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Our New Teachers about Rule of Law

The Gray Lady is dedicating space this week to reflections on Gitmo. In addition to a debate on it (more on that tomorrow), it offered Lakhdar Boumediene and Murat Kurnaz space to tell their stories, albeit in the opinion section.

Both men told of their terrible treatment.

But both also discussed what they learned about American rule of law by being falsely imprisoned for years.

Boumediene describing losing faith in American justice, which not even the knowledge that the case bearing his name is taught in American law schools has yet returned, given the number of men who remain unjustly imprisoned.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal.

[snip]

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice. [my emphasis]

Kurnaz describes watching Germans, upon his return, teaching Americans about something once renewed in Germany by the Nuremberg trials: the rule of law.

I LEFT Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.

When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”

I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country.Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law. [my emphasis]

Gitmo has come to embody many things in this country over the last decade: Bush’s incompetence and criminality, our bigotry and inhumanity, and–as most would like to treat it now–a big political tussle between Obama and Republicans.

But at every turn–from the Bush Administration grasping claiming the piece of land existed outside the rule of law, to the corrupt legal process that created memos authorizing torture there, to Jim Haynes’ insistence that “we can’t have acquittals,” to the DC Circuit’s continued efforts to make sure detainees get no meaningful review of their detention–Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.

In this country, we have mostly ignored that lesson of Gitmo (not liking what it says about us, I guess). But it’s a lesson our former captives know well.

How to Indefinitely Detain Jamie Dimon

Kagro X and I were engaging in a little thought experiment on Twitter to show how easy it would be to solve our dangerous bankster problem by indefinitely detaining them.

It turned out to be pretty easy to do. Here’s how.

First, before you indefinitely detain a bankster, you need to show either that he is,

A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or who has supported such hostilities in aid of such enemy forces.

Or, you need to show he has supported (using the Iraq AUMF that we’re keeping around to make sure the President’s authority isn’t limited to just al Qaeda),

another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Now, making that case with Jamie Dimon is very easy to do, because his company, JP Morgan Chase, has materially helped Iran. We have several pieces of proof it has done so. First, there’s the Treasury Report showing that JPMC:

  • Gave a $2.9 million loan on December 22, 2009 to the Islamic Republic of Iran Shipping Lines, which the Office of Foreign Assets Control has found to be involved in WMD proliferation
  • Advised and confirmed a $2,707,432 letter of credit on April 24, 2009, in which the underlying transaction involved a vessel identified by OFAC as blocked due to its affiliation with the same Iranian shipping line
  • Processed nine wire transfers between April 27, 2006 and November 28, 2008, which totaled $609,308, some of which involved sanctioned Iranian and terrorist entities
  • Transferred 32,000 ounces of gold bullion valued at approximately $20,560,000 to benefit a sanctioned Iranian bank on May 24, 2006

We need no further proof that JPMC has done these things. Not only has JPMC admitted to them, but as Janice Rogers Brown has made clear, we cannot question the Executive Branch’s intelligence reports, so all of OFAC’s claims must be accepted as true for the purposes of indefinite detention. And all of that illegal support for Iran happened while Jamie Dimon was President of JPMC.

But there may even be proof–enough, anyway, to satisfy Rogers Brown–that JPMC materially supported an attempt to deploy a WMD in a terrorist attack on American soil. As I have shown, the bank account to which Manssor Arbabsiar transferred almost $100,000 as downpayment for the alleged Quds Force plot to assassinate Saudi Ambassador Adel al-Jubeir was probably a Chase account. And that affidavit should be enough. The FBI, after all, is an intelligence agency. And Janice Rogers Brown does not find redactions–even much more extensive ones–to in any way impair the reliability of Administration claims to justify indefinite detention.

In other words, the Administration has provided sufficient proof that JPMC materially supported Iran to the tune of at least $23 million in illegal financial transactions.

