What Kind of Custody Is It When You Secretly Hold an American at a Military Base?

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Here’s a fairly minor point about the Gregory Saathoff report on Manssor Arbabsiar, the Scary Iran Plotter.

For the 12 day period when he was being secretly interrogated without a lawyer, he was being held at a military base.

Although at times Mr. Arbabsiar smoked inside the room, he often was escorted outside and on at least one occasion took a walk with agents around the military base.

Let me be clear: Arbabsiar’s arrest was approved by a US Magistrate. He was clearly arrested under civilian law.

And I’m not surprised the government held the cousin of a Quds Force member on a military base while they prepared to make an international incident out of his case. I’m sure Arbabsiar was nowhere near the first American citizen interrogated while in civilian custody at a military base.

But it’s coupled with the other part of this where it begins to get unsavory: the part where Arbabsiar had no lawyer and his legal team is now contesting whether he legally waived his right to a lawyer and presentment (and as I’ll explain if I ever get around to writing that post, I think their claim may have more merit than I originally did). And the part where the government didn’t check in with the Magistrate or have Arbabsiar medically examined until a week after he had been arrested.

So if the defense arguments about coerced waivers hold up (remember, we’re still seeing just part of what they’re complaining about), while a busy Magistrate knew he was in custody, Arbabsiar was otherwise in a black hole on a military base (though likely a quite pleasant one, with his own apartment) for a week to 12 days.

During the debate about the NDAA, people insisted we would never see a hybrid kind of detention where US citizens get indefinitely held, but in civilian custody. That’s not what happened to Arbabsiar; again, his detention had been approved by a Magistrate. But we are clearly inching closer to that kind of hybrid.

Latif: Indefinitely Detained Even in Death

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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

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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.

Fox News Blames Benghazi Attack on Gitmo Detainee

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Fox News quotes sources claiming that former Gitmo detainee Sufian Ibrahim Ahmed Hamouda Bin Qumu was involved in–and may have planned–the attack on American’s Consulate in Benghazi.

Intelligence sources tell Fox News they are convinced the deadly attack on the U.S. Consulate in Benghazi, Libya, was directly tied to Al Qaeda — with a former Guantanamo detainee involved.

That revelation comes on the same day a top Obama administration official called last week’s deadly assault a “terrorist attack” — the first time the attack has been described that way by the administration after claims it had been a “spontaneous” act.

[snip]

Sufyan Ben Qumu is thought to have been involved and even may have led the attack, Fox News’ intelligence sources said. Qumu, a Libyan, was released from the U.S. prison at Guantanamo Bay, Cuba, in 2007 and transferred into Libyan custody on the condition he be kept in jail. He was released by the Qaddafi regime as part of its reconciliation effort with Islamists in 2008.

His Guantanamo files also show he has ties to the financiers behind the Sept. 11 terrorist attacks. The declassified files also point to ties with the Libyan Islamic Fighting Group, a known Al Qaeda affiliate.

Like Fox, I strongly suspect the Benghazi attack was planned in advance.

But Fox has grasped on one of the most damning pieces of evidence in Hamouda’s Gitmo file to insinuate close ties to al Qaeda–that his alias was found on Mustafa Al Hawsawi’s laptop–without considering that his role as a truck driver for an Osama bin Laden company might explain it. Nor does it look at Hamouda’s participation in an LIFG splinter group, which may have caused him financial troubles and might make his role in factional politics today rather interesting.

Plus, there’s more interesting details about Hamouda in the public record. For example, in a July 2, 2007 Administrative Review Board, Hamouda reportedly said he didn’t want to go back to Libya for fear he’d be held responsible for earlier drug charges. But a September 25, 2007 WikiLeaks cable records his lawyer saying he had no such fears–both in June 2007 (so before the ARB) and again in September. Read more →

Latif, the NDAA, and Mitt’s Moochers

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Amy Goodman is doing a 100 city tour to support public outlets that carry Democracy Now. She also gave a talk about the importance of independent media at Grand Rapids Community Media Center.

And, she had me–live!–on her show.

Man I’ve got a lot of hair!

Hedges NDAA Indefinite Detention Decision Stayed By 2nd Circuit

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As much as I, and most who care about Constitutional protections and Article III courts still having a function in balance of power determinations, the recent 112 page ruling by Judge Katherine Forrest in SDNY (see here and, more importantly, here) had fundamental issues that made review certain, and reversal all but so.

The first step was to seek a stay in the SDNY trial court, which Judge Forrest predictably refused; but then the matter would go to the Second Circuit, and the stay application was formally filed today.

Well, that didn’t take long. From Josh Gerstein at Politico, just filed:

A single federal appeals court judge put a temporary hold Monday night on a district court judge’s ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.

U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge’s injunction until a three-judge panel of the court can take up the issue on September 28.

Lohier offered no explanation or rationale for the temporary stay.

Here is the actual order both granting the temporary stay and scheduling the September 28 motions panel consideration.

This is effectively an administrative stay until the full three judge motions panel can consider the matter properly on September 28th. But I would be shocked if the full panel does anything but continue the stay for the pendency of the appeal.

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

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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 →

DOJ Files Appeal: Further Thoughts On Hedges and The Lawfare/Wittes Analysis

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Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.

I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.

As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.

I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.

Wittes makes three main critiques. The first:

So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power.

Secondly:

Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.

Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:

Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.

First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any Read more →

Janice Rogers Brown and Our Failed Justice System Killed Adnan Farhan abd al Latif

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Since the Pentagon announced a detainee died yesterday, I’ve been praying it wouldn’t be Adnan Farhan abd al Latif, even as details suggesting it was–that the detainee who had died had been a hunger striker, that he had never been charged–piled up.

But I knew it was.

The detainee found dead in a maximum-security cell at Guantánamo was a Yemeni captive with a history of suicide attempts who at one time won a federal judge’s release order, only to see his case overturned on appeal and rejected by the U.S. Supreme Court.

The detention center on Tuesday identified the dead captive as Adnan Farhan Abdul Latif, in his 30s, held since January 2002 as prisoner No. 156.

Latif was found unconscious in his cell Saturday afternoon, the military said. Guards and military medical staff could not revive him. He was the ninth detainee to die in the 11 years of the detention center.

The military withheld Latif’s identity while the Naval Criminal Intelligence Service began an investigation and the Obama administration notified members of Congress and Latif’s family of the death.

What did they think would happen to this man, against whom there was just one scrap of evidence, an intelligence report, with several acknowledged errors, from an interrogation taken in Pakistani custody at a time when Pakistanis were inventing stories about Arab men for bounties. DOD even had exonerating information about Latif–evidence from their own intake form that he had the medical records showing a head injury he claimed he had  traveled to Pakistan to treat. And DOD had cleared Latif for release over and over and over.

In spite of that, both the Obama Administration and Circuit Court Judge Janice Rogers Brown proceeded on the assumption that inculpatory government records were entitled to a presumption of regularity, but exculpatory ones weren’t.

It was as if it was just a joke, some rigged game to help the Obama Administration shut away Gitmo, back to what it had been before Boumediene.

I’m sure they’ll release a report that Latif finally found a way to bypass all the efforts the government had made to force him to live out this limbo, a probably innocent man rounded up in the confusion after 9/11. I’m sure they’ll say Latif killed himself.

But Latif gave our legal system a good faith effort, fighting all the way to the Supreme Court. And it failed him. It failed to uphold the simple principle that the government’s evidence to hold someone indefinitely should be something more than a single problematic interrogation report refuted by 10 years of interrogations.

And whatever report they release explaining his cause of death, it was that fundamental injustice that killed him. Read more →

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

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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.

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