Blog
Liberty & National Security
By Jonathan Hafetz – 12/04/07
*Cross-posted from Balkinization
Wednesday’s Supreme Court argument in the Guantanamo
detainee cases (Boumediene v. Bush and Al Odah v. United States)
will presumably focus on the alternative review scheme Congress and the
administration created in place of habeas corpus. Assuming the Guantanamo
detainees are protected by the Constitution’s Suspension Clause (as I have
argued they are), the question will then be whether review by the D.C. Circuit
under the Detainee Treatment Act (DTA) of Combatant Status Review Tribunal
(CSRT) findings is an “adequate and effective” substitute for habeas. It is
difficult to take seriously the notion that the DTA-CSRT scheme is an
“adequate” or “effective” substitute for anything, let alone for the
centuries-old writ praised by Blackstone and Hamilton as the “bulwark” of
individual liberty.
List the factors that make a hearing unfair and put them all
together: that’s the CSRT on a good day. In brief, the CSRT relies
predominantly on evidence a detainee cannot see; affirmatively prohibits the
assistance of counsel; freely admits statements gained by torture and other
coercion; and routinely refuses detainees’ requests to call witnesses or
present exculpatory evidence. In addition, the CSRT’s panels of mid-level
officers lack any structural guarantees of independence. All of the detainees
had already been designated “enemy combatants” by the tribunal’s superiors, all
the way up to the Secretary of Defense and the President. The CSRT disagreed
with those determinations only on rare occasions (about 5 percent of the time).
And, on several of those occasions, the tribunal’s superiors ordered “do-overs”
until the tribunal reached the desired result.
The
DTA makes it impossible to remedy the CSRT’s flaws. It limits judicial review
to whether the CSRT followed its own rules and whether those rules satisfy the
Constitution and laws of the United States
(to the extent applicable). Exactly what DTA review means is the subject of
separate litigation in the D.C. Circuit (Bismullah v. Gates). But one
thing is certain: DTA review is confined to the CSRT record, and cannot supply
the independent judicial fact-finding that habeas can. For that reason, the
DTA-CSRT process will ultimately remain one of garbage in, garbage out.
In
one sense, comparing this scheme with habeas corpus is unfair. The DTA-CSRT was
never meant to provide an adequate or effective substitute for habeas.
This fact alone should make a constitutional difference. When the Supreme Court
previously suggested that the Suspension Clause might be satisfied by an
“adequate and effective” substitute for habeas, it was considering the constitutionality
of alternative review measures that Congress intended to be commensurate
with habeas: post-conviction review for federal prisoners under 28 U.S.C. §
2255 in United States v. Hayman and under the D.C. Code (for D.C.
prisoners) in Swain v. Pressley. Congress, however, intended DTA review
of CSRT findings to be much more circumscribed than habeas, not commensurate
with it. Unlike in Hayman and Swain, Congress did not intend to
replicate habeas in another forum with the DTA. Rather, Congress set out to
create an inferior process for a class of individuals it believed had no right
to habeas corpus (or to anything else for that matter). Trying to make the
DTA-CSRT into a substitute for habeas is like trying to fit a square peg in a
round hole.
The
government seeks to divert attention from the DTA-CSRT’s failings by invoking
the idea of agency review. The DTA, the government reassures, merely adopts the
familiar model of the modern administrative state: limited appellate review of
agency fact-finding. But even assuming this model could pass constitutional
muster for cases of indefinite executive detention, the underlying process
would have to be full and fair – everything the CSRT is not. And, any
suggestion that errors can be corrected on DTA review from a one-sided and
non-adversarial CSRT process is a fantasy. Whether an agency model might
suffice in another time and another place, it cannot replace habeas for these
detainees, who have languished at Guantanamo
for six years without a fair hearing, be it military, administrative, or
judicial.
In
a 2005 speech
to the NSA, former Deputy Attorney General James Comey called for a commitment
to “Intelligence Under the Law.” Comey explained why the United States
must adhere to its legal obligations when gathering intelligence. Guantanamo
presents another side of the problem: what to do when the United States
has imprisoned people (without charge) based upon intelligence gained outside the
law – in many cases through torture and other coercion.
