End Indefinite Detention and Torture Now
The president’s task force charged with closing the prison camp at Guantánamo by January 2010 is currently discussing plans for a “super-jail.” The jail is to be run jointly by the Pentagon, Homeland Security (DHS) and Justice Department (DoJ). It is to house not only the people detained by the government, but also the courts, with their judges and lawyers, for prosecuting people. It is to include “long-term cells” for those detained indefinitely by the government as “too dangerous” to release. The Office of the President is to determine which people are tried in civilian criminal courts, which in military courts or possibly military commissions, and which get no trial at all. The executive is under no obligation to make public the criteria or evidence used to make the determinations, as doing that is also considered “too dangerous,” a potential “threat to national security.”
As well, the administration is saying that it has authority to keep people acquitted at trial in indefinite detention. Indeed, it is already doing so. A Yemeni man held at Guantánamo for more then seven years recently won his case in federal court. The judge ruled the government did not have sufficient evidence to imprison him and ordered his release. The government has refused to release him and has also refused to release at least two other Yemenis found innocent by the courts. This is despite Yemen’s agreement to have them come home.
If implemented, the super-jail will eliminate the principle that people are charged with actual crimes and brought to trial according to the character of those crimes. Various legal standards meant to block impunity, like innocent until proven guilty, speedy trial by your peers, those for evidence and rights of defendants to confront their accusers are also being eliminated. Instead, the president is usurping the power to put in place a system whereby the president decides what type of trial — and thereby what criteria for evidence and conviction, rights to a lawyer, and more — as well as if there is even to be a trial.
The changes are also significant in that existing distinctions between the military and civilians, and between criminal, civil and military law and courts, is being eliminated. This is being done in part by having the super-jail run jointly by the Pentagon, DHS and DoJ, and by having the courts housed inside the jail. What type of courts will be established and what standards for trial immediately becomes murky at best. Will the executive assign judges and lawyers? Will such assignment be based on their security clearance? Will defendants have any say in choosing lawyers? Will decisions by judges be binding? The Office of the President is determining all of this.
In addition, for a criminal trial under U.S. law, the person is entitled to a lawyer, standards for evidence and conviction in capital offenses — and those involving terrorism charges often are — are higher, etc. For civil law, this is not the case. There is no right to a lawyer. Conviction often involves a “preponderance of evidence” rather than “beyond a shadow of a doubt.”
Given the experience already at Guantánamo, where hundreds of people have been detained for years with no charges, simply government claims that they are “terrorists,” one can readily see that the super-jail will carry such government impunity even further. Indeed it serves to institutionalize a system of executive rule over the justice system and makes double standards inherent in the system. It institutionalizes executive impunity to put aside an acquittal and detain an individual based simply on the president’s determination that the person is “too dangerous” to release. It is designed to enshrine inequality, where some people get trials, some do not, some are released and some are not, even if found not guilty. And all determinations are made by the executive, deciding who is or is not considered “too dangerous.”
It is also likely not a coincidence that while the president is going forward with plans for a super-jail, DHS is going forward with expanding detention centers. While this is currently being done in the name of detaining immigrants, DHS officials are indicating that they have broader detention in mind. The head of Immigration and Customs Enforcement (ICE) recently said, “We are going to continue to detain people and we are going to continue to detain people on a large scale.” ICE is also focusing on the “most dangerous” people. And, its definition of “most dangerous” includes those considered a “threat to national security.”
Like with Guantánamo, experience with ICE raids and detention is characterized by detaining people guilty of no crime, racist profiling, collective punishment and humiliation and the impunity of “guilty” because the government says so. And since immigration generally falls under civil, not criminal law, those involved have no right to a lawyer. People rounded up who are unable to prove their citizenship or immigration status have been detained for months. Many have been forced to sign confessions of guilt in the hopes of being released. As well, the federal government has organized and unleashed local law enforcement agencies that previously were not permitted to deal with immigration matters, to round up immigrants. Again, one sees an effort by the Office of the President to bring policing agencies at all levels under federal authority and to eliminate distinctions between criminal and civil law and law enforcement.
It is also the case that mass detention of civilians in the past, such as internment of Japanese Americans during World War II, was done under civil law and in the name of national security. As well, people have the experience of the government-organized Katrina disaster, where the military was brought in and used against civilians, including rounding civilians up at gunpoint and shipping them off to detention camps controlled by the military. African Americans bore the brunt of this brutality and detention. So, when the head of ICE says “What we are trying to do is design a system that reflects the unique civil detention authorities that we are exercising,” and details expansion of detention camps, it certainly appears that indefinite detention is being planned not only for people from Guantánamo but for anyone the president designates as “too dangerous.” And one way to avoid all the norms of criminal courts is to use a civil charge involving “national security,” and the “unique civil detention authority” of DHS.
