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Report from Guantánamo Hearings: When Due Process is a Matter of Life and Death This week I’ve been at the Naval Base at Guantánamo Bay Cuba observing the first military commission proceedings since the ten-year anniversary of the opening of the Guantánamo prison. The proceedings concern the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) — first taken into U.S. custody in November 2002 — who faces a possible death sentence for his alleged involvement in the bombing of the USS Cole over eleven years ago. Over the course of two full days of proceedings the military commission judge struggled with several motions that squarely implicate fundamental due process and fairness concerns, particularly crucial in a criminal trial where the defendant’s life is at stake. Yet few of these critical issues were resolved or even clarified this week as the commissions system continues to be bogged down by novel rules and a near complete lack of any instructive precedent. Extensive and time-consuming consideration of pre-trial motions is common in any complex death penalty case. What is exceptional about the al-Nashiri case is that most of the concerns raised by participants would never be at issue in a trial before any federal court, or even state court, where the rules are more fully developed and substantial precedent exists. Moreover, the atypical procedural obstacles that have arisen in the al-Nashiri case stem in large part from the omission of protections long recognized as essential by ordinary courts. For instance, federal courts and all state courts have long acknowledged the particular importance of sufficiently resourcing the defense in capital cases, a right widely recognized as requiring that the defense be allowed to ask the court for resources without showing the request to the prosecution. That is because if the defense were to include the prosecution in such requests it would risk revealing its trial strategy and giving the prosecution an unfair advantage. In the military commissions, on the other hand, the refusal to grant defense resources in death penalty cases has been such a serious problem that in 2009 Congress passed legislation making clear that the commissions were to provide defense counsel in capital cases with resources comparable to those granted in federal courts. Yet last month the Military Commissions Convening Authority, the body in charge of granting defense resources, inexplicably rejected a joint request from both the defense and the prosecution for the defense to be able to request resources from the Authority without sharing the request with the prosecution. On Tuesday, the defense challenged the Authority’s rejection before Judge James Pohl, who seemed uncertain about whether he had the authority to overrule the Convening Authority’s decision. Ultimately, Judge Pohl attempted to side-step the issue by asking defense counsel to provide only minimal descriptions of the resource request and related justification to the Authority and the Prosecution and to come back to the judge if and when those minimally described requests were denied. Given that there was nothing in the Authority’s lengthy and unequivocal rejection to suggest that it would accept a minimal description, it appears most likely that the commission participants will re-litigate the issue several times, leading to further delays. Another issue that would never come up in federal courts is the question of whether the government can examine the content of attorney-client mail. In federal court, the government would never be permitted to do so, as it would clearly violate the attorney-client privilege and provide the prosecution an unfair and significant advantage over the defense. Such practices were also rejected at Guantánamo until this past fall, when the Commander responsible for the prison began ordering closer reviews of attorney-client mail in military commission cases. A recent order requires that all attorney-client mail for detainees involved in the military commissions be reviewed by a team of government contractors for both physical and “information” contraband. The top military commissions defense lawyer saw this order as being such a threat to the attorney-client privilege that he told the attorneys under his command that they were ethnically obligated not to comply. In the al-Nashiri case, after several hours of oral argument and witness testimony over two days, Judge Pohl was still unable to resolve the issue. Instead, he ordered the defense and prosecution to provide additional information and the issue will be addressed--for third time in the al-Nashiri case — at the next hearing in April. A final issue that was raised and remains unresolved implicates the torturing of al-Nashiri while he spent four years in secret CIA custody. On Tuesday, defense counsel began to argue why his client should not be shackled while meeting with defense counsel because of the residual impact of his having been tortured while in shackles. (Publicly available information indicates that interrogators held a gun and power drill to al-Nashiri’s head during interrogations.) The answer to the underlying question of al-Nashiri’s shackling during defense counsel meetings was postponed to give the defense the opportunity to more fully explain