Col. 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.
Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:
The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.
The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.
The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.
The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:
But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.
As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: Continue reading
I would be shocked if, after today’s appeal hearing in Umar Farouk Abdulmutallab’s trial, he were granted a new trial on competency grounds. On the panel, David McKeague seemed completely skeptical on legal grounds, Jane Branstetter Stranch seemed skeptical on the central competency issue, leaving Curtis Collier (a District Judge on loan from E TN) with the only apparent sympathy for the argument at hand in the least.
As I explained back in May, The central question was whether Abdulmutallab was competent to defend himself. He had fired his federal defenders in September 2010 and the court named a standby counsel, Anthony Chambers, for him. In August of the next year, Chambers submitted a sealed motion arguing Abdulmutallab was not competent. Judge Nancy Edmunds had a hearing on August 17, 2011 and while she addressed several questions to Abdulmutallab, she did not have him evaluated for competency. When he plead guilty on October 12, 2012, she asked standby counsel if he thought Abdulmutallab was competent to plead guilt and after he assented, she accepted the guilty plea.
Both Judge McKeague, to a lesser degree Stranch, and prosecutor Jonathan Tukel emphasized that last point in their discussion: given that the same standby counsel who had submitted the motion on competence did not re-raise it at the plea, they argued, it suggests the counsel agreed with Edmunds’ determination that Adbulmutallab was competent. Abdulmutallab’s attorney Travis Rossman argued that the Chambers could not, at that point, argue his client was totally crazy. Moreover, he argued, the standard for a defendant representing himself was higher and must be concurrent determination (meaning if he were crazy in August 2012 but competent in October 2012, it would still be an issue for a defendant representing himself). But that detail will almost certainly be the one the judges point to to reject this appeal.
Judges McKeague and Stranch also examined a different question. Some of the most obviously crazy things Abdulmutallab did (though this wasn’t and couldn’t have been Chambers’ original argument) came leading up to trial, most notably his bid to wear a Yemeni dagger to his trial. Abdulmutallab intended to martyr himself, Stranch noted, couldn’t these actions be interpreted as an effort to use the trial to make a point of his faith? McKeague pointed out that Abdulmutallab had done some pretty “well thought out logical things” leading up to his attack. He later asked whether his conduct at trial wasn’t consistent with what you’d expect a jihadi to do, to use the trial as a platform to present his views?
Rossman contested that point — noting that had Abdulmutallab let the trial play out, he would have had many more opportunities to parade his jihadi views. McKeague responded that refusing counsel left Abdulmutallab more empowered to make jihadi statements rather than mount a defense. Rossman correctly pointed out this was all getting into speculation about how a competent jihadi would act.
While it didn’t come up in the hearing, remember that the statement Abdulmutallab ultimately made was remarkably muted and took up less than 15 minutes, so by measure of his exploitation of his soapbox, the UndieBomber failed.
All that’s a way of saying that much of the hearing focused on how a competent jihadi would use his decision to represent himself to further his goals of jihad.
There is, however, a significant weakness in the government’s case, one Tukel made obvious with the central ploy he made in his argument.
Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:
But I think we need to take a step back.
First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.
That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,
And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.
Then there’s the question of what we’re after: the truth, or exploitation?
Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?
I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.
As Josh Gerstein reported last week, the Public Defenders Office for Southern District of NY and DOJ spent much of Tuesday and Wednesday fighting about whether Abu Anas al-Libi should get a lawyer. On Friday, Lewis Kaplan (who also presided over the Ahmed Ghailani trial) decided he should not.
Then, sometime over the weekend (that is, no more than 2 days after DOJ won the fight to continue to keep al-Libi detained with no lawyer) al-Libi was brought to NY, though he won’t show up in court until tomorrow.
One excuse the government is giving for the apparent change in plans is al-Libi’s health problems.
Al-Libi has longstanding health issues and will get medical testing while in custody to determine whether he needs treatment, U.S. officials said.
As Gerstein also noted, al-Libi’s floating interrogation came to an end before such time as the Red Cross would normally have opportunity to inspect the conditions of his detention.
All of which stinks.
I think several things may have happened:
Meanwhile, the press is generally reporting al-Libi’s (secret, over the weekend) arrival in NY as if it hails a new day, when the arguments the government made to detain him nevertheless remain unchallenged.
Update: This makes sense. Al-Libi had stopped taking food or water.
