Rights of detainees

  • 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
    BookTalk
    The Challenge
    How a Maverick Navy Officer and a Young Law Professor Risked their Careers to Defend the Constitution — and Won
    By: 
    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.

  • September 23, 2010
    BookTalk
    Because it is Wrong
    Torture, Privacy and Presidential Power in the Age of Terror
    By: 
    Charles Fried and Gregory Fried

    ACSblog recently talked with father and son Charles and Gregory Fried, who, in spite of differing political views on a number of issues, came together on the issue of torture in their new book, "Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror." Harvard Law School professor Charles Fried is a Republican who served as solicitor general under President Ronald Reagan. His son, Gregory Fried, is chair of the philosophy department at Suffolk University and a self-described independent.

    ACSblog: How did you two come together on the issue of torture, and how did you decide to write a book together?

    Frieds: Ever since 9/11, we had been discussing policy, ethical, and legal questions facing our nation in the wake of the terrorist attacks. But even before that, dinner conversation would often turn to questions morality and politics. Each of us, in our respective academic work, was also writing, lecturing, and teaching about elements of the response to the threat. The revelations coming from Abu Ghraib focused us on the problem of torture specifically, and at a certain point (in the spring of 2008, in fact), we realized that there was a thread connecting the issues of torture, privacy and presidential power. Instead of going on working on these topics separately, we had the inspiration that it might be something of an adventure to do so together. We offered the idea of this book to our wonderful editor at Norton, Bob Weil, and his enthusiasm and encouragement moved us along from there.

    ACSblog: Can you describe how your position on torture differs from the positions of others who have written about this issue?

  • August 16, 2010

    The U.S. government has lost eight out of 15 habeas petition cases in which Guantánamo inmates alleged they or witnesses against them were forcibly interrogated, reports ProPublica, in an analysis jointly published with The National Law Journal.

    The report by the investigative journalism nonprofit assesses the effect of mistreatment allegations on detainees' lawsuits by looking at 31 published decisions, which resolve the claims of 52 captives who alleged they were wrongfully detained. Fifteen of those published decisions were found to contain allegations of mistreatment, ranging from verbal threats to physical abuse labeled as torture, but because large portions of some of the decisions were redacted, the report notes that there may be other cases in which inmates alleged forcible interrogation.

    The judges in these cases rejected government evidence that had been coercively obtained, using forcible interrogations. "Even in the seven cases the government won, the judges didn't endorse aggressive methods," ProPublica reports, noting that in six of those cases, the judge disbelieved the detainees' allegations of mistreatment.

    The report continues:

    The 15 decisions offer the most detailed accounting to date of how information obtained from the Guantánamo inmates through controversial tactics is standing up in court. They come in cases initiated by detainees seeking release via a writ of habeas corpus, not cherry-picked by prosecutors. Criminal law experts say the judges' opinions help explain why the government has decided not to pursue criminal convictions against some detainees. Such evidence would pose even greater problems in criminal trials, for which requirements of proof are more demanding.

    The Obama administration has already said that at least 48 of the remaining 176 prisoners at Guantánamo will be held indefinitely because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. They've said that coercion-tainted evidence is one obstacle.

    The report also notes that the government was successful in only one out of fifteen cases in arguing that the taint of government coercion was eliminated by a subsequent change in location, interrogator or circumstance.

    In all, 53 habeas cases have been decided, of which the government has lost 37, "most because it couldn't produce enough reliable evidence that the men were al-Qaida or Taliban militants," according to the report. More than 50 habeas suits are still pending.

    The report includes two in-depth charts, one documenting "How Judges are Ruling in Cases Where Mistreatment is an Issue" and one containing updated information on all detainees whose lawsuits have been decided by federal judges.

  • August 4, 2010

    In a just-released ACS Issue Brief, Professor Stephen I. Vladeck (pictured right) looks to one high-profile terrorism case as an "an unvarnished example" of how the federal court system can adeptly handle trying terrorism suspects, providing new evidence in the ongoing debate on whether terrorism cases should be tried by civilian courts or military tribunals.

    The case of Ahmed Omar Abu Ali, a U.S. citizen convicted of conspiring with al Qaeda to kill President George W. Bush, raised new and hard questions, Vladeck writes in "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali," but they were questions the civilian criminal justice system is well-equipped to answer.

    "[W]here unique national security concerns are implicated, Abu Ali suggests that courts will attempt to reach accommodations that take into account both the government's interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter's age-old admonition that ‘the safeguards of liberty have frequently been forced in controversies involving not very nice people,' " writes Vladeck (pictured right), a law professor at American University Washington College of Law.

    Abu Ali's case presented the novel question of whether a defendant's Miranda rights were triggered where U.S. officials submitted questions to foreign officers for their use during interrogation. This question, Vladick points out, is not one that applies only in terrorism cases and the court's conclusion that the United States and Saudi Arabia were not engaged in a "joint venture" is applicable to other criminal procedure fact patterns.

    Abu Ali also presented the new challenge of incorporating foreign depositions in a U.S. court proceeding. Judge Gerald Bruce Lee used "creativity and flexibility" to craft a method for performing a live, two-way video deposition that transmitted the proceedings to the Alexandria courtroom, during which defense lawyers were present in both Saudi Arabia and Alexandria, Vladeck writes. Lee's innovation showed how technology can help cabin proposed changes to current procedural rules, by adapting within the present framework, Vladeck adds.