Blog
Detainee Policy
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 Emily Berman – 11/23/11
Earlier this month, in a Guantánamo Bay courtroom, Abd al-Rahim al-Nashiri appeared for the first time since his capture in 2002 in the United Arab Emirates. Accused of orchestrating the 2000 bombing of the U.S.S. Cole, which killed 17 sailors and injured hundreds more, al-Nashiri was arraigned on a litany of charges, including murder in violation of the laws of war and conspiracy to commit acts of terrorism. The U.S. government is seeking the death penalty.
The proceedings bore little resemblance to a traditional criminal arraignment — usually a 5-10 minute hearing. As an initial matter, all of the primary participants (except al-Nashiri himself) had to be flown to Guantánamo for the proceedings. The prosecutors, the defense attorneys, the presiding judge, the media, trial observers from non-governmental organizations (including myself), and members of the families of some of those killed or injured in the U.S.S. Cole bombing all arrived two days in advance of the hearing.
Providing access to observers — a larger group than has been invited to observe hearings in the past — is one element of a recent government effort to increase the transparency of military commission proceedings. The effort has had varied success. To be sure, broader access to the hearings, as well as improvements in working conditions for observers who do make the trip to Guantánamo, are steps in the right direction. Another step in the direction of transparency is the closed circuit television feed that broadcast the hearing at an Army base in Ft. Meade. Although access to this broadcast was limited and it was set up at the last minute, it did permit U.S. media entities unable to send a representative to Guantánamo to observe as well. Yet documents filed in the proceedings are not always available online as quickly as observers might hope, and all aspects of detention camp operations remain shrouded in secrecy, even to those who are present on the Naval base.
Al-Nashiri himself seemed relaxed and exhibited what seemed to be a certain amount of smugness. Sitting unshackled in his white prison uniform, he was engaged with the judge and with his attorneys, and appeared curious about his surroundings. At one point, he turned to the observers sitting behind soundproof glass at the back of the courtroom and waved — an acknowledgement, according to the lead defense attorney Rick Kammen, of being in a space so much larger than any other he had seen since his capture nearly a decade ago. At least one family member of one of the victims, however, found the gesture more sinister. He saw in it an echo of the U.S.S. Cole bombers’ waves to get their victims’ attention before detonating themselves and blasting a hole in the hull of the ship.
The proceedings themselves — lasting more than four hours — addressed a number of issues, only some of which were resolved. First, al-Nashiri confirmed that he wanted to keep his current legal team. In contrast with some other detainees at the Naval base, al-Nashiri seems to have a strong rapport with, and faith in, his attorneys — led by Kammen, an experienced death penalty defense attorney from Indianapolis. He interacted with them before and after the hearing and sought their advice in responding to some of the judge’s questions. When the judge asked al-Nashiri whether he wanted any other counsel, al-Nashiri replied that his current team is “doing the right job.”
Second, in a definitive ruling in the defense’s favor, Judge Pohl issued an order barring Guantánamo staff from reading communications to al-Nashiri from his attorneys labeled as privileged attorney-client communications. For the past several weeks, al-Nashiri’s mail — even mail marked as privileged — had been subject to examination to confirm that the communication directly related to his case. Defense counsel was concerned that information communicated to al-Nashiri in confidence might find its way to Office of Military Commissions or prosecution personnel. It’s a fear that seems reasonable. According to Staff Judge Advocate Commander Thomas J. Welsh’s testimony, at least one linguist brought in to read correspondence written in Arabic was a so-called “J2” — a member of the detention center’s staff who works in intelligence. Employing intelligence personnel to examine al-Nashiri’s legal mail would seem to be overkill if the sole purpose of the review were to confirm that the mail is correctly labeled as privileged. At a minimum, it raises questions with respect to what might happen to other information gleaned from the review.
