The report issued Tuesday by Glenn A. Fine, the Justice Department’s Inspector General, is overflowing with new information about the development and implementation of the Bush administration’s torture policies. The report’s most important finding is that some of the administration’s senior officials — possibly including Condoleezza Rice, who was then the National Security Advisor — knew as early as 2002 that FBI agents and some Justice Department personnel believed that interrogation methods being used by the Defense Department were not just ineffective but also illegal.

Torture and America

The report makes clear that the CIA, too, knew that the interrogation methods it was using were of dubious legality. In early 2002 — before the Office of Legal Counsel supplied the CIA with a memo sanctioning the use of harsh methods — an FBI agent told CIA personnel that the methods being used against one prisoner were “borderline torture.”

In the story told by the Inspector General, the FBI comes off relatively well. While the Defense Department and CIA were authorizing their interrogators to use torture, FBI agents were documenting the harsh techniques being used by their military counterparts, refusing to participate in interrogations that were abusive, and in some cases conveying their concerns about abusive interrogations to their superiors and military commanders. (Amrit Singh and I have written at length about all of this in a recent book, Administration of Torture.) The Inspector General’s report, though, raises serious questions about the actions that FBI headquarters took — or, more significantly, failed to take — in response to the concerns being raised by FBI agents.

The key question, I think, is why the FBI — which is, after all, supposed to be the nation’s principal law enforcement agency — didn’t try to end the abusive interrogations being conducted by other agencies. FBI agents concluded in 2002 that interrogation methods being used by the Defense Department and CIA were illegal. Indeed, some agents collected their notes about abusive interrogations in a “war crimes” file. But when agents at Guantánamo documented abuse in 2002, the agency waited six full months before giving the agents permission to finalize and distribute their memo. (According to a footnote in the report, the FBI’s leadership was afraid that distributing the memo would offend the military.)

At some point in 2003, FBI agents were affirmatively told not to maintain the “war crimes” file; they were told that “investigating detainee allegations of abuse was not the FBI’s mission.” And the agency waited until May 2004 — a month after the publication of the Abu Ghraib photographs — to issue written guidance requiring FBI agents to report abuse. Even after the FBI issued written guidance, the agents were told not to question the expansive authority that other agencies’ interrogators had been given; they were told instead to report incidents in which other agencies’ interrogators had exceeded their authority. They were told, in other words, to ignore criminal activity that they ought to have been trying to stop.

Overall, the FBI’s leadership seems to have been more interested in ensuring that the agency would not be held responsible for the abuse of prisoners than in actually ending — or even documenting — the abuse. FBI agents who raised concerns about the lawfulness and effectiveness of abusive interrogation methods deserve credit. The FBI’s leadership, on the other hand, should be held accountable for having turned a blind eye to torture.

In a June 2003 statement President Bush observed, that governments that use torture often seek to “shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors.”  He was not speaking of his own government, but he might as well have been.  United Nations human rights experts sought access to Guantánamo repeatedly – in January 2002, January 2004, June 2004, April 2005, May 2005, and June 2005.  Each of their requests was denied. 

It wasn’t until October of 2005 that the Bush administration finally relented, and even then the administration conditioned access to Guantánamo on the experts’ agreement not to seek private interviews with individual prisoners.  Understandably, the experts found that condition unacceptable.  As one of the experts asked, “How can I assess whether torture or ill-treatment is practiced in any prison in the world if the only people with whom I can talk are the prison guards and the doctors, but not the detainees?”

As for “staging elaborate deceptions,” the Bush administration did that, too.  In an effort to allay concerns about the treatment of prisoners at Guantánamo, the Defense Department offered a handful of journalists the opportunity to observe interrogations from behind a glass wall.  Journalists who accepted the offer were shown an interrogator and prisoner sharing a milkshake from McDonald’s and engaging in friendly conversation.  No maltreatment, no abuse, no torture. 

As Neil Lewis reported for The New York Times, however, “it became apparent to reporters comparing notes . . . that the tableau of the interrogator and prisoner sharing a McDonald’s meal was presented to at least three sets of journalists.”  Evidently, the whole “tableau” had been fabricated with the specific purpose of misleading the journalists and the public.