Now, if Chase is indeed the bank that accepted the downpayment for the Scary Iran Plot, we need no further basis to indefinitely detain Jamie Dimon. After all, the government’s Amended Complaint (from the FBI, an intelligence agency whose reports we cannot question) asserts that Abdul Reza Shahlai was the mastermind behind the Scary Iran Plot, and at the time of the plot, he had already been sanctioned as a supporter of the insurgency in Iraq. That was based on a questionable intelligence report, admittedly, but Janice Rogers Brown says we cannot consider such problems. So if Chase did, indeed, play a role in the Scary Iran Plot, then that’s all we need to indefinitely detain Jamie Dimon as head of the entity that materially supported that terrorist attack.

But even if Chase wasn’t involved in the Scary Iran Plot, the Executive Branch can still indefinitely detain Jamie Dimon. After all, the Executive Branch has been claiming that Iran was harboring al Qaeda since 2003. In addition, an official Executive Branch report–a September 12, 2009 diplomatic cable–includes the following hearsay claim, made by Saudi Arabia’s then Minister of the Interior, now the Crown Prince, Nayif bin Abdulaziz:

Iran has hosted Saudis (all Sunnis) — including Osama bin Laden’s son Ibrahim — who had contacts with terrorists and worked against [Saudi Arabia]

And Janice Rogers Brown has said that so long as it appears in an official government document, any hearsay problem is overcome. And as recent reporting makes clear, there’s even some evidence that Iran was at least aware of, and in some ways facilitated, the 9/11 plot itself. That assertion is based on NSA reports which, as official government documents, would meet Rogers Brown’s standard for claims supporting indefinite detention.

All of which would seem to reach the bar of making Iran a force associated with al Qaeda. I don’t necessarily buy these reports, mind you, but again, it’s not for me to question these official government records. And helping such an associated force access $23 million of funding sure seems to qualify as “substantial support.”

Now let me be clear. I don’t advocate indefinitely detaining Jamie Dimon–or anyone else either, particularly not American citizens, no matter how loathsome or dangerous to the United States. But given that our country maintains it is more important to “incapacitate” terrorists and those who support them than to punish those who did trillions of dollars of damage to our economy, we may well have to treat Jamie Dimon as a material supporter of terrorism to get some justice.

And Jamie? If I were you I would report to an Embassy or some other official government office right away, as the government claims Anwar al-Awlaki should have. Because while Obama seems uninterested in indefinitely detaining American citizens, he has been known to kill those he claimed were particularly dangerous.

Lindsey Graham’s Independent Review for All Detainees in US Prisons

As I’ve said before, I think Carl Levin’s assurances that habeas corpus will prevent the Executive from holding people without cause under his new detainee provisions (and, frankly, under the status quo) is dangerously naive, because it ignores how badly the DC Circuit has gutted habeas.

That said, maybe this colloquy between Lindsey Graham and Carl Levin might help. (h/t to Lawfare for making transcripts available)

Mr. GRAHAM. If someone is picked up as a suspected enemy combatant under this narrow window, not only does the executive branch get to determine how best to do that–do you agree with me that, in this war, that every person picked up as an enemy combatant–citizen or not–here in the United States goes before a Federal judge, and our government has to prove to an independent judiciary outside the executive branch by a preponderance of the evidence that you are who we say you are and that you have fit in this narrow window? That if you are worried about some abuse of this, we have got a check and balance where the judiciary, under the law that we have created, has an independent review obligation to determine whether the executive branch has abused their power, and that decision can be appealed all the way to the Supreme Court?
Mr. LEVIN. That guarantee is called habeas corpus. It has been in our law. It is untouched by anything in this bill. Quite the opposite; we actually enhance the procedures here.

[snip]

Mr. GRAHAM. In this case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our Federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t go to a political rally. That has never happened in any other war. That is a check and balance here in this war. And let me tell you why it is necessary.
This is a war without end. There will never be a surrender ceremony signing on the USS Missouri. So what we have done, knowing that an enemy combatant determination could be a de facto life sentence, is we are requiring the courts to look over the military’s shoulder to create checks and balances. Quite frankly, I think that is a good accommodation.

