Gitmo Show Trials

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Dangerous Censored Documents, in Soviet Russia and War on Terror America

Yesterday, in announcing the public release of documents relating to CIA’s publication of a Russian edition of Dr. Zhivago, the CIA bragged (justifiably) about its Cold War success in making books Warsaw Pact governments had banned available within those countries.

In a memo dated April 24, 1958 a senior CIA officer wrote: “We have the opportunity to make Soviet citizens wonder what is wrong with their government when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country [and] in his own language for his people to read.”

[snip]

Obtaining, publishing, and distributing banned books like Doctor Zhivago was an important Cold War-era success story for the CIA.

Even as CIA was declassifying the documents underlying Peter Finn’s book on this topic, the 9/11 Gitmo trial was being stalled, once again, by issues arising from the Court’s fragile Constitutional foundation.

The issue, this time, makes for ironic comparison with CIA’s boasts of making banned texts available to societies where the government was too fragile to release such texts.

On Monday, the 9/11 defense lawyers revealed that their Defense Security Officer had been recruited as an informant by the FBI as part of an investigation into how an unclassified 36-page tract written by Khalid Sheikh Mohammed became available to the HuffPo.

The Gitmo prosecutors claim to have no knowledge of the FBI investigation.

At Monday’s hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins, if his prosecution team was “aware of this visit” by two agents to the bin al Shibh team member’s house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britain’s Channel 4 television got a copy of the Mohammed commentary.

“No, we were not,” Martins replied — even before the judge had finished his question.

[snip]

At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: “I am unaware of any investigation and won’t get into ongoing legal proceedings, anyway.”

Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor “nor the prosecution team had any idea that an investigation was launched.”

“He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation,” said Army Lt. Col. Todd Breasseale, “and in the event that it is determined that releasing [Mohammed’s 36-page commentary] was unlawful.”

Nevertheless, it appears someone requested an investigation into the disclosure. And DOJ’s part of the prosecution team suggests the judge would infringe on Executive Branch privileges if he investigates the FBI investigation.

Separately, a lead case prosecutor, Ed Ryan of the Justice Department warned the judge against asking to question the FBI agents who visited a defense team member.

“Your Honor is suggesting that you want to investigate an ongoing investigation. There are numerous government privileges that would be at stake,” Ryan said at the hearing. “I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation if, in fact, one exists.”

Defense Attorneys also complained that a (perhaps now former) member of the Prosecution team is the Chief of Staff to FBI Deputy Director Mark Giuliano.

And then finally, there’s a member of the trial team, Ms. Baltes, who is also — who also serves as the Chief of Staff to the Deputy Director of the FBI. And I appreciate counsel’s unequivocal statement that the prosecution was not aware of this investigation, did not know — did not know that an investigation was taking place and did not direct FBI agents to go and try to penetrate Mr. Harrington’s team, but somebody did, and somebody at the FBI did. And I don’t think it’s too much of a leap to imagine that when a member of the trial team has a dual role as the Chief of Staff to the Deputy Director of the FBI, that there could be an interface there, and I think it would be appropriate to examine Ms. Baltes as well.

Joanna Baltes happens to have been the lawyer who, in January, refused to admit in public that the CIA had installed a means to censor Gitmo proceedings, unbeknownst to the Judge. Is she, once again, answering to the CIA above and beyond her obligations to a court purportedly delivering independent justice?

So our attempt to hold the perpetrators for 9/11 responsible for their crimes has once again ground to a halt as the Judge investigates whether and why (and at whose behest) the FBI is investigating the release of KSM’s unclassified writings.

Americans might ask, like Russians before them, “wonder what is wrong with their government” that we must delay justice in the 9/11 attack because someone made a shitty tract from KSM publicly available.

Don’t get me wrong. Unlike Boris Pasternak’s novel, KSM’s tract is not literature, not even close. Continue reading

The CIA’s Excuse: Hiding the Double Agents

Adam Goldman and Greg Miller offer the CIA’s excuse for removing documents from the SCIF where they had been made available to Senate Intelligence Committee staffers: they had to hide their double agents.

After the CIA provided a massive cache of documents in 2009 to Senate staffers investigating the agency’s detention and interrogation program, the agency realized it might have a problem.

