Bob Herbert has an excellent piece in The New York Times today about our habeas corpus case on behalf of Mohammed Jawad.
The Afghan government recently sent a letter to the U.S. government demanding Jawad’s return and suggesting he was as young as 12 when he was captured in Afghanistan and illegally rendered from that country almost seven years ago.
The U.S. government continues to rely on evidence obtained through torture and coercion in Jawad’s habeas challenge to his unlawful detention, despite the fact that the very same evidence was suppressed by the judge in Jawad’s military commission trial.
Jawad was still a boy when he was captured in Afghanistan. He was coerced into signing a confession written in Farsi, a language he could not speak, much less read or write (in fact, Jawad was functionally illiterate even in his native language of Pashto). He was later rendered to Bagram and then to Guantánamo, where he was subjected to the worst forms of torture. After weeks of isolation and abuse, Jawad tried to kill himself by repeatedly banging his head against the wall of his cell. No doubt irreparable harm has been done to Mohammed Jawad’s body and mind. The U.S. has no credible evidence against him. And yet he remains captive in U.S. custody.
Writes Herbert of Jawad’s harrowing story:
[S]ince his capture he has been tortured and otherwise put through hell. The evidence against him has been discredited. He has tried to commit suicide. But the U.S. won’t let him go.
Andy Worthington has also written about Jawad here.
I recently had the fascinating experience of speaking at the U.S. Army War College about civil liberties and national security, as part of a weeklong seminar the college was conducting on national security issues. Many thought that it was surprising that I had been invited by the military and surprising that I was willing to speak in a venue that they expected to be a lion’s den for an ACLU spokesperson. Going into this experience, I knew that the caricature of the ACLU as anti-military is as inapt as the caricature of the ACLU as anti-religion. After my visit, I now see far more clearly that the caricature of the military as anti-ACLU is equally false.
While it is certainly true that not every serviceperson would agree with the ACLU on all issues, our respective institutions have in common a profound respect for fundamental American values and an image of ourselves as responsible for promoting and protecting those values.
Military leaders, for example, played a major role in convincing the Bush administration to change its course on using extreme interrogation techniques like waterboarding. Among other experts who have questioned whether or not information obtained through the use of such methods is reliable was Gen. David Petraeus (PDF):
Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they are frequently neither useful nor necessary. Certainly, extreme physical action can make someone "talk;" however, what the individual says may be of questionable value.
Others expressed concern that if Americans lowered the bar by using harsh interrogation techniques, American soldiers might be more likely to be subjected to similar treatment. But in addition to these very pragmatic concerns, military leaders have also recognized that using torture is wrong because it is inconsistent with American values. As Marine Gens. Charles Krulak (Commandant of the Marine Corps) and Joseph P. Hoar (Commander in Chief of the United States Central Command 1991–94) said in a Washington Post article:
Complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. This has had disastrous consequences… The torture methods that Tenet defends have nurtured the recuperative power of the enemy. This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy. This way lies defeat.
In the words of Gen. Petraeus (PDF):
Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy.
The ACLU was far from alone in criticizing the idea of using jury-rigged military commissions to try suspected terrorists instead of proceedings consistent with our usual criminal procedure rules or the Uniform Code of Military Justice. In the words of Gen. Colin Powell, for instance,
[W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open and creating things like the military commission. We don’t need it, and it’s causing us far [more] damage than any good we get for it. . . We can handle bad people in our system. And so I would get rid of Guantanamo and I’d get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial.
In preparing for my speech, I had considerable assistance from one of my colleagues on the ACLU National Board of Directors, Michael Pheneger, a retired colonel in military intelligence who had gone to the War College himself. Col. Pheneger was drawn to work with the ACLU as he became more distressed at the Bush administration’s deviations from traditional American values. I owe to him the collection of quotations above, and the firm assurance that observing the limitations of the Constitution and international law in areas like interrogation, surveillance, and procedural tribunals would not make our counter-terrorism efforts any less effective. It is instructive to hear from someone who has actually done training in surveillance that the assumption of the USA Patriot Act — that new surveillance tools were "required" to combat terrorism — is simply untrue. We do not, despite what we have been told, need to choose between our liberty and our security. And so we should indeed be working with the military to find the best path to both.
Read more…
Last week, our friend – journalist Andy Worthington – reminded readers of a forgotten anniversary: the second anniversary of a death at Guantánamo – apparently by suicide.
This week, the world learned of yet another death at Guantánamo – another apparent suicide of 31-year old Yemeni national Muhammad Ahmad Abdallah Salih – who has been detained since February, 2002. Salih’s death bumps up the total death count at Gitmo to six. Of these deaths, five are believed to be suicide.
As Ben Wizner, a staff attorney with our National Security Project, stated, “Tragic deaths like this one have become all too common in a system that locks up detainees indefinitely without charge or trial.”
You may recall that back in January, the ACLU and a handful of other human rights groups sent a letter to President Obama asking him to grant full access to the detention center so that we could review the conditions of confinement and make recommendations for revising U.S. detention policies. We were never granted access.
