Detainee treatment

  • November 1, 2011
    Guest Post

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

    Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

    There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

    1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

    2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

    3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

    A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

  • July 6, 2011

    At General David Petraeus’  recent confirmation hearing for CIA director, he testified that the “humane” interrogation techniques mandated by the Army Field Manual are almost always sufficient, but that “there should be discussion" about using "more than the normal techniques" in “special cases” of perceived impending catastrophic danger.

    Petraeus’ “endorsement” of the “possible use of inhumane interrogation techniques” may be more revealing than President Obama’s “high-minded talk” renouncing torture, suggests The Huffington Post’s Dan Froomkin in a lengthy article that poses the question: Could torture again become U.S. policy?

    Our nation finds itself at a “morally precarious moment,” as it repudiates torture today but does little to prevent backsliding in the future, writes Froomkin. Last week, the Justice Department announced it would continue with just two investigations relating to the use of torture, two “particularly gruesome fatalities” that serve as “a poignant reminder” of official failure to hold those responsible to account, Froomkin notes

    Though President Obama has renounced torture and emphasized the illegality of many of the interrogation techniques used after 9/11, he has “repeatedly expressed his desire to ‘look forward instead of looking backward.’” As a result, “When it comes to taking action that will decisively deter any future leaders from doing what Bush and Cheney did, Obama's record is slim,” Froomkin writes.

    Despite repeated calls for accountability by human rights groups and official investigators in the military and the Senate, top level officials have escaped prosecution and torture-memo authors John Yoo and Jay S. Bybee continue to lead successful legal careers.

  • June 17, 2011

    by Jeremy Leaming

    Speaking before a packed opening night crowd at the Tenth Anniversary American Constitution Society (ACS) Convention, U.S. Attorney General Eric Holder assailed the efforts by some in Congress to politicize the justice system through a ban on the use of civilian courts in terror-related trials.

    “[P]olitics has no place – no place – in the impartial and effective administration of justice,” Holder said. “Decisions about how, where, and when to prosecute – and this is true for every case, whether it involves brutal terrorists or white collar criminals – must be made by prosecutors, not politicians.”

    Holder delivered his address to more than a thousand lawyers, judges, scholars, law students and policymakers during the opening gala dinner at this year’s ACS National Convention, “Constitution at the Crossroads: Progress Imperiled?”

    He called on ACS members and other progressive allies to work collectively to “reestablish our nation’s moral authority” and “replace fear-mongering with facts” about the crucial role the civilian justice system has played in addressing the war on terror.

    “Here are the facts,” he said. “Every single suspected terrorist captured on American soil – before and after the September 11th attacks – has first been taken into custody by law enforcement – not the United States military. … Since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in civilian courts. Not one of these individuals has escaped custody. Not one of the judicial districts involved has suffered retaliatory attacks.” 

    Without civilian law enforcement and courts, “our ability to disrupt, dismantle, and defeat terror plots; to secure actionable intelligence; to enlist international cooperation; and to punish those who have – and who intend to – harm Americans would be seriously damaged,” he added.

    Holder also praised ACS’s role as a meeting ground for “some of the nation’s most talented and insightful leaders and lawyers, and for thousands of young attorneys and students who give us all great hope for the future that we share and – together – that we must build.”

    And he touted the revitalization of the DOJ’s civil rights division, noting that the Department filed a record number of civil rights criminal cases over the past two years, and the new Access to Justice Office, which “reflects an historic assurance that, at long last, expanding access to legal services is – and will continue to be – a national priority.”

    Holder’s address received widespread media attention, with coverage by The New York Times, CNN, Politico, The Associated Press, The Huffington Post and numerous other outlets. Video of his address is available here.

  • May 26, 2011
    Infringement Nation
    Copyright 2.0 and You
    John Tehranian

    By John Tehranian, the Irwin R. Buchalter Professor of Law at Southwestern Law School and the Biederman Entertainment and Media Law Institute in Los Angeles, California, and a founding partner of One LLP.

    Shortly after taking office in 2009, President Barack Obama announced that he would end the use of Guantanamo Bay as a detention camp for enemy combatants in the war on terrorism.  Although it appears increasingly unlikely that the President will achieve this goal any time in the near future, the eventual closing of the facility would potentially do away with a number of controversial policies.  Of those practices, one of the more unusual was the military’s arguably infringing use of music on the prisoners. The soundtrack to Guantanamo Bay, it turns out, was replete with copyrighted songs meant to addle and unnerve, especially on repeat. And, apparently, the government lacked an appropriate license to publicly perform these songs. 

    As a preliminary matter, the playlist at Guantanamo — at least during the Bush years — was, according to press reports, filled with curious choices. For example, it included Fuck Your God — a particularly bizarre selection considering the Bush Administration’s religiosity and the federal government’s position, through the FCC, on the use of indecent language in other contexts. Guantanamo Bay’s Top Ten List — the songs most frequently played to interrogate prisoners — featured a perverse smorgasbord of heavy metal, children’s music, and (seemingly) patriotic stadium rock:

  • May 5, 2011

    The Obama administration’s striking success at bringing down Osama bin Laden has been sullied by the debate over torture and whether it helped lead to his demise. But American University law school professor William Yeomans writes in Politico that President Obama “has nobody to blame but himself,” for the diversion.

    Yeomans continues that Obama’s failure to “investigate and hold to account those who tortured,” has left the door open for former Bush administration officials to now claim that torture was effective and justified.

    He writes:

    Obama’s refusal to follow through on our nation’s commitment to the rule of law – both domestic and international – allowed the rehabilitation of the Bush administration’s Office of Legal Counsel attorneys, who wrote the memos permitting torture, and the lawless White House officials, who cast aside domestic law, the Convention Against Torture, the Geneva Conventions and a tradition dating to George Washington of humane treatment of detainees by Americans during the conflict.

    Andrew Sullivan examines right-wing pundits’ efforts to push the notion that torture of military detainees was an effective tool in the hunt for bin Laden.