By William Fisher
In two court cases that could test the limits of the Obama Administration’s executive authority as well as its commitment to transparency, human rights lawyers are challenging the government’s right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.
In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as “terrorists” and close them down without providing these groups a way to contest the decision in court.
In the Al Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. Now the lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.
The organization sued the Bush Administration. But when the case came to court, in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But the judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government’s claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.
The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
And when the Obama Administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco last week, it hoped for a reversal of the lower court’s ruling. But the appeals court surprised government lawyers – and legal scholars – by rejecting their appeal, thus allowing the lower court decision to stand.
The decision was a significant victory for Al-Haramain’s lawyers, who said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.
“I did not expect this from the Obama justice department,” said Jon Eisenberg, the Oakland, California, lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”
“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”
Eisenberg told us, “In three years of litigating this case, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.
The Al-Haramain case represented the second time the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal.
In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed. There has not yet been a court decision in that case.
The Administration of George W. Bush invoked the state secrets doctrine more than any other government in U.S. history. In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons with first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."
In the second case, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the funds and operations of another Muslim-oriented charity, KindHearts, three years ago. The American Civil Liberties Union (ACLU), which is representing KindHearts, said the shut-down was carried out “without notice or a hearing, based simply on the assertion that the charity was ‘under investigation’." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, “again without providing it with a reason or meaningful opportunity to defend itself.”
The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.
"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.
"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.
KindHearts was founded in 2002 – after the government shut down a number of Muslim charities –to provide humanitarian aid abroad and at home in the U.S. in full compliance with the law. Shamsi said that “Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.”
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.
The ACLU’S Shamsi told us, “The government’s actions in KindHearts’ case show the extent to which the government has unconstitutional and unfettered authority. The government has shut the charity down based on secret evidence, without any notice of wrongdoing, any probable cause, and without providing KindHearts an opportunity to defend itself or any judicial review.”
“These violations of fundamental due process guarantees were committed against a humanitarian organization that sought to alleviate human suffering both at home and abroad. The government’s actions send a profoundly negative message to other U.S. non-profits and do nothing to serve this country’s security or its image in the eyes of the world,” she said.
She added, “We think that the entire regime is unconstitutional because it fails to provide constitutionally adequate substantive criteria or procedural safeguards.”
“The government’s unfettered authority to shut down KindHearts based on suspicion alone has not only left the charity unable to fulfill its humanitarian mission; it sends a profoundly negative message to other U.S.-based non-profits that seek to alleviate human suffering. At a time when the United States needs to restore its image in the eyes of the world, the government’s actions do not serve either this country’s security or its commitment to justice, ” she told us.
Tuesday, March 03, 2009
Saturday, February 28, 2009
LAWYERS WILL PRESS FOR AL-MARRI SUPREME COURT RULING
By William Fisher
Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the Supreme Court to hear their case even though al-Marri was suddenly transferred to the civilian justice system after more than five years in solitary confinement in a military brig.
According to American Civil Liberties Union attorney Jonathan Hafetz, the case is far too loaded with potential precedent-setting issues to simply disappear “on the eve of a dispositive ruling” by the Supreme Court.
There are two principal reasons, Hafetz told us. “First, al-Marri could be detained as an “enemy combatant” again if acquitted at trial. Second, absent a Supreme Court review, this power could be used again against other legal residents or American citizens in the future, absent a definitive ruling from the high court that it is illegal.”
Marri, legally in the U.S. on a student visa, was arrested in 2003 and accused of being a member of an al Qaeda “sleeper cell” in the U.S. But before his trial could begin, then President George W. Bush declared him an “enemy combatant” under sweeping new powers claimed by the president following the 9/11 terrorist attacks on the World Trade Center and the Pentagon. He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned ever since.
Then, in a move that surprised many observers, the new administration of President Barack Obama took swift action to have him indicted for “material support” of terrorism by a civilian grand jury for trial in a federal court, and moved to dismiss al-Marri’s pending litigation before the U.S. Supreme Court.
Acting Solicitor General Edwin S. Kneedler, the government’s lawyer, petitioned the court to dismiss the case and issue an order "as expeditiously as possible" to allow the government to transfer Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because Marri was challenging a status he no longer had -- a person held by the military without charges. "No live controversy remains in this case," the government filing said.
But the ACLU’s Hafetz told us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said Marri's defense lawyers “will continue to pursue this case to make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial. It is critical that the Court hears al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants’."
“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.
Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.
The Qatari native journeyed to Illinois, purportedly to begin work on a master's degree at the same college that had awarded him a bachelor’s degree earlier. His arrival came a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.
After multiple interrogations by the Federal Bureau of Investigation (FBI), Marri was indicted for credit card fraud and making false statements to his interrogators. But before his trial could begin, he was designated an “enemy combatant” and transferred to military control.
In 2005, Bush administration officials filed a sworn statement in a South Carolina court saying that Marri had personally met Osama bin Laden and Khalid Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and volunteered to become a martyr in the U.S. The filing alleged that Marri was in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi. U.S. authorities said that Hawsawi gave him more than $10,000 to finance his trip to Illinois.
However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.