One issue to watch as the proceedings progress is the impact of the U.S.’s indefinite detention program. The defense sought acknowledgment from the government that, if acquitted, al-Nashiri would remain detained under the AUMF, which (according to the U.S. courts) allows the detention of anyone who is “part of” al Qaeda as a fundamental incident of war. While the government refused to confirm this proposition, it seems clear that the government would in fact continue to detain al-Nashiri under the AUMF even if he were acquitted of committing war crimes — at least in the present circumstances, with Congress effectively blocking any release option. According to the defense, this fact may impact several stages of the proceedings. For example, if al-Nashiri will not be released, perhaps it is safe to provide him more access to information than he would otherwise be entitled to. It could also affect relevant criteria for jurors as well as the instructions they are given. Jurors who perceive al-Nashiri as a dangerous wartime enemy might be reluctant to acquit him, even if they do not believe him to be guilty beyond a reasonable doubt of the specific charges against him, if they believe that acquittal would mean release. The information about al-Nashiri’s eligibility for continued detention could thus affect their verdict.
Perhaps the most surprising issue to arise in the hearing was the lack of clarity on the judge’s powers vis-à-vis those of the Convening Authority, the individual appointed by the Defense Department to oversee various aspects of the military-commissions proceedings and to supervise the Office of Military Commissions. Military commission rules require the defense to procure approval for any expert assistance it wishes to engage. Defense attorneys sought permission from the judge to file any requests for such approval in camera and ex parte, so as to avoid broadcasting their trial strategy to the prosecution — a procedure followed as a matter of course in federal court. The parties, however, were uncertain about whether the judge has the power to order the Convening Authority to accept filings in this manner. Exemplifying the untested nature of the military commission proceedings, even Judge Pohl had no answer. The incident thus represents one of many questions at issue at al-Nashiri’s arraignment — such as the question of whether government officials can read a detainee’s legal mail — that would not arise in federal court or a court martial, but that might need to be litigated as part of al-Nashiri’s military commission.
Finally, it is not clear when the trial will begin. The judge set a tentative trial date for November 2012, but defense attorneys acknowledge that is a highly ambitious schedule. Likely, it will be two or three years before the parties are ready to go to trial. In the meantime, all of the unresolved issues that arose last week will need to be addressed, as well as the many others that are certain to emerge. The government should soon begin to provide the defendant with discovery material — anticipated to number in the hundreds of thousands of pages. The unresolved issues mentioned above, as well as any disputes arising in the discovery phase of the trial, will be the subject of a tentatively scheduled hearing in January 2012. That hearing, as well as the rest of the proceedings in the case, likely will be available on the U.S. mainland via CCTV — though the matters of where that broadcast will be and who will be eligible to attend are, like so many other things in this case, as yet undetermined.
Tags: Liberty & National Security, Detainee Policy
By Emily Berman & Jonathan Hafetz – 08/15/11
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus.
This is the third installment in a three-part series. You can read the first two conversations here and here.
Hafetz is the author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. You can read the chapter Terrorism as Crime.
We hear much less about detention operations in Afghanistan than we do about Guantanamo, but there are still thousands of detainees in military custody in and around Bagram.
Moreover, rumors about a secret Bagram prison — one where detainees are held in isolation and that is off limits even to the Red Cross — persist.
What do we know about the state of American detention operations in Afghanistan, and what opportunities those detainees have to challenge the lawfulness of their detention?
--Emily Berman
Bagram has always played second fiddle to Guantanamo in terms of focusing public attention on human rights abuses by the U.S. Government — even though, for many years, conditions at Bagram were worse.
Congress's current proposal requiring the military detention of terrorism suspects goes beyond anything it has done so far, and represents an unprecedented militarization of the U.S. justice system.
Currently, there are many more prisoners at Bagram than Guantanamo, and some detainees at Bagram are held in secret — at least for limited periods of time. While conditions at Bagram, now known as Parwan, have improved, serious problems remain. Most importantly, detainees there are imprisoned without access to any court, whether U.S. or Afghan. Although the U.S. Supreme Court has recognized a constitutional right to habeas corpus review for detainees at Guantanamo, the Court has not extended that right to detainees at Bagram, and an appellate court has expressly rejected any such right. That Bagram is located in Afghanistan, where the U.S. remains involved in an armed conflict, admittedly complicates court review. But the alternative — holding prisoners at Bagram indefinitely based only on a military tribunal hearing — is worse.
The arguments for habeas review at Bagram will grow stronger if, as I suspect, the U.S. continues to hold at least some prisoners there even after troops withdraw and detention operations are turned over to the Afghan government. The continued detention of prisoners under these circumstances will make it more difficult to argue that Bagram is different from Guantanamo in any meaningful respect.