The current and past experience with government detention, including indefinite detention, whether at Guantánamo, or DHS detention camps, shows it is an effort to institutionalize a system based on impunity and double standards and where power resides with the executive. It is thoroughly undemocratic and dangerous for all and provides for far greater insecurity. Far from going back to such government tyranny what is needed is to go forward to a modern system of justice where the rights of all are guaranteed and all inequality and double standards eliminated.
Our Security Lies in our Fight for Rights! No to Government Impunity!
As part of plans to close the prison camp at Guantánamo Bay, Cuba, President Barack Obama is considering establishing a “super-jail,” to be run jointly by the Pentagon, Department of Homeland Security (DHS) and the Department of Justice (DoJ). Obama has said Guantánamo will be closed by January 2010. He has a joint task force including members of the Pentagon, DHS and DoJ already working on which people can be released from Guantánamo, where to send them, and how and whether to bring those remaining to trial.
According to news reports, one proposal is creation of a “super-jail,” perhaps in Michigan or Kansas. To start, people from Guantánamo will be brought to the jail. The president will determine whether an individual is to be tried in civilian or military courts.
At this time, both Congress and the president are also considering keeping the military commissions established by George W. Bush, with slight changes. Both the Senate and House are debating including language for such commissions in the current Defense Authorization bill being debated in Congress. If passed, some people may still be tried using a military commission, with different standards for evidence, such as allowing coerced confessions, hearsay and secret evidence. These are not permitted in military courts or civilian criminal courts.
The super-jail would include “long-term” cells for those designated by the president as “too dangerous” to bring to trial or release. The long-term cells are for Guantánamo detainees falling into this “too dangerous” category, as well as future people so designated by the president. This designation is said to be based on an executive ruling that the evidence involved cannot be made public, because it was obtained through torture and/or reveals information the executive wants kept secret. The reason usually given is that revealing such secrets would in some way harm national security. Lawyers involved in defending people at Guantánamo bring out that the government does not want to reveal the crimes it has committed, including assassinations, torture and renditions to torture and indefinite detention. As well, by keeping the criteria for the designation of “too dangerous” secret and in the hands of the executive, the designation can be applied far more broadly. Rights advocates bring out, for example, that federal officials are already designating dissent as “low-level terrorism.”
In addition, the prison would house both civilian and military courts and/or military commissions for those brought to trial. The judges and lawyers involved would be brought to the “super-jail.” This will likely be on the basis of clearance by the government, though the process remains unclear at this point.
The plans for the “super-jail” include significant changes to the existing justice system, being made by the executive. These include that the jail is to be run jointly by the Pentagon, DHS and DoJ, serving to eliminate existing distinctions between military, civilian and criminal law and courts. It puts in place a system whereby the government determines what type of trial is to take place and what rights accorded to the defendant involved. For example, civilian charges mean a defendant does not have a right to a lawyer and standards for evidence and conviction are lower. Conviction in civil cases generally requires a “preponderance of evidence,” rather than the “beyond a shadow of a doubt,” required by capital criminal cases. Similarly, requirements for war crimes trials are different, requiring standards of international as well as U.S. law.
Normally, decisions concerning types of courts and trials are based on the character of the crime committed — not on a decision by the executive. With this “super-jail,” the Office of the President appears to be putting in place a system whereby the executive decides which type of trial and even whether there will be a trial, not the actions or possible crimes of the person being detained. As well, by combining it with the military and making decisions mainly a matter of national security, it goes against the existing arrangements of the separation of the judiciary and executive and between civilian and military matters.
A Congressperson responding to testimony by Pentagon and DoJ lawyers on the plans commented, “What bothers me is that they seem to be saying, ‘Some people we have good enough evidence against, so we’ll give them a fair trial.’” Representative Jerrold Nadler (New York) continued: “Some people the evidence is not so good, so we’ll give them a less fair trial. We’ll give them just enough due process to ensure a conviction because we know they are guilty. That is not a fair trial, that is a show trial.” Nadler chairs a House Judiciary subcommittee, which has had hearings on military commissions.
