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By Liza Goitein – 02/03/12
Crossposted at Balkinization.
Two weeks ago, I made my first trip to Guantanamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.
A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:
“It is illegal to harm, kill or eat an iguana.”
At last! The rule of law has come to Guantanamo!
There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief — as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure or death.” The government has not argued that Congress surely did not intend the law to extend to Guantanamo Bay — as it did when detainees sought to avail themselves of the statutory right to habeas corpus.
As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantanamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantanamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts — holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention — the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.
The government’s propensity to get creative with the law was on full display in the pre-trial hearing in the case of Abd al-Rahim al-Nashiri. Al-Nashiri, a Saudi citizen, is charged with planning the 2000 bombing of the U.S.S. Cole, which killed 17 sailors. Arrested in 2002, al-Nashiri spent the next four years in secret CIA prisons, where (according to a CIA Inspector General report) he was waterboarded, threatened with a loaded gun, and interrogated with a revving power drill next to his head. Al-Nashiri, who faces the death penalty, will likely be the first “high-value detainee” to go to trial — although that may not be until 2015.
The main issue before the Commission at the hearing was attorney-client privilege. A defendant in regular criminal proceedings has a constitutional right to confidentiality in his communications with his attorney. The rights to effective assistance of counsel and due process, as well as the right not to incriminate oneself, would be meaningless if the government could eavesdrop on these attorney-client exchanges.
The government says that the Constitution ends at the tip of Florida; it relies instead on the Military Commission Rules of Evidence. But even those rules recognize attorney-client privilege. “[A] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or the client’s representative and the lawyer or the lawyer’s representative.” Clear enough. Communications between the detainees and their attorneys are like iguanas: protected.
Except when the government says they’re not. In December, Rear Admiral David Woods, the commander in charge of the detention facilities at Guantanamo, issued a policy allowing a team of contractors hired by the Defense Department — a so-called “privilege team,” consisting of intelligence professionals and translators — to inspect the incoming legal mail of detainees involved in military commissions proceedings. At the hearing, al-Nashiri’s lawyers asked the judge to bar implementation of the policy in his case.
The government’s attorneys assured the military judge that there was nothing to worry about, because the contractors were not actually “reading” the mail; they were just looking to see whether any “informational contraband” — defined as anything that the GTMO commander deemed “impermissible or inappropriate” — was in “plain view.” In two days of argument, however, they were able to cite only two types of information that that privilege team might uncover without actually reading a document: classified markings (which are not necessarily “contraband,” as al-Nashiri is entitled to receive some classified information about his case) and diagrams of the detention facilities (an example that prompted visible skepticism on the part of the judge, presumably because of the implausible implication that defense counsel might be conspiring with al-Nashiri to stage a jailbreak). The other examples of “informational contraband” listed in the policy — things like “current political or military events in any country” — could never be detected without the act of reading because they would be embedded in the text of the document. (If you’re asking yourself why al-Nashiri — who has been in captivity for a decade — can’t receive political news about “any country,” you’re not alone.)
Rather than speculate about whether the privilege team might be reading the mail, one of al-Nashiri’s lawyers, Lieutenant Commander Stephen Reyes, asked to have a member of the privilege team testify about what the team actually was doing. Commander Andrea Lockhart, one of the prosecutors, countered that the current practice of the privilege team was irrelevant: the judge in al-Nashiri’s case could place any restrictions on the team that he wished and would have complete control over its actions.
The next day, Lockhart confessed error. She admitted that the team was bound only by the terms of its contract, and neither the prosecutors nor Admiral Woods — who issued the privilege team policy in the first place — knew what that contract said. But Lockhart nonetheless assured the judge that he could enter an order specifying what he would like the contractors to do, and if they didn’t do it, surely whoever was supervising their contract would take some sort of employment action. Perhaps not surprisingly, the notion of an optional judicial order did not give her pause.