What do interrogations at Guantánamo really look like?  Government documents from 2002, 2003, and 2004 show that prisoners were deprived of sleep, isolated for long periods of time, exposed to extreme temperatures, threatened with dogs, blinded with strobe lights, bombarded with deafening music, and shackled in excruciatingly painful “stress positions.”  In one document (pdf), obtained by the ACLU and its partners under the Freedom of Information Act, an FBI agent describes an interrogation that took place in February 2004:

[The prisoner] did not recognize the interviewers and when he told them he didn’t want to speak to anyone unless they were introduced by his regular interrogators, he was yelled at for 25 minutes, . . . was short-shackled, the room temperature was significantly lowered, strobe lights were used, and possibly loud music . . . .  They yelled at him and told him he was never leaving here . . . .  After the initial 25 minutes of yelling, [the prisoner] was left alone in the room in this condition for approximately 12 hours.

Documents released only last week remind us that such interrogations were not unusual.  The documents show that, in response to an internal FBI inquiry, twenty-six different FBI agents reported that they had witnessed military interrogations that they considered to be abusive.  What came of those reports is unclear, and what interrogation methods are being used now is not known.  Five years since the first prisoners were brought there, Guantánamo remains as impenetrable and opaque as ever.

Jameel Jaffer served as a monitor at the Guantánamo Bay military commissions and is Deputy Director of the ACLU’s National Security Program.

In today’s New York Times, Eric Lichtblau and Mark Mazzetti report that the CIA and Pentagon have been using “national security letters” to obtain sensitive financial information about Americans and others living in the United States.  The report raises serious questions about the extent to which the Pentagon and CIA have become involved in domestic intelligence gathering.

As the CIA and Pentagon have apparently been issuing national security letters for at least five years, it seems reasonable to ask why we’re learning of it only now.  One reason may be that national security letters often come with “gag” orders that prohibit recipients from disclosing even the mere fact that the government has demanded information from them.  The ACLU challenged such gag orders in two cases – one involving library records and another involving Internet records – and in both cases the gag orders were ruled unconstitutional.  Congress amended the relevant statutes early in 2006, but unfortunately it did not fix the gag provisions.  Our client in the Internet record case has now been under a gag order for more than two years.  And if the government has its way, this John Doe client – the government won’t permit us to disclose the client’s name – will be under a gag order for the indefinite future.

Our John Doe client has filed a legal challenge to the amendments made by Congress in 2006.  (Our principal legal brief in Doe v. Gonzales is available online here; and the government’s brief is here.)  We expect the district court to hear oral arguments in the Spring.

It is not clear from today’s Times article whether the CIA and Pentagon have been imposing gag orders on organizations served with national security letters.  But the article underscores once again how little we know about the government’s surveillance activities.  Although executive agencies issue thousands of NSLs every year, the public knows virtually nothing about who those letters were served on, what information the letters sought, or why.

All of this surveillance takes place in secret, with little if any oversight by Congress, the courts, or the public.  This situation is an invitation to abuse, as history has shown.

Jameel Jaffer is Deputy Director of the ACLU’s National Security Program and lead counsel in Doe v. Gonzales.

This week’s New Yorker includes a Comment by George Packer about the State Department’s refusal to grant a visa to Swiss-Egyptian scholar Tariq Ramadan. Ramadan is a prominent scholar of Islam — he is currently a Fellow at Oxford University and his last book, “Western Muslims and the Future of Islam,” was published by Oxford University Press — and he has developed a significant popular following for his contention that European Muslims can be both fully European and fully Muslim.

In the New Yorker, Packer argues that the State Department’s refusal to grant Ramadan a visa makes the United States “appear defensive, timorous, and closed.” Packer is certainly right about this, but it is worth underscoring that the problem is not simply one of appearances. The government’s exclusion of Tariq Ramadan impoverishes academic and political debate inside the United States, and it does so at a time when open debate about the status of Muslims in the West is exceptionally important. The State Department apparently disagrees with Ramadan’s ideas, but Americans should be allowed to decide for themselves whether those ideas are persuasive. Americans surely don’t need the government to protect them from the controversial ideas of foreign intellectuals.

