• 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.

  • July 20, 2010
    Guest Post

    Susan Herman, president of the American Civil Liberties Union, is the author of a recent article in the online edition of the Harvard Law & Policy Review.
    When Liz Cheney released an ad charging that attorneys who had defended terrorism suspects were not fit to work in the Department of Justice, individual lawyers and the organized bar reacted with across-the-board outrage. Some, like former Attorney General Michael Mukasey, took the occasion to argue that the same protection and understanding is due the government lawyers who wrote the memos condoning torture by American agents, because the attacks on the lawyers are "all of a piece."

    In my essay, The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers, I discuss why the role of the defense attorney and the multi-faceted role of the government lawyer are not equivalent. I also discuss the reasons why we have developed clarity about the role of defense attorneys since the dark days following 9/11: the military lawyers who led the way, the organized bar gradually stepping up to the task of defending the Guantánamo detainees, and the Supreme Court deciding a series of cases making a strong statement about the essentiality of the rule of law and lawyers, even at Guantánamo.

    By way of contrast, we have little clarity about our shameful brush with torture - partly because the courts have found a dazzling array of procedural excuses for refusing to hear cases about torture and extraordinary rendition, depriving the victims of their day in court. There is a great deal we do not know about what happened and who was responsible, but there are now few voices calling for accountability. President Obama urges us to just turn the page. I argue that it is a mistake to go forward without first looking back, suggesting that the model of a truth commission might be useful to us.
  • February 17, 2010

    The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.

    The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.

    According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.

    This determination "runs contrary to the evidence," Horton wrote today. 

  • February 16, 2010

    Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

    Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

    Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

    International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

    D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

    SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

  • February 1, 2010
    Guest Post

    by Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide  Service

    On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

    This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

    If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.