerous former generals, admirals and diplomats joined the ACLU in urging the U.S. Supreme Court to reject the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. These and other top military and civilian leaders have filed friend-of-the-court briefs.
The former diplomats argue in their brief that, “Based on our professional experience in the diplomatic service of this country, American diplomatic credibility and effectiveness in many areas of international relations suffer from the widely shared perception that the U.S. has abandoned the rule of law. Indefinite detention without criminal charge or trial is, for most people, the essence of this abandonment.”
They add, “Accordingly, a decision upholding our government’s right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism.”
The second Al-Marri case, Al-Marri v. Gates, contests al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant." During the first sixteen months of his military confinement, al-Marri was held incommunicado and subjected to a range of highly coercive interrogation measures, including being held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death.
Al-Marri is the second U.S. person to have been held as an enemy combatant within the United States. The first was José Padilla, a United States citizen. Padilla was arrested in Chicago in May 2002, and was detained as a material witness until June 2002, when President Bush designated him an illegal enemy combatant and transferred him to a military prison, arguing that he was thereby not entitled to trial in civilian courts.
Padilla was held for three-and-a-half years as an "enemy combatant" after his arrest on suspicion of plotting a radioactive "dirty bomb" attack. That charge was dropped when his case was moved to a civilian court after pressure from civil liberties groups.
In August 2007, Padilla was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. He was sentenced to 17 years and four months in prison.
What does the Padilla case tell us? It, and dozens of other similar cases, tells us that federal courts are more than capable of conducting trials of people accused of terrorism. It tells us that there is no need – let alone any Constitutional right of the president of the United States – to toss any U.S. citizen or lawful resident into a military prison and hold him for years without charge or trial.
And it tells us that our government needs to be a lot more careful about how our interrogators obtain “evidence” – because if it’s coerced, no court will allow it.
We can only hope the Supremes will share that view.
In what promises to be the first major test of the Obama Administration’s new approach to the rule of law, the Supreme Court will soon hear what could be one of the most consequential cases in U.S. history. It will be asked to answer the question: Can an American president declare a legal U.S. resident an ‘enemy combatant’ and hold him indefinitely without charge or trial?
The legal U.S. resident in question is Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003. Al-Marri is the only remaining person held in the United States as an "enemy combatant." He is being represented by lawyers from the American Civil Liberties Union (ACLU).
The case, Al-Marri v. Spagone, is a habeas corpus action, challenging al-Marri's indefinite detention. The defendant in the case is Navy Commander Daniel Spagone, who runs the Navy brig in South Carolina where Al-Marri is being held by the military.
The central pre-Supreme Court question is what position the new Obama administration will take when it files its brief, currently due on March 23.
The Supreme Court will hear oral arguments during the last week of April and is expected to hand down its ruling in June. The brief filed by the government in the lower courts during the Bush Administration defended the president’s authority to designate ‘enemy combatants’ and to detain them indefinitely.
The ACLU says that the Al-Marri case “provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law."
Jonathan Hafetz, ACLU’s lead attorney on the Al-Marri case, told IPS, “This is one of most extreme examples of the Bush Administration’s abuse of executive power. It is a case where President Bush sought to push the outer limits of the Constitution. It is legally and morally indefensible.”
A separate case, Al-Marri v. Gates, is contesting al-Marri's abusive treatment and conditions of confinement at the Navy brig.
Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States in September 2001with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification.
Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, President George W. Bush declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism." That same day, the military took custody of al-Marri and incarcerated him in the Navy brig, where he has been detained without charge ever since.
At stake in Al-Marri v. Spagone is whether the President can order the military to seize and detain indefinitely, without charge or trial, individuals lawfully residing in the United States, including American citizens, based on government assertions that they planned to commit terrorist activities.
In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge.
But in July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a narrowly divided decision that the President had legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country."
The ACLU says Al-Marri's detention represents “one of the gravest expansions of executive detention power since September 11.” The United States was founded on the principle that “individuals living in this country cannot be imprisoned without charge and that civilian government must remain supreme over the military. Al-Marri's detention represents a radical departure from that celebrated legal tradition—one that was never authorized by Congress and that violates the Constitution.”
According to the ACLU, documents recently obtained through a Freedom of Information Act request reveal that standard operating procedures developed for Guantánamo Bay “were secretly applied at the Navy brig in an effort to create a prison beyond the law within the United States. Today, al-Marri remains in virtual isolation at the Brig, denied even meaningful communication with his family.”
In its brief, the ACLU asks the Court to overturn a federal appeals court decision giving the president sweeping power to deprive individuals living in the United States of their most basic constitutional rights by designating them "enemy combatants." “It is clearly illegal to imprison legal residents of the United States without trial. It is also the type of false choice between our safety and our ideals that has pervaded America’s approach to fighting terrorism for the past eight years,” said the ACLU’S Hafetz. “We are confident that upon review, the Court will strike down this radical departure from our nation's most basic values and traditions.”
Former United States Attorney General Nicholas Katzenbach, former FBI Director William Sessions and numerous former generals, admirals and diplomats joined the ACLU in urging the U.S. Supreme Court to reject the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. These and other top military and civilian leaders have filed friend-of-the-court briefs.
The former diplomats argue in their brief that, “Based on our professional experience in the diplomatic service of this country, American diplomatic credibility and effectiveness in many areas of international relations suffer from the widely shared perception that the U.S. has abandoned the rule of law. Indefinite detention without criminal charge or trial is, for most people, the essence of this abandonment.”
They add, “Accordingly, a decision upholding our government’s right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism.”
The second Al-Marri case, Al-Marri v. Gates, contests al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant." During the first sixteen months of his military confinement, al-Marri was held incommunicado and subjected to a range of highly coercive interrogation measures, including being held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death.
Al-Marri is the second U.S. person to have been held as an enemy combatant within the United States. The first was José Padilla, a United States citizen. Padilla was arrested in Chicago in May 2002, and was detained as a material witness until June 2002, when President Bush designated him an illegal enemy combatant and transferred him to a military prison, arguing that he was thereby not entitled to trial in civilian courts.
Padilla was held for three-and-a-half years as an "enemy combatant" after his arrest on suspicion of plotting a radioactive "dirty bomb" attack. That charge was dropped when his case was moved to a civilian court after pressure from civil liberties groups.
In August 2007, Padilla was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. He was sentenced to 17 years and four months in prison.
What does the Padilla case tell us? It, and dozens of other similar cases, tells us that federal courts are more than capable of conducting trials of people accused of terrorism. It tells us that there is no need – let alone any Constitutional right of the president of the United States – to toss any U.S. citizen or lawful resident into a military prison and hold him for years without charge or trial.
And it tells us that our government needs to be a lot more careful about how our interrogators obtain “evidence” – because if it’s coerced, no court will allow it.
We can only hope the Supremes will share that view.
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