The transfer of Marri's case has triggered ambivalence among human rights and legal advocacy groups. Most of these commentators generally applaud the move -- which seems to agree with their position that federal courts should be the venue for trials of suspected terrorists. But at the same time, many have expressed dismay that the move may short-circuit a hearing and a once-and-for-all decision by the Supreme Court.
"In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values," Attorney General Eric H. Holder Jr. said.
The al-Marri case bears a striking resemblance to one involving Jose Padilla, the only U.S. citizen to be designated as an “enemy combatant” by then President Bush and imprisoned by the military with charges or trial.
In the Padilla case, then Attorney General John Ashcroft interrupted a trip to Russia to convene a press conference, where he accused Padilla of conspiring to detonate a "dirty bomb" on American soil.
The Bush administration initially declared Padilla an “enemy combatant” and held him in military custody for three years, but then sought to avoid a Supreme Court review of his case, and in 2005 -- on the eve of a high court habeas corpus hearing where the government would have to present evidence to justify his continued detention – the Department of Justice (DOJ) petitioned for his release to face criminal indictment in U.S. courts. He was abruptly transferred to a civilian jail
The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers.
Padilla was never charged with planning to detonate a “dirty bomb.” By the time of his trial, in 2007, he 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. The “dirty bomb” allegation had been dropped. Padilla was convicted and sentenced to 17 years and four months in prison.
The ACLU’s Hafetz agrees on the similarities, but points out that, in the Marri case, the Court “has already agreed to hear the case and the fact that it is happening again -- after years of illegal detention followed by charges only on the eve of a dispositive ruling on this issue by the Supreme Court -- underscores the need for review.”
“It will be important to see whether the Obama administration is rejecting this illegal and egregious detention policy of the Bush administration or just indicting now to duck Supreme Court review and perpetuate that policy--a move that would defy, not honor, the rule of law,” he told us.
Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the Supreme Court to hear their case even though al-Marri was suddenly transferred to the civilian justice system after more than five years in solitary confinement in a military brig.
According to American Civil Liberties Union attorney Jonathan Hafetz, the case is far too loaded with potential precedent-setting issues to simply disappear “on the eve of a dispositive ruling” by the Supreme Court.
There are two principal reasons, Hafetz told us. “First, al-Marri could be detained as an “enemy combatant” again if acquitted at trial. Second, absent a Supreme Court review, this power could be used again against other legal residents or American citizens in the future, absent a definitive ruling from the high court that it is illegal.”
Marri, legally in the U.S. on a student visa, was arrested in 2003 and accused of being a member of an al Qaeda “sleeper cell” in the U.S. But before his trial could begin, then President George W. Bush declared him an “enemy combatant” under sweeping new powers claimed by the president following the 9/11 terrorist attacks on the World Trade Center and the Pentagon. He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned ever since.
Then, in a move that surprised many observers, the new administration of President Barack Obama took swift action to have him indicted for “material support” of terrorism by a civilian grand jury for trial in a federal court, and moved to dismiss al-Marri’s pending litigation before the U.S. Supreme Court.
Acting Solicitor General Edwin S. Kneedler, the government’s lawyer, petitioned the court to dismiss the case and issue an order "as expeditiously as possible" to allow the government to transfer Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because Marri was challenging a status he no longer had -- a person held by the military without charges. "No live controversy remains in this case," the government filing said.
But the ACLU’s Hafetz told us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said Marri's defense lawyers “will continue to pursue this case to make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial. It is critical that the Court hears al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants’."
“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.
Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.
The Qatari native journeyed to Illinois, purportedly to begin work on a master's degree at the same college that had awarded him a bachelor’s degree earlier. His arrival came a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.
After multiple interrogations by the Federal Bureau of Investigation (FBI), Marri was indicted for credit card fraud and making false statements to his interrogators. But before his trial could begin, he was designated an “enemy combatant” and transferred to military control.
In 2005, Bush administration officials filed a sworn statement in a South Carolina court saying that Marri had personally met Osama bin Laden and Khalid Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and volunteered to become a martyr in the U.S. The filing alleged that Marri was in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi. U.S. authorities said that Hawsawi gave him more than $10,000 to finance his trip to Illinois.
However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.
The transfer of Marri's case has triggered ambivalence among human rights and legal advocacy groups. Most of these commentators generally applaud the move -- which seems to agree with their position that federal courts should be the venue for trials of suspected terrorists. But at the same time, many have expressed dismay that the move may short-circuit a hearing and a once-and-for-all decision by the Supreme Court.
"In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values," Attorney General Eric H. Holder Jr. said.
The al-Marri case bears a striking resemblance to one involving Jose Padilla, the only U.S. citizen to be designated as an “enemy combatant” by then President Bush and imprisoned by the military with charges or trial.
In the Padilla case, then Attorney General John Ashcroft interrupted a trip to Russia to convene a press conference, where he accused Padilla of conspiring to detonate a "dirty bomb" on American soil.
The Bush administration initially declared Padilla an “enemy combatant” and held him in military custody for three years, but then sought to avoid a Supreme Court review of his case, and in 2005 -- on the eve of a high court habeas corpus hearing where the government would have to present evidence to justify his continued detention – the Department of Justice (DOJ) petitioned for his release to face criminal indictment in U.S. courts. He was abruptly transferred to a civilian jail
The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers.