Within those documents, agency employees feared, were details that could lead to the exposure of CIA sources, former U.S intelligence officials said. Among them were top assets who had been recruited while being held at a secret CIA facility on Guantanamo Bay called “Penny Lane,” according to one of the officials.

So great was the concern that the sources’ identity would be disclosed that the CIA withdrew some of the documents from a special facility that had been set up for members of the Senate Select Committee on Intelligence.

[snip]

Two employees of the CIA’s Counterterrorism Center and a lawyer were assigned to scrub the documents for sensitive sources, including the asset who agreed to work for the CIA after his capture and transfer to Guantanamo, the official said.

The assets went through a recruitment program at Guantanamo that began in early 2003 and ended several years later. Some of those who took part in the program have provided key information to the CIA, helping the agency kill a number of top terrorists.

Let’s take the CIA at its word for a minute and consider the implications of this from the standpoint of oversight.

By removing the names of those the CIA had flipped while at Gitmo, the CIA permitted politically motivated people — including the guy who had a key role in “releasing” them — to call those detainees “recidivists.”  While it might be great cover to have Dick Cheney screaming about what dangerous people these people were, it was lethal for Obama’s effort to close Gitmo.

By hiding the names of the double agents, the CIA also hid the true details about the actions those double agents would go on to commit. Which may have permitted CIA to use those double agents in ways that weren’t just intelligence gathering.

Hiding double agents also hid how corrupt the entire military commission program was, because it hid the degree to which detainees had been implicated — and were still being held years after their capture — solely through the testimony of informants.

I wonder. Has CIA yet given its oversight committees a full list of all those CIA believes to have flipped? For a number of reasons, I doubt they have.

Removing details on the effort to flip detainees also hides evidence about the purpose of torture, which wasn’t really to obtain intelligence, but to exploit detainees, whether that involved propaganda (such as eliciting the justification for the Iraq War) or developing assets. Until we understand that that was one of the reasons we embraced torture and other kinds of humiliation, we won’t be able to account for the full human waste of it all.

One more detail: by claiming it took back evidence of flipping detainees, CIA can obscure what happened with Hassan Ghul, whose cooperation with the US Miller first broke. If this report ever comes out in any halfway revelatory form, Ghul’s treatment may well be one of the most unjustifiable (particularly since he had already given up Osama bin Laden by the time we started torturing him). How convenient, then, that CIA is prepping to claim SSCI doesn’t know everything about Ghul’s treatment.

1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

Exploitation: “In my ears and in my eyes”

Goldman and Apuzzo, perhaps as a swan song before the former heads off to WaPo, break the story of Penny Lane — the story of the Gitmo camp where recruited double agents stayed until they were sent off to spy for the CIA.

They focus primarily on the series of perks detainees got both while at Gitmo and once they had agreed to spy.

By early 2003, Penny Lane was open for business.

Candidates were ushered from the confines of prison to Penny Lane’s relative hominess, officials said. The cottages had private kitchens, showers and televisions. Each had a small patio.

Some prisoners asked for and received pornography. One official said the biggest luxury in each cottage was the bed — not a military-issued cot but a real bed with a mattress.

The cottages were designed to feel more like hotel rooms than prison cells, and some CIA officials jokingly referred to them collectively as the Marriott.

Current and former officials said dozens of prisoners were evaluated but only a handful, from a variety of countries, were turned into spies who signed agreements to work for the CIA.

[snip]

Prisoners agreed to cooperate for a variety of reasons, officials said. Some received assurances that the U.S. would resettle their families. Another thought al-Qaida had perverted Islam and believed it was his duty as a Muslim to help the CIA destroy it. One detainee agreed to cooperate after the CIA insinuated it would harm his children, a former official said, similar to the threats interrogators had made to admitted 9/11 mastermind Khalid Sheikh Mohammed.

All were promised money. Exactly how much each was paid remains unclear. But altogether, the government paid millions of dollars for their services, officials said. The money came from a secret CIA account, codenamed Pledge, that’s used to pay informants, officials said.

But there are a few details they either barely hint at or profess ignorance to.

First, that mention of threatening a detainee with harming his children? Obviously, that’s coercion, not persuasion. Jason Leopold and Jeff Kaye have long focused on how our torture program aims to exploit prisoners, including “recruiting” them to be double agents, in part, by torturing them. (And this was one key purposes of torture at Abu Ghraib, too.)