In
his insider
account of the CSRT process, Lieutenant Colonel Stephen Abraham, a
26-year-veteran of military intelligence, demolishes any pretence that the CSRT
could ever be part of a system of intelligence under law. The tribunals made
decisions, Abraham says, based upon a haphazard
collection of generic information that rarely related to the detainee in
question and that “lacked even the most fundamental earmarks of objectively
credible evidence.” In a subsequent
declaration, Abraham explains how the CSRT had no ability, incentive, or
means to assess the reliability or accuracy of the intelligence on which it was
relying in the jerry-rigged process that has come to define the detention
system at Guantanamo.
If the United States is to move towards
the goal of “Intelligence Under the Law” (as it must do if it is ever to
develop a rights-respecting national security policy), it needs to do more than
gather intelligence lawfully. It must make certain that no individual is
deprived of his liberty without a meaningful fact-finding process to test and
to probe that intelligence so that mistakes are exposed and corrected. Both
judges and lawyers must play an active role in that fact-finding process, the
very role habeas corpus promises and that the DTA-CSRT precludes.
Hafetz: "Inadequate Substitute" (PDF)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 12/03/07
*Cross-posted
from Balkinization
If
the Bush administration were honest, the government’s brief to the Supreme
Court in the Guantanamo detainee
cases (Boumediene v. Bush and Al Odah v. United States, to be
argued Wednesday) would have said something like this. We admit that for the
last six years, we have behaved badly. Very badly. We mistakenly denied
hundreds of prisoners any protections under the Geneva Conventions. We then
deliberately brought them to Guantanamo
to evade judicial review. We engaged in highly coercive interrogations that
often approached, and in some instances constituted, torture. After you
rejected our position 3 ½ years ago in Rasul v. Bush, we ignored the
message. Rather than providing the detainees fair hearings, we set up sham
military proceedings, stonewalled district judges, and waited for Congress to
bail us out. We don’t deserve to stand here today and argue against habeas
corpus rights for these prisoners.
But honesty has never been this administration’s strong suit.
Instead, the administration has the hubris to defend the habeas-stripping
provisions of the Detainee Treatment and Military Commissions Acts by extolling
the virtues of a bright line rule limiting fundamental constitutional
protections to U.S.
sovereign territory. That line, of course, conveniently excludes Guantanamo (as
well as Bagram Air Base in Afghanistan, secret CIA-run prisons (or “black
sites”), and other places that the United States continues to imprison people
without due process in the name of its “war on terror”). Sovereignty, the government
argues, provides an “easily administrable” test. In other words, it lets
the Executive branch know in advance where it can detain and interrogate
without judicial review on the one hand, and gives judges an excuse to turn a
blind eye on the other.
The
Supreme Court is likely to reject this argument. Rasul’s holding may
have been statutory, but both Justice Steven’s opinion for the Court and
Justice Kennedy’s concurring opinion strongly support the existence of a
constitutional entitlement to habeas corpus and due process for prisoners at Guantanamo.
The Court noted several reasons why a different constitutional analysis was
required at Guantanamo than in Johnson
v. Eisentrager. It also made clear that formal constructs like
sovereignty did not determine the territorial ambit of the common law writ
(which Suspension Clause protects), a point we reiterate in this legal
historian’s amicus
brief and Paul Halliday and G.
Edward White make in this important
article. In addition, the Court appeared in Rasul’s footnote 15 to
endorse the Justice Harlan’s “impracticable and anomalous” test for determining
the application constitutional rights abroad. (And no place could it be less
“impracticable” or “anomalous” to extend basic safeguards against unlawful
detention than a U.S. enclave
like Guantanamo
where, as Justice Souter pointed out in Rasul, even the iguanas are
protected). Justice Kennedy similarly emphasized the degree of U.S. control
over Guantanamo and the Guantanamo detainees’ indefinite confinement without
lawful process in distinguishing Eisentrager and suggesting a
constitutional entitlement to habeas corpus So, the real question in Boumediene/Al
Odah is not whether the Court will find that Guantanamo detainees’ are
protected by the Constitution but how it will reach that conclusion.
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 11/15/07
Co-authored with Rebekah Diller
*Cross-posted from The Huffington Post
It's not often you hear Latin at a rock concert, much less the words "habeas corpus."
Yet Bruce Springsteen has invoked this old Latin writ -- which lets
prisoners get into court to challenge their confinement -- in stadiums
across the country on his latest tour.
Habeas corpus is just one of the great American traditions
that Bruce thinks are in danger. We've still got cheeseburgers, French
fries, the Yankees-Red Sox rivalry and motorcycles, he says, but now
America has also become famous for rendition, illegal wiretapping, voter suppression, and the rollback of civil rights.