Padilla was never charged with planning to detonate a “dirty bomb.” By the time of his trial, in 2007, he 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. The “dirty bomb” allegation had been dropped. Padilla was convicted and sentenced to 17 years and four months in prison.
The ACLU’s Hafetz agrees on the similarities, but points out that, in the Marri case, the Court “has already agreed to hear the case and the fact that it is happening again -- after years of illegal detention followed by charges only on the eve of a dispositive ruling on this issue by the Supreme Court -- underscores the need for review.”
“It will be important to see whether the Obama administration is rejecting this illegal and egregious detention policy of the Bush administration or just indicting now to duck Supreme Court review and perpetuate that policy--a move that would defy, not honor, the rule of law,” he told us.
Thursday, February 26, 2009
UK MINISTER APOLOGIZES FOR AIDING US RENDITIONS
By William Fisher
In a stunning reversal, Britain’s government admitted yesterday that it participated in the ‘extraordinary rendition’ to Afghanistan of two terror suspects captured in Iraq by the U.S.
U.K. Defense Secretary John Hutton told Britain's House of Commons that the two individuals were captured by U.K. forces in Iraq, transferred to U.S. detention and later moved to a U.S. detention facility in Afghanistan.
His admission contradicts the British Government’s earlier assertions that there were only two cases involving detainee rendition. That statement involved the Indian Ocean island of Diego Garcia, a British territory, which the government admitted had twice been used by the U.S. as a refueling stop for the secret transfer of terrorism suspects.
Apologizing to lawmakers for the error, Hutton said, "I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my department," Hutton told lawmakers. "I must stress that this was based on the information available to ministers and those who were briefing them at the time."
At the time, the U.S. denied using the island for extraordinary rendition flights, but later acknowledged that it had misled the British government. British Foreign Secretary David Miliband later released a statement declaring that the U.S. had studied a list of 391 flights compiled by British human rights groups and lawmakers and that no other cases had been found.
Hutton told lawmakers that the two men are still being held in Afghanistan. He said the U.S. has given assurances that they are being held "in a humane, safe and secure environment."
It was unclear if the men were being held along with some 600 others at the U.S. military prison at Bagram Air Force Base, near Kabul. That base has been the target of recent charges from human rights groups that it has become Afghanistan’s Guantanamo Bay, that many prisoners have been locked up there for years without charges or access to lawyers, and that some have been tortured and abused.
Hutton’s disclosure comes on the heels of a firestorm caused by a lawsuit brought in the U.K. by British resident Binyam Mohamed, who was arrested in Pakistan in 2002, and who charged that British intelligence was complicit with the CIA in rendering him to Morocco, then to Bagram, and finally flying him to Guantanamo Bay, Cuba.
Mohamed was held there since 2004 before his release and return to the U.K. earlier this week. No charges were ever filed against him. Until shortly before his release, he had been on a hunger strike at the Caribbean military prison.
The lawsuit he filed in the U.K. – similar to a separate suit brought in the U.S. -- has caused a furor in Britain, where officials asked the British High Court not to make public documents that Mohamed’s lawyers say substantiate his treatment. Opposition spokesmen there claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Miliband, denied there was any threat.
Mohamed’s U.S. lawyer, Steven Watt, a staff attorney in the Human Rights program of the American Civil Liberties Union (ACLU), told this reporter, “It’s about time the U.K. came clean. News of Britain’s complicity with the CIA has been slowly leaking out for several years. We now know more than enough to conclude that the U.K. has played a role.”
“Both countries are still trying to keep this information secret, either to avoid political embarrassment or to cover up some egregious human rights abuses,” he said.
Asked by this reporter about the timing of the Defense Minister’s announcement and apology, Watt said, “Maybe they finally want to make a clean breast of it.”
In a related development, newly-confirmed CIA Director Leon Panetta said Wednesday that President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will ensure they are not tortured or abused.
"If it's someone we are interested in, there is no purpose to rendering anyone, particularly if it's a high-value target," Panetta said.
Panetta added that he believes prisoners should only be handed over to countries that have a legitimate legal interest in them, such as their home country or a country where charges are pending against them.
Panetta seemed to be trying to distance himself from statements he made during his congressional confirmation hearing earlier this month. He told lawmakers that the Obama administration intended to continue rendering prisoners captured in the war on terrorism.
Panetta said the administration would rely on a long-standing policy to first secure “diplomatic assurances” from the country that the prisoner would not be tortured or have his human rights violated. But human rights groups point out that such assurances have proved to be virtually worthless in the past, when suspects have been flown to countries with egregious human rights records.
Panetta said the Obama administration would "make very sure" that prisoners are not mistreated after they are rendered. Asked by the Associated Press exactly how that would be done, Panetta said, "Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that," he said. "No. 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen."
The White House is currently reviewing the extraordinary rendition policy and program.
Panetta said he does not believe additional prisoners will be sent to Guantanamo this year. In his first week in office, Obama ordered the prison closed within a year, but no decision has yet been made public on what to do with the roughly 250 inmates still there. Only a handful have been charged with a crime, and those trials have been suspended while the Obama administration reviews its legal options.
In a stunning reversal, Britain’s government admitted yesterday that it participated in the ‘extraordinary rendition’ to Afghanistan of two terror suspects captured in Iraq by the U.S.