The government also repeatedly claimed that Admiral Woods’ policy, which applies to detainees in military commissions proceedings, is no different than the procedure that has been in place for years for another group of detainees — those who have filed habeas petitions in federal court. But when the judge requested a copy of the court order governing the privilege team in habeas cases, he discovered that the order permits the team to inspect incoming legal mail only for physical contraband: weapons, files, or the like. Instead of apologizing profusely for having misled the judge, Commander Lockhart maintained that, in fact, the order permitting inspection only for physical contraband had the exact same meaning as Woods’ policy, which permits inspection for both physical and informational contraband. There was no sign of cognitive dissonance in her presentation. This rule, like so many others, simply didn’t mean what it said.
Judge Pohl was no pushover. When Admiral Woods was late to give his testimony, Pohl scolded the prosecutors and admonished them to have their witnesses ready on time: “I really don’t care what their rank is.” He clearly will not entertain any suggestion that the officers who run the prison also run his courtroom. But by the same token, he appeared reluctant to insert himself in matters relating to the security of the detention facility — the purported reason for the privilege team review. Although he reserved judgment, he signaled that he is at least considering allowing some kind of “plain view” review. Which would simply confirm once again that at Guantanamo, no matter how clearly a rule may be stated, you can never be truly sure what it means or whether it will be followed.
Unless, of course, you’re an iguana.
Tags: Liberty & National Security, Detainee Policy
By Molly Alarcon – 02/03/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
“There’s really no way for shareholders to have any say in how money is being spent, even though it’s their money,” the Brennan Center’s Mark Ladov told Washington Post reporter T.W. Farnam for a piece on corporations contributing to Super PACs.
The Raw Story covers efforts by the ACLU and other advocacy groups, including the Brennan Center, to pass the End Racial Profiling Act.
Think Progress: “The biggest critic of a massive prison privatization scheme in Florida was stripped of his chairmanship of the Budget Subcommittee on Criminal and Civil Justice Appropriation for opposing Gov. Rick Scott’s (R) plan to outsource prison oversight to the lowest bidder.” The privatization of prisons creates perverse incentives for increasing the inmate population while spending as little as possible on their care.
A group of Michigan lawmakers introduced a package of ethics and campaign finance reforms to require greater disclosure by corporations, The Detroit News reports.
Ari Berman writes in The Nation: How the GOP Is Resegregating the South.
Tags: What We're Reading Today
By ReformNY – 02/03/12
Crossposted at ReformNY.
Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics — and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Dan Rockoff.
For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics
NY Campaign Finance:
1. Today, over 100 organizations that support Fair Elections for New York wrote Governor Cuomo detailing the need for publicly financed campaigns, lower contribution limits, and better enforcement. The civil rights, business, faith, grassroots community, good government, environmental, and labor organizations who signed the letter, thanked the Governor for his strong support and expressed their enthusiasm to work with him and members of the Legislature to pass publicly financed elections and other campaign finance reforms during this legislative session.
2. Despite the annual $150,000 contribution limit by individuals to candidates in New York, luxury-apartment mogul Leonard Litwin gave almost $700,000 to candidates in 2011. A study by the New York Public Interest Research Group revealed that Litwin was the biggest individual donor in the state. Litwin was able to dodge the state’s campaign finance laws by utilizing the limited liability company (LLC) loophole, which allows companies to contribute multiple times through affiliated LLC’s, even when the LLC is completely controlled by a corporation or individual who has already reached the maximum contribution limit.
3. Governor Cuomo spoke with reporters about the need for public financing and campaign finance reform after participating in a fundraising event for the Democratic Governors Association. “One of the things we have to work on is getting money out of politics,” Cuomo said. In response to a reporter’s question about the meeting, Cuomo replied, “Your issue of, ‘You are in a room where people contribute money’ — that is the current state of politics and that is (the case for) every elected official in every fundraising forum.”
4. Manuel Ortega, law chairman of the Staten Island Democratic Party, filed a complaint with the FEC against Republican Representative Michael Grimm. The complaint alleges excessive and illegal cash contributions. A key fundraiser of Grimm’s is now being investigated for embezzling millions of dollars from a rabbi’s congregation. According to the New York Times story that Ortega used as the basis for his FEC complaint, unnamed followers allege that Grimm sought donations over the legal limit, and that he sought those donations in cash and from undocumented aliens.