When Bruce listed this un-American conduct at a recent Madison Square Garden concert, we shuddered with recognition. At the Brennan Center for Justice
-- named for another Jersey guy who cared about working people and the
constitution, the late Supreme Court Justice William J. Brennan, Jr. --
we've been working on just this set of issues in an effort to make good
on America's dual promise of justice and democracy.
Yet increasingly, like the narrator in Springsteen's "Livin' in the
Future" -- the song that followed the speech in concert -- we've seen
the ship Liberty sail away. During the past six years, the United
States has deprived hundreds of prisoners of habeas corpus at
Guantánamo, claiming that just because they are citizens of other
countries they can be locked away forever without a hearing before a
judge.
The United States has also established secret prisons run by the CIA
where people disappear for years without a trace, sometimes never to
appear again. Many of these prisoners have been tortured using
techniques like waterboarding that America used to prosecute as a war
crime.
In addition, the President has claimed the power to eavesdrop on the
private conversations and email communications of American citizens
even though Congress has expressly prohibited him from doing so.
It's all enough to make you think, like the "Livin' in the Future"
narrator, that you hear the "sinkin' sound of somethin' righteous goin'
under."
But, thankfully, as he always does, Springsteen gives us reason to
hope. The song is about living in the future, where "none of this has
happened yet." Like many of Springsteen's best songs, it straddles two
themes. It's an acknowledgment that the unthinkable can happen: we can
wake up one morning in a futuristic dystopia where rights we thought
were sacred have been eliminated. But it's also a wake-up call to make
sure the future he warns about doesn't happen.
The Boss has started by singing about it. Now the rest of us need to do something about it.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 10/09/07
*Cross-posted from The Huffington Post
Last week's New York Times story
about two secret Justice Department legal opinions on CIA interrogation
techniques leaves no room for doubt. We are in the midst of a
full-fledged scandal involving illegality and deceit at the highest
levels of the United States government. Call it Torturegate.
For the past six
years, the, the administration has deliberately circumvented
longstanding prohibitions against torture and other abuse. It has
facilitated and sanctioned the use of highly coercive interrogation
tactics, not only in secret CIA prisons (or "black sites") but also at
Guantánamo Bay and even in the United States. Perhaps worst of all, the
administration has sought, in secret, to justify the techniques as
legal.
Torturegate's origins lie in the decisions and writings of a cabal
of high-ranking officials from the White House and the Office of Legal
Counsel ("OLC"), the once prestigious branch of the Justice Department
that function as the president's chief legal advisor. The participants
included Vice President Dick Cheney, his chief of staff David
Addington, former White House Counsel and Attorney General Alberto
Gonzales, and OLC attorney John Yoo. None had any real life experience
waging war or fighting terrorism. Yet, they all believed fervently that
America had to "work ... the dark side" to defend itself.
This group helped initiate and defend a "war on terrorism" that
eliminated all constraints on the treatment and interrogation of
detainees. Not even the most minimal protections of the Geneva
Conventions applied, opening the door to the creation of a global
network of prisons beyond the law. Under the misguided assumption that
harsh measures produce good intelligence, the United States began to
engage in a series of so-called "enhanced interrogation techniques,"
including ones that simulate drowning and induce hypothermia. That
these techniques did not leave physical marks did not make them any
less cruel than the rack and the screw.
OLC then provided legal cover to assuage concerns that officials
who engaged in these tactics might be liable under a federal statute
criminalizing torture. A now notorious August 2002 legal memo (drafted
principally by John Yoo) sought to define torture so narrowly as to
render it meaningless, limiting it to the extreme physical pain
accompanying organ failure or death. For good measure, the memo said
torture could never be illegal as long as the president had approved it.
The public outcry after Yoo's memo was leaked to the press, coupled
with internal opposition within OLC, prompted reconsideration. A
subsequent memo from December 2004 called torture "abhorrent" and
suggested a retreat from the prior assertion of sweeping presidential
authority to engage in the practice. But the December 2004 memo did not
question the legality of any of the torture tactics. Nor did it address
the problem of other cruel, inhuman, or degrading treatment ("CID")
that did not meet the legal definition of torture.
In 1988, the United States signed a treaty outlawing CID (or
"torture lite" as it is sometimes called, a treaty that now more than
140 countries have ratified. But the administration dodged this binding
legal obligation by arguing that the treaty does not restrain the
United States when it acts abroad.
So, in December 2005, Senator John McCain and other members of
Congress addressed this perceived loophole by categorically banning CID
by any U.S. official, including the CIA, anywhere in the world.
