"The very core of liberty secured by our Anglo-Saxon system
of separated powers has been freedom from indefinite imprisonment at the will
of the Executive," or so they (Justice Scalia) say.
On Tuesday, the Fourth District Court of Appeals issued two
rulings on the case of Al-Marri
v Pucciarelli. One of these stated
that an enemy combatant held in U.S.
soil may petition a civilian court to be given access to evidence against him
and may present counter-evidence as well.
It has been hailed by the lead counsel on the case, Jonathan Hafetz, as
a rebuke of "the Administration's view of untrammeled executive power,
unchecked by any Court."
But, the ruling was very vague as to how this court
proceeding would be carried out and to what level of access to evidence a
detainee would be granted.
The small gains issued in this ruling were further tempered by
a second ruling stating that the Executive has the power to indefinitely detain
anyone deemed as a wartime combatant, even American citizens, without trial.
The close and highly contested rulings, both decided in
split courts, were surprising considering the typically conservative nature the
Fourth District Court.
Hopefully, the Supreme Court (Mr. Hafetz has confirmed that they will be seeking Supreme Court review of this case) will take heed of Justice Scalia's sentiments concerning
Executive Detention when they consider Mr. al-Marri's case.
Today, the Supreme Court's decision in Boumediene v. Bush was a clear rebuke of the Administration's attempt to deny Guantanamo detainees' basic rights. Another decision, in Munaf v. Geren, upheld the Administration's view that the U.S. government cannot interfere with foreign criminal proceedings, even if foreign detention may result in the torture or death of an American citizen.
Together, these cases present some of the questions facing the U.S. as it moves towards a new post-Bush era detention policy. But without the facts, you can't answer the questions, so here you go:
Just some bits regarding the Boumediene & Omar and Munaf decisions...
Emily Bazelon, senior editor of Slate Magazine, talks about this morning's Supreme Court decision granting habeas rights to Guantánamo Bay detainees on WNYC's Brian Lehrer Show.
Last week's report by the Justice Department's Inspector General reveals that working in the Bush Administration really does mean never having to say you're sorry—or, indeed, anything else you don't want to for that matter. And this applies even when it's your executive branch colleagues who are trying to get you to talk.
The Justice Department's inspector general Glenn A. Fine has issued a thorough and unblinking report about the concerns FBI agents had about the harsh interrogation tactics, possibly rising to the level of torture, that were being used on detainees in Afghanistan, Iraq, and Guantanamo. These were concerns, Fine discovered, that were systematically ignored and discounted by cabinet members and other political appointees. Conspicuously absent from Fine's 437-page opus, however, is any input from one of the most important of those political appointees: former Justice Department leader John Ashcroft. The phrase "Attorney General Ashcroft declined to be interviewed for this review" or its equivalent appears repeatedly throughout the report—often followed by an indication that the report is necessarily incomplete because of it. For instance, due to Ashcroft's absence, we don't know which agency or individual made the decisions regarding what interrogation tactics would be used on specific detainees; whether Ashcroft himself objected to the use of any particular tactics; when he first became aware of his subordinates' concerns; or whether he conveyed those concerns to high-level officials outside the Justice Department and, if so, how those officials responded.
Even as criticism of Guantánamo mounts, Guantánamo's underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as "enemy combatants" al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health....
John Yoo's recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo's memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo's ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo's War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions' legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo's earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo's discredited assertion that the Bill of Rights does not apply to the president's conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt....
If you watch Congress closely, you might have noticed that
they've been buying a lot of beachfront property in New Mexico over the last few years.
America
doesn't torture, President Bush emphatically declared in 2005. Except
for those three people that we subjected to waterboarding.
The 9/11 Commission was given all the information about the
treatment of detainees that they requested.
Except
those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.
We're not eliding our constitutional obligations to the
detainees in Guantanamo. Except that we have been denying them the long-established
right to habeas corpus, the right to see evidence offered against them, the
right to present evidence of their own to exonerate themselves.
We're not monitoring domestic communications without a
warrant in violation of long-standing law.
Except for the five years between September 11th and the time the
program was exposed
by the New York Times.
In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice. And yet it continues to take the bait-hook,
line, & sinker-either by taking no action at all or by enacting laws that
simply codify the Administration's flawed policies.
