Lindsey Graham Must WANT the Terrorists to Have Kittens and Beard Dye

In the last week, we’ve had two stories about how terrorists at Gitmo have made themselves comfortable.

First there was Michelle Shephard’s investigation into whether Majid Khan has a cat.

A week-long investigation into Guantanamo’s feline affairs couldn’t determine the case for sure.

“No detainees are provided pets, and detainees are not authorized to keep animals, as they present a health and sanitation hazard,” wrote Navy Capt. Robert Durand, the director of Joint Task Force Guantanamo’s Public Affairs, in a lengthy response to my cat query.

“Wild animals often carry diseases and pests such as rabies, lice, mites and other infections.”

However: “Recreation yards are surrounded by security fences that keep detainees in and unauthorized people out, but small animals can and do squeeze through any gaps.”

Durand’s emailed response goes on to describe the island’s wildlife: “The Cuban Rock Iguana is a protected species, and banana rats and feral cats lack natural predators, so these populations thrive in the areas immediately adjacent to the various camps.”Yes, but does Khanhave a cat?

“We do not discuss the details of any individual detainee.”

And now there’s Carol Rosenberg’s story explaining that Khalid Sheikh Mohammed hennaed his beard with berries and juice.

Tuesday, Army Lt. Col. Todd Breasseale said in response to a five-month-old question that Mohammed “did craft his own natural means” inside the prison camps to concoct his self-styled beard dye.

“I don’t have his exact procedure,” Breasseale said, “but can confirm the use of at least berries and juice to create a kind of harmless dye.”

We paid Halliburton a lot of money to build this prison–and still shell out $800,000 a year to keep terrorists there. But apparently Halliburton couldn’t even keep feral cats out?

I’m guessing Jose Padilla doesn’t have a kitten in Florence SuperMax. And even when Umar Farouk Abdulmutallab was held at the local minimum security prison in Milan, he didn’t show up in court in a camo vest and dyed beard (he asked to wear a Yemeni dagger, mind you, and he looked too young to grow one, mind you).

So I’m beginning to think that Lindsey Graham and all the others that insist terrorists must be held in Gitmo rather in the real prisons in the US want the terrorists to have kittens.

Upate: h/t to joanneleon for alerting me that, by my spelling, I tried to kill KSM’s beard rather than color it.

Latif’s Unexplained Death: Yemeni Government Facilitates US Stall

Jason Leopold has an important story on Adnan Farhan abd al Latif’s unexplained death. He provides more detail of Latif’s struggles with his 1994 head injury the government claimed wasn’t the reason for his 2001 trip to Pakistan. He describes how Latif’s family–including his 14 year old son Ezzi Deen–responded to the news Latif had died at Gitmo.

But most importantly, Leopold adds more details to those reported by ProPublica on Latif’s death and subsequent limbo.

When Latif died, people–including me–suggested he might have finally found a way to kill himself. But as Leopold points out, with every suicide at Gitmo, DOD has released details on the obvious signs of that suicide. And a Gitmo spokesperson has repeatedly confirmed there was no immediately apparent evidence of suicide.

But in a statement to the Associated Press two days after Guantanamo officials announced the death of a prisoner without naming him, Durand said, “There is no apparent cause, natural or self-inflicted.”

Durand explained to Truthout at the time he made that statement he was responding to a reporter’s query: “Would you call it an apparent suicide or natural causes?”

Now, however, “It would be inappropriate to speculate on the cause of death at this time.”

There was nothing to “immediately suggest ‘apparent suicide,'” Durand said, and the death is being investigated by “multiple entities.”

A Yemeni official reflecting information presumably passed from John Brennan to Yemeni President Abed Rabu Mansour Hadi when they met on September 28 confirms the government appears to have ruled out suicide.

The Yemeni government official told Truthout that US officials appear to have ruled out suicide as the manner of his death.

Leopold quotes Cyril Wecht suggesting convulsions (possibly associated with his brain injury) or drugs may have had a role in Latif’s death.

Meanwhile, no one can perform independent analysis on Latif’s body, because the government has stashed it at Ramstein Air Base in Germany. The US and Yemeni governments continue the same story shared with ProPublica: the Yemenis won’t accept the body until they get a report on why he died, the US hasn’t provided that, so the body decays in US custody.

[Latif’s brother] Muhammed said the family was told by Yemen’s Ministry of Foreign Affairs that his brother’s remains would be sent home within two weeks after his death. The Ministry of Foreign Affairs, according to Muhammed, obtained that information from the Yemen Embassy in Washington, DC.