U.K. Defense Secretary John Hutton told Britain's House of Commons that the two individuals were captured by U.K. forces in Iraq, transferred to U.S. detention and later moved to a U.S. detention facility in Afghanistan.
His admission contradicts the British Government’s earlier assertions that there were only two cases involving detainee rendition. That statement involved the Indian Ocean island of Diego Garcia, a British territory, which the government admitted had twice been used by the U.S. as a refueling stop for the secret transfer of terrorism suspects.
Apologizing to lawmakers for the error, Hutton said, "I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my department," Hutton told lawmakers. "I must stress that this was based on the information available to ministers and those who were briefing them at the time."
At the time, the U.S. denied using the island for extraordinary rendition flights, but later acknowledged that it had misled the British government. British Foreign Secretary David Miliband later released a statement declaring that the U.S. had studied a list of 391 flights compiled by British human rights groups and lawmakers and that no other cases had been found.
Hutton told lawmakers that the two men are still being held in Afghanistan. He said the U.S. has given assurances that they are being held "in a humane, safe and secure environment."
It was unclear if the men were being held along with some 600 others at the U.S. military prison at Bagram Air Force Base, near Kabul. That base has been the target of recent charges from human rights groups that it has become Afghanistan’s Guantanamo Bay, that many prisoners have been locked up there for years without charges or access to lawyers, and that some have been tortured and abused.
Hutton’s disclosure comes on the heels of a firestorm caused by a lawsuit brought in the U.K. by British resident Binyam Mohamed, who was arrested in Pakistan in 2002, and who charged that British intelligence was complicit with the CIA in rendering him to Morocco, then to Bagram, and finally flying him to Guantanamo Bay, Cuba.
Mohamed was held there since 2004 before his release and return to the U.K. earlier this week. No charges were ever filed against him. Until shortly before his release, he had been on a hunger strike at the Caribbean military prison.
The lawsuit he filed in the U.K. – similar to a separate suit brought in the U.S. -- has caused a furor in Britain, where officials asked the British High Court not to make public documents that Mohamed’s lawyers say substantiate his treatment. Opposition spokesmen there claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Miliband, denied there was any threat.
Mohamed’s U.S. lawyer, Steven Watt, a staff attorney in the Human Rights program of the American Civil Liberties Union (ACLU), told this reporter, “It’s about time the U.K. came clean. News of Britain’s complicity with the CIA has been slowly leaking out for several years. We now know more than enough to conclude that the U.K. has played a role.”
“Both countries are still trying to keep this information secret, either to avoid political embarrassment or to cover up some egregious human rights abuses,” he said.
Asked by this reporter about the timing of the Defense Minister’s announcement and apology, Watt said, “Maybe they finally want to make a clean breast of it.”
In a related development, newly-confirmed CIA Director Leon Panetta said Wednesday that President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will ensure they are not tortured or abused.
"If it's someone we are interested in, there is no purpose to rendering anyone, particularly if it's a high-value target," Panetta said.
Panetta added that he believes prisoners should only be handed over to countries that have a legitimate legal interest in them, such as their home country or a country where charges are pending against them.
Panetta seemed to be trying to distance himself from statements he made during his congressional confirmation hearing earlier this month. He told lawmakers that the Obama administration intended to continue rendering prisoners captured in the war on terrorism.
Panetta said the administration would rely on a long-standing policy to first secure “diplomatic assurances” from the country that the prisoner would not be tortured or have his human rights violated. But human rights groups point out that such assurances have proved to be virtually worthless in the past, when suspects have been flown to countries with egregious human rights records.
Panetta said the Obama administration would "make very sure" that prisoners are not mistreated after they are rendered. Asked by the Associated Press exactly how that would be done, Panetta said, "Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that," he said. "No. 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen."
The White House is currently reviewing the extraordinary rendition policy and program.
Panetta said he does not believe additional prisoners will be sent to Guantanamo this year. In his first week in office, Obama ordered the prison closed within a year, but no decision has yet been made public on what to do with the roughly 250 inmates still there. Only a handful have been charged with a crime, and those trials have been suspended while the Obama administration reviews its legal options.
Tuesday, February 24, 2009
What About Bagram?
By William Fisher
While human rights and legal advocacy groups applauded President Barack Obama’s decision to close the military prison at Guantanamo Bay within a year, many immediately raised another thorny question: “What About Bagram?”
Their answer came as a shock and a surprise. In a brief filing in federal court last week, lawyers from President Barack Obama’s Department of Justice (DOJ) said they would adopt the same position taken by the Bush administration -- that detainees held at the Bagram air base in Afghanistan have no right to challenge their detention in U.S. courts.
The U.S. government is holding more than 600 prisoners at Bagram. Some claim they are victims of “extraordinary rendition” by the U.S. Central Intelligence Agency (CIA), while many more say they have been tortured and abused at the facility just outside Kabul.
Marjorie Cohn, president of the National Lawyers Guild, told IPS, “In Boumediene v. Bush, the Supreme Court held that Guantánamo detainees have a right to habeas corpus to challenge their detention but it did not limit that right to Guantánamo. Justice Kennedy said the Court would not look kindly on the executive who imprisons people in other countries to avoid the jurisdiction of U.S. courts.”
