Habeas Corpus

  • November 5, 2009

    A.) The government will not appeal a federal court order to release Guantanamo detainee Fouad Rabia.

    B.) A distinguished, bipartisan group is urging trials in federal court for detainees.

    C.) The town of Amherst, Mass. passed a resolution welcoming "cleared" Guantanamo detainees.

    D.) For a total of $1.26 million, the government settled a case with five men alleging abuse at a New York detention facility in the wake of 9/11.

    (H/T to Daphne Eviatar at The Washington Independent for unearthing most of these stories.)

  • November 3, 2009
    Guest Post

    By Emily Garcia Uhrig, Associate Professor of Law, University of the Pacific McGeorge School of Law

    The Supreme Court will hear argument tomorrow in Wood v. Allen, an Alabama state capital case in which the petitioner, Holly Wood, challenges his death sentence for fatally shooting his ex-girlfriend out of jealousy while she was sleeping in her home.

    Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

    Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.

  • October 20, 2009
    The Supreme Court granted certiorari in a high-profile military detainees' case and combined cases involving a federal interstate commerce law and its jurisdiction over certain rail and motor transportation methods.

    The justices rejected objections from the Obama administration in deciding to hear Kiyemba v. Obama, which involves whether judges can release Guantánamo Bay detainees into the U.S. The Washington Post reports that the case "could set up a major separation of powers battle before the court, which decided more than a year ago that detainees had the right to challenge in federal court their continued detention." The newspaper notes, however, that the case could become moot if "the administration finds a way to relocate the prisoners involved in the case, a group of Chinese Muslims known as Uighers." SCOTUSblog's Lyle Denniston provides analysis of the court's action, writing that the case specifically raises the issue of "whether judges may require the release of Guantánamo prisoners to live in the U.S. itself, but the case has broader implications for all issues surrounding release or transfer of detainees.

    A federal judge ordered the release of the Uighers, but the U.S. Court of Appeals for the District of Columbia sided with the administration's claim that it has the final say on releasing detainees into the country.

    The Center for Constitutional Rights (CCR), which is involved in representing the Uighur detainees, urged the administration to stop fighting their release.

    CCR Executive Director Vincent Warren said, "If President Obama is truly committed to closing Guantánamo, he should help these men restart their lives here in the U.S. They got the wrong men, and have kept them imprisoned for nearly eight years because there was nowhere safe to send them. If we expect the rest of the world to help us end this mess, we have to start by taking some responsibility for cleaning it up ourselves."

    The Post reported that U.S. Solicitor General Elena Kagan, in urging the Supreme Court to decline review of the case, maintained that, "There is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States without regard to immigration laws."

    For more analysis of national security issues, including the treatment of military detainees, see video of a recent ACS symposium on national security and human rights issues and a video/podcast interview with Hope Metcalf, a lecturer and project director of the National Litigation Project of the Lowenstein International Human Rights Clinic at Yale Law School. 

  • October 19, 2009

    Following her participation as a panelist at the recent ACS symposium on national security and human rights issues, Hope Metcalf talked with ACSblog about military detention center at Bagram Air Base in Afghanistan, calling it "essentially a redux of Guantánamo as it was in 2004." Metcalf, a lecturer and project director of the National Litigation Project of the Lowenstein International Human Rights Clinic at Yale Law School, said that "Bagram is still a black box - we know very little and the detainees receive very, very little in terms of process, they receive no access to lawyers, no judicial review of any kind ...." A recent editorial in The New York Times maintained that the current administration faces serious challenges "in bringing" the Bagram military detention camp "squarely within the rule of law and fundamental notions of fairness." Watch Metcalf's interview below or download a video podcast here. Video of the ACS symposium on national security and human rights issues is available here.