But OLC, now under Gonzales' leadership, had already acted to keep the loophole open. As The New York Times
reported last week, two secret OLC memos from earlier that year found
that the harshest interrogation tactics did not constitute CID, even
when used in combination. Notably, the administration did not share
these opinions with Congress, which unknowingly voted to outlaw
techniques that the executive branch secretly determined were legal.
The two opinions still remain in effect, sanctioning the use of harsh
interrogation techniques against the untold number individuals who
disappear into America's network of secret prisons.
Although Torturegate's full repercussions will not be known for
years to come, its effects have already proven devastating. Torturegate
has eroded confidence in the Justice Department and shattered the
reputation of OLC, once widely respected for providing independent
legal advice to presidents.
Torturegate has also undermined America's credibility. Gone is
America's moral authority to advocate on the world stage for justice
and human rights. Yes, other regimes may be more lawless and repressive
but these differences are increasingly ones of degree. Virtually all
governments seek to justify their actions in the name of the public
good. The question is whether a nation's leaders exercise the
self-restraint necessary to make their nation one of laws not of men.
If America is to regain what it has lost, it must act to repair the
damage. Congress must make good on its demand that the administration
produce the two secret 2005 OLC opinions, along with other prior legal
opinions about interrogation techniques. It must also ensure the end of
secret prisons, take additional steps to prohibit the CIA's use of
torture techniques (such as by mandating the CIA follow the Army's
interrogation manual), and restore habeas corpus. And steps must be
taken to rebuild OLC's integrity.
Torturegate may have been the result of a small group of
individuals bent on avoiding the rule of law. But, now that their work
has been exposed, it is our collective responsibility to take
corrective action.
Hafetz: "Torturegate" (PDF)
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 06/29/07
*Cross-posted from The Huffington Post
The Supreme Court's decision today to hear challenges to the
detentions at Guantánamo is a highly significant one that mark a
watershed in the Bush Administration's detention policy. It could mark
the beginning of Guantánamo's unraveling -- notwithstanding the string
of disappointing rulings to come from the Court in this past week.
The Court's action is
very unusual as a procedural matter. The detainees case had been
decided back in February by the Court of Appeals for the D.C. Circuit,
which issued a decision
saying that the detainees at Guantánamo neither had the right to enter
a federal court to challenge their detention nor any constitutional
rights against unlawful imprisonment and abusive treatment. One of the
most striking features of that decision was that it repeated, almost
verbatim, arguments that the D.C. Court had used in rejecting the
detainees' arguments for a hearing in 2003 -- arguments that were
reviewed and rejected by the Supreme Court in 2004 in the landmark case of Rasul v. Bush.
The detainees appealed to the Supreme Court -- but at the beginning
of April, the Court denied their petition. To hear a case, at least
four of the nine Justices need to vote to "grant certiorari." The
denial meant that at least six of the nine Justices had voted against a
hearing. But in a revealing statement that accompanied this denial,
Justices Kennedy and Stevens warned the Government not to
"prejudice the position of petitioners" in seeking review in this
Court." After the dismissal, the Government nevertheless urged that the
detainees' habeas corpus petitions -- many pending unheard since 2002
-- ought to be dismissed as a consequence of the Court's action.
What happened today is that the Court took the unusual course of
reversing that decision, and ordering that the detainees' case be heard
in the fall as part of the October 2007 Term of the Supreme Court (the
Court's terms run from October to October, with the Justices largely in
recess over the summer).
What's especially notable about the grant is the number of votes it
took to get it -- not four, but five. It takes five votes to grant a
rehearing -- just like it takes five votes to win (really, all you need
to understand the Supreme Court is some elementary arithmetic, although
the fractured opinions in the schools cases, the Establishment Clause
case, the school speech and campaign finances cases would challenge
even an Einstein's maths).
That means that between April and now, we have gone from a situation
in which three Justices wanted to hear the case -- to a situation in
which five Justices want to hear the case. In all likelihood, this
includes Justices Stevens, Souter, Ginsburg, and Breyer -- and Justice
Kennedy. The fact that Justice Kennedy likely voted to grant is
intriguing, and should inspire cautious optimism. Clearly something is
troubling him that wasn't in April.
Could it be the Government's position that one of the detainees at
Guantánamo should not be allowed to talk to his lawyer because he might
reveal state secrets--by talking about the coercive techniques that
were used to interrogate him? Could it be the continued suicides of detainees at Guantánamo?