But according to a Yemeni official, the Yemen government refused to accept Adnan’s body until they receive a full accounting of the cause of his death.

[snip]The Yemeni government official’s comments about Adnan were obtained during an interview late last month when President Hadi visited the United States. His statements about Adnan were made in the context of discussions Hadi had with top US officials in the White House about the remaining Yemeni detainees in Guantanamo and Afghanistan.

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody. Possibly, they will have to admit complications of the same head injury they claimed, in court, was not all that serious, killed him.

And it appears John Brennan may be buying Hadi’s complicity on this front with promises he may not be able to keep. Leopold’s Yemeni source makes clear that the US and Yemeni government have tied discussions of the release of the other Yemenis in Gitmo and Bagram to the fate of Latif’s body.

“President Hadi was in Washington, DC, and met with President Obama’s cabinet ministers,” the official said. “The remaining Yemeni detainees was one of the talking points. President Hadi has made Guantanamo and Bagram [prison in Afghanistan] a high priority for Yemen. We are emphasizing talks and opening up a dialogue to ensure the timely release and transfer and rehabilitation of those remaining detainees to Yemeni custody and we are working closely with the US government. These discussions took place with high-level officials in the Obama administration.” [brackets original]

I can imagine a quid pro quo that goes this way: Hadi agrees to refuse to accept the body, helping to forestall announcements of how Latif died, until after the election. And then the US will enter discussions to do what they should have done 2 years ago: release the Yemenis who don’t pose a threat to the US.

But all that’s premised on getting Congressional support to release roughly 60 Yemenis, after the Administration already neutralized the one point of leverage–detainee wins in habeas proceedings–that has worked to override Congressional intransigence in the past.

To some degree, I can’t blame Hadi for doing the bidding of the superpower that put him in power, on whose continued military support he relies. I can’t blame Hadi for trading Latif’s decaying corpse for the fate of 60 other Yemenis unjustly held at Gitmo.

But if that’s the trade-off, I do question Hadi’s judgment for believing Obama will do in a second term what he had easier ways of doing–habeas proceedings–in the first.

DC Appeals Court Throws Out Hamdan Conviction

Back in 2009, then Assistant Attorney General David Kris predicted that appellate courts might throw out material support military commission convictions because material support is not a law of war crime.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

Today, the DC District Court did just that, though making a slightly narrower ruling. In a ruling overturning Salim Hamdan’s conviction on material support, conservative judge Brett Kavanaugh notes that material support still is not a law of war crime, and did not become a crime covered by military commissions in the US until the 2006 Military Commissions Act.

First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

Hamdan has already been released. Only one other detainee has been convicted on just material support, Ibrahim al-Qosi, who has been repatriated to Sudan and is in a reintegration program [oops–I forgot David Hicks, though he too has been released]. As Carol Rosenberg points out, three other Gitmo detainees were convicted of material support: Majid Khan, Noor Uthman Muhammed, and Ali al-Bahlul, but they were also convicted of other crimes. So assuming the Administration doesn’t appeal this, it probably doesn’t affect all that much.

Then again, the Administration could appeal this and have SCOTUS decide whether material support should be covered by military commissions more generally.

Update: I was wondering how this would affect al-Bahlul’s appeal. Steve Vladeck says it might affect it significantly.

And that’s where the next military commission case, al-Bahlul, comes in–one of the claims al-Bahlul raises in his appeal is that conspiracy was not recognized as a violation of the laws of war when the MCA was enacted, and so, as in Hamdan, the commission could not try him for that offense, either.

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Latif: Indefinitely Detained Even in Death

ProPublica reports that Adnan Farhan abd al Latif’s body remains in limbo–in an undisclosed location.

His body hasn’t been sent back to his home country of Yemen, and it’s no longer at Gitmo.

It’s being held in an undisclosed location.

“Mr. Latif’s remains are being handled with the utmost care and respect by medical professionals and are being maintained in an appropriate facility designed to best facilitate preservation,” said a Defense Department spokesman, Lt. Col. Todd Breasseale. “His remains are no longer at JTF-Guantanamo Bay.”

Breasseale blames the delay on the Yemenis, who have insisted on autopsy and investigation reports into why he died.

Lt. Col. Breasseale said the U.S. is responding to Yemen’s “wishes that we maintain the remains until a time when they are prepared to receive them.”

