Blog
Transparency & Accountability
By Rachel Levinson-Waldman – 04/02/12
The Brennan Center filed an amicus brief urging the U.S. Supreme Court to hear Latif v. Obama, a case that tests the bite in the Supreme Court’s 2008 promise that Guantanamo detainees have a constitutional right to challenge their detentions in court. The brief, which was filed on behalf of former intelligence professionals and scholars of evidence and criminal procedure, discusses the inapplicability of the “presumption of regularity,” essentially a presumption of trustworthiness, to early-stage intelligence.
Plaintiff Adnan Latif is a Yemeni citizen who, in his account, left Yemen for Pakistan in August 2001 and then went to Afghanistan, searching for charitable medical assistance. Latif spent several fruitless months waiting in Kabul for medical care, finally fleeing the city in November 2001 to escape Taliban forces who were rumored to be executing Arabs. After he crossed into Pakistan in an attempt to make his way back to Yemen, Pakistani police arrested him and turned him over to American authorities (who had promised generous bounties for captures). On the basis of questionable information reflected in a “battlefield screening interview,” Latif was sent to Guantanamo in early 2002, where he has languished ever since.
In theory, Latif is entitled to recourse in the courts. Under the Authorization for Use of Military Force, passed by Congress shortly after September 11, the President may detain members of Al Qaeda or the Taliban as enemy combatants. In 2008, however, the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees have a constitutional right to challenge their detention in federal court by filing a writ of habeas corpus, obligating the government to prove that the detainee is in fact an enemy combatant. Accordingly, Latif filed a lawsuit in the U.S. District Court for the District of Columbia seeking release from indefinite detention in Guantanamo.
The government relies primarily on one classified, anonymous, and highly redacted intelligence report to justify Latif’s continued detention. The report apparently contains a statement from Latif himself and purports to shows that rather than staying in Kabul waiting for medical care, he took up arms after September 11 and fought with the Taliban. Latif argues, however, that the report and its transcription of his statement are not accurate. Although the materials in the case are heavily redacted, the opinion and other publicly available information suggest that the evidence in the report was not corroborated; that the circumstances underlying its production – including the general chaos of war and the involvement of unidentified and possibly underqualified interviewers and translators – call its reliability into question; and that some of the information may even have been inadvertently transposed from another detainee’s file. Indeed, as the court noted, the government itself had not previously relied on this report, instead recommending in 2007 that Latif be transferred out of Guantanamo, a proposal that was never carried out.
In 2010, faced with this dubious evidence, the federal district court granted Latif’s petition for habeas corpus. In a heavily redacted opinion, Judge Henry Kennedy, Jr. concluded that because much of the government’s incriminating evidence was not corroborated and because Latif had presented a plausible alternative story for his travels, the government had failed to prove that Latif was an enemy combatant under the AUMF.
The government appealed the decision to the U.S. Court of Appeals for the District of Columbia, which overturned the grant of habeas corpus in a 2-1 opinion. The majority described the government’s keystone report as having been “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Judge David Tatel added in dissent that the report contained factual errors, was “drafted by unidentified translators and scriveners of unknown quality,” and was “produced in the fog of war, by a clandestine method that we know almost nothing about.” Nevertheless, the appeals court majority granted the government’s request to apply a “presumption of regularity” to its intelligence reports. As the majority explained it, the presumption of regularity “permits a court to conclude that the statements in a government record were actually made,” unless the detainee is affirmatively able to overcome the presumption by providing evidence of the report’s unreliability. The two-judge majority ruled that Latif had failed to rebut the presumption and remanded the case to the district court with instructions to reconsider the case.
The Brennan Center’s brief to the Supreme Court argues that the presumption of regularity has no place in the realm of early-stage intelligence. As the brief explains, the presumption of regularity is applied only to documents that are “produced by procedures that confer confidence in the document’s reliability and trustworthiness,” such as records of guilty pleas or tax documents. Often these documents are supported by testimony describing the circumstances under which they were produced, giving the court additional assurances about their soundness. By contrast, an intelligence report – particularly one produced in the kinds of circumstances described by the court of appeals – must be “weighed and evaluated based on other information to ascertain its reliability.” The fact that the interviewer and translator are unidentified makes it impossible for the detainee or the court to examine them about the circumstances of the document’s creation. In addition, errors in transcription and translation and the risk of misidentification are endemic to any human intelligence report created in overseas conflict zones, particularly in the chaotic period shortly after September 11. As a former CIA operations officer warned, after 9/11, “the intelligence community tolerated – and, to a large extent, tacitly encouraged – the distribution of unreliable, unverified, faulty, and even erroneous intelligence reports.” The court of appeals’ application of the presumption of regularity therefore dangerously misconceives the nature of early-stage intelligence and the rigorous testing to which it is put by the intelligence community.