--Jonathan Hafetz
Another complaint, voiced by Republican lawmakers in the letter to President Obama raising questions about Warsame’s treatment, is that the administration’s actions “directly contradict pending legislation.” The pending legislation they refer to is the House version of the National Defense Authorization Act for FY 2012, which includes multiple restrictions on and requirements for the executive’s handling of suspected terrorists. Perhaps the most dramatic of these provisions requires that certain terror suspects be held in military detention and tried in military courts, rather than being held by U.S. law enforcement entities and tried in criminal courts.
For a moment let’s leave aside the fact that the current Senate version of this bill does not include that provision, as well as the fact that the content of this “pending legislation” is likely to change before it reaches the President’s desk for signature. But regardless of whether this particular military-detention requirement is actually enacted, Congress has already imposed similar conditions. For example, there are restrictions regarding where and under what conditions the President may transfer detainees from Guantanamo, as well as restrictions on using Defense Department dollars to convert facilities on the U.S. mainland into terrorist detention centers.
For many years, it seemed that Congress sat on the sidelines when it came to detention issues. What do you think about the ways in which it has decided to step in?
--Berman
Other than passing the broadly worded Authorization for Use of Military Force just days after 9/11, Congress did little on detention issues until 2005. Since then, Congress has intervened several times, mostly in counter-productive, even destructive ways.
In 2005, and again in 2006, Congress sought to strip the federal courts of jurisdiction to consider the habeas petitions of Guantanamo detainees — an effort the Supreme Court ultimately ruled unconstitutional.
Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
More recently, Congress effectively killed Obama's plan to close Guantanamo, by prohibiting the use of funds to transfer Guantanamo detainees to the mainland United States, as well as restricting the president's ability to transfer Guantanamo detainees to another country.
The current proposal requiring the military detention of terrorism suspects goes beyond anything Congress has done so far, and represents an unprecedented militarization of the U.S. justice system. It's bad enough that the government need not prosecute terrorism suspects and provide individuals in U.S. Custody with a fair trial. This proposal would actually prevent the president from doing so in many cases.
Congress's actions underscore the degree to which the debate over counter-terrorism policy has been distorted by fear and hijacked by political grandstanding. Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
--Hafetz
That point brings me to my last question, Jon. As we approach the tenth anniversary of 9/11, it seems that many of the rules surrounding habeas — where geographically does it extend, what categories of individuals may lawfully be detained, how definitively must the government prove a particular detainee’s connection to Al Qaeda or its affiliates — remain unanswered.
And this past term, the Supreme Court declined to exercise jurisdiction over any of the multiple detention-related cases that came before it. So the Court seems to have stepped out of the detention business, at least for the moment. At the same time, the situation in the world is getting more complicated. Afghanistan is less likely to serve as a terrorist base of operations, but other failed states like Somalia and Yemen seem to be vying to take its place. Al Qaeda proper seems to be in decline, but affiliated or copycat groups interested in attacking U.S. interests continue to pop up.
As this complexity evolves, and in the absence of clear rules set forth by the Supreme Court, where do you think the future of habeas corpus is headed, and who is going to be writing the rules?
--Berman
It does seem like we're entering a new chapter in the future of habeas corpus, with the tragic events of 9/11 now almost a decade behind us. While the legal battles in the "war on terror" have not always produced clear answers, and many important issues remain to be decided, I think several important lessons emerge.
Habeas, I believe, will remain relevant as we begin to focus on new questions, such as counter-terrorism operations in the Horn of Africa and Yemen. Despite its numerous shortcomings, habeas has proven one of the most important checks on executive power. It helped expose abuses at Guantanamo, enabled lawyers to visit the base and represent detainees, and provided some judicial oversight of what once had been a prison beyond the law.
At the same time, the "war on terror" litigation has underscored the vulnerabilities of habeas and the limits of courts generally. Too often, it seems, the executive was able to remain one step ahead of the “Great Writ,” evading accountability by transferring prisoners to new detention sites to which habeas did not extend or using other countries as proxies to mask U.S. control and influence. Judges, moreover, have too often interpreted the habeas right narrowly and deferred excessively to the government. We can see this in the D.C. Circuit's recent rulings in the Guantanamo habeas cases, which sometimes seem little more than an exercise in rubber stamping executive power.