In addition, according to Pentagon lawyers, there is discussion that alongside those branded “too dangerous” to bring to trial, people acquitted at trial may also remain in detention. In testimony before Congress, Jeh Johnson, the chief Pentagon lawyer said, “There will be at the end of this review [of Guantánamo detainees] a category of people that we in the administration believe must be retained for reasons of public safety and national security.” Johnson added, “And they are not necessarily people that we will prosecute.” He continued: “The question of what happens if there is an acquittal is an interesting question — we talk about that often within the administration. If, for some reason, he is not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it is our view that we would have the ability to detain that person.” Already, the administration is holding three Yemeni men that the courts found innocent and said must be released.
Military Lawyers Denounce Commissions
Describing himself as having gone to Guantánamo as a “true believer,” Vandeveld said his view was radically changed by the case of the young -Afghan he was assigned to prosecute, Mohammed Jawad. He described the basic elements of the case brought against Jawad, who may have been as young as 12 when captured by U.S. troops in Afghanistan: “A confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.” Jawad has faced imprisonment, torture and abuse for nearly seven years, on the basis of a confession extracted under torture. Last year, a military judge ruled that Jawad’s confession was inadmissible because it had been obtained through torture and death threats. Last month the federal judge hearing Jawad's habeas corpus petition ordered his release, but the government refused to do so. Finally, the administration released Jawad and returned him to Afghanistan August 24. He is now planning to sue the U.S. government for compensation for the torture and prolonged detention he endured. Another naval lawyer, Eric Montalvo, who was also appointed to represent Jawad in Guantánamo, said the government should provide funding. After the mistake of detaining him, Montalvo said, “To now not give him any compensation is unacceptable.” Navi Pillay, the UN High Commissioner for Human Rights, also said on Tuesday that people like Jawad, detained without cause, should be given compensation.
Lieutenant Commander William Kuebler, U.S. military defense counsel for Canadian juvenile Omar Khadr said, “One of the most important things President Obama can do is shut down the fatally flawed military commissions.” While Khadr’s trial before the commission has been postponed, he remains at Guantánamo. In addition to the “super-jail” possibility, the DoJ is reviewing dozens of cases for possible criminal charges, such as providing material support to terrorism, or conspiracy to do so. These cases may be tried in federal district courts in Washington D.C. or New York City, both locations where the September 11 terrorist attacks took place. New York District Attorneys are pushing for trials there, and have put forward that they have successfully tried terrorism cases in the civilian criminal courts. Overall, federal courts have tried and convicted more than 200 international terrorism cases.
Most of the civil rights and legal organizations, such as the National Lawyers Guild and ACLU, also emphasize that the federal and military courts are well-equipped to try terrorism cases. In a report issued in January when Obama announced closing Guantánamo, the lawyers defending Guantánamo detainees, including the Navy officers, issued a report saying Guantánamo could be closed by taking three steps: “1) send those who can go home, home, 2) secure safe haven for those who cannot, and 3) charge those who can be charged and try them in ordinary federal criminal court.” It remains possible that some of the people will be tried in this manner.
President Defies Federal Courts and Refuses to Release Yemeni Detainees
On August 17, a federal court judge ordered the Department of Defense to release a 47-year-old father of two with a heart condition who has been imprisoned at Guantánamo Bay for the past seven years without justification. However, the government is refusing to release Mohammed al-Adahi, from Yemen. The court found that the government did not have sufficient evidence to hold al-Adahi. He was originally captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. Reportedly he was on a bus that also carried some wounded Taliban soldiers, so the Defense Department claimed he was working for the Taliban and sent him to Guantánamo Bay in January 2002. He emphasized, “I am a working man in my country. I have never committed a crime.” The judge ordered his release.
Al-Adahi joins at least two other prisoners from Guantánamo who won their habeas corpus cases but remain imprisoned — meaning a federal judge found that the government had no basis for holding them prisoner as it had not shown that they were dangerous or had committed any crime. All have been ordered released by the courts. But all still remain at Guantánamo, including one arrested as a teenager seven years ago. All three are from Yemen, as are about 100 of the remaining more than 220 people imprisoned at Guantánamo. Yemen has agreed to take the Yemeni detainees but the U.S. government refuses to release them. Given the court rulings, the government has no legal basis to continue holding them and is simply asserting its power to do so in defiance of the court rulings.
The president’s refusal to order the release of the three men is another example of the executive branch ignoring the orders of the courts. In previous court cases, the government has also refused to turn over evidence that it deemed a “state secret,” for example, even after a federal judge ordered the evidence be disclosed. The most recent of these involved photos of torture by the government.