She added, “The Obama administration is reportedly sending detainees to Bagram instead of Guantánamo. It is alarming that hundreds of people in U.S. custody in Iraq and Afghanistan will evidently be denied access to courts to review their ‘enemy combatant’ designations.”
Barbara Olshansky, lead counsel for three Bagram detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."
She said she hoped that the Obama administration was merely signaling it was still working on its position regarding the detainee issue.
The U.S. District Court held a hearing in early January on separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan. At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.
That policy will now be reviewed in U.S. court, where advocacy groups will argue that Bagram detainees should have the same rights as those in Guantanamo, including the right to a hearing before a neutral judge.
The issue will likely generate even more contention in coming months, as
Obama deploys thousands of extra U.S. troops to Afghanistan and a $60-million expansion doubles the capacity of the Bagram Theatre Internment Facility (BTIF).
Some observers are saying they are not surprised by the Obama Administration’s decision to follow the Bush model, pointing out that this is the second time that’s happened during the month since the new president took office.
In a controversial case in San Francisco earlier this month, Obama lawyers declined to change the earlier Bush Administration’s invocation of the “state secrets privilege” to attempt to prevent a federal court from ever hearing a lawsuit brought by an Ethiopian-born British resident who claims he was a victim of “extraordinary rendition.”
Binyam Mohamed, who until yesterday was a prisoner at Guantanamo Bay, Cuba, is attempting to sue a company known as Jeppesen Dataplan – a subsidiary of The Boeing Corporation – for providing knowingly providing the Central Intelligence Agency (CIA) with logistical support for the aircraft it used in his “extraordinary rendition.”
Mohamed was released from Guantanamo and returned to the United Kingdom yeserday, with no charges ever filed against him. He had been on a hunger strike at the Caribbean military prison.
A separate lawsuit he filed in the U.K. has caused a furor there, where officials refused to make public documents that Mohamed’s lawyers say show that their client was kidnapped and tortured in several secret prisons, and that the U.K. authorities were complicit with the C.I.A. in his treatment. Opposition spokesmen in Britain claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Milliband, denied there was any threat.
As he arrived back in the country, the 30-year-old claimed he was tortured while being held on suspicion of terrorism with the full knowledge of British intelligence.
Speaking from London's RAF Northolt, Mohamed's lawyer, Clive Stafford Smith, said he was "100 per cent certain" that the truth about his client's treatment would be made public.
A United Nations report last week singled out the Bagram facility for criticism. While the Red Cross was allowed to visit detainees, the report said, the Red Cross findings are kept secret and the U.S. military has denied UN requests for similar visits.
"There are reports that some persons have been in detention at Bagram for as
long as five years," the report says. "Some ex-detainees allege being subjected to severe torture, even sexual abuse. Ex-detainees also allege that they were held in cages containing between 15 to 20 men and that two detainees died in questionable circumstances while in custody."
In a briefing paper, Amnesty International urged President Obama and his administration to discontinue what it calls the "unlawful detention policies" of the Bush administration and ensure that detainees held at Bagram have access to U.S. courts so they may challenge their detentions.
The paper, entitled, “Out of sight, out of mind, out of court?,” argues for the right of Bagram detainees to judicial review. The organization sent to the paper to the new U.S. administration.
"Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the briefing paper said.
"In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared."
Amnesty said among Bagram's some 600 detainees were Afghan nationals, but also individuals of other nationalities.
"Some have been held for years," it said. "The U.S. authorities must now ensure that all U.S. detentions in Afghanistan comply with international law."
During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.
At Bagram, prisoners’ cases are reviewed by the U.S. military every six months.
The next major detention question likely to face the Obama Administration is what to do with Ali Saleh Kahlah al-Marri, the last ‘enemy combatant imprisoned in the United States. Al-Marri has been held in isolation at a naval brig in South Carolina for more than five years. He has never stood trial or been convicted of any crime.
On September 10th, 2001, al-Marri, who is a citizen of Qatar, arrived in the United States with his wife and children. He had a student visa and said he was here to study computer programming at a university in Peoria, Illinois. That December, he was arrested as a material witness in the 9/11 attacks. In June 2003, al-Marri was supposed to stand trial. But President Bush ordered the military to seize him and hold him indefinitely, thus keeping al-Marri out of court but also putting him into legal limbo.
During the first month of the Obama Administration, there has been virtually no mention of the al-Marri case.
While human rights and legal advocacy groups applauded President Barack Obama’s decision to close the military prison at Guantanamo Bay within a year, many immediately raised another thorny question: “What About Bagram?”
Their answer came as a shock and a surprise. In a brief filing in federal court last week, lawyers from President Barack Obama’s Department of Justice (DOJ) said they would adopt the same position taken by the Bush administration -- that detainees held at the Bagram air base in Afghanistan have no right to challenge their detention in U.S. courts.
The U.S. government is holding more than 600 prisoners at Bagram. Some claim they are victims of “extraordinary rendition” by the U.S. Central Intelligence Agency (CIA), while many more say they have been tortured and abused at the facility just outside Kabul.