Moreover, the report here contained Latif’s own statements, and Latif challenged only the “reliability” of the report – that is, whether it accurately conveyed what he said. Accordingly, as the appeals court majority accurately observed, a judgment affirming the reliability of the report also “proves the lawfulness of Latif’s detention,” thereby relieving the government of the need to present any further proof that Latif was permissibly detained.
Finally, the brief notes that judges for the federal district court in D.C., the court with the most experience with Guantanamo detainee cases, have regularly engaged in close analysis of the government’s evidence, including intelligence documents. Because all evidence, including hearsay, is admissible in Guantanamo habeas proceedings, these judges have recognized that it is particularly important to critically study the documents before them.
Latif thus presents an ideal opportunity for the Supreme Court to declare that it was serious when it said in Boumediene that a court considering a detainee’s habeas corpus petition “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.” Allowing the D.C. appeals court’s decision to stand would undermine Boumediene’s promise of genuine review, divest the courts of their vital role in the process, and permanently call the game in the government’s favor.
Tags: Liberty & National Security, Detainee Policy, Transparency & Accountability
By Erik Opsal – 02/22/12
Today the Associated Press reported that the New York City Police Department conducted surveillance and monitoring of Muslim communities in Newark, New Jersey.
For months in mid-2007, plainclothes officers from the NYPD's Demographics Units fanned out across Newark, taking pictures and eavesdropping on conversations inside businesses owned or frequented by Muslims.
The result was a 60-page report, obtained by The Associated Press, containing brief summaries of businesses and their clientele. Police also photographed and mapped 16 mosques, listing them as "Islamic Religious Institutions."
The report cited no evidence of terrorism or criminal behavior. It was a guide to Newark's Muslims.
In some instances, the NYPD is able to operate outside the borders of the city and the state in accordance with a formal interagency agreement that delineates responsibilities and liabilities, according to a statement from the Brennan Center's Faiza Patel. For example, when NYPD officers work alongside federal agents as part of the Joint Terrorism Task Force, they are deputized as federal marshals in order to allow them to operate nationally. However, whether this multi-state surveillance of innocent people was part of such an agreement is unclear, and once again highlights the need for independent and robust oversight of the NYPD.
The Brennan Center has called for an inspector general for the NYPD. An inspector general would ensure that the police only operated outside of their jurisdiction subject to properly concluded and vetted arrangements and would have the ability to investigate operations like the one in Newark.
"The latest revelation of the NYPD’s continued acts of unlawful religious profiling, both inside and now outside of city limits, underscore the need to act quickly to establish an inspector general for the NYPD," said Ms. Patel, Co-Director of the Liberty and National Security program. "Oversight by an inspector general will help ensure that the Department is both effective in protecting New Yorkers and respects our right to live free of spying or unlawful government intrusion."
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Liza Goitein & Emin Akopyan – 01/12/12
Lawsuits attempting to hold the government and telecom companies accountable for illegal warrantless wiretapping under President George W. Bush have encountered three main obstacles: the state secrets privilege, the constitutional requirement of standing, and Congress’s retroactive grant of immunity to telecom companies that cooperated with the government. Recently, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit solidified one of these obstacles, but dealt a mortal blow to another.
In Hepting. v. AT&T Corp., the Ninth Circuit held that Congress’s retroactive grant of immunity to telecom companies — set forth in section 802 of the FISA Amendments Act of 2008 (“FAA”) — passed constitutional muster. The district court had described the provision as “sui generis” among immunity laws. Congress in the FAA did not retroactively change the substantive law to legalize the telecoms’ alleged assistance to the intelligence community. Instead, Congress required courts to dismiss any case against a telecom company if the Attorney General filed a certification asserting one of the following: that the telecom companies had statutory authority for their alleged actions; that they didn’t actually perform the alleged actions; or that they acted pursuant to a directive from the president or other high-ranking official. In other words, even if the companies broke the law, the Attorney General could essentially tell the court to dismiss the case.