--Hafetz
Tags: Liberty & National Security, Checks & Balances, Detainee Policy, Transparency & Accountability
By Emily Berman & Jonathan Hafetz – 08/10/11
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Warsame case, and whether we can hold the government accountable for deprivations of liberty.
This is the second installment in a three-part series. You can read the first conversation here.
Hafetz is the author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. You can read the chapter Terrorism as Crime.
There was a fascinating story in The Nation last month, reporting about a facility in Mogadishu, Somalia, where the CIA seems to be operating a semi-autonomous detention program in conjunction with Somali intelligence. According to The Nation, “the underground prison is officially run” by the Somali’s national security agency, but “US intelligence personnel pay the salaries of [Somali] intelligence agents and also directly interrogate prisoners.”
Is there any way to hold the government accountable for these deprivations of liberty?
One question these last two stories raise for me — and I’ll want to come back to this — is whether the current administration has a coherent detention policy, or if it’s operating on an ad hoc basis, and whether that’s a good or a bad thing.
But first, I’d like to ask you whether the writ of habeas corpus provides any protection from unlawful detention for prisoners like Ahmed Abdulkadir Warsame or the ones in Mogadishu? And if not, is there any way to hold the government accountable for these deprivations of liberty?
--Emily Berman
The facility highlights the problem of proxy detention — where the U.S. outsources detention to foreign agents or colludes with those agents in order to minimize accountability.
The practice of proxy detention is not new. (In fact, along with the ACLU, I presently represent a U.S. citizen named Amir Meshal in a lawsuit against four U.S. officials who used foreign agents in Kenya, Somalia, and Ethiopia, to imprison him for four months in 2007 without access to his family or the courts).
The story about the facility in Mogadishu highlights both the importance and potential limits of habeas corpus. It underscores why habeas must be available to challenge all detentions by the United States, regardless of location, and why the habeas right must be viewed broadly to reach situations where the U.S. exercises custody or control over a prisoner indirectly, through a foreign agent.
Obama's approach elevates executive discretion over the rule of law.
A district judge in Washington, D.C. previously construed habeas corpus to reach this type of detention (The case, which involved a proxy detention in Saudi Arabia, is entitled Abu Ali v. Ashcroft). While Abu Ali was an American citizen, the habeas right to challenge illegal detention should extend both to citizens and foreign nationals. Indeed, the Supreme Court's 2008 Boumediene v. Bush decision, which recognized Guantanamo detainees' constitutional right to habeas corpus, emphasizes that citizenship is only one of many factors involved in determining whether habeas should be available to a person held overseas.
One recurring problem is that it can be difficult in practice to establish the requisite level of U.S. control over detention for the purposes of establishing habeas corpus jurisdiction, while judges can be reluctant to order discovery into the degree of U.S. control when a prisoner is nominally in foreign custody. However, the danger of precluding such discovery outweighs any difficulties it poses, as it effectively permits the U.S. to interrogate and imprison individuals without accountability or review — precisely the kind of situation where the worst abuses tend to occur.
--Jonathan Hafetz
I want to briefly go back to the Warsame case — the Somali detainee held and interrogated for two months on a navy ship and then brought to the U.S. for prosecution. You’ve probably seen the letter that several congressional Republicans sent to President Obama protesting the way that Warsame was handled. The letter criticizes the President for failing to establish a “comprehensive detention system” outside of Afghanistan and calls on the President to define his administration’s policies on interrogation, detention, and prosecution of terrorists.
Do you think this administration has a coherent policy for dealing with suspected terrorists?
--Berman
President Obama's approach to detention does, to be sure, suffer from a lack of consistency. While Obama has expressed a general preference for prosecuting terrorism cases in federal court, he has maintained the option to treat terrorism suspects militarily — by subjecting them to indefinite detention under the laws of war or prosecuting them in military commissions. In Warsame's case, exercising that option meant two months' of military detention followed by a federal criminal indictment. For others, including those at Guantanamo, it has meant perpetual confinement without trial or prosecutions in a second-class military justice system.