The latest in this long line of legislative travesties is
the recently-approved Senate version of a bill to amend the Foreign Intelligence
Surveillance Act (or FISA). The debate
over the measure was long, hard-fought, and characteristically full of outright
misinformation. Here are some examples:
(1) "If
Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect. The Protect America Act, which eviscerated some
of FISA's civil liberties protections, expires Saturday. FISA, which has served America's
intelligence community well for over 30 years, remains on the books.
(2) "If
telecommunications companies that cooperated with the administration's
warrantless wiretapping program are not extended retroactive immunity for any
violations of the law they committed, they will not cooperate with intelligence
operations in the future." False.
Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they! It is good public policy to discourage
telecoms from cooperating with illegal surveillance.
(3) "Requiring
the intelligence community to get authorization for surveillance activity from
the Foreign Intelligence Surveillance Court (FISC) will impede government
efforts to stop terrorists."
Unsubstantiated. From the time it was established in 1979
until 2006, the FISC rejected exactly 5 applications from the executive. There's no reason to think that it would not
continue to approve valid surveillance requests if it is permitted to retain a
role in the approval process.
Instead of recognizing these
arguments for what they are-the politics of fear enlisted to further an agenda
of unprecedented government secrecy and unaccountability-68 Senators have once
again placed their trust in the administration by voting in favor of the
bill. They are trusting that the
surveillance targets, which need not be approved by any independent judicial
voice, are appropriate and are not likely to be Americans. They are trusting that the information
gleaned from such sweeping surveillance power is used properly. They are trusting that the communications of
Americans "inadvertently" captured in the course of surveillance operations are
not retained or used improperly.
By trusting rather than verifying,
they are abdicating their responsibility to protect America from excessive executive
power. By not standing up to this
imperial presidency, they are saying that fearmongering works and that Congress
is becoming irrelevant.
Showing a bit
more savvy and resolve than the Senate, the House has thus far refused to fall
prey to these same tactics and will let the Protect America Act expire on
Saturday.One can only hope that the
House will continue to listen
to the voices of those Americans who have grown tired of having their rights
and the rights of their neighbors trampled by this administration.
Today, a federal judge in Miami sentenced Jose Padilla to 17 years. The sentence may be a personal defeat for Padilla; but it is a resounding blow to the current administration’s contention that the American criminal justice system cannot handle terrorism cases.
In May 2002, the FBI arrested Padilla, an American citizen, at Chicago O’Hare International Airport. The government suspected that Padilla was plotting to explode a “dirty bomb” of radioactive material. But instead of charging Padilla with a crime, the Administration took the unprecedented step of declaring him an “enemy combatant” and imprisoning him without charge at a navy brig in Charleston, South Carolina. The government then held Padilla incommunicado and denied him access to his (or any) lawyer or the courts in which he might challenge the accusations against him. Padilla says he was exposed to extreme cold and subject to extreme sense deprivations and other coercive treatment.
In November 2005, after 3 ½ years of military detention, the government brought terrorism-related charges against Padilla. Two things about the indictment stood out. First, the indictment against Padilla made no mention of any plot to explode dirty bombs or blow up apartment buildings. Unnamed government officials suggest there may have been good reason to keep this seemingly germane allegation out of the indictment, namely, that information about the bomb plot was obtained by torture. Secondly, the indictment came down just two days before the government was due to respond to Padilla’s appeal to the Supreme Court. An obvious inference arises: the government feared that the Court would reject its claim that the president could seize people in the United States, designate them “enemy combatants,” and lock them up indefinitely and without charges.
Today’s sentence highlights why the federal courts are equipped to deal with terrorism cases. Padilla’s sentence was no mere slap on the wrist, but a signal that judges don’t coddle terrorists. It shows there is no need to establish an alternative detention system for “enemy combatants.” The Administration’s approach – and continued insistence on the need for special courts to adjudicate cases against our enemies – is not simply unnecessary. The Administration’s view violates the spirit and principles of American justice. It undercuts our commitment to constitutional safeguards and has undermined our moral credibility throughout the world. Padilla’s 17-year sentence serves as a needed reminder: our existing legal system is well-equipped to handle cases like these. There is neither need nor reason to abandon the principles on which this system was founded and which continue to make American democracy worth defending.
Today, a federal judge in Miami sentenced
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