In upholding the section 802’s validity, the Ninth Circuit panel rejected several arguments against its constitutionality. Unfortunately, though, the panel did not address the crux of the issue. In an amicus brief filed in related litigation, In re NSA Telecommunications Records Litigation, the Brennan Center explained that section 802 violates the Constitution’s prohibition on congressionally enacted “rules of decision.” Under United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) and its progeny, Congress cannot intervene in existing litigation and compel a particular result without changing the underlying substantive law. Such intervention violates the Separation of Powers by arrogating to Congress the inherently judicial function of deciding cases. Here, Congress did not change the underlying law but instead created a mechanism which could have only one result in a particular set of pending lawsuits — dismissal of the case.
The plaintiffs in Hepting made a version of this argument, but the panel avoided grappling with it by merely distinguishing the facts of the case cited by the plaintiffs, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Although the facts in Plaut were indeed distinguishable, few cases present perfectly analogous fact patterns. The principles enunciated in Plaut were nonetheless applicable in this case and should have held sway.
The same three-judge panel took greater care in resolving the question of standing in Jewel v. National Security Agency. In order to have constitutional standing, a plaintiff must allege, among other things, that she suffered an “injury in fact” — i.e., a concrete and particularized grievance. This issue has bedeviled the wiretapping lawsuits from the outset. Because of the intense secrecy of the wiretapping program, plaintiffs generally don’t know if their phone calls or emails were wiretapped. This shouldn’t matter if the plaintiffs can show that they were injured by the program nonetheless — for example, if they had a reasonable fear that their communications might be intercepted and they incurred some cost or burden in taking evasive measures. But some of the decisions in the wiretapping cases have contemplated a higher burden, essentially requiring plaintiffs to do the impossible and prove what the government has taken great pains to hide.
The case decided by the Ninth Circuit panel recently was unusual in that the plaintiff did not allege that her communications might have been intercepted, but instead alleged the existence of a dragnet that actually did capture her communications. The panel therefore had little trouble determining that the plaintiff stated sufficiently concrete injuries. A more fulsome analysis was required to determine whether her injury was sufficiently “particularized,” but the panel ultimately concluded that even widespread injuries — including those shared by many or even most Americans — may confer standing if they are sufficiently concrete. Most notably, the panel rejected the district court’s assertion that plaintiffs must make a particularly persuasive showing of standing in national security cases.
The Ninth Circuit thus joins the Second Circuit (Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011)) in upholding the standing of plaintiffs in warrantless wiretapping cases. As noted by the panel in Jewel, the Second Circuit’s decision goes even further because it upholds standing in a case where the plaintiffs did not allege that they were actually wiretapped. These decisions stand in stark contrast to the Sixth Circuit’s decision denying standing to the plaintiffs in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
The approach of the Ninth and Second Circuits should prevail. These courts’ decisions do much more than clarify arcane rules of jurisdiction. They are key victories for the rule of law. As the Brennan Center argued as amicus curiae in Amnesty, history shows that the executive branch’s authority to engage in surveillance is prone to abuse. For example, as the Church Committee revealed, between 1930 and 1970 the government regularly intercepted the communications of civil rights activists (including Martin Luther King, Jr. and the NAACP) and others who were suspected of no crime, but who took positions that the government disagreed with. Judicial oversight has been, and will continue to be, a key factor in preventing these kinds of abusive activities. A standard that requires plaintiffs to prove that they are victims of secret surveillance in order to challenge its legality not only exceeds the requirements of the Constitution but would effectively preclude judicial review of one of the government’s most intrusive and most frequently abused authorities. Such a result would be inconsistent with the Separation of Powers and the rule of law.
The Jewel decision thus represents a nod to accountability that should take some of the sting out of the decision in Hepting. But unfortunately for the Jewel plaintiffs, additional obstacles remain. The panel forecast the difficulties that Ms. Jewel would face in proving her allegations of wiretapping — which the panel assumed to be true for purposes of resolving the government’s motion to dismiss — at the merits stage. And it expressly directed the district court to consider the government’s assertion of the state secrets privilege on remand. After these recent decisions, accountability is still an option in the Ninth Circuit, but it is by no means a certainty.
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Faiza Patel & Andrew Sullivan – 12/01/11
Crossposted at Huffington Post.