A Yemeni official said his government “will not accept the remains until we get an official autopsy and an investigation report. We just want to know what happened.” The official, who declined to be named, also said that the government was in touch with Latif’s family.

Latif died on September 8–26 days ago, or 44% the period until the election. if the sole explanation for the delay is that the US is unwilling to turn over an explanation of how Latif died, it makes it far more likely that Latif died of something other than suicide.

So are they going to hold Latif on ice until the election? Is that the idea?

Now That Latif Has Died But His Precedent Lives, DOD Releases List He Would Have Been On

As Josh Gerstein reported, the government has released a list of 55 Gitmo detainees who have been cleared for release.

The list was dated September 21–almost two weeks after Adnan Farhan abd al Latif died. Note, the list makes it clear there are others who have been cleared, but the names of the others “approved for transfer” are “protected by sealed orders issued by the Court of Appeals.” I assume, from that, that these others are the men who have lost habeas cases, probably in the DC Circuit, and the government doesn’t want to admit how many detainees’ habeas cases it fought after having decided on their own account they could release it.

That is, they don’t want to admit how many other detainees are in the position Latif was in: cleared for release, but held on one dodgy intelligence report.

And now that Latif is dead and that Latif precedent is still valid in the DC Circuit, many of the others on the list are presumably facing that same limbo: held on the basis of what the CIA or DOD dubiously claim when they don’t need to be.

Latif’s Death: A Blow to the Head of Our System of Justice

I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.”

Yet the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more

Judge Lamberth Upholds Gitmo Detainees’ Right to Counsel

I’m a bit cranky, so reading this scathing opinion from Royce Lamberth rejecting the government’s effort to impose a new Memorandum of Understanding concerning Gitmo detainees’ right to counsel was just the ticket. The operative ruling reads,

The court, whose duty it is to secure an individual’s liberty from unauthorized and illegal Executive confinement, cannot now tell a prisoner that he must beg leave of the Executive’s grace before the Court will involve itself. The very notion offense the separation-of-powers principles and our constitutional scheme.

But the part where Lamberth lists the differences between the existing Protective Order and the MOU the government proposed.

For example, the Protective Order assumes that counsel for the detainees have a “need to know,” which allows them to view classified information in their own and related Guantanamo cases. Counsel for detainees are also specifically allowed to discuss with each other relevant information, including classified information, “to the extent necessary for the effective representation of their clients. And, the Protective Order assures that counsel have continuing access to certain classified information, including their own work-product.

The MOU, on the other hand, strip counsel of their “need to know” designations, and explicitly denies counsel access to all classified documents or information which counsel had “previously obtained or created” in pursuit of a detainee’s habeas petition. Counsel can obtain access to their own classified work product only if they can justify their need for such information to the Government. “Need to know” determinations for this and all other classified information would be made by the Department of Defense Office of General Counsel (DoD OGC), in consultation with the pertinent classification authorities within DoD and other agencies. However, there is no assurance that such determinations will be made in a timely manner. As this Court is keenly aware from experience, the inter-agency process of classification review can stretch on for months. It is very likely that this provision would result in lengthy, needly and possibly oppressive delays. It would also require counsel to divulge some analysis and strategy to their adversary merely to obtain their past work-product.

[snip]

While this Court is empowered to enforce the Protective Order, all “disputes regarding the applicability, interpretation, enforcement, compliance with or violations of” the MOU are given to the “final and unreviewable discretion of the Commander, Commander, Joint Task Force-Guantanamo Bay” (JTF-GTMO). The MOU further gives the JTF-GTMO Commander complete “authority and discretion” over counsels’ access to classified information and to detainees, including in-person visits and written communications. Apparently, the MOU also gives the Government to unilaterally modify its terms.

[snip]

Unlike the Protective Order, which repeatedly states that the Government may not unreasonably withhold approval of matters within its discretion, the MOU places no such reasonableness requirement on the Commander of JTF-GTMO. Because the MOU does not come into effect until countersigned by the Commander at JTF-GTMO, the Commander could presumably refuse to sign the MOU, leaving a detainee in the lurch without access to counsel. The MOU also states that both the “operational needs and logistical constraints” at Guantanamo as well as the “requirements for ongoing military commissions, periodic review boards, and habeas litigation” will be prioritized over counsel-access. This provision is particularly troubling as it places a detainees’ access to counsel, and their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint. [citations removed]

This is a better summary of all the potential abuses in the new MOU than any I’ve seen in commentary on this issue. Rather than treating the government as an entity that has always acted in good faith in the history of Gitmo litigation (and other counterterrorism cases), Lamberth lays out all the big loopholes that the government would use to infringe on habeas corpus.