The decision to bring the suspect, Nazih Abdul-Hamed al-Ruqai, to New York came after he stopped eating and drinking aboard the Navy vessel, the San Antonio, which made his chronic health conditions worse, several officials said. Mr. Ruqai’s wife has said that her husband has a severe case of hepatitis C.
There has been all manner of commentary about the rendition and detention on a poorly functioning ship of Abu Anas al Libi. There are credulous claims about the humanity of the High Value Interrogation Group’s tactics that nevertheless remain officially classified. There’s the growing awareness that al-Libi’s case differs from Ahmed Warsame’s in several key ways. And then there’s John Bellinger, trolling the Obama Administration for violating rules the Bush Administration did not in superb fashion.
These are important questions. But they distract from another important question.
What kind of intelligence do they really expect to get from al-Libi?
The explanation for his capture has focused on his alleged role in the 1998 Embassy Bombings. While there are no statutes of limitation for murder, that’s nevertheless an event that took place over 15 years ago. Even some of the analysts we often rely on — not to mention his family — suggest he hasn’t had an active role in al Qaeda for over a decade, or at least since he returned home to Libya 2 years ago. Lisa Monaco offered weak claims about the importance of al-Libi.
During an appearance on PBS Newshour, Deputy National Security Adviser Lisa Monaco repeatedly referred to Abu Anas Al-Libi as a “member” of Al Qaeda. However, she stopped short of calling the Libyan-born Al-Libi a “senior operational leader”—a phrase which seemed to have special significance when the Justice Department evaluated the legality of lethal force against U.S. citizens and is also believed to apply to targeting of foreign nationals outside combat zones.
Newshour reporter Jeffrey Brown asked Monaco about whether Al-Libi posed an “imminent” threat to Americans, but Monaco wouldn’t say that and also seemed to avoid declaring that he was an Al-Qaeda operative or even a leader of the group.
“Al-Libi did pose a threat to the United States as a senior al-Qaida member and somebody who is also charged in an indictment for his role as part of the Al Qaeda worldwide conspiracy,” Monaco declared.
This is, at the least, a significant difference from Ahmed Ghailani (who was seized with an active cell in Pakistan and interrogated for years about that active cell before being tried for his role in the Embassy Bombings) and Ahmed Warsame (who was seized for his active role in working with AQAP and al-Shabaab), though it perhaps resembles Suleiman Abu Ghaith.
I’m not saying al-Libi had no active role in terrorism. The timing — the raid took place at the same time as the strike on Abdulkadir Mohamed Abdulkadir, who allegedly helped plan attacks in Kenya — might suggest al-Libi played some role in the Westgate Mall attack and other operations in Africa.
Perhaps the most complete explanation for why al-Libi is a current threat is this description.
An unclassified report published in August 2012 highlighted al Qaeda’s strategy for building a fully operational network in Libya. The report (“Al Qaeda in Libya: A Profile”) was prepared by the federal research division of the Library of Congress (LOC) under an agreement with the Defense Department’s Combating Terrorism Technical Support Office (CTTSO). [See LWJ report, Al Qaeda's plan for Libya highlighted in congressional report.]
Abu Anas al Libi has played a key role in al Qaeda’s plan for Libya, according to the report’s authors. He was described as the “builder of al Qaeda’s network in Libya.”
Al Qaeda’s senior leadership (AQSL) has “issued strategic guidance to followers in Libya and elsewhere to take advantage of the Libyan rebellion,” the report reads. AQSL ordered its followers to “gather weapons,” “establish training camps,” “build a network in secret,” “establish an Islamic state,” and “institute sharia” law in Libya.
Abu Anas al Libi was identified as the key liaison between AQSL and others inside Libya who were working for al Qaeda. “Reporting indicates that intense communications from AQSL are conducted through Abu Anas al Libi, who is believed to be an intermediary between [Ayman al] Zawahiri and jihadists in Libya,” the report notes.
Al Libi is “most likely involved in al Qaeda strategic planning and coordination between AQSL and Libyan Islamist militias who adhere to al Qaeda’s ideology,” the report continues.
Al Libi and his fellow al Qaeda operatives “have been conducting consultations with AQSL in Afghanistan and Pakistan about announcing the presence of a branch of the organization that will be led by returnees from Iraq, Yemen, and Afghanistan, and by leading figures from the former LIFG.” The LIFG refers to the Libyan Islamic Fighting Group, an al Qaeda-linked jihadist group formed in Libya in the 1990s.