The announcement of the NYPD's recent arrest of Jose Pimentel, accused of building pipe bombs to embark on a bombing campaign around New York City, seemed high on drama, coming on a Sunday evening at short notice at City Hall. Noticeably absent from the press conference was the FBI, even though terrorism cases are usually handled at the federal level. And it wasn't because it was a bad time for them. The FBI had also been investigating Pimentel, but declined the NYPD's offer to pursue the case against him because of concerns that the informant was too involved in the plot. The informant smoked marijuana with Pimentel, and some of the incriminating statements on which the indictment is based were made while Pimentel was high. Unnamed federal law enforcement officials quoted in reports about the case expressed doubts about Pimentel's mental state and ability to carry out the planned attacks.
This is the second recent case where New York brought a terrorism case when the FBI chose not to pursue federal charges. In May, Ahmed Ferhani and Mohamed Mamdouh were arrested for allegedly plotting to bomb synagogues and churches. In that case, too, the FBI declined to participate because it had doubts about the credibility of the NYPD undercover agent, who seems to have led the mentally disturbed Ferhani into the plot and obtained incriminating statements from Mamdouh while he was drunk. The grand jury — which normally rubberstamps requests by prosecutors — was also skeptical of the NYPD's case against Ferhani and Mamdouh. It declined to indict them on the most serious charges (that they planned to blow up a synagogue with worshippers inside), although they were indicted on lesser charges.
The official line that the absence of the FBI from the Pimentel case is nothing out of the ordinary barely passes the snicker test. An ever increasing number of "anonymous" FBI agents have criticized the NYPD's tactics to reporters. One even went so far as to say that NYPD personnel on the Joint Terrorism Task Force agreed with the FBI's assessment of the Pimentel case, but the NYPD Intelligence Division went ahead and took it to the district attorney. Another federal agent was quoted as describing the Intelligence Division as "an empire unto itself."
Unfortunately this is not the only circumstance in which the Intelligence Division appears to be operating entirely without oversight. Since August, the Associated Press has revealed that the NYPD is conducting dragnet surveillance of the city's Muslim communities. The reports document a mapping program in which the NYPD collected data about Middle Eastern ethnic groups, and businesses owned or operated by members of those ethnic groups, including restaurants, cafes, barber shops, and bookstores. The AP's investigation also revealed that the police infiltrated mosques and Muslim student groups at New York City colleges. All of these activities were apparently routinely undertaken by the Intelligence Division, without any suspicion of criminal activity, in order to build up its information on Muslims in New York City.
The FBI, for its part, has suggested that the NYPD is using tactics that verge on the unconstitutional. The implication is, of course, that the FBI would never engage in such activities. The sad truth, however, is that the FBI has undertaken similar surveillance of Muslims, although it may not have penetrated quite as deeply into communities as the ethnically and religiously diverse New York City police force has been able to.
But one very important difference between the FBI's intelligence gathering and that of the NYPD is that the FBI's operations are at least subject to oversight by congressional committees and the Justice Department's Inspector General. The NYPD's Intelligence Division, on the other hand, has no meaningful oversight. Mayor Bloomberg's recent comment that "I have my own army in the NYPD" further drives home that point. The New York City Council has never held a hearing on the NYPD's intelligence operations, although some Council Members did pointedly question Police Commissioner Ray Kelly about these activities at a recent hearing on public safety. The NYPD has monitors for police misconduct and corruption, but no one is watching the Intelligence Division.
While we are all grateful to the NYPD for its work in protecting the city, that doesn't mean the Intelligence Division should operate without oversight and ride roughshod over the privacy and civil liberties of New Yorkers. The FBI's intelligence operations are far from perfect, but oversight at least creates some pressure to adhere to the rules. Until the NYPD's Intelligence Division is answerable to someone outside the police department, we can't expect it to change.
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
By Erik Opsal – 11/08/11
Today, Attorney General Eric Holder appears before the Senate Judiciary Committee for a Department of Justice oversight hearing. This hearing comes just weeks after reports surfaced that the FBI put in place new domestic intelligence guidelines, and it is an important opportunity to press Attorney General Holder on the new rules.
The rule changes grant FBI agents a number of new powers. Among them:
- Agents reportedly can now search, with no reason for suspicion, an individual's trash to find material they can use to pressure him or her into becoming a government informant;
- They have the authority to search commercial or law enforcement databases for information about an individual without first opening an investigation or creating any records of the search, undercutting any possibility of meaningful internal oversight; and
- Agents may infiltrate political or religious groups up to five times before the FBI’s rules governing such activity (which are themselves secret) apply.