The process by which we recruited detainees to turn informant was by no means solely about real mattresses.

Goldman and Apuzzo profess ignorance about whether these double agents showed up in lists of “Gitmo recidivists.” They did. Remember: several Gitmo “recidivists” then “flipped back” to Saudi control and provided key information on AQAP structure and plots. Though it appears to have even taken several years before they explained to Congress that some of these recidivists were actually not — or at least were not supposed to be. So not only did these detainees serve as double agents against al Qaeda, but the existence of them as “recidivists” fed the fears about closing Gitmo.

And there are at least textual hints of whom they did flip (or think they had flipped), though I won’t lay out the several places where I’ve seen those hints in case these men are still out there.

Finally, Goldman and Apuzzo note this program ended in 2006, as the number of new detainees dropped (and, I might add, as the government tried to get out of the torture business).

But make no mistake. The government still aims to exploit the people it captures for counterterrorism purposes, whether in some forgotten cell in Afghanistan or on a ship. If we were only in the interrogation business, it could all take place in a traditional jail with legal representation.

Say Hello To Our New Friends At Just Security

Screen shot 2013-09-23 at 11.46.58 AMWe do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.

Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.

Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.

Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:

Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.

From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.

So, say hello to our new friends at Just Security, bookmark them and give them a read. Follow them on Twitter. You will be better informed for having done so.

Dianne Feinstein Suggests President Obama Personally Violating Our Treaty Obligations

As I noted the other day, in her ruling that she could not halt the force-feeding at Gitmo, Gladys Kessler described the treatment as “degrading,” potentially invoking our obligations under Article 16 of the Convention again Torture to prevent degrading treatment. Kessler actually explicitly invoked International Covenant on Civil and Political Rights, which includes a similar prohibition on degrading treatment.

Dianne Feinstein and Dick Durbin sent Obama a letter yesterday, using Kessler’s ruling to connect the two explicitly.

U.S. District Court for the District of Columbia Judge Gladys Kessler also expressed concern about the force-feeding of Guantanamo Bay detainees. The Court denied detainee Jihad Dhiab’s motion for a preliminary injunction to stop force-feeding due to lack of jurisdiction, but in her order, Judge Kessler noted that Dhiab has set out in great detail in his court filings “what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture or cruel, inhumane, and degrading treatment.” The United States has ratified the ICCPR and is obligated to comply with its provisions. Judge Kessler also wrote, “it is perfectly clear from the statements of detainees, as well as the statements from the [medical] organizations just cited, that force-feeding is a painful, humiliating, and degrading process.” (emphasis added).

The judge concluded by correctly pointing out that you, as Commander in Chief, have the authority to intercede on behalf of Dhiab, and other similarly-situated detainees at Guantanamo. The court wrote: “Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the Army and Navy of the United States. …’ It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority—and power—to directly address the issue of force-feeding of the detainees at Guantanamo Bay.”

Feinstein only by association makes the next part of her argument. We comply with these treaties by complying with our Eighth Amendment prohibition on cruel or unusual punishment. And the government has long said that if we can do something elsewhere in a our gulag system, we can do it in Gitmo.

In a letter to Chuck Hagel last month — which Feinstein noted in yesterday’s letter but did not quote from — she laid out how our force-feeding at Gitmo differs from that used in the Bureau of Prisons.

In addition to the allegation that the Department of Defense’s force-feeding practices are out of sync with international norms, they also appear to deviate significantly from U.S. Bureau of Prison practices. Based on a review by Intelligence Committee staff, the significant differences between force-feedings at Guantanamo Bay and within the U.S. Bureau of Prisons relate to the manner in which the detainees are force-fed, how often detainees are force-fed, and the safeguards and oversight in place during force-feedings.

Within the Bureau of Prisons, force-feeding is exceedingly rare. The Intelligence Committee staff has been told that no inmate within the Bureau of Prisons has been force-fed in more than six months. When force-feedings do occur within the Bureau of Prisons, we have been told that nearly 95% of the time they are conducted with a fully compliant inmate requiring no restraints. At Guantanamo Bay, on the other hand, all detainees being force-fed–regardless of their level of cooperation–are placed in chairs where they are forcibly restrained. The visual impression is one of restraint: of arms, legs, and body. Further, at Guantanamo Bay, detainees are fed twice a day in this manner, potentially over a substantial period of time. This also is inconsistent with the practice of the U.S. Bureau of Prisons.

