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?
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.
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.
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.
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.
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.
There’s a weird detail in this Daniel Klaidman piece on Obama’s claimed newfound commitment to closing Gitmo.
One of the new details in it describes a memo Hillary Clinton wrote just before she left the State Department.
One recent plea, two sources told Newsweek, came from Hillary Clinton, who, just before she left office in January 2013, sent a two-page confidential memo to Obama about Guantánamo.
Now, in one of her last moves as secretary of State, she was making a final effort to prod her boss to do more. Her memo was replete with practical suggestions for moving ahead on Gitmo. Chief among them: Obama needed to appoint a high-level official to be in charge of the effort, someone who had clout and proximity to the Oval Office. Further, Clinton argued that Obama could start transferring the 86 detainees who’d already been cleared for release. (Congress has imposed onerous restrictions on the administration’s ability to transfer Gitmo detainees—including a stipulation that the secretary of Defense certify that detainees sent to other countries would not engage in acts of terrorism. In her memo, Clinton pointed out that the administration could use “national-security waivers” to circumvent the restriction.)
The Clinton missive perturbed White House aides, who viewed it as an attempt to put them on the spot, according to a senior administration official. It’s unclear how Obama himself reacted to the memo; there’s no evidence that it spurred him to action.
I thought to myself as I read this, “but Clinton’s departure is precisely when the Administration moved backwards on this front, by reassigning Daniel Fried, who had been in charge of resettling detainees.” Fried’s reassignment was reported January 29. That was technically while Hillary was still at State — Kerry took over on February 1.
Still, whoever transferred Fried, she must have written that memo (which pissed off Obama’s minders) at almost precisely the moment State eliminated the person most focused on working towards Gitmo closure.
Klaidman doesn’t entirely ignore this detail. Six paragraphs later he mentions the transfer.
For much of the past few years, without any signal that Obama was going to fight on Gitmo, the policy drifted. Daniel Fried, the veteran State Department official in charge of resettling detainees, was transferred to a different position.
Still, there must be a story explaining why Fried got transferred at precisely the moment Hillary, technically still his boss, was calling to redouble the effort to close Gitmo.
The NYT thinks the takeaway “news” of Harold Koh’s speech on Forever War is his call for more transparency on drone killing. Yet that Koh supports more transparency on drones is not news. Daniel Klaidman has been reporting that since January 2012.
What’s newsworthy about this call for transparency, though, is how shrill it is.
But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.
As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreedupon domestic and international legal process and standards.
Perhaps this shrillness is why Koh ends the speech with a grandiose invocation of our “better angels.”
Because I am an American who loves his country, I have served it for ten years of my professional career. My former professor and former Legal Adviser Abram Chayes once said, after he had sued the United States government from the academy, “I have always thought there is nothing wrong with an American lawyer holding the United States to its own best standards.” It is in that spirit that tonight, from this important podium, I call my country to its own best values and principles. As President Lincoln famously said, there is still time–indeed, it is high time– for Americans once again to answer to the “better angels” of our national nature.
Though it should be noted that Attorney Abe Lincoln appealed for us to answer to our better angels at the beginning of his service in the Executive Branch, not after he had left that position of influence (something John Wilkes Booth prevented in any case). Why is Harold Koh saying this now?
It’s how Koh relitigates the last of those battles, closing Gitmo, I find most interesting. He calls for the appointment of a Greg Craig type to implement the plan Craig tried to implement himself in the first year of the Obama Administration.
First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantanamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantanamo population and close the camp.
Second, this White House Envoy need not develop a new paradigm for closing Guantanamo. He or she merely needs to implement the National Archives framework that the President announced three years ago. The White House Envoy should lead the Administration’s efforts to implement the three-part framework for closure of the Guantanamo detention facility specified in the President’s 2010 speech at the National Archives. That speech described a framework for how this closure could happen: through diplomatic transfers of those individuals who could be safely transferred, prosecution of those who can be tried before civilian courts when possible and military commissions where that is the only option, and third, by commencing the long-overdue legally mandated periodic review of so-called Law of War Detainees to see if any can be released, because of changes either in their attitude or in the conditions of the country to which they could be transferred.
Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.
But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work. Continue reading
Peter Maurer, President of the International Committee of the Red Cross, yesterday completed four days of meetings with US officials in Washington. According to the blog site for the ICRC, Maurer met with President Barack Obama, senior members of Congress and a number of high-ranking government figures, including “Secretary of Defense Chuck Hagel, Secretary of Homeland Security Janet Napolitano, Director of National Intelligence James Clapper, Director of the Central Intelligence Agency John Brennan, Deputy Secretary of State William Burns, and Deputy Attorney General James Cole.”
It is perhaps not surprising that since there is a widespread hunger strike at Guantanamo (and since the ICRC visited Guantanamo earlier this month), detention issues were high on the list of topics for the meetings:
A focus of Mr Maurer’s visit was detention-related matters. “The United States, including its Congress, must urgently find a way to resolve all pending humanitarian, legal and policy issues relating to the detention of persons held at Guantanamo Bay, including those deemed to no longer represent a threat that justifies their continued detention there,” said Mr Maurer.
But Guantanamo was not the only topic. It comes as a welcome development to me that Maurer would widen the scope of discussion with key figures such as Obama, Brennan and Hagel to remind them of their duties under international humanitarian law:
“We enjoy a robust and multi-faceted dialogue with the United States, and my visit was an opportunity to discuss issues and contexts of mutual concern such as Syria and Afghanistan,” said Mr Maurer. “The United States values the mandate, positions and input of the ICRC and I am confident that this interaction will continue to bring concrete results, notably in terms of implementation of and respect for international humanitarian law in current and future battlefields.”
Especially when it comes to Obama and Brennan, it is striking that this statement can be construed as saying that the US needs to implement international humanitarian laws and to respect them. Although not stated outright, it is impossible to come to any other conclusion than to believe that the ICRC now believes that the US does not abide by international humanitarian law. I would think that the US practice of targeted killings, which is viewed by the UN as an issue for international law (and where the UN has called “double tap” drone strikes war crimes) would likely have been a topic for Maurer when talking with Brennan, who has played a key role in ordering drone strikes.
Sadly, I don’t share the ICRC’s optimism regarding our government’s respect for the “mandate, positions and input of the ICRC”. We need look no further than the sad news out of Guantanamo yesterday where it now appears that hundreds of thousands of confidential files and communications belonging to Guantanamo defense lawyers have been provided to the prosecution. In addition, a number of key files seem to have disappeared. From Carol Rosenberg: Continue reading
A six-count indictment was unsealed today in United States District Court for the Eastern District of New York charging Ibrahim Suleiman Adnan Adam Harun, also known as “Spin Ghul,” with conspiracy to murder American military personnel in Afghanistan, conspiracy to bomb American diplomatic facilities in Nigeria, conspiracy to provide material support to al Qaeda, providing material support to al Qaeda, and related firearms and explosives counts. The indictment was returned under seal by a federal grand jury sitting in Brooklyn, New York on February 21, 2012, and relates to Harun’s alleged activities in Afghanistan, Pakistan, and Africa beginning in 2001.
According to court documents, Harun, who was born in Saudi Arabia but claims citizenship in Niger, was extradited from Italy to the United States on October 4, 2012, and arraigned in a sealed proceeding in federal court in Brooklyn, New York on October 5, 2012.
With the three Somalis rendered to the US in November and arraigned in December, and Osama bin Laden’s son-in-law Abu Ghaith a few weeks ago, this makes 5 al Qaeda/Shabaab associates brought into the civilian court system in defiance of the 2012 NDAA.
All involve a period of pre-detention either here or abroad (or both), followed by processing in the civilian courts.
We’ll see how this approach works out (Ghaith’s charges, in particular, may be interesting ones to try, though he is after all OBL’s relative, so I assume he’ll be convicted regardless). But for now, it seems the Administration is just going to blow off Congress’ demands for military detention.
Carol Rosenberg, Jason Leopold, Charlie Savage, and Ryan Reilly all have updates on the Gitmo Military Commission’s efforts to pretend they control the proceedings of the court room, and not someone like John Brennan or the CIA.