  • August 27, 2009
    Guest Post

    By Scott Horton. Horton is an adjunct professor at Columbia Law School and a contributing editor at Harper's Magazine, where he writes the No Comment blog.
    On Monday, Attorney General Eric Holder appointed John Durham, a career prosecutor from Connecticut, to undertake a preliminary examination of a group of cases in which CIA interrogators apparently exceeded even the scope of torture authorized by the now rescinded Justice Department memoranda to see if the circumstances warranted a more thorough criminal investigation. This decision constitutes an important, but very modest, step forward on the torture issue.

    Holder's decision is amply justified by a report prepared by the CIA's Inspector General, substantial parts of which were released Monday. Indeed, reading it we are bound to ask whether Holder is doing enough-whether he has not in fact unreasonably limited the scope of Durham's investigation. Here are a few points to consider.

    1. Torture was approved at the top and implemented with close supervision from senior administration actors. Policies of torture and official cruelty adopted by the administration incorporated new interrogation practices that were up to that point condemned by the United States as torture: this included waterboarding, hyperthermia and sleep deprivation, as now well documented. But the CIA report shows that experimentation was encouraged in a policy that a top officer, Cofer Black, described in congressional testimony with the words "take the gloves off," and CIA agents drew on a range of techniques that seem inspired not by legal guidance and prior practice, but by Hollywood and Fox television: a power drill was turned on, firearms brandished, mock executions staged, threats were made to kill, rape or abuse the children or parents of prisoners. In one case, an agent repeatedly applied pressure to the carotid artery, which feeds oxygenated blood to the brain, until a prisoner reached the point of collapse. In another, prisoners were "buttstroked" with a rifle, and given knee kicks (a procedure documented in the Oscar-winning film Taxi to the Dark Side, which resulted in death to an innocent young Afghan named Dilawar. Roughly half of the case study information remains blacked out, and context suggests that it contains incidents still more gruesome than those disclosed. The report shows CIA supervisors, lawyers and healthcare professionals (most likely psychologists) deeply involved in the process at almost every stage. The notion, therefore, that these were rogue agents off on a lark is absurd. Were the practices employed and documented by this report are practices the Bush White House wanted to see used? That's a pressing question that the CIA report raises without resolving.

    Attorney General Holder has drawn a fine distinction between what the OLC memos explicitly authorized and what was done in excess of the guidance given. It's not clear that this distinction is tenable. If Durham pursues any of these cases, he is almost certain to run into claims from those involved in the interrogation process that they did what they understood to have been authorized based on communications up the chain of command. They will say there was a perpetual green light. And the CIA report contains a great deal of support for this understanding. A good example comes in the practice of waterboarding. When the inspector general established that the limits imposed by the OLC memos had been exceeded, Attorney General John Ashcroft was consulted. According to the report, Ashcroft expressed the view that he was perfectly happy with whatever was done. That reaction is extremely telling about the attitude the Justice Department adopted towards the process, which appears more geared to facilitation than regulation. The record also supports the view that a large part of the communication between Bush officials and interrogators wasn't committed to writing, so it's a reasonable inference that the "edgier" approvals were conveyed orally.

    2. The introduction of torture and cruelty as official practices damaged the morale and reputation of the CIA. The major argument raised repeatedly by Directors Tenet and Hayden against disclosure of the CIA report is that disclosure would damage the morale and reputation of the CIA. But the report squarely addresses that issue. It shows that the torture and abuse practices themselves severely damaged morale inside the agency. In fact, the report was launched as a result of numerous complaints recorded by valued career CIA officers who explicitly said they felt the practices were a violation of criminal law and would likely result in prosecutions of agency personnel. The report shows that the number of persons raising this objection is substantial. And this is supported by the stream of ex-CIA agents who appeared on television the day of the disclosures: Tyler Drumheller, Jack Rice, Bob Baer, James Bamford and a number of others, all welcoming the appointment of a prosecutor and saying that enforcement measures were welcome. By contrast the number of CIA officers involved in and supporting the torture program is extremely limited, likely not more than two dozen figures, led by three veterans who remain in place: John O. Brennan, Steven Kappes and Michael Sulick.