Could it be the affidavit of Stephen Abraham, a 26-year veteran of
military intelligence, an Army reserve officer, and California lawyer,
stating from his first experience that the procedures used to sift
combatants from the innocent are essentially a farce? (In deciding to
hold people indefinitely, "[w]hat were purported to be specific
statements of fact lacked even the most fundamental earmarks of objectively credible evidence")
The list is so long that one is spoiled for choice.
The Administration clearly had concerns about the growing evidence
that the procedures used at Guantánamo were a sham, and that the
crescendoing evidence of mistreatment and abuse there was too difficult
to ignore. Hence the editorials by Colonial Morris Davis in the New York Times and James Taranto in the Wall Street Journal signaled a concerted effort to swing the tide of elite opinion.
The effort failed. Now the Court will decide what procedures are
necessary and constitutional for the Guantánamo detainees to challenge
the elementary fact of their detention (and remember -- that is all
that is at stake -- the basic fact that the Government has detained
people and whether that is legal). Now the detainees will have a chance
to argue that the evidence against them is largely non-existent. That
most of the detainees are wholly innocent of any connection to
al-Qaida. That they are being held not because they are an
embarrassment to an Administration that has proven itself incapable of
ever, ever admitting an error, and prefers instead to compound old
mistakes with new blunders, putting us further into illegality.
Now ... well, we'll see in the fall.
Aziz Huq: "Supreme Court Decision Could Begin Guantanamo's Unraveling" (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 06/22/07
*Cross-posted from The Huffington Post
Yesterday, the
Senate Judiciary Committee voted 13-3 to authorize subpoenas focused on
the Bush Administration's warrantless wiretapping program. Here is what
the authorization read:
Be it resolved that, pursuant to its authority under Rules
25 and 26 of the Standing Rules of the Senate, the Senate Committee on
the Judiciary hereby authorizes its Chairman, in consultation with the
Ranking Member, to issue subpoenas to: 1) the Honorable Alberto
Gonzales, Attorney General of the United States, and 2) the Custodian
of Records at the Executive Office of the President, to provide the
Committee with all documents related to the Committee's investigation
into the Administration's operation of a warrantless domestic
surveillance program outside of the provisions of the Foreign
Intelligence Surveillance Act, and its legal analysis for this program.
That the vote did not
break out along party lines -- Senators Specter, Hatch, and Grassley
voted for the subpoenas -- is an indication of how troubling the
emerging picture of shoddy lawyering and reckless uses of power that
has gradually emerged through testimony from James Comey and others.
But why are these documents so important? And what are the chances now
that the subpoena will be honored? Will this indeed turn out to be a
further step in building accountability over the secret, lawless
electronic surveillance of Americans conducted since 9/11?
The background by now is familiar: In September 2001, the President
authorized a program of warrantless domestic spying by the National
Security Agency, or NSA. Only in December 2005 -- after a year of
sitting on the story -- did the Times break that news. Now,
two separate congressional investigations, conducted by the Judiciary
and Intelligence Committees, are circling in on the facts not only
about the NSA program itself--but also about the way it was adopted.
Yesterday's subpoena's focus on the latter issue -- "How did it
happen?" -- and less on the "What happened?" question. At first glance,
for example, it does not seem that the subpoena cover the issue of how
the NSA is now conducting warrantless surveillance. The Administration
has said, for example, that the program is now "under" the jurisdiction of the FISA court. But even experts are baffled by precisely what this means.
The closed and secretive FISA court is supposed to hear only
applications for individual warrants. The nub of the Administration's
arguments, however, has always been individualized applications are too
cumbersome. The best hypothesis I have seen is that the Administration
has persuaded the FISA court to issue an open-ended anticipatory
warrant -- which allows the Agency to act first and ask questions
later. But we won't know whether the NSA is acting in ways that cast
Americans' rights under a shadow even if these subpoenas succeed.
But the "what?" question is not the only one on the table: There is
also the "how?" question. How did the NSA get legal authorization
within the executive branch to conduct surveillance operations that are
in flagrant violation of the 1978 Foreign Intelligence Surveillance Act?
Why did the Justice Department in 2004 decide not to continue its
endorsement of the program -- the decision that nearly precipitated a
mass resignation of executive branch lawyers not seen since Watergate
days and that led to the dramatic showdown between Justice Department
lawyers and White House consigliores at John Ashcroft's hospital
bedside? How exactly had the program been authorized before?
