Rights of detainees

  • March 25, 2013
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and Director of the Witness to Guantanamo project and author of Our Nation Unhinged, the Human Consequences of the War on Terror

    Damien Corsetti was an interrogator at the Bagram Air Force Base in Afghanistan in 2002, where, according to The New York Times, he was known as the “King of Torture.”  In 2006, he was prosecuted for alleged abusive treatment he committed while an interrogator, but was acquitted.  Nevertheless, he told our Witness to Guantanamo project that he had mistreated his prisoners.

    When he began working in summer 2002, Corsetti believed in what he was doing.  He thought they were all guilty and, like most Americans, he was angry.  He explained how he had obtained information regarding several alleged plots through his interrogations in time for the U.S. to intervene and prevent the incidents from occurring.  He saved American lives.

    In the months that followed, however, he and other interrogators began to have doubts about their work. They asked a Judge Advocate General, or JAG lawyer, for advice.  The JAG attorney assured them that their actions were legal because the Bush administration had decided not to adhere to the Geneva Conventions. After hearing the JAG assessment, Corsetti felt obligated to follow orders.

    Corsetti told us how he would hood prisoners, tighten the cord at the neck, and then pour water over the hood.  The process wasn’t quite the same as “waterboarding,” but the detainees did experience the sensation of drowning or suffocating.

    He forced prisoners into extremely uncomfortable and awkward “stress positions” for hours.  He noted how the military later renamed the term “stress positions” to “safety positions,” explaining that the safety positions were for the safety of the interrogators and the military personnel on the base, not the detainees.

  • February 26, 2013
    Guest Post


    by Steven D. Schwinn, associate professor of law at the John Marshall Law School in Chicago and an editor of the Constitutional Law Prof Blog. This post is part of an ACSblog symposium on Shelby County v. Holder.

    When the Supreme Court takes up the Voting Rights Act case this week, Shelby County v. Holder, the Justices will focus on this question: Whether Congress had authority under the Fourteenth and Fifteenth Amendments to require certain jurisdictions to gain federal preclearance before making any changes to their election laws.  But lurking in the background of the Question Presented is a curious nod to federalism.  Thus the Court will ask if Congress exceeded its authority, then did it violate the Tenth Amendment and Article IV—provisions that, according to the petitioner, protect states’ rights.

    We might wonder where this federalism concern comes from.  After all, neither the Tenth Amendment nor Article IV limits federal authority because of states’ rights.  Neither provision says anything about the substantive scope of federal authority; and neither provision obviously grants a claim of states’ rights.  Instead, they simply outline the necessary relationship between the federal government and the states in a federal system like ours.  These provisions are, at most, a blueprint for federalism.  They add nothing to the core question of congressional authority, the real issue in the case.

  • February 5, 2013

    by Jeremy Leaming

    Federal courts have avoided legal challenges against President George W. Bush’s construction of counterterrorism policies that included extraordinary rendition where terrorism suspects were secretly shipped to countries well-known for employing torture. The Bush and Obama administrations urged the federal courts to dismiss legal challenges to extraordinary rendition and secret detention sites arguing that they would expose “state secrets.”

    But an exhaustive report from the Open Society Foundations’ Justice Initiative reveals the policies marketed as a way to protect Americans from terrorism, trampled human rights and produced fatally flawed information. Rendition, in particular, “stripped people of their most basic rights, facilitated gruesome forms of torture, at time captured the wrong people, and debased the United States’ human rights reputation world-wide,” write OSF’s Jonathan Horowitz and Stacy Cammarano  about the report.

    The federal government has refused to acknowledge participation in rendition and according to Horowitz and Cammarano more than 50 other governments were also involved though have refused to admit it. The initiative’s report details the brutality and senselessness of secret prisons and rendition.

    In "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition," Amrit Singh, a senior legal officer of OSF’s Justice Initiative, states that “more than a decade after September 11, there is no doubt that high-ranking administration officials bear responsibility for authorizing human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern.”

    But because the government has used the so-called state-secrets privilege to scuttle lawsuits challenging the constitutionality of its counterterrorism work, it has until now been difficult to discern the scope of rendition, its number of victims and other government involvement.

    In the report’s executive summary, it is noted that “based on credible public sources and information provided by reputable human rights organizations, this report is the most comprehensive catalogue of the treatment of 136 individuals reportedly subjected to these operations. There may be many more such individuals, but the total number will remain unknown until the United States and its partners make the information publicly available.”

     

  • November 1, 2012
    Guest Post

    By Rebecca Sharpless, Associate Clinical Professor, University of Miami School of Law


    Two years ago in Padilla v. Kentucky the U.S. Supreme Court ruled that the Sixth Amendment requires that defense attorneys advise their noncitizen clients about the immigration consequences of a plea. The Court recognized what, for decades, the defense and immigration bars have known: competent defense counsel must advise about immigration consequences of a plea. Today, in Chaidez v. USA, No. 11-820, the Court hears argument on the question of whether Padilla governs cases involving federal convictions that predate that decision.

    Chaidez’s defense attorney failed to advise her that pleading guilty to the federal crime of mail fraud would be deemed an aggravated felony, triggering mandatory deportation.  Before Padilla was decided, Chaidez petitioned for a writ of coram nobis under 28 U.S.C. § 1651(a) to set aside her conviction based on ineffective assistance of counsel. After Padilla, Chaidez relied upon the decision to lend support to her argument that her attorney had breached a duty to advise her about deportation.

  • May 29, 2012

    by Jeremy Leaming

    As a presidential candidate in 2008, Barack Obama leveled broadsides against the counterterrorism efforts waged by the administration of George W. Bush. Deep into President Obama’s term many see a continuation if not drastic advancement of Bush counterterrorism policy.

    In an extensive piece Jo Becker and Scott Shane report for The New York Times that Obama has “preserved three major policies – rendition [where prisoners are sent to secretive sites to undergo harsh, often brutal interrogation], military commissions and indefinite detention – that have been targets of human rights groups since the 2001 terrorist attacks.” 

    The story also states that the president, who as a candidate railed against the military prison at Guantanamo Bay, and promised if elected to close it, did not have a plan to convince Congress to shutter the prison.

    A major piece of The Times reporting focuses on the personal involvement of the president in sessions to determine which terrorist suspects to kill or capture. “It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.” The president, The Times reports, will then sign off on who to target.

    In a piece titled “Obama the Warrior” for Salon, Glenn Greenwald highlights the support Obama has garnered from some of the far right architects of the Bush counterterrorism policy, noting a progressive myth that the far right never lauds the president:

    Virtually every one of the most far-right neocon Bush officials – including Dick Cheney himself – has spent years now praising Obama for continuing their Terrorism policies which Obama the Senator and Presidential Candidate once so harshly denounced. Every leading GOP candidate except Ron Paul wildly praised Obama for killing U.S. citizen Anwar Awlaki without a shred of due process and for continuing to drop unaccountable bombs on multiple Muslim countries.