In January 2006, the ACLU filed a lawsuit to challenge the State Department’s refusal to grant Ramadan a visa. The lawsuit — filed on behalf of the American Academy of Religion, the American Associaiton of University Professors, and PEN American Center — also challenges the constitutionality of the Patriot Act provision that the government initially cited to justify Ramadan’s exclusion. The lawsuit is ongoing and you can read more about it here.

It’s also worth noting that the ACLU shows up in two other places in this New Yorker issue: Our lawsuit against the NSA is mentioned in the profile of ACLU v. NSA client Christopher Hitchens, and a feature on Fox News owner Rupert Murdoch cites Bill O’Reilly’s sideswipes at the ACLU during Fox’s questionable coverage of the Abu Ghraib scandal.

(Jameel Jaffer is lead counsel in American Academy of Religion v. Chertoff, the lawsuit challenging Tariq Ramadan’s exclusion.)

The pre-trial hearings in the Hicks case came to an end today, so this may be my last dispatch from Guantánamo. Next week, the commission will hear motions in the case of Salim Ahmed Hamdan, a 34-year old Yemeni who is accused of having served as a bodyguard and driver to Osama bin Laden. Trial in the Hicks case is scheduled to begin in March.

Over the past few days, I’ve written mainly about the legal process (or lack of it) afforded to the handful of prisoners who, like Hicks, have been charged with war crimes. These are the detainees who’ll be tried before military commissions. I want to use this last dispatch to talk about the hundreds of prisoners here who have not been charged with any crime at all. There are 550 or so prisoners held here at Guantánamo right now; only 15 of these have been designated by the President as eligible for trial before the commission, and of these only four have actually been charged. The overwhelming majority of the prisoners held here at Guantánamo have not been charged with any crime or even designated as eligible to be tried. The Defense Department has argued that they can nonetheless be imprisoned indefinitely - perhaps for life - because they’re “enemy combatants.”

Let’s put aside the question of whether the government is legally entitled to detain enemy combatants indefinitely. How do we know that the people locked up here are in fact enemy combatants? Senior government officials seem to harbor few doubts. The Secretary of Defense has referred to the Guantánamo prisoners as “hard-core, well-trained terrorists” and “among the most dangerous, best-trained, vicious killers on the face of the earth.” Vice President Cheney has referred to them as “the worst of a very bad lot . . . devoted to killing millions of Americans.”

But senior officials said similar things, remember, of the hundreds of immigrants who were detained in the United States after September 2001. None of those people were convicted of a terrorism-related offense. In fact, most were never charged with any crime at all. Notably, one of the military officials in charge of detention camps at Guantánamo recently acknowledged that many of the prisoners pose little threat and have provided little intelligence value. “Most of these guys weren’t fighting. They were running,” he said.

So how do we know that someone whom the government calls an “enemy combatant” is in fact an enemy combatant? Last year, the Supreme Court held in Hamdi v. Rumsfeld that the government may not detain a person as an enemy combatant unless a neutral tribunal determines - after providing due process - that the person is actually what the government says he is. After that ruling, the government contrived something called the Combatant Status Review Tribunal (CSRT) to make such determinations.

Predictably, the CSRT process does not provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it’s up to the prisoner to prove that he’s not. Rebutting a presumption of guilt would be difficult in any context but it is made doubly so here because the prisoner is not given access to all of the evidence and is not provided a lawyer. The prisoner is provided something called a “personal representative,” but the personal representative does not have legal training and does not (and cannot) assure confidentiality. Thus, a prisoner’s conversations with his representative may be used against him - not only at the CSRT but also in any subsequent criminal proceeding.

The CSRT process has worked exactly as it was intended to. While the CSRT has reviewed the cases of some two hundred prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all.

Let me close by saying something more general about what I’ve seen here at Guantánamo over the last few days. Many of us hoped that the Supreme Court’s decisions in Hamdi, Padilla, and Rasul would lead to the adoption of policies here at Guantánamo more consistent with the constitution and with international standards of justice. It’s clear that this hasn’t happened. Both the military commissions and the CSRTs are fundamentally lawless; they are proceedings designed not to provide fair process but rather to rubber stamp essentially political decisions. There is no doubt that the Supreme Court’s rulings were critically important, but Guantánamo remains a legal black hole. Unfortunately, it’s clear that there’s a lot more work to do.