It is these questions -- which go to the integrity of the
Government's decision-making process, and the question whether
executive branch officials have acted in accordance with their
constitutional obligation to "Take Care" that the laws will be enforced
that, is now at issue.
Unfortunately, there are solid reasons to believe that the answer is
"no." Perhaps the most telling resistance that the Administration has
shown is disclosure of the legal opinions that have at various times
animated the program. There are two sets of key documents -- and
yesterday's subpoena clearly sweeps in both sets.
First, there are the legal opinions and documents on the basis of
which the NSA's program was first authorized in 2001. There is a great
deal of ambiguity about how precisely this initial authorization
happened. But we do know that there must be some paper trail. In 2004,
Justice Department lawyers led by Jack Goldsmith looked at some
document or other, a document which provoked them into contacting then
Acting Attorney General James Comey and persuading him to deny
authorization for the program. Given that these were hardly liberal
lawyers, the documents they reviewed must have been troubling -- so
troubling that they were willing to risk terminating a program the
President claimed was key to national security.
What exactly did these original authorizing documents say? We simply don't know. After the Times ran its revelatory story, the Justice Department issued a defense of the wiretapping program that relied in large part on a 2004 Supreme Court case -- so we know that wasn't the justification offered in 2001.
It is also important for us to see the documents prepared in 1004 (listed here
in a handy chart prepared by the ever-marvelous Center Democracy and
Technology). These documents will equally explain why the initial
authority was so improbable that even conservative lawyers were
prepared to shut down the program.
Will all of this come out?
Congress's power to issue subpoenas is now without question. Whether those subpoenas are obeyed is quite a different story.
As is the traditional practice, the committee will not issue
subpoenas until it has entered negotiations with the White House, and
Committee Chair Senator Patrick Leahy has rightly insisted
that the committee is seeking "the legal justification and analysis,"
rather than "intimate operational details." Even when the subpoenas are
issued, it is not wholly clear that the Committee will win access to
every document. Generally, some compromise is reached. The danger now
is that the compromise will leave out vital documents (especially those
pertaining to the initial authorization) and also cut out the public.
The precedent is not good. In 1989, the Bush I Justice Department
declined to release a legal opinion concerning the power of the FBI to
seize suspects overseas without the permission of the country in
question, and to bring the suspect back for trial in the United States.
Then Attorney General William Barr insisted that the opinion "must
remain confidential" even though an earlier memo -- which had concluded
the practice was illegal -- had been released. At the end of the day,
the compromise reached after subpoenas were issued was that some
members of the committee would be allowed to review the memo on behalf
of the whole committee -- but there would be no more public disclosure.
This will not do today. The rights of Americans are at stake. The
question whether the President's lawyers trampled the Constitution for
the sake of an idiosyncratic vision of executive power is at stake.
There is simply no reason for legal opinions -- which do not contain
"intimate operational details" -- should remain classified. This truly
is a case where the public needs to know what has been done in their
name, done to them, and done in spite of the laws they have enacted.
Aziz Huq: "Subpoenas and the NSA" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances
By Aziz Huq – 06/05/07
*Cross-posted from The Huffington Post
Yesterday, judges
in the military commissions established by the 2006 Military
Commissions Act at Guantánamo dismissed charges against two detainees
charged with "war crimes" -- Omar Khadr and Salim Hamdan. According to the Times,
the rulings, which were both on highly technical grounds, threw the
commissions into "turmoil." In fact, the Government can circumvent the
rulings relatively easily and without dealing with the many, deeply
serious problems implicated by the military commissions -- and the
whole question of Guantánamo.
Speed bumps are
nothing new for President Bush's military commissions. The White House
first issued rules for the commissions in November 2001,
but trials didn't follow quickly. Detainees began arriving in
Guantánamo only two months later. And the government did not move
expeditiously to identify war criminals and to charge them. Lead
defendant Salim Hamdan -- who was accused of being Osama bin Laden's
driver -- was not even found eligible for trial by the President until
July 2003, and was not even charged until July 2004.
(Incidentally, in between these dates the military kept Hamdan into
solitary confinement and so putting him under not-so-subtle pressure to
cop a plea). Thanks to phenomenal lawyers, Hamdan fought the
president's military commissions, and in June 2006 won: The Supreme
Court, in the now landmark case of Hamdan v. Rumsfeld invalidated the commissions as beyond the President's authority.
