Detainee treatment

  • January 18, 2012
    Guest Post

    Editor’s Note: This piece first appeared at The Huffington Post on Jan. 11, the ten-year anniversary of the opening of the military prison at Guantánamo Bay.


    By Gary Isaac, Counsel, Mayer Brown LLP, and an Advisory Board member for the American Constitution Society's Chicago Lawyer Chapter. Mr. Isaac is also a contributor to The Guantánamo Lawyers: Inside A Prison Outside The Law.


    Today's an anniversary, but there's no reason to celebrate. Ten years ago the first detainees were brought to Guantanamo Bay. Guantanamo has undermined American values and jeopardized our national security for a decade -- that's long enough. So I've joined a group of retired military officers and habeas attorneys calling for Guantanamo's immediate closure. We've launched www.closeguantanamo.org and have initiated a petition urging President Obama to honor the commitment he made, on his second day in office, to close the prison.

    Signatories to our Mission Statement include Col. Lawrence Wilkerson, Chief of Staff to former Secretary of State Colin Powell; Gen. David M. Brahms (Ret.); Rear Adm. Donald J. Guter (Ret.); Rear Adm. John D. Hutson (Ret.); Col. Morris Davis, former chief prosecutor for the Military Commissions at Guantanamo; retired federal Judge John J. Gibbons, who argued the first Guantanamo case in the Supreme Court; along with many other colleagues who've been involved in the Guantanamo litigation.

    Over half the prisoners still at Guantanamo were cleared for release years ago, by an Obama Administration task force made up of the top intelligence and law enforcement officials in the nation. Some were cleared previously by the Bush Administration -- as long ago as 2004. These men are hardly the "worst of the worst" -- they're simply politically inconvenient.

  • January 11, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law.


    Near the end of her majority opinion in Latif v. Obama (the most recent decision by the D.C. Circuit in the Guantánamo habeas litigation), Judge Janice Rogers Brown offered the following observation:

    As the dissenters warned and as the amount of ink spilled in this single case attests, [the Supreme Court’s] airy suppositions [in Boumediene v. Bush] have caused great difficulty for the Executive and the courts. . . . Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.

    For reasons that I elaborate upon below, Judge Brown’s disturbing lament provides an unfortunately appropriate epigraph to mark the tenth anniversary of the detention of non-citizens without trial at Guantánamo.

    Let’s begin with Judge Brown’s suggestion that the “airy suppositions” in Boumediene “have caused great difficulty for the Executive and the courts.” Because the Boumediene Court left the details of habeas review to the lower courts, the only “airy supposition” to which she can be referring is the underlying requirement that the federal courts provide detainees at Guantánamo with a meaningful opportunity to contest the legality of their detention before a neutral decision-maker. Never mind that, according to the Boumediene majority, it is the Constitution itself that requires such an opportunity; as a pure policy matter, why shouldn’t we want the government to have to explain the basis for holding individuals for 10 years or longer without ordinary adjudications of their guilt (or, at the very least, of their ongoing dangerousness)?

    The answers Judge Brown suggests are because such adjudications (1) interfere with the Executive Branch; and (2) “cause[] great difficulty” for the courts. To the former, that certainly isn’t the position of the Obama administration. Indeed, one could perhaps argue that judicial review bolsters such detention by lending a judicial imprimatur to detention in cases in which the government prevails in the courts. Whether or not that’s a convincing rejoinder, though, Judge Brown offers no explanation for how judicial review otherwise interferes with the Executive Branch in any way more burdensome than requiring it to provide minimal evidence satisfying a fairly broad detention standard (especially under the D.C. Circuit’s case law) behind closed doors. One need look no further than the Latif decision itself to see the pains to which the courts have gone to keep sensitive information out of the public record, and there are to date no documented examples of sensitive information being improperly disclosed in the context of the Guantánamo habeas litigation.

  • January 4, 2012

    by Jeremy Leaming

    Apparently consumed by what Rolling Stone’s Matt Taibbi calls the “most meaningless national election we’ve ever had,” the recent enactment of the National Defense Authorization Act, a sweeping law that some constitutional experts argue poses grave dangers to civil liberties, has garnered limited attention from the media.

    In a three-part series for the People’s Blog for the Constitution, Shahid Buttar, in a Q-and-A format, explains why the NDAA, which President Obama signed at the end of December, deserves far more attention for its possible detrimental effects on civil liberties. (The bill does more than authorize billions in military spending, $662 billion to be exact. It also, as Buttar explains, provides the executive branch with potentially far-reaching powers to detain Americans suspected of terrorism-related activities. In signing the bill, Obama maintained he would never authorize indefinite military detention of Americans citizens, and that he would not feel compelled to try all suspects in military tribunals, as the law authorizes. Buttar’s exhaustive series, however, explains why such assurances are wobbly.)

    Buttar, executive director of the Bill of Rights Defense Committee, in his first blog post, “The NDAA: Another assault in the dead of night,” blasts Congress for supporting, with passage of the NDAA, “indefinite military detention of even US citizens.” The version that Obama signed into law contains provisions that only appear to limit the law’s reach, Buttar writes.

    “Apologists for the NDAA,” Buttar states, “forget that laws remain fixed until changed, beyond the terms of particular officials who write them. And the ambiguity created by the law could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers to detain US citizens without a right to trial or Due Process. In the wrong hands, it could be used as a powerful tool to suppress dissent, with predictably catastrophic consequences.”

  • December 21, 2011

    by Nicole Flatow

    Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

    Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

    “It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

    Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

    Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

  • December 15, 2011

    by Jeremy Leaming

    On Dec. 15, 1791 the Bill of Rights was ratified, making today its 220th anniversary. In November, 1941 FDR established Dec. 15 as a day to celebrate the Bill of Rights.

    The Administrative Office of the U.S. Courts is offering some resources for both students and teachers about what the late Bernard Schwartz dubbed the “classic inventory of governmental restrictions that Madison termed ‘the great rights of mankind.’”

    The Obama administration is also joining the celebration. The White House’s Bill of Rights Day proclamation reads, in part, “Throughout our country’s history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America’s promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders’ vision.”

    Others are marking the day, however, by highlighting a piece of legislation – the National Defense Authorization Act (NDAA) – that they argue seriously threatens the tenets of the Bill of Rights, by greatly expanding executive power.

    The Bill of Rights Defense Committee says the NDAA “contains the most potentially oppressive national security powers we’ve seen in our lifetimes, easily worse than any Bush administration policy.”

    Writing for the ACLU’s Blog of Rights, Chris Anders says the NDAA “would authorize the president to send the military literally anywhere in the world to imprison civilians without charge or trail. Prison based on suspicion alone. The power is so sweeping that the president would be able to direct the military to use its powers within the United States itself, and even lock up American citizens without charge or trial.”