[snip]

I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

Not only does Graham insist the standard in habeas cases must be a “preponderance of the evidence” standard–something the DC Circuit has threatened to chip away at. But the language about courts having an obligation to make sure the government proves it case and courts looking over the shoulder sure implies a stronger review than Janice Rogers Brown understands it.

Furthermore, while Graham speaks explicitly at times about people caught in the US, his aspiration that “no person in an American prison … will be held without independent judicial review” would sure sound good the detainees in the American prison at Bagram, particularly taken in conjunction with Section 1036, which seems to suggest they get a review too.

Of course, passing a law stating that habeas corpus must consist of something more than a Circuit Court Judge rubber-stamping the government’s inaccurate intelligence files would be far better. But this language, showing legislative intent that habeas review remain real, is about all we get these days.

 

Efforts to Combat Levin-McCain Don’t Do Anything to Prohibit Indefinite Detention of Americans

When he gets defensive, Carl Levin can be tremendously cantankerous (sometimes that’s a good thing, but not when he’s pushing terrible law like the detainee provisions in the Defense Authorization).

That cantankerous Carl Levin of late started repeatedly invoking Hamdi in response to claims the Levin-McCain language newly subjects American citizens to indefinite detention.

Now, in terms of constitutional provisions, the ultimate authority on the constitution of the United States is the Supreme Court of the United States, and here is what they have said. In the Hamdi case about the issue which both our friends have raised about American citizens being subject to the law of war. “A citizen,” the Supreme Court said in 2004, “no less than an alien, can be part of supporting forces hostile to the United States and engage in armed conflict against the United States. Such a citizen,” referring to an American citizen, “if released would pose the same threat of returning to the front during the ongoing conflict.” And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning, one line. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” Okay? That’s not me, that’s not Senator Graham, that’s not Senator McCain. That’s the Supreme Court of the United States recently. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” [my emphasis]

He’s being insufferable, but when I see claims that the new AUMF language–which actually may impose new limits on the use of the AUMF from the current known usage–is what makes it legal to indefinitely detain US citizens, I’m sympathetic to his stubborn repetition.

This law doesn’t codify indefinite detention. SCOTUS already did that in Hamdi.

I’m sympathetic to Levin’s cantankerous repetition because of what I see as the real problem with those attacking the detainee provisions because they purportedly codify indefinite detention of Americans (as opposed to a range of other superb reasons to oppose the language). None of the supposed fixes to the detainee provisions–neither defeat of the provisions outright nor the Udall Amendment–does a damn thing to limit the indefinite detention of American citizens. Read more

Latif: The Administration Blew Up Habeas with a Detainee They Determined Could Be Transferred

There are a few more details that need to be readily available about Adnan Farhan Abd al Latif, the Yemeni Gitmo detainee whose habeas corpus petition led DC Circuit Judges Janice Rogers Brown and Karen Henderson to gut habeas. Most importantly, almost two years before the Administration used an unreliable intelligence report to justify his detention, the Bush Administration had determined he could be transferred out of DOD control.

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

JTF-GTMO recommends this detainee for Transfer Out of DoD Control (TRO). JTF-GTMO previously recommended detainee for Transfer Out of DoD Control (TRO) on 18 December 2006.

So on December 18, 2006, DOD determined they should transfer of Latif. On January 17, 2008, they determined they should transfer of Latif. (This is a point Judge Henry Kennedy made in his ruling, citing slightly different documents.) Presumably in January 22, 2010, Latif was among the 30 Yemeni detainees the Gitmo Task Force determined designated for “conditional” detention:

30 detainees from Yemen were designated for “conditional” detention based on the current security environment in that country. They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.

The Bush Administration had designated 15 detainees for transfer; the Obama Administration transferred 6 of those in December 2009, before the UndieBomber attack, Mohammed Odaini got sent back in 2010 after winning his habeas petition, and one more Yemeni got transferred to a third country. Which suggests that Latif is among the unlucky 7 detainees whom both the Bush and Obama Administrations believe could be sent home, if it weren’t for the security situation in Yemen.

