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.
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?
When one of the unions that represent FBI Agents floated a trial balloon supporting Mike Rogers to be FBI Director, it got a lot more press attention than the unlikelihood of their request merited.
Let’s see whether this letter — from 5 retired FBI Agents — gets similar press attention. It raises concerns about two parts of Jim Comey’s past: his concurrence with a May 10, 2005 memo authorizing (among other things) torture — which I wrote about here — and his support for the indefinite detention of Jose Padilla.
However, the public record also shows that Mr. Comey concurred with a May 10, 2005 Office of Legal Counsel opinion that justified those same enhanced interrogation techniques for use individually. These techniques include cramped confinement, wallstanding, water dousing, extended sleep deprivation, and waterboarding, all of which constitute torture or cruel, inhuman, or degrading treatment in contravention of domestic and international law. Further, Mr. Comey vigorously defended the Bush administration’s decision to hold Jose Padilla, a United States citizen apprehended on U.S. soil, indefinitely without charge or trial for years in a military brig in Charleston, South Carolina.
Among the signatories is Jack Cloonan, a former member of the Osama bin Laden team who watched as CIA started interrupting successful interrogations to subject the detainee to torture instead. I’d be surprised, too, if he didn’t know Comey from the Southern District of NY days.
The letter suggests that Comey might not guard the FBI’s legacy as nobly as Robert Mueller (!) did.
The FBI, while not a perfect institution, has a proud history of dealing with terrorism suspects in accordance with the law. When other agencies and departments resorted to “enhanced interrogation” techniques, FBI Director Mueller directed FBI agents not to participate and in many cases FBI agents were pulled from the field where there were concerns about complicity with unlawful interrogation approaches. To date, the FBI has played a role in prosecuting within the civilian criminal justice system nearly 500 international terrorism cases–often leading to substantial periods of incarceration—
without having to resort to indefinite detention. Even Jose Padilla was ultimately given a trial in a civilian court, despite claims by Mr. Comey that prosecuting Padilla or otherwise affording him traditional due process protections would compromise national security.
They also tied Comey’s confirmation process to the declassification of the Senate Intelligence Committee’s torture report.
The Agents ask only that Comey “reject” the May 10, 2005 OLC memo. Me, I’d like the Senate to demand a full explanation for the circumstances of it. The memo was retroactive to cover someone who had already been tortured (though of course probably served to authorize Abu Faraj al-Libi’s torture, among others). At the very least the Senate Judiciary Committee could demand that Comey explain the circumstances of that retroactive approval.
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.