Marjorie Cohn, president of the National Lawyers Guild, told IPS, “In Boumediene v. Bush, the Supreme Court held that Guantánamo detainees have a right to habeas corpus to challenge their detention but it did not limit that right to Guantánamo. Justice Kennedy said the Court would not look kindly on the executive who imprisons people in other countries to avoid the jurisdiction of U.S. courts.”
She added, “The Obama administration is reportedly sending detainees to Bagram instead of Guantánamo. It is alarming that hundreds of people in U.S. custody in Iraq and Afghanistan will evidently be denied access to courts to review their ‘enemy combatant’ designations.”
Barbara Olshansky, lead counsel for three Bagram detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."
She said she hoped that the Obama administration was merely signaling it was still working on its position regarding the detainee issue.
The U.S. District Court held a hearing in early January on separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan. At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.
That policy will now be reviewed in U.S. court, where advocacy groups will argue that Bagram detainees should have the same rights as those in Guantanamo, including the right to a hearing before a neutral judge.
The issue will likely generate even more contention in coming months, as
Obama deploys thousands of extra U.S. troops to Afghanistan and a $60-million expansion doubles the capacity of the Bagram Theatre Internment Facility (BTIF).
Some observers are saying they are not surprised by the Obama Administration’s decision to follow the Bush model, pointing out that this is the second time that’s happened during the month since the new president took office.
In a controversial case in San Francisco earlier this month, Obama lawyers declined to change the earlier Bush Administration’s invocation of the “state secrets privilege” to attempt to prevent a federal court from ever hearing a lawsuit brought by an Ethiopian-born British resident who claims he was a victim of “extraordinary rendition.”
Binyam Mohamed, who until yesterday was a prisoner at Guantanamo Bay, Cuba, is attempting to sue a company known as Jeppesen Dataplan – a subsidiary of The Boeing Corporation – for providing knowingly providing the Central Intelligence Agency (CIA) with logistical support for the aircraft it used in his “extraordinary rendition.”
Mohamed was released from Guantanamo and returned to the United Kingdom yeserday, with no charges ever filed against him. He had been on a hunger strike at the Caribbean military prison.
A separate lawsuit he filed in the U.K. has caused a furor there, where officials refused to make public documents that Mohamed’s lawyers say show that their client was kidnapped and tortured in several secret prisons, and that the U.K. authorities were complicit with the C.I.A. in his treatment. Opposition spokesmen in Britain claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Milliband, denied there was any threat.
As he arrived back in the country, the 30-year-old claimed he was tortured while being held on suspicion of terrorism with the full knowledge of British intelligence.
Speaking from London's RAF Northolt, Mohamed's lawyer, Clive Stafford Smith, said he was "100 per cent certain" that the truth about his client's treatment would be made public.
A United Nations report last week singled out the Bagram facility for criticism. While the Red Cross was allowed to visit detainees, the report said, the Red Cross findings are kept secret and the U.S. military has denied UN requests for similar visits.
"There are reports that some persons have been in detention at Bagram for as
long as five years," the report says. "Some ex-detainees allege being subjected to severe torture, even sexual abuse. Ex-detainees also allege that they were held in cages containing between 15 to 20 men and that two detainees died in questionable circumstances while in custody."
In a briefing paper, Amnesty International urged President Obama and his administration to discontinue what it calls the "unlawful detention policies" of the Bush administration and ensure that detainees held at Bagram have access to U.S. courts so they may challenge their detentions.
The paper, entitled, “Out of sight, out of mind, out of court?,” argues for the right of Bagram detainees to judicial review. The organization sent to the paper to the new U.S. administration.
"Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the briefing paper said.
"In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared."
Amnesty said among Bagram's some 600 detainees were Afghan nationals, but also individuals of other nationalities.
"Some have been held for years," it said. "The U.S. authorities must now ensure that all U.S. detentions in Afghanistan comply with international law."
During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.
At Bagram, prisoners’ cases are reviewed by the U.S. military every six months.
The next major detention question likely to face the Obama Administration is what to do with Ali Saleh Kahlah al-Marri, the last ‘enemy combatant imprisoned in the United States. Al-Marri has been held in isolation at a naval brig in South Carolina for more than five years. He has never stood trial or been convicted of any crime.
On September 10th, 2001, al-Marri, who is a citizen of Qatar, arrived in the United States with his wife and children. He had a student visa and said he was here to study computer programming at a university in Peoria, Illinois. That December, he was arrested as a material witness in the 9/11 attacks. In June 2003, al-Marri was supposed to stand trial. But President Bush ordered the military to seize him and hold him indefinitely, thus keeping al-Marri out of court but also putting him into legal limbo.
During the first month of the Obama Administration, there has been virtually no mention of the al-Marri case.
Terms of Confinement
By William Fisher
A leading human rights organization charges that contrary to recent U.S. Government reports that found prisoners at Guantanamo Bay, Cuba, being treated humanely, “The men at Guantánamo are deteriorating at a rapid rate” due to “harsh conditions that continue to this day, despite a few cosmetic changes to their routines.”
The Center for Constitutional Rights (CCR) released a report on the current conditions in Camps 5, 6, and Echo following a press conference convened late last week by Admiral Patrick M. Walsh, the vice chief of naval operations. In his own report on conditions at Guantanamo, delivered to the White House, Walsh determined that conditions at the base meet the standards of the Geneva Conventions.