In other words, Latif remains in Gitmo because our partner in Yemen, Ali Abdullah Saleh, doesn’t control the country, and because Umar Farouk Abdulmutallab tried to blow up a plane, not because Latif himself represents a big threat.

Nevertheless, the Administration insisted on making a case, based on a dodgy intelligence report, to legitimize their continued detention of a man whom they had already decided could be transferred.

TD-314/00684-02 Is the Document Being Used to Hold Latif

As I laid out here, they did so primarily with an intelligence report from early 2002 that sorted through a large number of detainees turned over to the US by Pakistan in late 2001.

By comparing Latif’s Factual Return to his Gitmo File, we can be almost certain that this report is the cable numbered TD-314/00684-02. Read more

With Latif Decision, Section 1031 Authorizes Indefinitely Detaining Americans Based on Gossip

As I noted yesterday, both Dianne Feinstein and Carl Levin understand Section 1031 of the Defense Authorization to authorize the indefinite detention of American citizens. Levin says we don’t have to worry about that, though, because Americans would still have access to habeas corpus review.

Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review.  Nor could it.  Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States.

Even ignoring the case of Jose Padilla, which demonstrates how easily the government can make habeas unavailable to American citizens, there’s another problem with Levin’s assurances.

Habeas was gutted on October 14, when Janice Rogers Brown wrote a Circuit Court opinion holding that in habeas suits, judges must grant official government records the
presumption of regularity.

The habeas case of Adnan Farhan Abdul Latif largely focused on one report purporting to show that Latif fought with the Taliban. I suspect the report is an early 2002 CIA report, written during the period when the US was trying to sort through hundreds of detainees turned over (sometimes in exchange for a bounty) by the Pakistanis. The report I suspect is at issue summarizes the stories of at least 9 detainees, four of whom have already been transferred out of US custody. David Tatel’s dissent makes it clear that there were clear inaccuracies in the report, and he describes Judge Henry Kennedy’s judgment that this conditions under which this report was made–in the fog of war, the majority opinion agrees–increased the likelihood that the report was inaccurate. Of note, Latif’s Factual Return reveals the government believed him to be Bangladeshi until March 6, 2002 (see paragraph 4); they blame this misunderstanding on him lying, but seeing as how the language of an interrogation–whether Arabic or Bangladeshi–would either seem to make his Arab identity clear or beset the entire interrogation with language difficulties, it seems likely the misunderstanding came from the problem surrounding his early interrogations.

Beyond that report, the government relied on two things to claim that Latif had been appropriately detained: The claim that his travel facilitator, Ibrahim Alawi, is the same guy as an al Qaeda recruiter, Ibrahim Balawi (usually referred to as Abu Khulud), in spite of the fact that none of the 7 detainees recruited by Balawi have identified Latif. And the observation that Latif’s travel to Afghanistan from Yemen and then out of Afghanistan to Pakistan traveled the same path as that of al Qaeda fighters (here, too, none of the fighters who traveled that same path identified Latif as part of their group).

In other words, the government used one intelligence report of dubious reliability and uncorroborated pattern analysis to argue that Latif had fought with the Taliban and therefore is legally being held at Gitmo.

And in spite of the problem with the report (and therefore the government’s case), Judge Janice Rogers Brown held that unless Judge Kennedy finds Latif so credible as to rebut the government’s argument, he is properly held. More troubling, Rogers Brown held that judges must presume that government evidence gathering–intelligence reports–are accurate as a default.

When the detainee’s challenge is to the evidence-gathering process itself, should a presumption of regularity apply to the official government document that results ? We think the answer is yes.

Rogers Brown is arguing for a presumption of regularity, of course, for the same intelligence community that got us into Iraq on claims of WMD; the report in question almost certainly dates to around the same period that CIA went 6 months without noticing an obvious forgery.

Read more

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

Benjamin Wittes has been complaining that no one besides Lawfare’s writers is looking closely at the DC Circuit decision in Latif.