Obama's approach, as I've previously discussed here, gives far too much power to the government to circumvent or dispense with the fundamental constitutional protections provided in the federal criminal justice system. Who receives a federal trial? Who, by contrast, is subjected to the military regime of law-of-war detention or commission prosecution? Obama's approach allows the government to exercise the military option when it lacks evidence, when the evidence is tainted (for example, because it was obtained through torture or other illicit means), or even when the case is too difficult politically to prosecute in federal court (as illustrated by the administration's decision to abandon the prosecution of KSM and the other 9/11 co-conspirators in the face of a virulent political backlash).
Obama's approach, in short, elevates executive discretion over the rule of law. It is, however, certainly preferable to the approach of those lawmakers who would mandate military detention, thus barring the prosecution of Warsame and countless other suspects.
--Hafetz
Tags: Liberty & National Security, Checks & Balances, Detainee Policy, Transparency & Accountability
By Emily Berman & Jonathan Hafetz – 07/28/11
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz assess an unjust detention regime, the role of habeas corpus, and how the Warsame case underlines political tensions at the heart of our approach to terrorism. This is the first in a series of conversations that we will post in the coming days.
Today, I begin an exchange with Jonathan Hafetz, Associate Professor of Law at Seton Hall University Law School, former Brennan Center attorney, and author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. (To read more, please see an excerpt from the book: Terrorism as Crime.)
Jon, thanks so much for taking the time to answer questions and give us some thoughts regarding the detention of terror suspects.
I really enjoyed reading your book. It not only provides a detailed explanation of how America’s detention system developed and spread across the world, but also the crucial role that the Writ of Habeas Corpus plays in preventing unjust detention. Your story ends as the Bush Administration is leaving office, and notes some of the challenges that the new administration would face. Well, the new administration has been confronting these challenges for over two years now. And it’s remarkable to me how many issues that you address in your book remain salient today — much more so than I think either of us hoped or expected when this book went to press.
As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection. As one attorney representing detainees recently pointed out, we used to know the answers to all these questions. Indefinite detention without charge or trial was unthinkable, the U.S. criminal justice system was the place to punish terrorists for their attacks on American interests, and the idea of using torture was anathema. But today all of these issues seem to be on the table for discussion.
As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection.
So, while the Supreme Court’s Boumediene decision confirmed that the detainees at Guantanamo enjoy a constitutional right to habeas corpus, and waterboarding seems to be a thing of the past, have we made any meaningful progress since the first detainee was brought to Guantanamo Bay?
--Emily Berman
I think we have made some progress since the first prisoners were brought to Guantanamo Bay in January 2002, almost a decade ago. At the time, the names of detainees were secret, lawyers were prohibited from traveling to the naval base, and the detainees had no opportunity to access the U.S. court system. In addition, the treatment of the detainees at Guantanamo bordered on, and in some instances amounted to, torture. Today, the names of the detainees are public, lawyers can visit detainees who they are representing (though travel remains costly and difficult), and the Supreme Court has recognized that the detainees have a constitutional right to habeas corpus, which provides them access to the U.S. courts. Conditions, moreover, have improved substantially.
These changes, however, took many years to achieve, causing profound (and unnecessary) suffering and undermining respect for the rule of law. These changes also are limited in numerous respects. Most importantly, the legal structure underlying Guantanamo remains largely intact, and its key features — the indefinite detention of terrorism suspects without criminal charge and the use of military commissions rather than civil courts — are becoming increasingly institutionalized. Further, the public pressure to close Guantanamo — a goal supported by both presidential candidates in 2008 — has vanished. Indeed, the United States is further from closing Guantanamo today than when President Obama was inaugurated. The question now seems not to be whether Guantanamo will close (it will not, at least not in the foreseeable future), but rather how much the prison — and the alternative legal framework it embodies — will expand.
--Jonathan Hafetz
A couple recent stories also suggest that the Obama Administration is exploring additional ways of perpetuating an indefinite detention regime. For example, we learned in recent weeks about Ahmed Abdulkadir Warsame, a man suspected of providing material support to two groups designated by the U.S. government as terrorist organizations: al-Shabab, the militant Islamist group operating primarily in Somalia, and Yemen-based al-Qaeda in the Arabian Peninsula (AQAP). Warsame was captured by U.S. special forces, held incommunicado for two months on a navy vessel in international waters while being interrogated, and then — after being read his Miranda rights and re-interrogated by law enforcement personnel — transferred to the United States for prosecution. This case succeeded in raising objections from both ends of the political spectrum — elements of the political right were outraged by the Obama Administration’s decision to bring Warsame to the U.S. for prosecution, rather than sending him to a military commission. And the political left raised objections to the two months of detention without charge or trial, during portions of which even the International Committee of the Red Cross had no access to the detainee.