In light of this tragic news, we are renewing that call, and asking for an immediate, independent and transparent investigation into the circumstances surrounding this apparent suicide and the conditions of confinement at Guantánamo.
In an ACLU statement about the suicide, Ben also stated: “There is no room for a system of indefinite detention without charge or trial under our Constitution. Detainees against whom there is legitimate evidence should be tried in our federal courts – not in the reconstituted military commissions now being proposed. Those against whom there is no legitimate evidence must not be given a de-facto life sentence by being locked up forever.”
The circus-like atmosphere of the military commissions in Guantánamo Bay, Cuba, carried on yesterday in top form. Although the primary issue addressed – selection of counsel for the accused – routinely arises and is professionally dealt with in federal court, the hearing today left the proceedings against Omar Khadr in tatters. When all was said and done – and most of it was said and done by the presiding judge, Colonel Parrish, who made little effort to conceal his anger and frustration with Khadr’s lawyers – the judge had slashed Khadr’s trial team of three lawyers to a provisional one, depending on the outcome of yet another hearing set for July.
The preliminary yet fundamental issue of representation for Khadr took center stage this morning amidst vitriolic infighting between the chief of the military-commissions defense office and one of the attorneys detailed from that office to represent Khadr. Although the particulars of the fight are secret, documented in a sealed filing, this much we know: the judge is not happy. And yet, shortly after criticizing Khadr’s lawyers, the judge went to some effort to praise Khadr himself: “Mr. Khadr is coming across in a dignified and professional manner and is very well spoken this morning.”
As even the judge himself recognized, however, today’s and July’s proceedings might be wasted effort. President Obama might, for example, fundamentally alter the commissions or, more modestly, change the rules regarding selection of counsel for those tried before the commissions-both possibilities mentioned by the president in his speech at the National Archives. Perhaps more significantly for Khadr’s case in particular, the president might decide not to try Khadr before a military commission at all.
These possibilities left most present at today’s hearing wondering why anyone bothered to show up, and they highlighted the essential failure of military commissions: they are ad hoc proceedings with few rules and even fewer precedents, with both rules and precedents, sparse as they are, subject to change at any time.
It is difficult to imagine such a broken-down apparatus producing just results viewed with legitimacy by the American people, or by others whose respect we also need in our fight for our principles. But the apparatus continues to churn and sputter in Khadr’s case, leaving a swath of confusion in its wake.
(More Guantanamo dispatches here.)
In the wake of President Obama’s national security speech yesterday and implications of his proposed tweaked military commissions and so-called "preventive detention" system, Salon’s Glenn Greenwald features a podcast discussion with ACLU’s National Security Project attorney Ben Wizner.
It’s important to acknowledge that the Obama administration has been dumped with what Ben describes as "the cancer of Guantánamo," but it’s equally important to recognize that, rhetoric aside, President Obama yesterday essentially proposed making permanent some of the worst features of the Gitmo regime. Even Jack Goldsmith, who served as Assistant Attorney General under the Bush administration recently wrote, "The main difference between the Obama and Bush administrations [national security policies] concerns not the substance of terrorism policy, but rather its packaging." Even more concerning, President Obama’s comments yesterday suggested that he intends to institutionalize these policies through Congress. It is absolutely essential to consider the facts, and potential long-term consequences of such a scenario.
In the his conversation with Glenn, and in an article co-authored with National Security Project director Jameel Jaffer entitled "Don’t replace the old Guantánamo with a new one," Ben asserts that our existing justice system is perfectly well equipped to handle terrorism cases, and provides prosecutors with an imposing range of tools to try suspected terrorists. These tools, including overly broad "material support" statutes that criminalize association with designated terrorists groups, make it difficult to imagine that there exists a certain class of people who are too dangerous to release, but too difficult to prosecute in our federal courts.
It’s worth heading over to Salon for a listen and a read.
Here’s another way to think about it, as Ben stated: "If people weren’t comfortable with Bush having this power, then they shouldn’t be comfortable with Obama having this power, because he won’t be President forever."
We, along with other Americans concerned with the direction of President Obama’s approach to national security, watched with bated breath as he gave his much-anticipated speech this morning addressing national security issues including the closure of Guantánamo and the revival of the military commissions. Yesterday, human rights groups including the ACLU met with the president and members of his cabinet and expressed concerns about the president’s reported plans for indefinite detention for some terrorism suspects. While today’s speech was refreshing in its efforts to acknowledge the importance of the Constitution and the rule of law, we remain concerned about those issues.
Responding to the speech, Chris Anders, Senior Legislative Counsel for the ACLU’s Washington Legislative Office stated:
Interestingly, President Obama gave his speech while standing within a few feet of the Constitution. He and Congress should keep that cherished document in mind when considering today’s proposals. You can’t square upholding the Constitution with pushing for a new military commission scheme that would allow people to be convicted based on coerced evidence and asking Congress to pass the nation’s first-ever law permitting the federal government to declare someone dangerous and imprison the person indefinitely without any criminal charges. Congress should reject that proposal.