CCR’s report, “Conditions of Confinement at Guantanamo: Still in Violation of the Law,” disputes that conclusion. It covers conditions at Guantánamo in January and February 2009 and includes new eyewitness accounts from attorneys and detainees. The authors address what they call the continuing abusive conditions at the prison camp, including conditions of confinement that they say violate U.S. obligations under the Geneva Conventions, the U.S. Constitution and international human rights law.
CCR Staff Attorney Pardiss Kebriaei said the GITMO detainees “are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year, or even another day, this has to end.”
“Detainees at Guantanamo have continued to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, and physical abuse and threats of violence from guards and Immediate Reaction Force (IRF) teams,” the report charged.
It claimed the majority of the men being detained “are in isolation. They go weeks without seeing the sun. Fluorescent lights, however, remain on 24 hours a day in Camp 5.” According to the report, “improvements” cited by the military are, by and large, public relations activities rather than meaningful improvements in detainees’ conditions.
The CCR report takes issue with two recent U.S. government pronouncements. On February 13, Colonel Bruce Vargo, commander of the Joint Detention Group at Guantánamo, stated that, “There are no solitary confinement detention areas” at GITMO and “Detainees typically are able to communicate with other detainees either face-to-face or by spoken word from their cells throughout the day.”
CCR attorneys say this means that the men can yell through the metal food slot in the solid steel doors of their cells when it is left open and through the crack between the door and the floor.
The organization also challenged Admiral Walsh’s conclusion that "all detainees are well protected from violence." Walsh said guards or others who engaged in abuse were reprimanded or immediately relieved of their jobs, depending on the nature of the offense.
But Walsh’s report acknowledged that the continued detention of prisoners who have been approved for release has spawned widespread frustration and anxiety, which has led to protests and friction with guards. Fifty-nine detainees have already been cleared for release but remain at the prison because the U.S. says it cannot find countries to accept them.
"We conclude that certainty regarding the detainees' future has a direct correlation to detainee behavior and, therefore, conditions inside the camp population."
Walsh led a 13-day investigation at the military prison, interviewing staff and detainees and conducting announced and unannounced inspections round the clock.
He said he substantiated allegations of abuse that included insults and the preemptive use of pepper spray. Walsh’s report focused on current conditions at Guantanamo and was not an attempt to review its seven-year history.
But CCR and other human rights and civil liberties groups said that solitary confinement has led to the deterioration of the physical and psychological health of detainees, some of whom are force-fed because they are on hunger strikes.
A spokesman for the International Committee of the Red Cross, the only organization with unfettered access to the prisoners, said the group supports the recommendations for increased socialization for all detainees but disagreed with Walsh's conclusion that force-feeding is in compliance with the Geneva Conventions.
"For ICRC it is an issue of human dignity," said Bernard Barrett, a spokesman for the agency. "Freely made choices and the preservation of human dignity are critical."
Their report details multiple cases of abuse occurring in the last month and a half. One detainee in Camp 6 wrote to his attorney in January 2009, “As I told you, we are in very bad condition, suffering from aggression, beating and IRF (Immediate Reaction Force) teams, as well as the inability to sleep except for a few hours. Soldiers here are on a high alert state and if one of us dares to leave his cell and comes back without any harm, he is considered as a man who survived an inevitable danger.”
The CCR report said hunger strikes continue among a large number of men at Guantanamo. “Hunger strikers are brutally force-fed using a restraint chair and often unsanitary feeding tubes, and are beaten for refusing food, a practice that continued within the last month and a half.” Force-feeding hunger strikers is considered by the World Medical Association to be a violation of medical ethics and has continued unabated since President Obama’s Executive Order.
“Detainees are still denied access to communal prayer,” the CCR report said. “Military officials continue to classify hearing a call to prayer through a food slot as communal prayer, which does not comport with the requirements of Islam.” It adds, “There has been no Muslim chaplain at Guantanamo since 2003, despite repeated requests.”
The report also charged that detainees are “subject to body search procedures that require the men to subject themselves to a scanner that visually strips the men naked each time they leave their cells for attorney meetings or recreation. This humiliating and degrading experience, particularly given the men’s strong religious background, has led them to stay in their cells all day, refusing attorney meetings and recreation entirely.”
The CCR report recommends closing Camps 5, 6 and Echo immediately, ending solitary confinement and the religious abuse of detainees, stopping the use of IRF teams and all other physical abuse of detainees, ending the feeding of individuals against their will or under coercive circumstances,allowing detainees immediate access to independent medical and psychological professionals and ceasing the practice of forcible medication.
CCR Executive Director Vincent Warren called on President Barack Obama to “quickly remedy and end the Guantánamo created by his predecessor (former President George W. Bush), not embrace a whitewash of it.”
During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.
CCR has been responsible for organizing and coordinating more than 500 lawyers across the country in order to represent the men at Guantanamo.
A leading human rights organization charges that contrary to recent U.S. Government reports that found prisoners at Guantanamo Bay, Cuba, being treated humanely, “The men at Guantánamo are deteriorating at a rapid rate” due to “harsh conditions that continue to this day, despite a few cosmetic changes to their routines.”
