Detainee treatment

  • February 15, 2017
    Guest Post

    *This piece originally appeared in The Des Moines Register. Read the entire post here.

    by Mark Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Few people know that Fred Korematsu, one of the named plaintiffs in perhaps the U.S. Supreme Court’s most troubling racist wartime decision, actually lived long enough to defend some Muslims who were deprived of due process under President George W. Bush. Perhaps there is a lesson here for President Donald Trump and the U.S. Supreme Court.  Let me explain.

    President Trump issued an executive order that precluded citizens from seven mainly Muslim nations to travel here, as well as invalidated many of their visas. He also banned admission of refugees who go through years of security screening.  However, he provided a special exemption for persecuted Christians in these nations. Our country, founded in part on freedom of religion and on the promise of being a sanctuary, became the opposite. Trump enshrined Christianity as our preferred state religion in probable violation of several parts of the U.S. Constitution.

    He justified the order on national security grounds and on the danger of “radical Islamic terrorism,” even though the vetting process for these individuals is thorough. Many of those affected sought to avoid being killed in the Syrian civil war or in other devastated places. Trump omitted from his ban the Muslim nations whose citizens were largely responsible for 9/11.

    Coincidentally, Feb. 19 marks the 75th anniversary of another controversial presidential directive that resulted in the U.S. Supreme Court’s 1944 decision, Korematsu v. United States. There, the court upheld the military incarceration of 112,000 American residents of Japanese descent, mostly citizens. They were interned in desolate camps. They had done nothing wrong. Nonetheless, the military enforced President Franklin Roosevelt’s broad executive order.

  • January 11, 2017
    Guest Post

    by Peter Jan Honigsberg, Professor of Law at the University of San Francisco and Founder and Director of Witness to Guantanamo

    Today marks the fifteenth anniversary of the opening of the prison camp in Guantanamo Bay, Cuba. It is an anniversary I had hoped would never happen. Most people thought Guantanamo would close after President Obama announced on his second day in office that he would shutter the prison within a year. He repeated his pledge to close the prison three more times during his tenure. Yet, today, Guantanamo continues to be a black stain on America and negates our claim to be a global leader in human rights and the rule of law. When America accuses other countries of human rights violations, their leaders point to Guantanamo in response.

    Over the past fifteen years, public interest and information about Guantanamo has been scarce. Since Donald Trump announced that he will “load [Guantanamo] up with some bad dudes,” the prison has been back in the news.

    For the past nine years, “Witness to Guantanamo” has created the world’s most comprehensive collection of filmed stories about the prison camp at the U.S. naval base in Cuba. We have interviewed 146 people in 20 countries. Fifty-one of the interviewees are former detainees. We have also filmed interviews with prison guards, interrogators, interpreters, medical personnel, lawyers and high-ranking military and government officials who have worked in Guantanamo or on Guantanamo issues. We are the only organization in the world recording the voices and faces of one of the most important events in the 21st century for history.

    Fifteen years ago today, on Jan. 11, 2002, the first 20 (out of 780) men were dragged and marched onto an American military jet wearing orange jumpsuits, blackened goggles, earmuffs, masks, mittens and woolen caps. Ruhal Ahmed, a former detainee from England, described how their legs and arms were shackled in what was called a “three-piece suit,” with a belly chain and leg irons digging into their legs, their hands tightly shackled to their waists. Their chains were padlocked to the floor and a strap was put over their chest so that they could not move forward. Some of the lucky men were given drugs to manage the brutal 18-hour ride to Guantanamo.

  • February 17, 2016
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson’s book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published in spring 2016 by the University of Wisconsin Press.

    Most people probably haven’t heard of the unitary executive theory, the radical notion that the president can set aside laws‒even criminal laws‒that, in the president’s view, infringe on executive power. This is a theory that effectively places the president above the law. The Bush-Cheney administration invoked the unitary executive theory to justify, among other things, warrantless surveillance prohibited by the Foreign Intelligence Surveillance Act and torture prohibited by U.S. anti-torture law.

    Vice President Cheney was the administration’s leading advocate for the unitary executive theory, but John Yoo, then a lawyer in the Office of Legal Counsel (OLC), wrote memos explaining it. When Yoo’s once-secret memos were made public, commentators were rightly shocked. As Elizabeth Drew observed, “Yoo…took the view that the president had the power to do pretty much whatever he wanted to do.” In an August 1, 2002, memo signed by his boss Jay Bybee, Yoo concluded that for an act to constitute torture, it must be intended to inflict pain “equivalent to that associated with ‘death, organ failure, or serious impairment of body functions.’” Yoo based this definition on out-of-context language he found in a health care statute. This grotesquely narrow definition of torture allowed the OLC to conclude that waterboarding, a method of controlled drowning in which the lungs are filled with water, was legally permissible. But OLC’s back-up argument went even further, concluding that the president could authorize any interrogation method he or she deems necessary. If the president wants to authorize torture which is, by definition, illegal, the president can simply set aside statutory limits enacted by Congress. This is so, OLC concluded, because the president possesses “inherent constitutional authority” as Commander in Chief to manage military campaigns. “Inherent” authority suggests plenary, unrestricted authority—even extra-constitutional authority that simply cannot be limited by the other branches of government.

    One might think it would now be out of bounds to endorse this theory of unrestrained presidential power. But presidential candidate Ted Cruz has suggested he is very comfortable with the Bush-Cheney-Yoo approach. This is something that ought to make the rest of us very uncomfortable.

  • October 9, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

    Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

    The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

    To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

  • March 12, 2015
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project

    Most Americans pay scant attention to Guantanamo.  In fact, many Americans believe it is closed or only houses convicted terrorists.  However, Guantanamo is still open, holding 122 men, 55 of whom have been cleared for release.

    As little as Americans know about Guantanamo, they know even less about the lives of detainees after they have been transferred out of Guantanamo.  The more fortunate detainees are resettled to their home country, where they can reunite with and be supported by their families.

    However, a number of the detainees cannot return home because of the instability of their home country, their home country does not want them, or they may be tortured or executed on their return.  These men must wait for other nations to accept them.  Initially, nations wanted to help President Obama close Guantanamo and agreed to accept prisoners.  However, as confidence in Obama’s initial pledge to close the detention center has waned, fewer nations are willing to reach out and receive former detainees.

    Nevertheless, because of the tenacity of Special Envoy Cliff Sloan – the State Department official tasked with resettling detainees from July 2013 to December 2014 – several countries have accepted detainees in the past 18 months.  In November 2014, Slovakia resettled two detainees.  One was Hussein Al-marfadi, originally from Yemen.

    In February 2015, the Witness to Guantanamo project interviewed Al-marfadi in a town in central Slovakia.  Although physically and psychologically scarred from 14 years of torture and brutal treatment at Guantanamo, he is an engaging, even-tempered and thoughtful man.  He was never charged with a crime and had been cleared for release years ago.

    Al-marfadi is a born storyteller with an amazing aptitude for details.  Unlike many detainees the project has interviewed, Al-marfadi provided a day-by-day description of his experiences, including comprehensive accounts of the torture and unspeakable treatment he suffered.  Interviews with detainees generally last for two hours.  His interview covered six-plus hours over two days.  Al-marfadi told W2G that it was important for him to tell his complete story.  He explained that his story was not only for history but also for the men still in Guantanamo.