Additionally, the U.S. federal prison guidelines for force-feedings include several safeguards and oversight mechanisms that are not in place at Guantanamo Bay. These guidelines require the warden to notify a sentencing judge of the involuntary feeding, with background and an explanation of the reasons for involuntary feeding. Further, the Bureau of Prisons requires an individualized assessment of an inmate’s situation to guide how force-feedings are administered, a practice that I found largely absent at Guantanamo Bay. Finally, all force-feedings must be videotaped within the Bureau of Prisons.

It’s almost as if DiFi knows or suspects there’s an OLC memo that — parallel to the ones that found torture to be legal because it vaguely resembled practices elsewhere (as when they noted that members of the military undergo SERE training, so reverse-engineered SERE techniques used in different situations were legal) — finds our force-feeding at Gitmo to be legal because judges have approved the way we force-feed people in federal prisons. In any case, Gitmo officials have said their treatment is similar with BOP treatment.

Between these two letters, she has laid out why that is not the case. Indeed, that’s the import of Kessler’s language, a federal judge finding the treatment we use in Gitmo to violate our obligations under ICCPR.

Say what you will about DiFi (lord knows I’ve often said the same, where I thought it appropriate), but she has just told a President from her own party that he’s breaking the law.

Judge Kessler to President Obama: Will You Save Gitmo Detainees from “Painful, Humiliating, and Degrading” Treatment?

In my post describing the emergency suit to stop force-feeding at Gitmo before Ramadan, I suggested it might be unlikely for the DC District Court judges to accept a challenge about prison conditions. That is exactly what happened: Judge Gladys Kessler rejected the request on jurisdictional grounds.

But along the way, she made it clear she doesn’t buy government claims that force-feeding people is really the best medical care.

Despite the statements contained in the Declaration submitted by the Government in support of its Opposition to the Application claiming that “[t]he health care provided to the detainees being held at JTF-GTMO rivals that provided in any community in the United States and is comparable to that afforded to our active duty service members. Detainees receive timely, compassionate, quality healthcare and have regular access to primary care and specialist physicians,” it is perfectly clear from the statements of detainees, as well as the statements from the organizations just cited, that force-feeding is a painful, humiliating, and degrading process. [my emphasis]

At which point she made clear who really bears responsibility for this continued treatment.

Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner’s request, there is an individual who does have the authority to address the issue. In a speech on May 23,2013, President Barack Obama stated “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.” Text of President Obama’s May 23 Speech on National Security (Full Transcript), Wash. Post, May 23, 2013, available at 2013 WLNR 12700673.

Article II, Section 2 of the Constitution provides that “[t]he President shall be the Commander in Chief of the Army and Navy of the United States … ” It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority–and power–to directly address the issue of force-feeding of the detainees at Guantanamo Bay. [my emphasis]

Kessler’s use of the term “degrading” is particularly notable. Article 16 of the Convention Against Torture reads, in part,

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture

A federal judge has just determined that force-feeding Gitmo detainees amounts to degrading treatment.

Will the President act to end this degrading treatment, or will he publicly fail to meet our obligations under the Convention Against Torture?

Gitmo Detainees Try to Force End to Force-Feeding in Time for Ramadan

According to Carol Rosenberg’s count, 44 of the 106 Gitmo detainees currently on hunger strike are being tube-fed. Which suggests there are too many men to carry out the tube feeding after sunset and sunset, which is what the camp has done in past years when there were fewer detainees hunger striking during Ramadan.

That is just one of the issues cited in the emergency motion filed by the lawyer for Shaker Aamer and three other detainees, Cori Crider, plus John Eisenberg (of al-Haramain fame) to end the practice.

Petitioners have been detained at Guantánamo Bay for up to 11 years. At this point, their detention without trial or military commission proceedings has become indefinite. To force-feed a noncriminal detainee in order to prolong his indefinite detention violates the law of human rights and thus serves no legitimate penological interest.