5. The Democrat and Chronicle calls for Governor Cuomo to follow through on his election promises for public financing and campaign finance reform. The newspaper notes that “the governor continues to say the right things” and urges him to “prod the Legislature to deliver.”
Other News Nationwide:
1. In his State of the Union address, President Obama spoke about the “corrosive influence of money in politics.” He called for “a bill that bans insider trading by Members of Congress,” places limits on incumbents’ ability to own stocks in industries they impact, and restricts the ability of bundlers to lobby Congress.
2. The New York Times editorializes that under the federal lobbying law, “Newt Gingrich can legitimately claim that he is not a lobbyist.” The paper stated that Gingrich had “made a great deal of money in Washington peddling his influence, while carefully staying about half-an-inch short of the legal definition of lobbyist.” The paper calls for a better law limiting lobbyist activity and promoting disclosure. Part of the problem is that many Members of Congress use the revolving door—more than 400 former members have become lobbyists or consultants in the last decade.
3. In Massachusetts, Senator Scott Brown and likely Democratic opponent Elizabeth Warren agreed on a plan to stop outside groups from running negative ads. The agreement “requires each side to donate to a charity of the other’s choosing” when benefiting from a third-party ad, and also requires each side to write to outside groups and television station managers requesting a cease-fire. Brown, who is up for re-election to a full term, said that third-party ads “spend millions of dollars from anonymous donors portraying their opposition unfairly and misleading voters.” The question now is whether the agreement is enforceable.
4, In Montana, the State Supreme Court upheld by a 5-2 vote a law banning corporations from making political expenditures. A New York Times editorial praised the Montana Supreme Court, stating that “in Citizens United, the conservative majority turned itself into a copper kings’ court.” The majority rejected Justice Kennedy’s “misguided reasoning” that money does not “give rise to corruption or the appearance of corruption.” The court’s dissenters, however, argued that the Supreme Court’s Citizens United decision dictates the opposite result, and warned that the Supreme Court would not allow Montana to ignore precedent.
Tags: Democracy, Campaign Finance Reform, Public Financing, NY Reform
By Molly Alarcon – 02/02/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
The Associated Press reports on a secret NYPD document that recommends increasing surveillance of mosques and Muslim individuals based solely on their religion.
Senate Democrats plan to hold hearings next month on the influence of Super PACs, MSNBC’s First Read reports.
The California DISCLOSE Act, which would have required greater transparency in election spending, failed a vote in the state Assembly due to nearly unanimous Republican opposition.
Brian Michael Jenkins writes at Foreign Affairs that the National Defense Authorization Act, which affirms murky provisions surrounding indefinite detention, potentially of US citizens, makes it harder to fight terrorism.
Massachusetts: “The State Senate and Governor Deval Patrick are trying to make the best of” the state House’s insistence on passing a harsh 3-strikes law “by attaching a piece of long-needed sentencing reform, but the House of Representatives is so far refusing to accept it.” (The Boston Phoenix).
Tags: What We're Reading Today
By Molly Alarcon – 02/01/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
The Brennan Center’s Adam Skaggs writes at Salon.com that Tuesday’s primary election in Florida showed why lawmakers must act to end the farce of so-called independent expenditures.
The New York Times has an interactive guide to the funding sources of the most active Super PACs, according to disclosure reports released yesterday.
Given widespread disenfranchisement and confusion about laws regarding voting rights for the formerly incarcerated, a Minnesota task force is considering allowing all individuals with criminal convictions to regain their right to vote upon leaving prison. A federal bill supported by the Brennan Center, the Democracy Restoration Act, would enact this change for all voters in federal elections.
About 300 people rallied in Virginia’s capital yesterday to protest a proposed voter ID bill they say evokes racist Jim Crow laws (AP).
“Last month, Barack Obama's administration resisted provisions codifying the right to detain prisoners indefinitely, arguing that putting such language into law was unnecessary and redundant. Now, the administration is using those very provisions to defend its detention of a suspected al Qaeda militant in federal courts.” – Foreign Policy
Tags: What We're Reading Today
By Molly Alarcon – 01/31/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
New York City Councilman Brad Lander echoes the Brennan Center’s Liza Goitein and Faiza Patel in calling for oversight of the NYPD given recent reports of NYPD training practices that incorporated the use of what many are calling an anti-Muslim film (AP).