The White House's response was swift and furious -- and took the
form of the Military Commissions Act of September 2006, which
reinstituted a system of "military commissions," or trial courts that
are only for cases related to terrorism and that only operate at
Guantánamo.
But even these new congressionally-authorized bodies have floundered. Proposing the new law, Bush proclaimed "The need for this legislation is urgent," but it wasn't for months before the first prosecutions were brought.
In the first case before the new commissions, Australian detainee
David Hick entered a plea bargain. On the surface, this was a coup for
the government because it could finally -- after more than five years
-- proclaim a victory. But look more closely and the government's
victory slips from view. Hicks was convicted of "material support" for
terrorism (which, incidentally, is a federal crime first legislated in
the early 1990s--it is not now and never has been a "war crime").
But Hicks' plea agreement stipulated a sentence of not more than nine
months. By point of comparison, a person can be sentenced up to five
years if they lie to a federal officer (a point to remember the next
time you're bringing unpasturized French cheese through U.S. customs
....) -- and eight years if the lie has some connection to terrorism.
Stated otherwise, Hicks got just more than a tenth of the sentence he
could have received had he lied in the course of a counter-terrorism
investigation.
Hicks entered his deal after five years' in Guantánamo, and after
his military lawyer conducted a magnificently effective public
relations campaign in the United States and Australia. Especially in
Australia, the John Howard came under heavy fire for its failure to
intervene in Hicks' case (see, for example here).
And, rather conveniently, Hicks will be unable to speak to the press
until well after the next Australian election. The Hicks sentence, in
short, is little more than convenient cover for an international
political embarrassment.
Yesterday's rulings are further evidence of how compromised the
military commissions are. The ruling did not address the real and
substantial concerns raised by the structure of the military
commissions, or the summary bodies (called "combatant status review
tribunals" or CSRTs) that declare individuals to be enemies of the
nation. Rather, both rulings rested on a relatively minor, but telling,
procedural point.
The point is worth describing in brief: A detainee is first
classified as a properly detained by a CSRT. Only then can he be
brought before a military commission. The Military Commissions Act (in
10 U.S.C. §948(c) for those of you want to follow along) says that any
"alien unlawful enemy combatant" can be tried by a military
commissions, and the statute (in 10 U.S.C. §948(a)) defines "unlawful
enemy combatant." So far so good, right?
Well, no. The problem arises because the CSRTs function under a set of Defense Department Rules
that long predate the Military Commissions Act. Those Defense
Department rules do not use the term "unlawful enemy combatant." They
talk about "enemy combatant" -- and they define this slightly
differently from the terms used in the Military Commission Act
(Professor Robert Chesney has an excellent and detailed explanation here).
What happened yesterday was that the military commissions noticed
the mismatch between the CSRT definition and the military commissions
definition -- and stopped the trial until the two defendants were
properly re-classified.
The government now has a couple of options. It could do a new CSRT
(although this would mean also issuing new CSRT rules). Or it could ask
the commission itself to make a finding that the Khadr and Hamdan are
"unlawful enemy combatants." The latter would get the trials back on
track relatively quickly. Yesterday's events would end up being yet one
more hiccup in the rough road that the military commissions have been
traveled.
So what's the broader significance of yesterday's events? It's not
so much that these developments will derail the commissions. Nor is it
that the rulings yesterday address the larger, structural issues raised
by the commissions. Khadr, for example, is being denied the counsel of
his choice because they happen to be Canadian and not American. (A
silly and arbitrary rule). Moreover, Khadr was only fifteen when he was
seized. Under international law and the military's own rules -- enacted
into law in the Uniform Code of Military Justice -- he cannot be held
culpable for his acts. This sort of systemic problem won't be solved by
this kind of technical glitches and slip-ups of the kind we saw
yesterday. For that we need a broader remedy -- most importantly the
restoration of habeas corpus and the reimposition of the rule of law on
the "law-free zone" that is Guantánamo.
Aziz Huq: "Finding a Remedy for Gitmo" (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 04/05/07
Co-authored with Susan Lehman
*Cross-posted from The Huffington Post
Khaled el-Masri was vacationing in Macedonia when he was abducted
by local police. Mr. el-Masri was then beaten, drugged, and
interrogated at gunpoint in a Skopje hotel room. After 23 days of
incommunicado captivity, Mr. el-Masri was taken to the airport and
turned over to masked CIA rendition agents. He was shackled and also
diapered, and flown to a CIA-run secret prison near Kabul, Afghanistan.