It’s worth a read. Cause I’m sure the government will appeal, and who knows what this will look like after someone like Janice Rogers Brown gets ahold of it.

Obama Looking for Structures to Ensure He Abides by Rule of Law


Noah Shachtman does a good job of fact checking Obama’s claims about his drone program in a recent interview with Jessica Yellin.

But I’d like to push further on his comments about Obama’s claims to give Anwar al-Awlaki and Samir Khan (to say nothing of Abdulrahman al-Awlaki) due process by pointing to the way he ends this bit:

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

Which, according to his own logic, means he’s not using the tool that would best work to keep us safe from terrorism.

Judge Kollar-Kotelly Sees No Evil, Hears No Evil

Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.

The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]

But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.

No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.

I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?

But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.

So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.

In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.

It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.

Here are details on the cables Kollar-Kotelly doesn’t want to read:

The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen

Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.

Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.

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The New Gitmo Memorandum of Understanding: Obama Finally Figured Out How to Close Down Gitmo!

Yesterday, the NYT weighed in on a new practice at Gitmo: the requirement that lawyers whose clients have lost their habeas case sign new memoranda of understanding governing the terms of access to their client.

The Obama administration’s latest overuse of executive authority at Guantánamo Bay is a decision not to let lawyers visit clients in detention under terms that have been in place since 2004. Because these meetings pose little risk and would send a message about America’s adherence to the rule of law, the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.

[snip]

Four years after the Supreme Court ruled that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” the government may be calculating that it can decide what “meaningful” means.

But if the wars where detainees were captured have been to defend American interests, surely the country has an interest in an unequivocal commitment to the rule of law, including full legal representation for detainees.

The NYT got closer to ascribing a motive and envisioning the impact of the policy than Lawfare’s several posts on the subject. But I think both are missing what I suspect is the point.

Aside from giving detainees little recourse over issues affecting their own treatment (which is most urgent, in my opinion, to monitor the mental health of the detainees), the MOU will have three effects:

  • Gutting Obama’s own promise to provide Periodic Reviews to detainees
  • Eliminating the risk that detainees will pursue justice internationally
  • Burying Obama’s biggest failed promise

Gutting the Periodic Review Boards

As Jack Goldsmith reminded back in April, a year earlier Obama had issued an executive order promising a Periodic Review Board for all detainees.

In March 2011, the Obama administration issued an Executive Order (13567) that created a process of Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The “review and hearing” process was designed to operate on top of the habeas review process and the other internal review processes for GTMO detainees, and to facilitate release of detainees who were not “a significant threat to the security of the United States.”     Bobby analyzed the EO here and here, as did Tom Nachbar here.

The EO states: “For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order” (emphasis added).  I have heard little about these reviews since last Spring, and the deadline for their commencement passed last month.  Has the administration carried out its pledges under the EO?

Irrespective of the delay, it was crystal clear by April that Obama didn’t put much stock in his promise to tie continued detention to the risk a detainee posed. After all, the Administration was willing to gut habeas with a detainee who, on multiple occasions, under both the Bush and Obama Administration, was cleared for release. When Obama did release the PRB guidelines, the timing involved–providing for just 4 months of election season during which the PRB would function (one of which has already elapsed)–made it clear it wasn’t actually supposed to function.

But the whole thing is supposed to be driven by new information; it’s not a reconsideration of information already in the files. And not only does the PRB determine the priority in which they’ll consider cases, they get to decide whether any information from the detainee is relevant.

Any additional relevant information (as defined in the Glossary) that has become available since the later of the Reference (k) review or prior PRB review, including information discovered as a consequence of information presented by the detainee’s personal representative or private counsel.

[snip]

(1) The personal representative and private counsel, if any, shall be provided with advance notice of the PRB review, as well as a reasonable opportunity to meet or talk to the detainee to discuss the PRB process and the information the detainee may wish to submit.

(2) The personal representative and private counsel, if any, may prepare a written submission for the PRB, which may include a written statement from the detainee. The written submission shall include all factual information that the detainee intends to present in the PRB proceedings. Such submission shall only contain information relevant and material to the determination of whether continued law of war detention of the detainee is necessary to protect against a continuing significant threat to the security of the United States. Relevance of the information is determined by the PRB.

And now the MOU warns that lawyers cannot assist their client for PRB matters under the MOU. Read more

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