Petitioners’ force-feeding also violates medical ethics and is inhumane. For that reason, too, it serves no legitimate penological interest. The only theory advanced to justify petitioners’ detention is that, more than a decade ago, they were enemy belligerents. Their detention, it is said, is necessary to ward off some putative “return” to the battlefield. They dispute that claim, but even if one accepts it, a noncriminal enemy belligerent is still entitled, under the Geneva Conventions and basic standards of human decency, to be treated honorably and humanely. Being strapped to a chair and having a tube forcibly inserted through one’s nostrils and into one’s stomach is dishonorable and degrading. It falls within the ambit of torture or other forms of inhumane treatment. In the long history of American detention of the enemy, bodily invasions of this character have never been the routine business of the prisoner of war camp.

The motion has individual descriptions from each of the four detainees explaining why they are striking.

[Nabil] Hadjarab is an Algerian citizen and former French resident. His living relatives are French citizens and have requested that the French government accept him in honor of his family’s history of French military service. He was also cleared by the Bush administration ARB in 2007 and by the Obama-era GRTF in 2009.

[snip]

Mr. Hadjarab was among the first prisoners to be force-fed, on March 22, 2013. Crider Decl. Ex. A, at 11. He also finds the process degrading and painful, stating that the feeding chair “ ‘reminds [him] of an execution chair.’ ” Id. at 11. He, too, has sought to raise concerns with medical staff and has been rebuffed.

The big question will be whether the courts accept a challenge on prison conditions.

The judges in these detainees’ habeas cases, Rosemary Collyer and Gladys Kessler, have given the government until Wednesday to respond.

Ramadan starts Monday.

BREAKING: CIA Admits to SSCI Millions of Its Official Records Are Badly Inaccurate

As I noted in this post, today John Brennan will try to convince Dianne Feinstein and Saxby Chambliss that their (well, really McCain and the Democrats’) 6,000 page report documenting that torture didn’t work and CIA lied to Congress (and the White House and DOJ and the public) about it not working.

Here’s the basis on which Brennan will stake his claim that SSCI’s report is wrong.

The CIA report catalogues errors that teams of agency analysts found in the committee’s research. It also questions the panel’s methodology, noting that the committee collected millions of internal CIA cables and other documents on the interrogation program, but it did not interview anyone directly involved.

Never mind that the CIA chose not to make its officials available to the committee. Never mind that John Kiriakou made it clear that the cables describing Abu Zubaydah’s torture, at least, both downplayed the number of times he had been waterboarded and exaggerated how effectively it worked.

The CIA will make the case that if you were to read millions of their cables recording their intelligence programs, you would have a grossly distorted understanding of those programs. CIA will make the case that nothing true they do is written down.

Or something like that.

Now, there’s abundant evidence the conclusions of the SSCI report are actually correct, no matter what torturers would say if asked.

But I do think it ought to raise at least as many concerns to be told that the millions of CIA cables and other documentation SSCI read doesn’t convey the truth about what CIA is doing.

Hell, I think John Brennan just made the case that the lawyers for Gitmo detainees who were held by the CIA need to interview all of the CIA personnel in person.

Obama’s Headlong Rush to Counterterrorism Transparency

By my count, Thursday will be the 100th day since Obama promised, in his State of the Union Adress delivered February 12, “to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Back then there were, officially at least, just a handful of Gitmo detainees on hunger strike. And it’s possible — if DOJ used the two 45-day gags on subpoenas they permit themselves — a subpoena seizing the phone records for 21 AP phone lines had already been issued.

After Obama promised more transparency on drones and other counterterrorism programs, Members of Congress continued to have to demand minimal transparency. On February 20, Rand Paul sent his third request for that information. On February 27, House Judiciary Chairman Bob Goodlatte repeated that Committee’s request to see OLC’s drone targeting memos; he also expressed anger that the Administration had refused to send a witness to the hearing.

On March 7, Eric Holder hinted that we would “will hear from the President in a relatively short period of time” on drones and transparency and counterterrorism.  On March 8, guards at Gitmo shot non-lethal bullets at detainees. The following day US conducted a drone strike in Pakistan, one of two strikes that month.

On March 11, Progressive Members of Congress sent a letter asking for information on drone targeting.

On April 9, McClatchy reported that most drone strikes had hit low level militants, contrary to public claims; it also revealed the intelligence reports themselves were false.

