• 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.

  • 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.

  • March 5, 2010
    Guest Post

    By David J. Cynamon, a partner in the Washington, D.C. office of Pillsbury Winthrop Shaw Pittman LLP. Mr. Cynamon represents the Kuwaiti prisoners at Guantanamo.

    The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

    Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

    Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

    Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

  • March 4, 2010
    Sen. Charles E. Grassley and conservative organizations, such as Keep America Safe are accusing nine Department of Justice attorneys of being "terrorist sympathizers." The Washington Post's Carrie Johnson reports that conservatives opposed to the administration's efforts to shutter Guantanamo Bay "have trained their fire on an unusual target: political appointees in the Obama Justice Department who represented detainees earlier in their careers." Johnson notes that Grassley has been badgering the DOJ "for months" about releasing the names of those attorneys. Keep American Safe, a group The Post describes as being affiliated with Vice President Dick Cheney's daughter, Liz Cheney has piled on with an over-the-top YouTube video called "DOJ: Department of Jihad?"

    The video, The Post reports, has now garnered criticism from both Democrats and Republicans. The newspaper cites as an example George Washington University law school professor Orin Kerr's blog post for the Volokh Conspiracy that said the video was akin to something "former Senator Joseph McCarthy would have used ... if he were alive today." Kerr, winner of a prestigious Federalist Society award and a former prosecutor in the DOJ's Criminal Division, as part of the Attorney General's Honor Program, is hardly a staunch backer of much of the administration's policy on terrorism. A former Bush White House attorney Reginald Brown scored the video as being "beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court."

    For more on what he describes "a smearing of Justice Department lawyers," see Adam Serwer's recent article for The American Prospect

  • March 1, 2010
    The Supreme Court today ordered a lower federal court to reexamine a case involving group of Chinese Muslim detainees, Uighurs, at Guantanamo Bay. In Kiyemba v. Obama, the high court was asked whether a federal court can release Guantanamo Bay detainees into the United States. But in Kiyemba, the high court noted that "each of the detainees at issue in this case has received at least one offer of resettlement in another country." The Supreme Court remanded the case to the U.S. Court of Appeals for the District of Columbia to "determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments." In analysis for SCOTUSblog, Lyle Denniston says the high court's "action has two immediate effects: first, it wipes out the Circuit Court's earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government's ‘war on terror.'"