Right now, Guantánamo Naval Base seems very far away from the election going on in the United States. There are restrictions on what members of the military can say in uniform, so there aren’t a lot of public conversations about politics. I haven’t seen any political posters or bumper stickers. And there are no voting booths here, because those who vote do so by absentee ballot. Here at Guantánamo, it would be easy to forget about the election altogether.

This is ironic, because the outcome of the election is likely to have a profound effect on the lives of the 550 or so detainees who are imprisoned here. For the detainees who haven’t been charged with any crime, the election may determine whether they’re afforded a meaningful opportunity to challenge their continued detention. For the handful of detainees who’ve been charged, the election may determine whether they’re tried in traditional courts martial, with all the protections those proceedings entail, or in military commissions like the one that over the last three days has been hearing motions in the case of David Matthew Hicks.

Unfortunately, the hearing that took place in the Hicks case today confirmed what the ACLU and other legal and human rights organizations have been saying from the outset: the military commissions, at least as they’re set up now, are simply not capable of providing anything resembling fair process. Frankly, the commission today did not even seem interested in fair process. The panel members peppered the defense with hostile questions about even the most conservative legal arguments; by contrast, even when the prosecution proposed outlandish interpretations of international law, the panel members just nodded approvingly. The panelists chuckled when the prosecution compared the defense’s complaints about the process - which could result in a life sentence for Mr. Hicks - to a teenage girl’s complaints about her prom date. On two occasions, the Presiding Officer, Col. Peter Brownback, dismissively referred to defense counsel Dan Mori as “sunshine.”

More troubling still, the panelists - two of whom have no legal training, remember - struggled to understand even the most basic legal concepts. One of the charges levied against Hicks is “destruction of property by an unprivileged belligerent.” The defense appropriately moved to dismiss the charge on the grounds that destruction of property is a war crime only if the property is “protected” under the Geneva Conventions; the defense pointed out that the prosecution had not alleged that the destroyed property was protected. Col. Bogdan treated this straightforward argument as frivolous. He asked, “Isn’t the status of the property something we should decide at trial?” But, as any lawyer can tell you, the question of whether a crime has been alleged is certainly not something that should be decided at trial. We don’t subject a person to a criminal trial if the government can’t allege that he’s committed a crime.

It’s astounding that a kangaroo commission like this one has been invested with the authority to decide whether David Hicks spends his life in prison. The likelihood of his being afforded a full and fair trial seems vanishingly small.

We have just come back from the Clipper Club, which is the only restaurant on the leeward side of the Base that is open after seven o’clock. We spent most of the day on the other side of the Base, meeting with military officials and attending the commission hearings. It was a very long day. We missed the last ferry and had to come back to the Combined Bachelor’s Quarters (CBQ) on a gunboat (something like John Kerry’s swift boat, I’m told) and we didn’t get back here until well after nine.

The commission building is on a grassy hill at what I think may be the Base’s highest point, with a sweeping view over Guantánamo Bay and the windward side of the Base. There are several checkpoints you need to go through in order to get to the building; soldiers with machine guns check your ID, sift through your papers, and test your bags for explosives. When you finally get into the building, you’re led into a room that holds about 60 people. As in most courtrooms in the United States, there is a railing that divides the participants from the audience.

Today, the participants included three lawyers each from the prosecution and the defense, and the three-person military commission. David Hicks, well groomed and dressed in a suit, sat with the defense. I sat in the back with representatives of other legal and human rights groups, several journalists, commission staff, a dozen military officials, and a handful of people from the Justice Department and FBI.

The hearing itself was both fascinating and disturbing. The defense, led by Major Michael “Dan” Mori (the “detailed counsel,” or appointed military counsel) and Josh Dratel (Hicks’s civilian counsel) argued several motions having to do with the commission’s jurisdiction, the selection of panel members, and the participation of expert witnesses. I know Josh because we worked together a couple of years ago on litigation before the Foreign Intelligence Surveillance Court of Review, but before today I had never heard him argue in court. I thought he was extraordinarily articulate and well prepared. Dan Mori was also very good. Unfortunately, it’s already clear that the defense team has an unusually difficult job, because many of the commission’s rules are skewed in favor of the prosecution. (ACLU Executive Director Anthony Romero discussed some of these rules in the dispatches he filed from Guantánamo back in August.) Another reason that the defense’s job is unusually difficult is that, astoundingly, only one of the three commission panelists is a lawyer.