It is also the case that the government has now cleared other Yemenis for release, but is refusing to say how many and has placed a gag order on lawyers forbidding them from divulging information about the individual cases. As one lawyer brought out, the government is claiming even information concerning individuals cleared for release is now “protected information.” All the lawyers are fighting these efforts to keep secret the fact that the government has cleared many Yemeni detainees. Yemen is ready to accept them home, but they remain imprisoned at Guantánamo. The justification commonly given is that even though they have been cleared by the government or the courts as posing no threat and having committed no crime, on returning home they “might” become “terrorists.”
Overall, of the 35 habeas corpus cases heard so far, federal courts have granted the petitions and ordered the release of 29 Guantánamo Bay detainees, finding the government has not produced enough evidence to keep holding them.
The American Civil Liberties Union is set to testify today before a key House subcommittee on the controversial military commissions system. The House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties will hear testimony from ACLU attorney Denny LeBoeuf and others on recent attempts to modify the fatally flawed system. “The military commissions are inherently illegitimate and their continuation will only prove to further erode our system of justice,” said Christopher Anders, ACLU Senior Legislative Counsel.
Language revising the military commissions, including allowing the admission of coerced evidence, has been added to the current Senate draft of the Defense Authorization bill. On Tuesday, during testimony before the Senate Armed Services Committee, a Department of Justice lawyer said that the Due Process Clause of the Constitution may apply to the military commissions and that allowing the use of any coerced evidence may be unconstitutional, which would result in any prosecutions being reversed. The Wall Street Journal and the New York Times reported last week that a recent undisclosed Justice Department Office of Legal Counsel opinion concluded that the use of coerced evidence in at least some military commission proceedings would be unconstitutional.
After immediately suspending the military commissions upon taking office in January, President Obama has recently moved toward reviving the flawed system. While both the president’s proposal and the new legislation passed by the Senate Armed Services Committee would bar evidence obtained through torture or cruel, inhuman, or degrading treatment, the Senate bill would still allow coerced evidence and hearsay to be admitted. That means that forced confessions and hearsay evidence that would be barred from every U.S. courtroom and court-martial would still be admissible. By contrast, the Constitution, the Federal Rules of Evidence used in federal criminal courts and rules for military courts-martial prohibit all evidence obtained by coercion.
In addition to being unconstitutional, the military commissions are unnecessary. Under our criminal justice system, the government already has sufficient tools at its disposal to prosecute terrorism suspects, including a wide array of criminal laws that even prohibit activities that are often only remotely related to terrorism.
“Our criminal justice system has already proven it is more than capable of handling terrorism cases securely while providing fundamental rights,” said LeBoeuf. “Federal courts have tried and convicted more than 200 international terrorism crimes; the military commissions have successfully tried and convicted three. The military commissions are an irreparable failure and Congress should not revive or continue this broken system.”
“How can we call this justice if the military commissions do not comply with either the Constitution or the Geneva Conventions? Hearsay and coerced evidence have no place in a courtroom,” said Anders. “If the president signs this bill with the current military commissions language, he will be allowing the very legacy of the injustices of Guantánamo to remain.”
To read the ACLU’s testimony, go to: www.aclu.org/safefree/general/40241leg20090708.html
Two days after his inauguration, President Obama pledged to close Guantánamo within one year. The Republicans, led by Senators John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.
The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantánamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. super-max prisons, which house hundreds of people convicted of terrorist offenses.
The Republicans have continued to oppose the effort to close Guantánamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantánamo open is “important,” Cheney declares. He claims that closing Guantánamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.
And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantánamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantánamo to try these cases,” said Democratic Senator Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.
The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts of his plan would threaten the very foundation of our legal system – that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantánamo is closed:
1) Those who violated the laws of war will be tried in military commissions.
Obama’s plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.
Even the U.S. Supreme Court has disagreed with this part of Obama’s proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.
Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.
2) Those who have been ordered released from Guantánamo will remain in custody. [Such as the prisoners from Yemen, ordered released but still held at Guantánamo].
3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.
These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”
Obama’s plan for “prolonged detention” is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.
Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantánamo to a new location and give it a new name.”
4) Those who can be safely transferred to other countries will be transferred.
Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.
5) Those who violated U.S. criminal laws will be tried in federal courts.
Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.
This is the only clearly acceptable part of Obama’s plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person shall be deprived of life, liberty, or property without due process of law.”
The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.
If Mr. Obama proceeds with the plan he announced this week he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.