What do you think of this “split the baby” approach?
--Berman
The Warsame case highlights tensions at the heart of the United States’ approach to terrorism. Above all, it focuses attention around the legitimate scope of the United States’ continued use of a military, law-of-war based approach to the detention and interrogation of terrorism suspects. In the Obama administration’s view, the U.S. can either prosecute terrorists in federal court (in which case they will be afforded the protections of the Bill of Rights) or subject them to military detention under the 2001 Authorization for Use of Military Force (AUMF) (in which case they can be held without trial and potentially without any judicial review via habeas corpus).
Warsame was held for two months under the AUMF, before he was brought to trial. Not only is the length of his extrajudicial detention problematic (far exceeding the normal constitutional rule requiring presentment within 24 hours) but, under the administration’s view, he could have been held indefinitely without charge or access to court. How long, one might ask, would Warsame have remained in detention if the U.S. government did not believe it had gathered enough evidence (through Warsame’s interrogations or other means) to charge him with a crime?
That Obama was criticized for bringing Warsame to the U.S. for trial shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution.
Additionally, even if one accepts the legitimacy of military detention under the AUMF beyond the battlefield-circumstances recognized in the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, Warsame’s detention raises serious concerns about the AUMF’s scope. Specifically, how was Warsame covered by the statute? Because he was “part of” al Qaeda? A part of AQAP (Al Qaeda in the Arabian Peninsula), which the administration considers an “associated force” within the meaning of the AUMF? While the criminal proceeding may raise interesting questions around Warsame's interrogations and the admissibility of any statements he made while in custody overseas, it is unlikely to address the legitimacy of the government's claimed military detention authority.
One additional point. That Obama was criticized for bringing Warsame to the U.S. for trial (rather than keeping him on a ship or taking him to Guantanamo or Bagram) shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution. Ironically, had someone like Warsame been brought to the U.S. to face indictment in 2002, there would have been no corresponding outcry from the Right. I discuss this dynamic in the final chapter of my book, underscoring how each new incident involving terrorism reignites debates about practices like indefinite detention, military prosecution, and coercive interrogations and underscores the degree to which they have become accepted as a "new normal."
--Hafetz
Tags: Liberty & National Security, Detainee Policy
By Emily Berman – 05/27/11
Crossposted at Huffington Post.
On President Obama's first day in office, he stated unequivocally that his administration was "committed to operating with an unprecedented level of openness in government," leaving behind the culture of secrecy surrounding the executive branch during the previous administration. One key brick in the government's wall of secrecy has been the state secrets privilege, which the executive has invoked to dismiss lawsuits alleging abuses committed under its national security policies, such as extraordinary rendition to torture. After the U.S. Supreme Court declined on Monday to hear a case challenging the government's use of the state secrets privilege in a rendition case, it is time for the president to live up to his promise.
In Mohamed et al. v. Jeppesen DataPlan, Inc., five men alleged that Jeppesen, a subsidiary of the Boeing Company, helped the CIA transfer them to other countries for detention, interrogation and torture. The government successfully argued that the very subject matter of its extraordinary rendition program is a state secret and therefore entirely off limits to the courts. When the lower courts dismissed their case on this basis, the plaintiffs appealed to the Supreme Court to reverse that decision -- an appeal that fell on deaf ears.
By refusing to hear the case on appeal, the Supreme Court leaves in place not only the lower court's decision in Jeppesen, but also several other federal court of appeals decisions that adopt a similar, disturbingly broad, interpretation of the government's right to invoke the state secrets privilege. By acquiescing to the government's overly liberal use of the privilege, these decisions scuttle any hope that the courts will provide either justice for victims of rendition, or accountability for the government officials who designed and carried out these programs.