All of them note that Judge James Pohl promised that Monday’s censorship won’t happen again. Savage adds an interesting detail: the suggestion that the censorship represented a disagreement between the Military Commission and the censor–presumed to be the CIA.
“This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.”
He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case.
“The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.” [my emphasis]
This actually raises an interesting parallel with Article III Courts. There, DOJ has repeatedly insisted that courts have no authority to determine what is classified or not. On rare occasions, a Court will overrule the government.
This conflict appears to arisen from the same kind of disagreement, one made stark because of the censorship button. But ultimately, the Executive Branch was again insisting that only it can say, legally, what counts as classified.
Rosenberg raises a parallel issue: claims by DOJ lawyer Joanna Baltes, who oversees classification issues, that the Original Classification Authority in question was part of the Military Commissions. Pohl disagrees.
“An OCA does not work for the commission,” he said, the Pentagon term for the war court, “and has no independent decision-making authority on how these proceedings are to be conducted.” On Tuesday, civilian 9/11 prosecutor Joanna Baltes cast the role of the OCA as an approved extension of the military commissions.
“The OCA, original classification authority, reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed,” she said in a note to the judge. “When the parties do press the mute button on the microphone, no audio is transmitted through the closed feed.”
Rosenberg raises one more important point: CIA screwed up during one of the first moments that the 40-second delay ordered by Pohl was in place.
Monday’s outside censorship episode occurred on the first day of proceedings after the judge formally approved the 40-second audio delay in the Sept. 11 trial, rejecting an American Civil Liberties Union argument that it transformed a live court into a “censorship chamber.”
Boy, the CIA sure wasted no time in validating the ACLU’s concerns?
As Reilly lays out, the incident has only raised the concerns of the Defense Attorneys.
“Who is pulling the strings? Who is the master of puppets? We have more questions than we have answers,” said Walter Ruiz, an attorney for Mustafa al Hawsawi, an alleged al Qaeda money courier.
David Nevin, a lawyer for KSM, said it would “open a number of questions” if indeed someone based in the U.S. had the ability to cut off the feed of the courtroom facility. Martins had declined to say whether the secret censor was based either in the U.S. or was located somewhere on Guantanamo Navy Base.
James Harrington, a lawyer for Ramzi Binalshibh, said a federal judge would have never put up with someone else having the ability to cut off access to his courtroom.
“I have been practicing for over 40 years in federal courts in the United States, if this had happened before any federal judge that I know of, this proceeding would have been stopped. There would have been hell to pay. Hell to pay,” Harrington said.
It’s going to be very hard to unring this bell, not matter how assiduously General Mark Martins tries to establish its independence (and last week’s fight over the inclusion of conspiracy charges had already damaged that).
Congratulations to Barack Obama, whose invisible hand censor has made Gitmo even more of a kangaroo court than it was under Bush.
As Jim laid out, over the last two days of Gitmo hearings, we saw (thanks to livetweeters like Carol Rosenberg, Jason Leopold, and Daphne Eviatar) someone improperly cut the feed from the court room to the journalists for 3 minutes, just as Khalid Sheikh Mohammed’s lawyer, David Nevin, started to read from his unclassified motion to preserve the black sites. After it happened, Judge James Pohl was rather angry about what he saw as an improper use of the censorship system. Today, it became clear that the OCA–the original classification authority–pressed the censor button, via some AV means that Judge Pohl either didn’t fully understand or want to discuss.
In other words, CIA has ultimate control over his court room.
For the last day, I’ve been predicting that Moral Rectitude Transparency and Assassination Czar John Brennan was responsible for the improper censorship. It was almost certainly some CIA minion Brennan will manage not long after his February 7 confirmation hearing rather than Brennan himself. Though remember–the legal record indicates that the National Security Council, and not CIA, asked to have torture made into a Special Access Program in the first place, though before most of the 9/11 detainees being tried were tortured (the exception, I think, is Ramzi bin al-Shibh). So either John Brennan in his guise as Obama’s NSC counterterrorism advisor or his rising CIA Director–ultimately, it was his portfolio censorsing unclassified information in the trial.
But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.
And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.
We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.