Once Mr. el-Masri was in Afghanistan, CIA officials soon realized they
had made a mistake: Mr. el-Masri was not the man they were looking for;
nor was there reason to suspect he was a terrorist. The U.S.
nevertheless secretly jailed Mr. el-Masri for five months before
deciding to deposit him, without explanation, on a hilltop in Albania.
During six years of
the so-called "war on terrorism," we have grown disturbingly used to
stories like this one. What is most frightening about Mr. el-Masri's
ordeal, however, is not the news that U.S. officials may have conspired
in torturing and imprisoning an innocent man for months on end.
Instead, it is the news from a federal appeals court in Richmond,
Virginia, last month that U.S. officials cannot be held accountable for
engaging in such conduct.
In a unanimous decision, the appeals court ruled that Mr.
el-Masri's case had to be dismissed before a hearing took place. The
court found that merely requiring the United States to respond to Mr.
el-Masri's claims that the CIA had masterminded his illegal kidnapping,
abuse, and wrongful imprisonment could jeopardize national security by
leading to a "cascading" of disclosures about the CIA's "extraordinary
rendition" program. The fact that the existence and details of this
program have already been made public was deemed irrelevant. The bottom
line consideration remained: US national security would be compromised
if questions about the government's possible complicity in wrongful
detention and torture of Mr. el-Masri were allowed in open court..
Mr. el-Masri's is not an isolated case, but it is part of a now
familiar pattern. Time after time, the present administration has put
itself above the law by carving out a series of exceptions to the
essential liberties of our Constitution.
Maher Arar is another victim of these un-American practices. Mr.
Arar, a Canadian, citizen, was catching a connecting flight through New
York's JFK International Airport in 2002, on his way back to Montreal
after a family holiday in Tunisia. Mr. Arar was detained by airport
security who questioned him about terrorist ties, and then taken to a
federal jail. Ten days later, Mr. Arar was sent to Syria, where he was
held in a dark, rat-infested cell that resembled a grave. Mr. Arar was
beaten on palms, hips, and lower back with a two-inch-thick electric
cable and threatened with electric shocks. He was released after almost
a year. No charges were ever filed.
Like Mr. el-Masri, Mr. Arar sought to hold the United States
accountable. He filed a lawsuit claiming that the United States had
deliberately conspired to render him to Syria for torture. But a
federal judge in Brooklyn dismissed the case last year without even
requiring the government to so much as answer the allegations. Any
inquiry into the U.S. government's complicity in Mr. Arar's illegal
rendition, the court explained, could compromise national security by
"embarrassing" the United States. To summarize: the more egregious the
governmental wrongdoing, the more reason to prevent public exposure.
This is the modus operendi of autocracies, not democratic governments committed to individual liberty and accountability.
Canada, notably, responded differently, mounting a full-scale
investigation into Mr. Arar's case. A specially appointed commission
compiled a 1000-page report, which described Canada's role in Mr.
Arar's detention, cleared Mr. Arar of any terrorism connections, and
compensated him $9 million for the grave harms he endured. The United
States, meanwhile, refuses even to apologize.
Then, there is Guantánamo, the living symbol of a prison beyond the
law. Since September 11, the United States has detained more than 700
people at Guantánamo without due process or habeas corpus. Many of
these individuals have been abused. Indeed, the treatment of one
detainee was so bad, the Wall Street Journal recently
reported, that a military officer refused to prosecute him for
terrorism because interrogators had wrung his confession through
measures that were both illegal and morally repugnant.
How does the United States justify Guantánamo? With more legal
loopholes. It argues that Guantánamo detainees have no rights because
they are foreign nationals held outside the sovereign territory of the
United States. The fact that the United States has exercised complete
and exclusive jurisdiction over Guantánamo for a century is irrelevant
to this self-serving calculation. Remarkably, a federal appeals court
in Washington, D.C., recently agreed with the government, finding that
Guantánamo detainees lack even the most basic human rights, and the Supreme Court declined to review the case at this juncture.
Such end-runs around the Constitution present grave threats to the
cornerstone principle that no one is above the law. Once we start
finding that the normal rules do not apply, secret jails, torture, and
prolonged detention without charge become a fixed and permanent part of
our legal landscape.
American Exceptionalism once signified the values that made this
country a beacon of liberty. Since 9/11, this phrase has come to mean
something very different: a series of Kafkaesque carve-outs to the
Constitution that tarnish the image of a country founded upon a
commitment to justice and the rule of law.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
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