The suggestion that al-Libi might be the liaison between Ayman al-Zawahiri and extremists in Libya (extremists we helped to overthrow Qaddafi) is more interesting, particularly given Libya’s public objections to al-Libi’s rendition. Perhaps the ultimate plan is to hold al-Libi responsible for Benghazi (though interrogating him in a floating prison might endanger any charges if he was involved, which would be a big problem given the need for some finality on Benghazi). But it might raise interesting questions about whether the extremists we helped in Libya really constitute al Qaeda, or instead constitute a legitimate force within that country.
As of now, however, the US public story is that we captured this guy who has been living in the open for two years for a crime he committed 15 years ago. And that instead of whisking him immediately to NY to stand trial for that crime, we are instead pissing off the Libyan government and nudging up against a slew of domestic and international laws by conducting a floating interrogation from which we might learn only decades old facts. If that’s the story (and again, I suspect the government at least claims there is more), it makes all the legal and ethical issues surrounding his detention all the more problematic.
We 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.
As I noted last week, 12 years ago today, President Bush signed the Memorandum of Notification that governed — and as of last year, at least, still governs — our war on terror.
Part of that MON, according to Bob Woodward’s Bush at War, includes partnering with “rogue regimes” like Syria on intelligence collection.
[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty.
After signing that MON, Bush’s own regime sent people like Maher Arar off to be tortured by Bashar al-Assad’s government.
The same guy we almost went to war against last week because he’s so barbaric, we partnered with, in a policy set by the President, outsourcing our torture.
As of May 25, 2012, the government was still relying on this MON (probably, at a minimum, to cover the drone and other method assassinations that aren’t covered by any AUMF).
I already noted all this; I wasn’t going to otherwise call out the anniversary of the day the “Gloves Came Off.”
But then I saw this clip of Philip Mudd on Colbert. About halfway through, Mudd says we have to fight Syria because Assad is,
a tyrant who has a reckless abandon when he murders innocents. At what point do you draw a line and say we are not just US citizens, we’re global citizens?
Mudd then goes on to answer a question about whether he tortured prisoners by saying he was Deputy Director of the Counterterrorism Center, which held and tortured prisoners.
He doesn’t regret that, he says.
He then goes on to admit he signed papers to render prisoners.
Mudd: If you’re asking if I’m responsible for some of that, the answer’s yes.
Colbert: Alright, you think that was the right thing to do.
Colbert: And we renditioned some of those people to Syria.
Mudd: Uh, I think the answer’s yes, I don’t [shakes head]
Mudd: We rendered a lot of people.
At what point do you draw a line, says this man, who can’t even remember that Syria was indeed one of the countries we outsourced our torture to, even the torture of an innocent man. We must be global citizens, not just American citizens, he says, and doing anything else is a sign of cowardice.
And yet, this intelligence expert can’t even figure out why Assad thinks he can get away with murdering his own people.
Eric Holder has written a letter to Russian Minister of Justice Alexander Valdimirovich Konovalov. In it, he claims to address the issues Edward Snowden raised in his application for asylum to Russia (I’m not sure he accurately represents the claim — in other asylum applications Snowden made a clear case he was charged with a political crime, which Holder doesn’t mention at all).
The letter assures Konovalov that the charges currently charged don’t carry the death penalty and the government wouldn’t seek the death penalty if he were charged with such crimes.
But it also offers this guarantee that Snowden won’t be tortured:
Second, Mr. Snowden will not be tortured. Torture is unlawful in the United States.
That’s it! The guy whose DOJ reviewed but chose not to charge a bunch of CIA torturers (and those who obstructed investigations into that torture) says torture is illegal here and therefore Snowden wouldn’t be tortured.
Assuming, of course, you believe the forced nudity and solitary confinement Bradley Manning was illegally (per the judge in his case) subjected to doesn’t amount to torture. I’m sure Vladimir Putin would agree, but much of the civilized world does not.
In other curious assurances, Holder promises that Snowden would have the right to counsel.
Any questioning of Mr. Snowden could be conducted only with his consent: his participation would be entirely voluntary, and his legal counsel would be present should he wish it.
I guess Holder ought to tell Dzhokhar Tsarnaev about this return to the good old days, because he asked for a lawyer several times under questioning before he got one.
These assurances are all very nice. But more and more, such assurances are easily disproven by our recent history. Again, I don’t think Vlad Putin gives a great shit about all that. But ultimately this increasingly shoddy recent history will hurt such claims in the international realm.
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.