I don’t have time to write about all of the motions that were considered today, but let me mention one that led to a particularly interesting argument. One of the charges against Mr. Hicks is that he was an “unprivileged belligerent” who attempted to murder U.S. forces in Afghanistan. The defense argued today that the commission doesn’t have jurisdiction to consider the charge because the charge doesn’t allege a violation of the law of war. The defense argued, persuasively, that with a couple of exceptions the law of war protects only “privileged” persons — a category that includes civilians but not belligerents. Because Mr. Hicks is not accused of having sought to murder a privileged person, the defense argued, he is not accused of having violated the law of war and the commission doesn’t have jurisdiction to consider the charge.

It wasn’t clear to me that the two non-lawyers on the panel — Cols. Christopher Bogdan and Jack Sparks — fully understood the argument. Col. Bogdan, at least, seemed focused not on the legal status of the U.S. soldiers in Afghanistan but on the legal status of Mr. Hicks. It seemed that, in Col. Bogdan’s understanding, Mr. Hicks had violated the law of war simply by virtue of having been an unprivileged belligerent. The defense pressed its point, but with uncertain success. At the close of argument, Dan Mori asked Col. Bogdan whether his questions had been answered. Bogdan just grimaced and said, “maybe.”

This is the first of six dispatches I’ll write from Guantánamo Bay Naval Base, which I’m visiting as a representative of the ACLU. If you’ve read the dispatches sent by Anthony Romero a few weeks ago, you already know that the ACLU’s main purpose here is to monitor the military commissions that the President authorized in November 2001 to try people alleged to be Al Qaeda terrorists. This week, the commission will hear legal motions in the trial of David Matthew Hicks, an Australian accused of having fought with the Taliban in Afghanistan.

As the hearings don’t start until tomorrow, I thought I’d use today’s dispatch to say a little about what it’s like here at Guantánamo. I arrived last night on a tiny plane from Ft. Lauderdale. There were about ten people on the flight, including Jumana Musa from Amnesty International and a couple of people from the Australian Attorney General’s office. We were all met at the hangar by a military escort who took us to a building called the Combined Bachelor Quarters (CBQ), which is where we’re staying. Because it is on the leeward side of the base, the building is quite isolated. Most things of interest at Guantánamo — including the Commissions Building, the headquarters of the Joint Task Force, and Camp Delta (where most of the detainees are confined) — are on the windward side. Fortunately, the media are also staying at the CBQ, so we’re not as isolated as we might be.

My first thought on arriving here was that the Base is much prettier than I thought it would be. Guantánamo Bay is banked by short cliffs on one side and dense overhanging trees on the other. We took a boat to the windward side and saw pelicans and what I think were herons. (I’m told that there are also manatees.) The Base, which surrounds the Bay, is itself surrounded by low, rolling hills. You don’t immediately get the sense that you’re approaching what has become perhaps the most controversial detention camp in the world.

You do ultimately get that sense, though, from some of the restrictions that the military imposes after you arrive. We are prohibited from going anywhere on the Base without a military escort, and we are required to wear badges that say, in big red letters, “Escort Required.” We can walk unescorted up to 150 feet from the CBQ, but no further. We can’t take photographs without express permission. If we take an unauthorized photograph, our departure from Guantánamo “may be delayed while the incident is investigated.” We’re also prohibited from talking to the “migrants” — including asylum seekers — who live here on the Base.

As there were no hearings today, we spent the day getting briefings from various officials associated with the commissions. While some of the briefings were helpful — and I’ll say more about them tomorrow — it did gradually become clear that we’re going to have to fight for access to much of the information that we need. So far, the Defense Department has refused our requests for meetings with the prosecution team, with the Presiding Officer of the commission, and with the officials who oversee the confinement of individuals at Camps Delta, Echo, and Five. It has also refused our requests for access to the camps themselves. The Defense Department’s insistence that we rely on military officials for information about the camps and the detainees obviously raises questions about the government’s commitment to transparency.
This said, I’m still hopeful we’ll be able to work out at least some of these access issues over the next couple of days. We’ll be formally renewing some of our requests for access tomorrow, before the hearings begin.