Denny LeBoeuf, Director of the ACLU’s John Adams Project, assisting in the representation of capitally-charged detainees, said of the president’s plan to restart the military commissions:
The proposed changes to the military commissions are merely cosmetic and do not erase the spectacle of the Department of Defense presiding over trials where coerced statements and accusations by unnamed accusers are permitted, and where detainees are not permitted to speak about their torture at the hands of the CIA or the military. Military commissions unfairly deprive detainees of meaningful defense resources. This "due process light" is particularly indefensible in death penalty cases.
However, we can certainly agree with the president when he said:
We will not be safe if we see national security as a wedge that divides America — it can and must be a cause that unites us as one people, as one nation.
That wedge, which politicians — including former Vice President Dick Cheney — have been using to scare American into opposing President Obama’s plan to close Guantánamo, is dangerous. As we wrote before, it’s a slap in the face to our federal judiciary, not to mention those who staff and operate this nation’s maximum security prisons, to say that suspected terrorists cannot be incarcerated safely in America.
As the president pointed out, hundreds of convicted terrorists already reside in American jails, and no one has ever escaped from one of our federal maximum security prisons. Closing Guantánamo is key to restoring America’s standing in the world, as a beacon of justice and due process.
We were also encouraged when the president said:
I believe that our existing democratic institutions are strong enough to deliver accountability…Congress can review abuses of our values…[t]he Department of Justice and our courts can work through and punish any violations of our laws.
You can support the ACLU’s call for accountability: sign a petition to Attorney General Eric Holder demanding an independent prosecutor to investigate Bush-era criminal activity.
Tomorrow morning at 10:10 a.m., President Obama will deliver a "major national security speech" from the National Archives in Washington, D.C. We’re expecting more details on his plans to revive the unfixable military commissions.
ACLU Executive Director Anthony Romero said in a statement last week:
These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust…
Despite the administration’s efforts to improve the system, the only explanation for reviving it would be to accommodate the damage that has already been done by the Bush administration’s policies of torture, illegal detention and denial of fair trials.
We implore President Obama to not allow failure beget more failure. Close Guantánamo, and end the military commissions once and for all. Move the detainees’ cases to federal courts, where true justice can be rendered.
It’s official: Bush-era military commissions are back.
And the Obama administration has even put its stamp of approval on them. They have made a few changes, but the idea is still the same.
If hearsay is admissible, there is no protection against evidence that was beaten out of a witness (who is not present in court) from being used to convict someone. Given how pervasive the use of torture and abuse was in interrogations, there is a very significant danger that detainees may be convicted based on evidence obtained by torture or abuse.
So, we are now about to get the third scheme for putting on trial the Guantánamo detainees who President Bush used to call the worst of the worst. The first commission scheme was declared illegal by the Supreme Court. The second commission scheme was such a mess that President Obama suspended the trials. And now we have the third scheme. After all these years and all these schemes, only three people have been convicted at Guantánamo (out of the nearly 1,000 detainees who went through Guantánamo) — including an Australian kangaroo trapper who pled guilty as a way to get OUT of Guantánamo and return home to freedom in Australia.
Obama would be much better off putting anyone he believes should be charged into the regular civilian criminal courts — the same U.S. courts that have been busy with the hard work of holding real trials of terrorism defendants, and actually sending many of them off to prison after conviction — instead of trying to rig some new lawless scheme.
How do you know when something is past the point of fixing? When it wasn’t that great even when it was brand new, and kept falling apart until it finally broke down. That’s the military commission system in a nutshell.
Today we learned that President Obama plans to retool the failed military commission system for 20 or so Guantanamo detainees. We’re disappointed. During the campaign, then-Senator Obama promised a different approach to Gitmo (PDF):
The legal framework behind Guantanamo has failed completely, resulting in only one conviction…As president, Barack Obama will close the detention facility at Guantanamo. He will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries. (emphasis ours)
According to today’s statement, the revamped system would still allow the use of hearsay evidence, which is inadmissible in federal court and military courts martial, in some circumstances. Fair and thorough? Not so much.
The military commissions are designed to ensure convictions, not provide fair trials.
The ACLU continues to call on President Obama to entirely scrap the failed military commissions process. Where there is actual evidence of criminal activity, our federal courts are well-positioned to accommodate legitimate national security interests without compromising the fundamental rights of defendants. As John Adams Project Director Denny LeBoeuf wrote recently in Salon:
Existing federal laws provide all the protection that lawful intelligence-gathering requires. The federal trials of the Blind Sheikh, the 1993 World Trade Center bombing, the 1998 East African Embassy bombings and the capital trial of Zacharias Moussaoui demonstrate that. Indeed, two former prosecutors studied every single terrorism-related trial ever conducted in the U.S. and concluded that the federal courts are eminently capable of handling these cases.
It’s paramount that these cases are tried in a court that upholds due process, and in which judges and attorneys are held to constitutional obligations and accountable to the rule of law. Our time-tested civilian courts are equipped to handle complex national security cases, and have done so successfully before and after September 11.
To say otherwise is a slap in the face to our federal court system and the men and women who so honorably serve within it.
Our justice system depends upon basic principles of fairness and transparency. Once they are compromised even a little, they are rendered meaningless.
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