But it doesn't have to be this way. In fact, shortly after President Obama took office, the Department of Justice reviewed its use of the state secrets privilege, and the Attorney General adopted a policy to bring increased oversight and accountability. Unfortunately, to date, the government has not indicated whether it has enforced this policy.
A key provision of that Justice Department policy, which it announced in September 2009, says that when DOJ invokes the state secrets privilege to prevent a lawsuit from proceeding, but the case raises credible allegations of government wrongdoing, "the Department [of Justice] will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency."
The thorough investigation that could result from such a referral, along with a public report setting out the results -- though certainly no substitute for a plaintiff's day in court -- would bring much-needed accountability to executive branch officials. No longer would the veil of state secrets shield from public view possible violations of individual rights carried out in the name of national security. Moreover, uncovering government wrongdoing would provide plaintiffs, unjustly denied their day in court, an opportunity for at least some form of vindication -- a government report corroborating their complaints.
The Supreme Court's refusal to hear the Jeppesen case makes this review process all the more urgent. Indeed, in dismissing the case, the appeals court recognized that a denial of a judicial forum based on the state secrets doctrine not only "forecloses at least one set of judicial remedies," depriving plaintiffs the opportunity to prove their alleged mistreatment, but also "eliminates further judicial review . . . one important check on alleged abuse by government officials."
But we cannot know whether the Justice Department sees the urgency. Since December 15, 2010, the Brennan Center, joined by 25 other groups and individuals, has twice sent a letter to the Attorney General asking him why, given the credible allegations raised in Jeppesen and similar cases -- such as Arar v. Ashcroft and El-Masri v. Tenet -- no thorough Inspector General report on an investigation has been made public. So we are left in the dark with respect to whether the DOJ is even following its own policy.
The Justice Department's policy was not intended to stop the state secrets privilege from being invoked, nor should it. There are numerous instances when the government must invoke the privilege in order to protect our national security interests.
But once invoked, the current policy can ensure that undisclosed government policies receive the public scrutiny they deserve. The Justice Department's policy can only do so, however, if it is enforced. Mr. Attorney General, please enforce your policy.
Tags: Liberty & National Security, Detainee Policy, Transparency & Accountability
By Liza Goitein – 04/28/11
The Obama administration is requiring Guantánamo detainees’ lawyers to treat the documents setting forth the government’s erstwhile assessment of the detainees as they would treat any other classified documents – even though the documents were recently made public by virtue of an unauthorized disclosure to WikiLeaks. In other words, according to New York Times reporter Scott Shane, the lawyers “are obligated to treat the readily available files ‘in accordance with all relevant security precautions and safeguards’ – handling them, for example, only in secure government facilities.”
This isn’t the first time George Orwell has paid a visit to this country’s information security system. As Shane reports, “[O]nly a document that is properly declassified loses its protections.” Accordingly, despite the widespread availability of the various documents obtained and released by WikiLeaks in recent months – not to mention the public’s familiarity with their contents after a steady stream of news reports – the following restrictions on their use have been proposed or implemented:
In December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chance of getting a government job. The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home. . . . A Times reporter who appeared with a State Department official on a recent panel was advised not to show leaked cables as slide – the official was prohibited from looking at them.
The policy of requiring government employees and authorized clearance holders to ignore the public availability of leaked documents is not merely ridiculous (although it is that); it is a pernicious abuse of the classification system. The executive order that governs classification allows officials to classify information only if its disclosure could reasonably be expected to harm national security. Needless to say, there is no national security justification for attempting to control information that is already squarely in the public domain. To the extent our enemies can use the information, they already have it; the only people who are inconvenienced by the government’s policy are the government’s own employees and others with authorized access, who must play along with the pointless fiction that the information remains secret.
The government’s justification for this nonsensical state of affairs, as described by Professor Peter J. Spiro in Shane’s article, is as follows: “[I]f the government ruled that classified documents disclosed to the public were automatically declassified, that would simply create a more powerful incentive for disgruntled employees to leak.” But the justification is itself nonsensical. Whistleblowers and others who leak government information want that information to become front page news; they couldn’t care less whether authorized clearance holders are officially prohibited from viewing or discussing those news stories.
