Detainee treatment

  • May 30, 2013

    by Jeremy Leaming

    President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

    As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

    The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

    Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

    Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

    Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

    In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.

  • April 30, 2013
    by Jeremy Leaming
     
    Recent reports about the Guantánamo Bay military prison have documented and confirmed the torture of detainees, and offered new insight into the wobbly legality of military commissions.

    Scores of prisoners remain there and according to a Seton Hall report an elaborate system has been installed to eavesdrop on attorneys meeting with the prisoners, thereby undermining the legitimacy of the military tribunals. The Constitution Project also released an exhaustive report confirming what has been known for years – that torture of prisoners did occur at Guantánamo. Many of the prisoners are on hunger strikes, they see no escape from a place where they are being indefinitely held. “The situation is desperate now,” prisoner Samir Najl al Hasan Moqbel wrote in a recent column for The New York Times.
     
    Today, President Obama, during a White House news briefing, said he still would like to see Gitmo shuttered. Obama promised to close the prison during his first term, but failed. Some reporting said the administration did not have much of a strategy in place for closing the prison.
     
    Obama said, “I continue to believe that we need to close Guantánamo. I think it is critical for us to understand that Guantánamo is not necessary to keep us safe. It is expensive, it is inefficient, it hurts us in terms of our international standing, it lessens cooperation with our allies on counterterrorism efforts, it is a recruitment tool for extremists. It needs to be closed,” The Huffington Post’s Ryan J. Reilly reports.
     
    He continued, “The notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity – even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al Qaeda, we’ve kept pressure up on all these transnational terrorist networks, when we’ve transferred detention authority to Afghanistan – the idea that we would still maintain, forever, a group of individuals who have not been tried, that is contrary to who we are, it’s contrary to our interests, and it needs to stop.”
     
    The Center for Constitutional Rights, which has long represented some of the prisoners, lauded Obama’s comments, but noted the president should not place the entire onus on Congress to close the prison.
     
    For instance, CCR said that Obama “still has the power to transfer the men right now. He should use the certification/waiver process created by Congress to transfer detainees with the 86 men who have been cleared for release, including our client Djamel Ameziane.”
  • April 16, 2013

    by Jeremy Leaming

    President Obama promised but failed to shutter the Guantánamo Bay military prison and has refused to launch an investigation into the use of torture at the prison and other unknown or “black sites.” But groups like Human Rights Watch and many others, including inmates at the prison, strive to highlight the injustices and atrocities of the prison, rendition and military commissions.

    It’s not an easy endeavor in a nation where polls suggest that many people are not terribly concerned about the rights of people who the American government has labeled terrorist suspects. In a piece for The New York Times op-ed page that garnered notice, Samir Najl al Hasan Moqbel, a prisoner at Guantánamo for more than 10 years, explained his reasons for going on a hunger strike. He’s never been charged with a crime, he has been left to languish in a dark hole, where prison officials brutally force-feed him. “The situation is desperate now,” he writes. “All of the detainees are suffering deeply. At least 40 people are on a hunger strike. People are fainting with exhaustion every day. I have vomited blood.”

    It has been widely documented that military detainees have been tortured at Guantánamo and other unknown or “black” sites overseas, with the knowledge of top administration officials in the administration of George W. Bush. In 2011, Human Rights Watch issued a report documenting evidence that top Bush administration officials, including the president, approved of torture. (Office of Legal Counsel memoranda were eventually made public reveling the lengths attorneys took to justify torture.) The Constitution Project, as reported by The New York Times’ Scott Shane, has released an exhaustive report, more like a book, that adds “considerable detail” to the treatment of military detainees. See the group’s Task Force on Detainee Treatment.

    Another report from Seton Hall School of Law provides more evidence that the Guantánamo military tribunals are a sham.

    In “Spying on Attorneys at Gitmo,” the Seton Hall School of Law’s Center for Policy & Research, details a system of “surveillance and recording” devices in “designated attorney-client meeting rooms at the military prison.”

    Law Professor Mark Denbeaux, director of the law school’s policy and research center, said government surveillance of conversations between attorneys and military detainees greatly undermines the already wobbly legitimacy of the military commissions.

  • April 10, 2013

    by Jeremy Leaming

    Though then-presidential candidate Barack Obama often blasted President George W. Bush’s expansion of presidential powers to fight terrorism, once in the White House he quickly embraced those powers which have only swelled during his tenure.

    Earlier this year, Bill Moyers, during a segment, “The Legal and Ethical Case Against Drones,” highlighted a comment President Obama gave early in his first term.

    “Our actions in defense of our liberty will be just as our costs, and that ‘We the People,’ will uphold our fundamental values as vigilantly as we protect our security,” Obama said. “Once again, America’s moral example must be the bedrock and the beacon of our global leadership.”

    The president’s rhetoric, however, does not mesh with what we are discovering about the ramped up use of Reaper and Predator drones to target suspected terrorists. Reporting by Mark Mazzetti for The New York Times provides insight into the “origins of a covert drone war that began under the Bush administration, was embraced and expanded by President Obama, and is now the subject of fierce debate.”

    Part of the debate includes whether the Obama administration has tossed aside some of the fundamental values the nation cherishes, such as due process and being a defender of human rights globally.

    A “white paper,” leaked earlier this year and made public by NBC is apparently a summary of a lengthier document prepared by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC). The white paper makes the argument that a high-ranking government official, like the president, can order the killing of a U.S. citizen integral to or associated with al Qaeda abroad if the person poses an “imminent threat of violent attack” against America, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.” The OLC white paper also asserts that no court oversight of the administration’s targeted killing regime is required.

    The Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights chaired by Sen. Dick Durbin (D-Ill.) will conduct a hearing on April 16* to explore the “constitutional and counterterrorism implications of targeted killings.” According to a statement announcing the hearing, senators will “also explore proposals to increase transparency regarding U.S. drone policy and establish a legal architecture to regulate drone strikes.”

    The administration has endeavored to shroud its policy on drone warfare in secrecy, but release of the OLC white paper and the mounting numbers of civilians killed in drone strikes are making it more difficult to keep the policy under wraps. The ACLU has lodged a Freedom of Information Act lawsuit to force the administration to release the entire memo, for instance.  

    The escalation of drone warfare is likely also not helping Obama’s desire for America to remain a beacon of “global leadership.” As The Times’ Scott Shane reports, since taking office the CIA and military “have killed about 3,000 people in counterterrorist strikes in Pakistan, Yemen and Somalia, mostly using drones.”