Details of the new FBI guidelines first surfaced in June. Soon after, the Brennan Center urged the Judiciary Committee to investigate the changes before they went into effect. We repeated this call in early October, but the rules reportedly went into effect on October 15.
So what’s next? Is it too late?
Emphatically, no. This issue is far too important for Congress and the public to simply throw up their hands and say “What’s done is done” — the exact result that the FBI hopes to achieve (and has achieved in the past) by implementing the changes quietly.
Today’s hearing is an opportunity for Judiciary Committee members to press Attorney General Holder on the FBI’s rule changes. Here is a list of sample questions, released yesterday by the Brennan Center, that Judiciary Committee members should ask the Attorney General:
- The FBI’s rules are intended to interpret and implement the Attorney General’s guidelines for domestic investigations. The FBI last revised its rules in December 2008, in response to a revision in the Attorney General’s guidelines. What is the justification for the current revision, given that the Attorney General’s guidelines have not changed?
- What changes have been made to the FBI’s rules other than those already reported?
- In general, greater powers call for more oversight — not less. What is the rationale for reducing internal oversight over the FBI’s domestic investigations? In cases where recordkeeping requirements have been eliminated, what mechanisms are in place to protect against abuse?
- Prior versions of the FBI’s rules have been made public, albeit with substantial redactions. Why hasn’t the FBI made any of the new rules public?
As the Brennan Center’s Emily Berman wrote in The Atlantic, “It's not too late to have a debate on these new authorities — and, if the consensus is that they go too far, to call for their repeal.”
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
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 – 07/27/11
On June 12, 2011, the New York Times reported that the FBI plans to amend its Domestic Investigations and Operations Guide (“DIOG”), the set of rules that governs the Bureaus’ investigative activities, to extend “significant new powers” to investigators. A subsequent editorial registered concerns about these changes and their civil liberties implications. These reported changes are the latest in a series of alterations to FBI policies implemented in the last decade (discussed in detail in the Brennan Center report Domestic Intelligence: New Powers, New Risks) that have radically expanded the FBI’s power to investigate and collect intelligence information — often without any indication of wrongdoing — about Americans.
According to reports, the impending changes to the DIOG would allow agents to
- conduct searches of commercial or law enforcement databases to gather information about individuals who are not the subject of any official investigation;
- search an individual’s trash for the purpose of finding material that might pressure him or her into becoming a government informant at the “assessment” stage, when the investigation need not be based on any factual predicate; and
- participate covertly in several meetings of groups, such as religious congregations or gatherings of political activists, without any applicable rules at all.
Just as troubling as the reported changes is the fact that the proposed rules themselves remain secret — as do some portions of the existing rules (most notably, those governing covert participation in group meetings). It is therefore impossible to fully evaluate the implications of the reported changes. Nor do we know what other changes have been proposed but not reported in the media.
In the wake of the reports of these changes, FBI officials challenged the Times’ characterization of the amendments, arguing that they are merely some minor “fine-tuning” of the existing rules. These official statements continue another trend: government efforts to downplay the significance of changes to the FBI’s investigative rules. Over the past several years, FBI and Justice Department officials have consistently rejected assertions that changes to the rules have extended new powers to the FBI. An examination of several of these statements shows, however, that they have been misleading, incomplete, or simply incorrect.
Unfortunately, in editorializing on the most recent changes, the Washington Post seems to rely on the FBI’s assurances, calling the changes “relatively modest and reasonable.” While this description of the changes is charitable at best, even the Post recognizes that such powers demand stringent oversight. The Post provides a list of steps that should be taken to prevent FBI excesses: First, the FBI should make the new rules public to the extent possible; second, Congress should “keep close tabs on how the new rules are applied”; and third, the President should nominate a new Justice Department Inspector General, the department’s internal watchdog, to replace the highly effective Glenn Fine who retired from the position several months ago.
This call for oversight is right on the mark, but the list is incomplete. In addition to these measures, the Brennan Center, the Bill of Rights Defense Committee, and Defending Dissent have called on the Senate Judiciary Committee to hold hearings on the new DIOG rules before they go into effect in order to determine how they will work, to insist that the FBI explain why they are necessary, to explore whether they are consistent with existing FBI policy and regulations, and to consider the many constitutional and privacy concerns they implicate.
The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules. Congress should not allow these changes to be mischaracterized as “fine tuning” and slipped through without scrutiny. This time around, a real inquiry is in order.
Tags: Liberty & National Security, Privacy & Profiling, Transparency & Accountability
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