Why has there been virtually no press coverage of the Latif decision? Other than this article on CNN’s web page, which actually ignores the aspect of the case that makes it jurisprudentially important, a search on Google News reveals none (other than Lawfare stuff).

Memo to the press: This case is important. It is far more likely, in my judgment, to provoke a cert grant than any habeas case the D.C. Circuit has decided to date. If and when it does so, it will present a novel and deeply important question to the Supreme Court: Whether the courts in reviewing these habeas cases should start with a presumption of the validity of government intelligence.

So I decided to take a closer look.

At issue is a Yemeni detainee, Adnan Farhan Abd Al Latif, picked up in Pakistan in December 2001 and alleged to have trained with al Qaeda. Judge Henry Kennedy granted Latif’s habeas petition last summer, largely because he found the government’s single most important piece of evidence–an intelligence report of some kind (which I’ll call the Report)–unreliable. The DC Circuit–with Judges Janice Rogers Brown and Karen Henderson in the majority and David Tatel in dissent–remanded the case on the issue of the detainee’s credibility. But on the more important issue–whether Kennedy was correct in dismissing the Report–they overturned the district decision. Here’s Wittes’ description of the evidentiary issue.

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

Here’s my logic: Latif’s Gitmo file makes the same claim the government made in his habeas case: that Latif trained and then fought with al-Qaeda. But that entire report cites just one source–TD-314/00684-02–to make that claim. It cites TD-314/00684-02 to support the following assertions:

While detainee was with the Taliban, he encountered Abu Hudayfa the Kuwaiti; Abu Hafs the Saudi, and Abu Bakr from the United Arab Emirates or Bahrain. Detainee claimed he saw a lot of people killed during the bombings, but never fired a shot. Detainee then traveled to Jalalabad, AF, and crossed into Pakistan with fleeing Arabs, guided by Taqi Allah.

[snip]

Detainee’s recruiter is assessed to be senior al-Qaida facilitator Ibrahim Muhammad Abd al-Razzaq Baalawi, aka (Abu Khulud). Detainee admitted Ibrahim Aliwee convinced detainee to travel to Afghanistan for jihad and admitted staying at Abu Khulud’s residence for a short period in Kandahar.

[snip]

Detainee admitted receiving weapons training from the Taliban and then fighting in support of the Taliban on the front lines.

[snip]

Detainee admitted after training he was sent to the front lines north of Kabul. Detainee remained there until the Taliban retreated and Kabul fell to the Northern Alliance.

For the remaining assertions regarding Latif’s ties to Al Qaeda, the Gitmo report includes no citation.

Read more

Shorter DC Circuit: Yeah, Rogers Brown and Kavanaugh Are Extremists

Charlie Savage noted an interesting part of yesterday’s DC Circuit ruling upholding the detention of Ghaleb Nassar al-Bihani: it explicitly disagreed with earlier assertions made by Janice Rogers Brown and Brett Kavanaugh that international law could not bind presidential authority.

On Tuesday, all nine judges on United States Court of Appeals for the District of Columbia Circuit rejected a request by Mr. Bihani to rehear his case. But seven of the nine judges issued an unusual one-paragraph note saying that they viewed Judge Brown’s and Judge Kavanaugh’s discussion of international law as irrelevant to deciding Mr. Bihani’s fate.

Stephen I. Vladeck, an American University law professor who filed a friend-of-the-court brief asking the court to rehear the case, said the note amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it. The paragraph, he said, tells the world that the section of the January ruling about international law should be treated like what lawyers call “dicta” — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.

“They’ve basically removed the single biggest complaint people had with that opinion,” Mr. Vladeck said. “They said, ‘We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.’ That matters a lot.”

Click through to read about Rogers Brown and Kavanaugh’s whiny response.

So the lesson here? The Court upholds the government’s claim it needs to hold Osama bin Laden’s cooks like Bihani in custody to keep us all safe. But it does so on the logic that holding cooks is accepted under the rules of war.