US Representatives Garamendi and Heinrich say that while civil libertarians were successful in stripping some dubious provisions from the recent National Defense Authorization Act, there is still work to be done to clarify the US’ commitment to due process in its detainee policy, and that passing the Due Process Guarantee Act of 2011 can help (The Hill’s Congress Blog).
NPR reports on a new study of independent campaign expenditures during the 2012 election cycle: nearly half of all political ads are financed by Super PACs.
The Tampa Bay Times editorial board reflects upon a recent US Senate field hearing in Florida on voting rights and concludes, “the state does have a fairness problem, with an election law designed to keep some people from participating in the democratic process.”
“College Democrats castigated the voter-ID legislation announced last week by Iowa Secretary of State Matt Schultz in a statement released on Monday to the Des Moines Register.”
Tags: What We're Reading Today
By Jonathan Backer – 01/30/12
Throughout the 2012 election, candidates have piously condemned Super PACs for lowering the level of political discourse. These same candidates have simultaneously derived enormous gain when these purportedly independent groups used unlimited contributions to tar and feather their opponents. Recently, in South Carolina, Gingrich criticized Romney’s Super PAC for airing inaccurate ads, but the former Massachusetts governor washed his hands of the ads, saying, “I’m not allowed to communicate with a super PAC in any way, shape or form. My goodness, if we coordinate in any way whatsoever, we go to the big house.”
Two politicians, however, have now mustered more than rhetoric to rein in the Super PACs. Last week, U.S. Senate candidate Elizabeth Warren and Senator Scott Brown called for Super PACs and other outside groups to stop running ads in their election. To provide a disincentive for Super PACs to ignore their request, Brown and Warren each vowed to donate 50 percent of the cost of all such ads to charity. Most groups have reluctantly agreed to abide by the request.
Both candidates demonstrated genuine concern for the role of Super PACs in the political system. Brown criticized Super PACs for “trying to buy elections and do[ing] things inappropriately.” Warren praised the agreement as an attempt to move “beyond talk to real action to stop advertising from third-party groups.” Both candidates should be commended for taking concrete steps to change the tone and restore accountability to their electoral contest.
The goodwill of candidates, however, should not be the only barrier to unrestrained and secretive corporate spending in politics. Government needs to restore common-sense rules so that the public can hold outside groups accountable in the post-Citizens United era. Reportedly, Reps. Chris Van Hollen (D-MD) and Robert Brady (D-PA) will soon introduce legislation that would require outside groups to disclose the underlying sources of their funding. Such legislation would be an important first step to ensuring that outside groups are held accountable in future elections.
James Madison defended the role of a robust federal government in our political system by saying, “If men were angels, no government would be necessary.” If all candidates were as attuned to the perils of unlimited and opaque political spending by corporations as Brown and Warren are, perhaps we would not need campaign finance regulation. But there are too many candidates who are willing to rhetorically distance themselves from outside groups while doing nothing to rein in their worst practices. It’s time for government to play a proactive role in protecting our democracy again.
Tags: Democracy, Campaign Finance Reform, Other Reforms
By Molly Alarcon – 01/30/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
The Brennan Center's Faiza Patel and Liza Goitein call for NYPD oversight after an anti-Muslim film was shown during training.
The AP reports that the CIA officer working with the NYPD will leave his post in April. Coordination between the CIA and NYPD for domestic terrorism surveillance has come under intense scrutiny in recent months.
NPR quotes the Brennan Center’s Larry Norden on how voter ID laws could potentially disenfranchise millions.
The New York Times editorial board praises Tennessee’s new rules for judicial ethics and recusals, crafted with suggestions from the Brennan Center.
“The New York State Bar Association is proposing a change to state law that would allow more types of criminal records to be sealed, saying the shift would give offenders who stay out of trouble a better chance to rebuild their lives.”
Tags: What We're Reading Today
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