On April 10, the House Judiciary Committee finally threatened to subpoena the OLC memos authorizing the killing of an American citizen; that was at least the 23rd request for such information from Congress. A week later the Committee would finally get a promise to see just those memos, memos squarely within the Committee’s oversight jurisdiction.

On April 13, the military locked down Gitmo, effectively depriving most detainees of the human company they had enjoyed for years. On that day, 43 men were hunger striking.

On April 14, Samir Haji al Hasan Moqbel described, in a NYT op-ed, “I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity.” That same day, the US launched one of two drone strikes in Pakistan that month.

On April 15, the Tsarnaev brothers attacked the Boston Marathon, reportedly in retaliation for treatment of Muslims in Afghanistan and Iraq.

April 17, a US drone struck the Yemeni village of a Yemeni, Farea al-Muslimi, already scheduled to testify before the Senate Judiciary Committee about how drones turn Yemenis against the US.

On April 21, the number of hunger strikes at Gitmo reached 84 — over half the men there. Six days later, on April 27, that number reached 100. Three more men have since joined the hunger strike.

As those numbers were growing, on April 25, Dianne Feinstein called on Obama to transfer those detainees who have been cleared. On April 30, Obama renewed his promise to close Gitmo. The next day, the White House made clear that the moratorium preventing almost half the detainees, men who have been cleared for transfer, to return home to Yemen, remained in place.

On May 10, the AP learned that DOJ had seized phone records from 21 phone lines with no notice, potentially exposing the sources of up to 100 journalists.

On May 16, in a hearing querying whether Congress should eliminate or expand the September 18, 2001 Authorization to Use Military Force, Assistant Defense Secretary Michael Sheehan testified the war on terror would last at least 10-20 more years. He also said DOD won’t be taking over CIA’s side of the drone war anytime soon.

Saturday, a drone strike killed at least 4 thus far unidentified men in Yemen.

Which brings us to Thursday when, the WaPo details, Obama will give a speech telling us once again the drone strikes are legal, his desire to close Gitmo is real, and leaks his new CIA Director exacerbated are serious. He will, apparently, also tell us how he plans to make his counterterrorism plan look more like what he promised it would look like 4 years ago.

President Obama will deliver a speech Thursday at the National Defense University in which he will address how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantanamo Bay, Cuba, in line with the legal framework he promised after taking office.

In the interim between when he promised this transparency and when he’ll start to sort of deliver it (but not, apparently, any actions to close Gitmo), about 7% of his second term will have passed.

Some of the delay, apparently, comes from the need to address the issues that have been festering during the delay.

Obama was prepared to deliver the speech earlier this month, but it was put off amid mounting concerns over a prisoner hunger strike at Guantanamo Bay and more recently the Justice Department leaks investigation — both of which the revised speech may address.

But otherwise, it appears it has taken 100 days to be able to craft a speech good enough to make his paranoia about secrecy and lip service to human rights in counterterrorism look like something else.

Ah well, at least they’ve sharply curtailed drone strikes while they’ve been writing a speech.

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Emptywheel Twitterverse
emptywheel @puellavulnerata Actually don't know. Lots of possibilities.
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emptywheel @alanhkaiser What? Sorry, that's fucking nuts. Of course he's lying. @trevortimm
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emptywheel @liferstate Oh, they're generally sorted. I need to go through & decide what to keep, what someone might want, what has too many annotations
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emptywheel @billmon1 Nothing a few InfoOp fliers can't fix.
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emptywheel @John_Hudson Well, I think I've got a solution! Primary challenge threats! It's the solution to everything!
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emptywheel @B_Amer Yup. Didn't expect that kind! Music related? @alreinke
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emptywheel @John_Hudson To be fair, kind of hard for city to deal w/100 year flood and top 10 snow year in same year. Blame Fat Al Gore.
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emptywheel @B_Amer ? Am I not looking closely enough at pics? @alreinke
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emptywheel @B_Amer Fun pic. Looks gorgeous. (Tho hot.)
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emptywheel @polyparadigm Since DeVos may demand anything on threat of primaries, he should just demand they use some ... novel material.
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bmaz @Gaius_Publius Yes, saw them once or twice a year back in the day against the Suns. Still, been long time, had forgotten ho evil really were
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emptywheel @B_Amer You missing someone??
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