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.
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.
Last month, the Supreme Court handed down a 9-0 ruling in Carachuri-Rosendo v. Holder, clarifying the definition of an "aggravated felony" for purposes of the Immigration and Nationality Act (INA). The Court held that although Carachuri-Rosendo could have been charged with a federal felony, the mere possibility of such charges does not constitute a conviction for an "aggravated felony." The government must actually obtain a conviction before imposing a punishment or seeking automatic deportation premised on that conviction. It is a shocking feature of U.S. immigration law that such an obvious-seeming point needed any clarification.
Jose Carachuri-Rosendo is a legal resident who has lived in the U.S. since age 5. Following a 10-day sentence for the unauthorized possession of a single Xanax pill, federal immigration officials placed Carachuri-Rosendo into automatic deportation. His only prior conviction involved a 20-day sentence for the possession of less than two ounces of marijuana. Despite the fact that Carachuri-Rosendo had never been convicted of a felony or of any federal crime, the federal government attempted to characterize his second 10-day state prison sentence as an “aggravated felony”—a determination that authorized automatic deportation.
The possibility that such a minor offense could result in a harshly disproportionate punishment like deportation is not the most frightening aspect of this case. More troubling is the government's stance that “conduct punishable as a felony” should be treated the same as an actual felony conviction. This “hypothetical federal felony approach,” as the Court called it, would have allowed misdemeanors, state convictions, and other minor offenses to be treated as federal felonies for the purposes of immigration law. Such an outrageous denial of due process is something we would not tolerate in any other area of law.
The Court unanimously rejected this hypothetical felony approach in clarifying the definition of "aggravated felony." As Justice Stevens wrote for the unanimous Court, “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’”
Unfortunately, the problem of punishing immigrants based on hypothetical offenses is still possible under other INA provisions not immediately addressed by this ruling. Immigration and Customs Enforcement (ICE), for example, has relied on the same hypothetical approach in pursuing "criminal aliens" eligible for detention and deportation. Under the INA, the term "criminal alien" includes any legal or illegal immigrant who has committed a "crime of moral turpitude" or any crime “for which a sentence of one year or longer may be imposed.”
Several ICE initiatives, such as 287(g), the Criminal Alien Program (CAP), and Secure Communities, have targeted criminal aliens by building partnerships between ICE and local law enforcement agencies. Through these initiatives, ICE receives information about immigrants who are booked by local police or held in state and local correctional facilities. These initiatives purport to target dangerous "criminal aliens" before they can be rereleased into the American public. However, there is growing evidence that ICE is using these programs to detain and deport far more than just dangerous criminal aliens.
Language in the INA authorizes ICE deportation of anyone "convicted of a crime for which a sentence of one year or longer may be imposed.” Using essentially the same hypothetical approach that the Court invalidated in Carachuri-Rosendo, ICE is treating misdemeanors as felonies for the purposes of immigration law. The actual sentence a defendant receives is not important so long as a longer sentence could have been imposed. A petty offender sentenced to 10 days for possessing an unauthorized prescription drug can still be pulled into immigration detention or deportation, merely because a larger sentence was available.
ICE has taken its authority to deport criminal aliens and used it to gather information about all immigrants passing through state and local police custody. Studies of ICE enforcement under 287(g), CAP, and Secure Communities indicate that even immigrants who are acquitted or whose charges are ultimately dropped are often targeted for detention or deportation. A study of CAP by the Warren Institute at UC Berkeley Law School found that in Irving, Texas that 98% of ICE detainers were issued against individuals charged with misdemeanor offenses.
These initiatives are meant to remove dangerous criminal aliens, not petty offenders or any immigrant who has contact with a police office. As former NYC District Attorney Robert Morgenthau noted in a recent article for the Wall Street Journal, current ICE practices make immigrants less willing to report crimes and risk destroying trust between the police and immigrant communities.
The Carachuri-Rosendo decision should encourage ICE and DHS to rethink the way they go about apprehending criminal aliens. Enforcing federal immigration laws, particularly against violent criminals, is important to the continued security of the country. But we should not be sacrificing our commitment to the rule of law in order to achieve that objective. It diminishes our nation to treat non-felons as felons and to punish non-criminals as criminals simply because the people involved were born outside the United States.
This listserv is a forum for policy advocates, civil legal aid attorneys, and others interested in contributing to efforts to fix the restrictions on LSC-funded legal services organizations.These restrictions unfairly hurt low-income families and undermine our nation’s promise of equal justice.
