Guantanamo

  • June 2, 2009
    Guest Post

    By Ariel Lavinbuk, an attorney at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP and a Principal of the Truman National Security Project

    In recent weeks, President Obama's approach to national security - particularly on issues related to terrorism - has drawn considerable criticism from his base. What began as disappointment over the decision to withhold images of past detainee abuse quickly turned to disillusionment over the continuing use of military commissions. Such concerns now pale in comparison to the almost universal outrage directed at plans to "preventatively detain" certain individuals for a potentially endless period of time. Taken together, these policies have been seen as a betrayal by the left, which has taken to wondering aloud whether President Obama is any different than his predecessor.

    There is merit to some of the concerns that have been expressed, but there is also considerable danger in overlooking what President Obama has accomplished in a very short time, and in underestimating the challenges facing our country. These reactions distract from the considerable work that remains to be done in reforming our nation's response to terrorism.

    In his first four months in office, President Obama has banned all interrogation techniques not listed in the Army Field Manual and guaranteed Red Cross access to all detainees still being held. At the same time, he has loosened Freedom of Information Act (FOIA) standards, released more Office of Legal Counsel (OLC) memos and ordered a review of government classification procedures. These are significant accomplishments. We forget how recently it was that we did not even know who our government was detaining, let alone what it was doing to them. Even better, these actions have inspired renewed confidence in the idea that adhering to our values is a strategic asset, not a liability; indeed, by a 55-to-37 margin, the American public now believes that President Obama's policies have made the nation safer than it was under President Bush.

  • May 18, 2009

    Next week's recess is prompting a flurry of action on the Hill today. One issue not anticipated to go anywhere soon, though, is the closure of the Guantanamo Bay detention facility, which has been stalled by legislators leary of allocating funds that would pay for relocation of detainees.

    IN the HOUSE

    In other detainee news, Speaker Nancy Pelosi (D-Calif.) added fuel to the torture accountability debate by renewing her call for Truth Commissions to invesitgate the issue. While questions linger about whether there is sufficient political traction for Truth Commissions, Pelosi's strong stance on the issue may ease the Speaker's burden to explain what she knew and when as torture policies were being formulated and implemented by the Bush administration.

    The House Energy and Commerce Committee is expected to move forward on climate change bill. But, if it happens, it will be over challenges from those opposed to addressing the challenge.

    And anyone suffering from campaign withdrawal can enjoy The Fix's first look at vulnerable House seats in the 2010 elections.

    IN the SENATE

  • May 8, 2009

    Under a little-known provision of a 2004 D.C. District Court opinion, the government may destroy all records related to the case of Guantanamo detainees, including documents produced by the detainees or their lawyers.

    ProPublica reports: 

    For four years, records in the prisoners' habeas corpus lawsuits challenging the legality of their detentions have been piling up in a secure federal facility in the Crystal City neighborhood of Arlington, Va. Because much of the information is classified, the 750 or so attorneys representing the prisoners are required to do and store all their work on-site.

    ...

    Case files already fill 40 to 50 locked file cabinets, and restricted computer drives hold still more. Documents include captives' letters, drawings and poems, their attorneys' notes from meetings with them, and reports of their interrogations, according to several lawyers who routinely access the files. In some cases they describe the capture, transfer and investigation of prisoners, the identities of their accusers, and the government's reasons for holding them. The lawyers estimate that a quarter to a third of the records have been marked classified.

  • April 28, 2009
    BookTalk
    The Least Worst Place:
    Guantanamo's First 100 Days
    By: 
    Karen Greenberg, executive director of New York University's Center on Law and Security.

    As one of his first acts in office, President Barack Obama has appointed a working group to design detention policy now that Guantanamo is to be closed. For those confronting this daunting challenge, it might prove instructive to look at Guantanamo's very beginnings - a time when lawyers, military officers, and others tried to adhere to the legal standards with which they had been trained and to dissent from a policy that has since come to shame the country. The story of those early days, which I endeavored to tell in The Least Worst Place, is that the international law governing prisoners of war is far more flexible than lawyers and policy makers in the Bush administration claimed. Moreover, adhering to those laws might ultimately have created far fewer problems than neglecting them has.

    On January, 11, 2002, the first group of detainees arrived at Guantanamo Bay, Cuba. Waiting to receive them was Joint Task Force 160, led by Marine Brigadier General Michael Lehnert. To its dismay, the 160 was told that the customary laws did not apply, and that as a result there was no established policy to guide their efforts. One overarching directive was made clear, though -the Geneva Conventions were inapplicable. General Lehnert and his troops could follow the spirit of the Conventions, but they were not to consider them to be binding law.

    For the military, this guidance proved immensely problematic. Without regulations with which to comply, how were they to know what practices to put in place to tend to the custody of the detainees? In this legal void, ostensibly freed from the authority of law, the JTF command staff looked to military lawyers for answers. Accordingly, attorneys at Guantanamo and at U.S. Southern Command struggled to make some sense of this legal vacuum. At SOUTHCOM they worked around the clock constructing a chart of all 143 provisions of Geneva III and specifying which requirements might or might not apply to the prisoners scheduled to be held at Guantanamo. Meanwhile, lawyers at the Pentagon and the Department of Justice (DOJ) were similarly trying to set policy guidelines for the captives - as the string of the DOJ's Office of Legal Counsel memos that later came to light make clear - to justify the exception of the captives from prisoners of war status.