The Center for Constitutional Rights (CCR) released a report on the current conditions in Camps 5, 6, and Echo following a press conference convened late last week by Admiral Patrick M. Walsh, the vice chief of naval operations. In his own report on conditions at Guantanamo, delivered to the White House, Walsh determined that conditions at the base meet the standards of the Geneva Conventions.
CCR’s report, “Conditions of Confinement at Guantanamo: Still in Violation of the Law,” disputes that conclusion. It covers conditions at Guantánamo in January and February 2009 and includes new eyewitness accounts from attorneys and detainees. The authors address what they call the continuing abusive conditions at the prison camp, including conditions of confinement that they say violate U.S. obligations under the Geneva Conventions, the U.S. Constitution and international human rights law.
CCR Staff Attorney Pardiss Kebriaei said the GITMO detainees “are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year, or even another day, this has to end.”
“Detainees at Guantanamo have continued to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, and physical abuse and threats of violence from guards and Immediate Reaction Force (IRF) teams,” the report charged.
It claimed the majority of the men being detained “are in isolation. They go weeks without seeing the sun. Fluorescent lights, however, remain on 24 hours a day in Camp 5.” According to the report, “improvements” cited by the military are, by and large, public relations activities rather than meaningful improvements in detainees’ conditions.
The CCR report takes issue with two recent U.S. government pronouncements. On February 13, Colonel Bruce Vargo, commander of the Joint Detention Group at Guantánamo, stated that, “There are no solitary confinement detention areas” at GITMO and “Detainees typically are able to communicate with other detainees either face-to-face or by spoken word from their cells throughout the day.”
CCR attorneys say this means that the men can yell through the metal food slot in the solid steel doors of their cells when it is left open and through the crack between the door and the floor.
The organization also challenged Admiral Walsh’s conclusion that "all detainees are well protected from violence." Walsh said guards or others who engaged in abuse were reprimanded or immediately relieved of their jobs, depending on the nature of the offense.
But Walsh’s report acknowledged that the continued detention of prisoners who have been approved for release has spawned widespread frustration and anxiety, which has led to protests and friction with guards. Fifty-nine detainees have already been cleared for release but remain at the prison because the U.S. says it cannot find countries to accept them.
"We conclude that certainty regarding the detainees' future has a direct correlation to detainee behavior and, therefore, conditions inside the camp population."
Walsh led a 13-day investigation at the military prison, interviewing staff and detainees and conducting announced and unannounced inspections round the clock.
He said he substantiated allegations of abuse that included insults and the preemptive use of pepper spray. Walsh’s report focused on current conditions at Guantanamo and was not an attempt to review its seven-year history.
But CCR and other human rights and civil liberties groups said that solitary confinement has led to the deterioration of the physical and psychological health of detainees, some of whom are force-fed because they are on hunger strikes.
A spokesman for the International Committee of the Red Cross, the only organization with unfettered access to the prisoners, said the group supports the recommendations for increased socialization for all detainees but disagreed with Walsh's conclusion that force-feeding is in compliance with the Geneva Conventions.
"For ICRC it is an issue of human dignity," said Bernard Barrett, a spokesman for the agency. "Freely made choices and the preservation of human dignity are critical."
Their report details multiple cases of abuse occurring in the last month and a half. One detainee in Camp 6 wrote to his attorney in January 2009, “As I told you, we are in very bad condition, suffering from aggression, beating and IRF (Immediate Reaction Force) teams, as well as the inability to sleep except for a few hours. Soldiers here are on a high alert state and if one of us dares to leave his cell and comes back without any harm, he is considered as a man who survived an inevitable danger.”
The CCR report said hunger strikes continue among a large number of men at Guantanamo. “Hunger strikers are brutally force-fed using a restraint chair and often unsanitary feeding tubes, and are beaten for refusing food, a practice that continued within the last month and a half.” Force-feeding hunger strikers is considered by the World Medical Association to be a violation of medical ethics and has continued unabated since President Obama’s Executive Order.
“Detainees are still denied access to communal prayer,” the CCR report said. “Military officials continue to classify hearing a call to prayer through a food slot as communal prayer, which does not comport with the requirements of Islam.” It adds, “There has been no Muslim chaplain at Guantanamo since 2003, despite repeated requests.”
The report also charged that detainees are “subject to body search procedures that require the men to subject themselves to a scanner that visually strips the men naked each time they leave their cells for attorney meetings or recreation. This humiliating and degrading experience, particularly given the men’s strong religious background, has led them to stay in their cells all day, refusing attorney meetings and recreation entirely.”
The CCR report recommends closing Camps 5, 6 and Echo immediately, ending solitary confinement and the religious abuse of detainees, stopping the use of IRF teams and all other physical abuse of detainees, ending the feeding of individuals against their will or under coercive circumstances,allowing detainees immediate access to independent medical and psychological professionals and ceasing the practice of forcible medication.
CCR Executive Director Vincent Warren called on President Barack Obama to “quickly remedy and end the Guantánamo created by his predecessor (former President George W. Bush), not embrace a whitewash of it.”
During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.
CCR has been responsible for organizing and coordinating more than 500 lawyers across the country in order to represent the men at Guantanamo.
Friday, February 20, 2009
ANOTHER PROBLEM FOR OBAMA: OUR ALLIES
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.”
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.”
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."
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