The LCCR Legal Services Working Group Listserv is a place where concerned advocates can share news and strategies related to the continuing fight to fix the restrictions.
To post a message to the listserv, simply send an e-mail to legal_services_working_group@googlegroups.com.If you are having any problems with the Listserv, please contact Neeta Pal at Nabanita.Pal@nyu.edu.We look forward to reading your posts!
The Federal Bureau of Prisons today invited the public to comment on a proposed rule[pdf] on units that house prisoners suspected of low-level links to terrorism. The Bureau refused to seek public comment for years, all the while continuing to operate, and indeed expanding, the new units—dubbed “Communication Management Units” or “CMUs” because of the severe limits they place on prisoners’ ability to communicate with the outside world. The Bureau changed course only after civil liberties advocates brought suit under a law that requires the government to seek public comment when making major changes in policy.
Seeking public comment, however belatedly, is a step in the right direction. But the proposed rule itself still suffers from all of the flaws of the existing regime, and is in some respects even more problematic. The government must now demonstrate that it is serious about the public comment process by working to improve the proposed rule in response to comments it is sure to receive.
First, the final rule should ensure that the government places the right people in CMUs. The Bureau locked a prisoner away in one such unit even after his sentencing judge, a Reagan appointee, described him as “not a terrorist.” The judge continued that the prisoner had “engaged in model citizenry,” posed no threat of recidivism, and had “demonstrate[ed] his dedication to his four-year-old son” – a son with whom he now has almost no communication due to his placement in a CMU.
The rule, as currently drafted, threatens to send other prisoners to CMUs without good reason. The new rule contains vague and extremely broad standards, allowing the government to place a prisoner in a CMU for any of five reasons, including where the government claims there is “any” evidence of “potential” threat to prison order caused by a prisoner’s communications.
The proposed rule also lacks adequate procedures to prevent unnecessarily placing prisoners in the units. Under the proposal, prisoners who want to challenge their designation to a CMU can do so only by filling out an administrative grievance, a written form. In contrast, federal prisoners placed in other types of restrictive units have a right to live hearings where they can call witnesses and present evidence in their defense. And in the past, the government has refused even to consider grievance forms not filed within 20 days of when a prisoner lands in a CMU, even though placement in the units is indefinite. Nothing in the proposed rule suggests that the government will change how it handles the forms.
The rule would also restrict communications more than necessary. The government’s proposal would permit CMU prisoners a single fifteen-minute telephone call and a single hour-long visit per month – even less phone and visitation time than CMU prisoners receive now, and far less than most prisoners in the federal system. There is no reason to think that existing restrictions have proven too permissive. Indeed, more telephone and visitation time would not pose a security risk because, as the proposal itself says, the government monitors the communications of CMU prisoners constantly. At most, monitoring more communications would cause a minor increase in administrative costs – and such costs would be well worth it. Cutting prisoners off from the outside world puts us all at risk. Prisoners who lose touch with their families and communities while in prison commit more crimes upon their release.
It is not too late to correct the flaws in the proposed rule. Members of the public can submit comments until June 7, and the government must review those comments before finalizing the rule. The final rule should reject restrictions that are unnecessary and counterproductive, and make sure that only the right prisoners end up in CMUs.
John Yoo, Jay Bybee and the other government lawyers who penned the infamous Bush-era torture memos are off the hook, according to the U.S. Department of Justice. Late last month, the department cleared them of all charges of professional misconduct. In so doing, DOJ claimed that "the public's ability to make its own judgments" about wrongdoing on the part of the torture team is more important than whether DOJ found ethical violations.
In truth, the investigation failed to uncover key facts — predicate information that would make a public debate possible. The investigation reached only DOJ lawyers, not the White House and CIA officials who may have pressured them to distort the law and sign off on torture.
Even the limited facts revealed by the investigation are troubling. Yoo told investigators that the president has the authority to order not only torture but the massacre of entire villages. In discussing whether interrogators could terrify a prisoner afraid of insects by putting him in a box and unleashing a bug into it, Yoo asked: "[D]o we know if Boo-boo is allergic to certain insects?" Yoo called one of the torture memos the "bad things opinion."
Lawmakers have opened another front in their war on Obama’s war on terrorism—this time implying that political appointees in the Justice Department have their loyalties in the wrong place. In recent weeks, Sen. Charles Grassley (R-IA) asked the Attorney General to list appointees who advocated for Guantanamo detainees prior to joining the Department. When Attorney General Holder declined, GOP representative Peter King (R-NY) voiced confusion: why wouldn’t Holder reveal the names of appointees who had “represented terrorists”?