A far more plausible explanation for the government’s policy – one that is grounded in bureaucratic politics rather than national security considerations – is the government’s desire to retain control over how certain information is used and portrayed in the public domain. For example, as one of the detainees’ lawyers pointed out, decisions about what to do with various detainees (such as the Uighurs) have been influenced by public pressure as much as by legal standards. Accordingly, “it’s important to be able to use these documents to shape and inform the discussion the public square.” The government’s policy prevents the detainees’ lawyers from using the information revealed by the documents to appeal to the public.
This explanation is all the more plausible when one considers what lay behind the decision to classify many of these documents in the first place. At least 150 of the detainee assessments concluded that the detainees were not “enemy combatants” or otherwise suspected of anti-U.S. terrorist affiliations. Far from relying on sensitive intelligence sources or methods to reach this conclusion, dozens of these assessments found that there was simply “no reason recorded” for the individual’s transfer to Guantánamo. There is no legitimate national security justification for classifying such information. It was classified so that the government could continue arguing that Guantánamo contained “the worst of the worst,” without the inconvenience of having to address the evidence to the contrary. Like so many other classified documents, it was classified to prevent public discourse from becoming an obstacle to government policy.
The government should never be allowed to classify information, or prevent its declassification, for any reason other than to protect national security. The President should amend the executive order governing classification to require immediate and automatic declassification of any classified information that has entered the public domain, regardless of how it gets there. More generally, the classification system must be reformed to require more careful consideration of classification decisions and to implement a measure of accountability for officials who misuse the system. The administration should focus its resources on this problem – not on “protecting” information that is available to anyone with a newspaper subscription, television, or internet connection.
Tags: Liberty & National Security, Detainee Policy, Privacy & Profiling, Transparency & Accountability
By Liza Goitein – 01/25/11
The following is an excerpt from a column I wrote, which appeared in The National Law Journal on January 24.
Congress' attempt to ban detainee transfers is a textbook case of political interference with prosecutorial decision-making. At best, it is "political" in the original, nonpejorative sense of the word — it is based on broad considerations of how to govern the body politic, rather than the narrower, case-specific questions that prosecutors may appropriately consider. At worst, it is "Politics" with a capital "P" — the bitter party politics that characterize almost every facet of legislative activity in today's Congress. And there is plenty of reason to think the worst, as the reasons lawmakers have offered for their opposition to civilian trials make little sense.
Take, for example, the notion that military commissions will be more effective than civilian courts at bringing terrorists to justice. Since Sept. 11, 2001, there have been more than 200 terrorism convictions in civilian courts, while military commissions have produced only five convictions (and even these are on shaky legal footing due to constitutional flaws in the process). True, the latest terrorist to be convicted in a civilian court was acquitted of all but one charge, but this fact will not seem particularly significant to him as he serves out his sentence of 20 years to life in a maximum security prison.
Lawmakers' claims that acts of war must be prosecuted in military commissions are equally off-base. Acts of terrorism directed at U.S. citizens are violations of U.S. criminal law, and U.S. courts unquestionably have jurisdiction over them. An appropriately constituted military tribunal may share jurisdiction over crimes that also constitute violations of the law of war, but scholars agree that "material support for terrorism" and "conspiracy" — the primary charges at issue here — don't qualify.
Least convincing of all is the idea that housing suspected terrorists in the United States poses a security risk. Terrorists have been held in U.S. prisons for decades, and no one has ever escaped from a so-called "supermax" prison. Lawmakers may claim that their hands are tied by the wishes of their constituents, but in fact, those same lawmakers are the ones who stoked their constituents' "not in my backyard" fears in the first place.
Partisan politics alone explains the transfer ban. If Khalid Sheikh Mohammed and other alleged Sept. 11 plotters were convicted in civilian courts, the Obama administration would rightly receive the credit for bringing them to justice. Moreover, the convictions would serve as a repudiation of the previous administration's policies. So Republicans have masterfully (albeit wrongly) portrayed trials in civilian courts as risky and inappropriate. Tired of getting beat up on this issue, and lacking the internal discipline to launch a counterattack (or even an effective defense), Democratic lawmakers have essentially given up, reportedly agreeing to the transfer ban in exchange for Republican support of the "don't ask, don't tell" repeal.
View the entire column here.
Tags: Liberty & National Security, Detainee Policy
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