Rights of detainees

  • May 27, 2011

    A bill being pushed by Rep. Lamar Smith that would give the federal government greater power to detain immigrants for much longer periods of time is not only constitutionally suspect, but poor public policy, the American Civil Liberties Union’s Ahilan Arulanantham tells ACSblog.

    Arulanantham, deputy legal director of the ACLU of Southern California, chatted with ACSblog about Smith’s bill, H.R. 1932, following his appearance earlier this week before the House Judiciary Subcommittee on Immigration Policy and Enforcement to present testimony on the measure.

    “The bill would vastly expand the federal government’s ability to detain noncitizens – for months, sometimes years, while their cases are pending in the immigration courts and then on review in the federal courts,” Arulanantham told ACSblog. “And those portions of the bill actually apply to people who have never been convicted of crimes. As it turns out, about half of the people in the nation’s immigration centers have no criminal convictions at all.”

    The measure, he continued, would also allow indefinite, possibly permanent detention, of certain noncitizens who can’t be deported to their countries.

    Apart from the measure’s serious affronts to the Constitution, Arulanantham said it amounts to “extremely bad policy.” He noted that it costs tens of thousands of dollars per detainee, per year to imprison people in immigration detention facilities. The vast majority of those being detained have no criminal records, pose no risk of flight and yet this measure, if enacted, would drain resources from an already strapped federal government.

    Watch Arulanantham’s entire interview below, or download the podcast here. His testimony before the subcommittee is available here

  • April 14, 2011
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

  • February 1, 2011
    Guest Post

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law. 
    Here's what I thought when I heard the Conservative Political Action Conference has decided to honor former Secretary of Defense Donald Rumsfeld with something CPAC calls the "Defender of the Constitution Award."

    As I imagine CPAC is aware, Rumsfeld is the man who signed the very first memo authorizing the torture techniques that later became infamous with the revelations of photos from Abu Ghraib prison. Philippe Sands wrote the definitive book on the subject; it's called "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." The topic is also thoroughly covered in the bipartisan report of the Senate Armed Services Committee, "Inquiry into the Treatment of Detainees in U.S. Custody," which concluded:

  • November 23, 2010
    Guest Post

    By Stephen I. Vladeck, a professor at American University Washington College of Law, and author of a recent ACS Issue Brief, "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali."
    Last week's near-acquittal of Ahmed Ghailani, the first Guantánamo detainee transferred to (and tried by) the civilian criminal justice system, has produced predictable reactions from most observers. Those (like me) who believe that the "Article III" federal courts are competent to handle high-profile terrorism cases have generally portrayed the split verdict as further proof that military commissions are an unnecessary - let alone potentially unlawful - departure from a well-established (and properly functioning) norm. In contrast, those who have maintained all along that anyone accused of being affiliated with al Qaeda is not entitled to the protections of our everyday processes point to the exclusion of coerced testimony and the resulting near-acquittal as proof of the dangers inherent in trying terrorism suspects in civilian courts, and of the need for a forum more likely to secure convictions. Regardless of one's views, I think it's safe to say that no one will be moved off their previous position by the result in this case.

    The one divergent reaction comes in an argument offered by Jack Goldsmith and Ben Wittes, in both a Washington Post op-ed and in a series of posts at their "Lawfare" blog: Rather than wrangle over the suitability of two competing prosecutorial forums that each have their own flaws, Goldsmith and Wittes argue, the government should simply detain individuals like Ghailani without trial. As they write, "Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation."

    Indeed, Goldsmith and Wittes often characterize this position as a middle ground between those who favor civilian trials and those who support military commissions. Say what you will about the merits of their view (and I'll have more to say in a moment), but it's difficult to see how it is in the "middle" of anything. Wartime detention of enemy belligerents and criminal prosecution - even of alleged war criminals - serve wholly distinct goals. To offer the former as an alternative to the latter is to assume that criminal prosecution in any of these cases is not actually about establishing guilt and/or imposing punishment, but is merely a pretext for incapacitation. I'm only an amateur when it comes to the analytical underpinnings of our criminal justice system, but I, for one, am not so willing to make that assumption. Nor is the power to detain without charges a lesser form of the power to prosecute; just ask David Hicks and Salim Hamdan, both of whom have long-since finished serving the sentences imposed on them by military commissions.

  • November 11, 2010
    The Challenge
    How a Maverick Navy Officer and a Young Law Professor Risked their Careers to Defend the Constitution — and Won
    Jonathan Mahler

    By Jonathan Mahler, a best-selling author and a contributing writer for The New York Times Magazine.
    Last week, the long saga of Omar Khadr, who was captured in Afghanistan in 2002 and accused of throwing a grenade that killed an American soldier, finally ended with a plea deal.

    Khadr's trial, which was being held inside a make-shift courtroom on Guantanamo Bay, was supposed to take place over the summer, but was recessed in August after his defense lawyer collapsed during a cross-examination. (He later underwent emergency gall-bladder surgery.) It was another surreal moment in a case that has been full of them - beginning with the government's decision to even prosecute Khadr, who was just 15 years old when his alleged crime occurred. The New York Times recently reported that senior Obama administration officials deeply regret that decision, but feel powerless to change it. One legal scholar, David Glazier, has gone so far as to argue that Khadr's trial is itself a war crime - that the "war crimes" for which he stands accused were not, in fact, war crimes when they were allegedly committed in 2002.

    Six years ago, I was sitting in that same make-shift courtroom when a different military commission trial was suspended, no less dramatically. The defendant was a Yemeni man, Salim Hamdan, a driver for Osama bin Laden, who was picked up in Afghanistan, not far from the border of Pakistan, in the aftermath of 9/11. After six months in U.S. custody in Afghanistan, Hamdan was sent to Guantanamo and eventually assigned a lawyer, a Navy JAG named Lieutenant Commander Charles Swift.