Attorneys who represent unpopular clients play a key role in our justice system; in so doing they uphold the highest constitutional values and traditions of our country. We rely on same values and traditions, in fact, to separate the guilty from the innocent and to convict only those deserving of punishment. Our legal system—and the protections it affords—is not just for those who are parties to criminal proceedings. It’s also for the rest of us. This legal system—and the rules on which it is predicated—works to ensure that no matter how heinous the crime, our method of bringing the guilty to justice does not replicate their barbarity. Regardless of how high passions run, we do not abandon the elements of our legal system—including the right to a lawyer—that guarantee the most accurate results. Abiding by the rules of this system is how we lash ourselves to the mast, and ensure that, even in the most tumultuous times, we do not allow ourselves to adopt tactics inconsistent with our values and likely to lead to inaccurate results.
Implications that those who represent the men held at Guantanamo, who insist that they deserve zealous representation and fair trials, are somehow aiding the enemy are not merely attacks on those attorneys. They are attacks on this very system and its insistence that we do not allow our prejudices or our fears to drive us to lawlessness.
The constitutional entitlement to an attorney—and attorneys’ professional ethical obligations to provide zealous representation of every client, no matter what acts they might be accused of having committed—is part of this system. It’s not surprising that attorneys who represented Guantánamo detainees qualified for Justice Department positions. A lawyer’s decision to represent a detainee no more disqualifies her from handling detainee issues than a lawyer’s prior experience as corporate counsel disqualifies her from work with the Justice Department’s Antitrust Division.
Didn’t we abandon years ago the inane notion that there is something seditious about attorneys who advocate on behalf of terror detainees?
In 2007, a Defense Department official called for corporations to boycott law firms who represented “terrorists” at Guantanamo; he was roundly criticized. And not just by the attorneys at issue, but by the editorial boards of major U.S. newspapers—the Washington Post, LA Times, and New York Times, to name a few—and by the deans of several prominent U.S. law schools. The Department of Defense itself explicitly repudiated the official’s remarks.
Everyone shares an interest in making our nation more secure. But sacrificing the essential elements of our justice system is no way to pursue the goal of security. Especially when that sacrifice is motivated by unfounded fear.
Make no mistake about it: claims that the Administration has “brought al Qaeda lawyers inside the Department of Justice” incite baseless fear; this in turn, lowers public tolerance for the constraints imposed by rule of law. But in throwing off those constraints, we throw away, too, the very rules designed to incapacitate dangerous individuals.
These allegations, however, lack even the veneer of credibility. Is it remotely plausible to consider Deputy Solicitor General Neal Katyal an “al Qaeda lawyer” because he worked on a behalf of a Guantánamo detainee in a Supreme Court case, Hamdan v. Rumsfeld, in which the majority of the Justices agreed with him? Does the majority opinion in this case raise suspicions about the Supreme Court majority in Hamdan as well?
As a nation, we face unique challenges, including terrorist threats. We must meet these with the same convictions and in the same spirit with which we face all other threats: with a strong sense of who we are as a country and a firm grasp on the values that make that country worth defending. Doing so can only serve to strengthen our justice system, thereby increasing both our safety and our freedom.
On Feb. 23, the Supreme Court heard arguments in Holder vs. Humanitarian Law Project, a first Amendment challenge to a Patriot Act section that bars support -- including speech -- that might be interpreted as unintentionally aiding organizations the U.S. deems terrorist.
The Brennan Center’s amicus brief, filed on behalf of academics and a media organization, raises questions about the consequences of criminalizing well-intentioned communications with or about terrorist groups. Based on the notion that this type of communication is vital to public inquiry, education, and knowledge, and that academics and journalists must be able to communicate with terrorist groups in order to research and report on the problem of terrorism, the brief suggests the statute could be interpreted in ways that hobble legitimate, professional activities that enhance public knowledge.
During oral arguments, the Justices evinced skepticism about the government's interpretation of the material support laws and expressed concern about free speech implications.
Undermining the
protection of civil liberties. Cutting back on congressional oversight.
Allowing the FBI to spy on Americans at its discretion based on broad claims
about national security needs. Sound like a Bush-era congressional
session? In fact, this was the tone that
underlaid the debate in a recent Senate Judiciary Committee meeting as they considered a bill
to reauthorize several expiring provisions of the USA PATRIOT Act ("Patriot
Act"). Senators who had unanimously supported a reauthorization bill in 2005
(that added restrictions to the powers granted in the original Act), now
unquestioningly caved to the Obama Administration's demands to limit any
additional safeguards, approving legislation that they would have deemed
unjustly deferential just a few years ago. In doing so, they prioritized
partisanship and politicking over the civil liberties of Americans.
The
first blow came when Chairman Leahy introduced his and Senator Feinstein's bill
for the reauthorization of the expiring provisions. It was a compromise measure substituted for
the bill that Sen. Leahy had originally proposed, which significantly cut back
on the privacy and civil liberties protections of that original Leahy bill. A
week later, the Committee continued the trend by rejecting a number of
important amendments proposed by Senator Feingold and others, which would have
reformed several aspects of the original Patriot Act to provide much needed
privacy protections as well as increased congressional oversight. With senators from both sides of the aisle
praising each other for their efforts at compromise and collegiality, the
Committee approved the USA PATRIOT Act Extension Act of 2009.
Failed Privacy Measures
One amendment
rejected by the Committee concerned Section 215 orders, which allow the FBI to
obtain "any tangible thing"--often business records, which could include sensitive
information such as bookstore and other commercial purchase records, medical
records, genetic records, insurance records, travel records, etc.--related to a
terrorism investigation. Sen. Feingold
challenged the persuasiveness of arguments secretly offered by the Obama
Administration to lobby for a more permissive standard for obtaining these
records, and called for critical information to be unclassified so that
Congress and the American people could make informed decisions about how to
protect both their own privacy and security in this area. Unfortunately, this
call was ignored, and the Committee steamrolled the bill through on the
Administration's terms: Under Section 215, the government need not even show
that the records being obtained relate to a suspected terrorist or spy, someone
known to a suspected terrorist or spy, or the activities of a suspected
terrorist or spy. The government now need only make a
statement supporting its belief that the records have some "relevance" to a terrorism investigation,
a standard that is so loose as to be meaningless. The bill similarly failed to include
meaningful reform of the other two expiring provisions.
Senators
Feingold and Durbin had attempted to provoke a wider discussion of
counterterrorism powers, challenging Congress to seriously debate the results
of the often hasty expansion of surveillance authorities following 9/11. They
introduced the JUSTICE Act, which proposed a variety of safeguards designed to
protect Americans' records, homes, and communications against the expansive
capacities granted governmental authorities under the Patriot Act, the FISA
Amendments Act and other surveillance provisions. Such reforms would not only protect
Americans' privacy and civil liberties, but would also likely enhance the
government's ability to target terrorists.
Ensuring that investigative efforts are actually focused on suspicious
activities and individuals will be more effective than casting an overly broad
net that collects private information on innocent citizens with no ties to
criminal pursuits. But the Committee
declined to use this opportunity to reassess the necessity and appropriateness
of these broad powers, and instead limited its discussion to the expiring
provisions, which it renewed largely unchanged.
Positive Changes
The
bill approved by the Committee did include some positive developments.
Cognizant of the FBI Inspector General's reports documenting extensive abuse of
National Security Letters (NSLs - a type of administrative subpoena used to
obtain information without a warrant), the Committee opted to impose an end to
this power, ensuring some congressional review of NSL use in the near future.
It also approved an amendment requiring the Attorney General to adopt
minimization procedures, which limit the use and dissemination of incidentally-acquired, irrelevant personal information, for the information obtained through
NSLs. These small steps toward curbing possible abuse of NSLs are all the more
necessary -- as the Committee rejected inserting into the bill a more restrictive
standard for their use.
Another
constructive amendment reduces from 30 days to 7 days the time limit for
notifying a person that he or she has been subject to "sneak and peak" search, a
covert search in which the subject has no advance or contemporaneous notice of
the search's occurrence. These provisions will ensure greater privacy
protections without inhibiting the government's ability to effectively carry
out terrorism investigations.
The
past misuse of NSLs by the FBI is attributable at least in part to the overly
expansive powers granted in the Patriot Act. It is the responsibility of
Congress to provide appropriate checks on the executive branch. Stricter
standards are needed to ensure that the government does not abuse its authority
and that invasive practices are used only in cases when there is already a link with
suspected terrorist activity.
In rejecting essential reforms like those
proposed by the JUSTICE Act to curtail abuses of constitutional rights since 9/11, the Senate Judiciary Committee missed a crucial
opportunity to protect civil liberties, and once again extended broad powers to
the Administration in return for limited transparency and inadequate
constraints on executive power.
Permalink