the relevance of al-Nashiri’s mistreatment, an explanation that will most likely occur in a session closed to the public thus providing confirmation that the consistent true aim of the military commissions is to keep the secrets of American torturers. Again, no one in a federal or state capital trial would bother to question the “relevance” of a defendant’s torture to his capital defense. Particularly not when the torture was at the hands of the same government that seeks his death. In sum, after two lengthy days of arguments, the al-Nashiri case seems hardly closer to coming to trial. Defense counsel suggested that the al-Nashiri trial wouldn’t even begin until 2015 in commissions it described as a “facsimile of a court.” In a press conference following the proceedings’ conclusion, family members of the victims of the Cole bombing also commented on the delays, one man saying he expected he might see justice by the time he was an old man. What wasn’t discussed at the press conference was how many of delays and procedural quagmires that have delayed justice for al-Nashiri and the Cole bombing victims alike could have been avoided had the case been brought in the established federal forum where it properly belonged. Learn more about Guantánamo: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Abd al-Rahim al-Nashiri, Close Gitmo, guantanamo, Guantanamo Dispatch
Guantánamo Chief Defense Lawyer Orders His Attorneys: Don't Agree to Monitoring Ten years on, Guantánamo authorities are back to their old tricks, throwing up roadblocks to fair trials. But now the top defense lawyer for the controversial Guantánamo military commission system has ordered the attorneys under his command not to comply with new rules issued by the Guantánamo prison chief that require Defense Department screening of all written materials lawyers want to send to their clients. In an email sent Sunday and obtained by the ACLU, Marine Col. J.P. Colwell, the chief military defense counsel for the commissions, informed all military commission defense lawyers that they were ethically obligated to refuse to follow the rules, which were issued last month. Guantánamo’s commander, Navy Rear Adm. David Woods, issued the rules on monitoring legal communications on December 27. Under these rules, any information provided by lawyers that military censors found objectionable — like communications about U.S. personnel who tortured the prisoners — could be kept from the prisoner and brought to the attention of the base commander. This would eliminate attorney-client confidentiality. The new prison rules say that defense attorneys must agree in writing to the monitoring as a condition of communication with their clients. In his email, Colwell told military commission defense lawyers that they should not sign the monitoring agreement, and if they already had signed, then they should immediately withdraw from the agreement. Citing the ethics codes that govern every branch of the military, Colwell wrote that following the agreement and revealing such information would be “in violation” of rules for professional conduct. Col. Colwell joins an honorable line of Guantánamo military lawyers who have opposed superiors’ attempts — ostensibly in the name of security — to undermine longstanding rules necessary for a fair trial. In seeking to force military defense counsel to cast aside their professional ethical obligations of client confidentiality, the new rules fly in the face of American justice and tradition. If we want to do justice — and be seen as doing it — these cases need to be in federal court where the rules are established, fair, and effective. Learn more about detention: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Close Gitmo, Col. J.P. Colwell, detention, Gitmo, Gitmo at 10, guantanamo, Rear Adm. David Woods
ACLU Studio: An Innocent Man in Guantánamo Today marks 10 years since the first prisoners were sent to Guantánamo, making it the longest-standing war prison in U.S. history. Almost 800 men have passed through Guantánamo’s cells. To learn more about the ACLU’s call to close Guantánamo, visit www.aclu.org/closegitmo. In 2001, Lakhdar Boumediene was falsely accused of being an al Qaeda operative while working for a humanitarian aid organization in Bosnia. Even though Bosnia's highest court found no evidence against him, the U.S. government kidnapped Mr. Boumediene and sent him to Guantánamo, where he remained for 7 ½ years without charge or trial. In a 2008 landmark Supreme Court decision that bears Mr. Boumediene's name, the Court ruled that the constitutional right of habeas corpus applied to the men imprisoned at Guantánamo. The Court ordered the government to give Mr. Boumediene and his fellow prisoners a meaningful opportunity in a civilian court to challenge their confinement. Five months later, a United States District Court in Washington heard the supposed evidence against Mr. Boumediene, found it utterly lacking and ordered him set free. In May 2009, Mr. Boumediene was released from Guantánamo and today, he lives in France with his wife and three children. In the latest episode of ACLU Studio, ACLU National Security Project Senior Staff Attorney Zachary Katznelson talks with Mr. Boumediene about his experiences at Guantanamo and his reflections on the 10-year mark since the first prisoners were taken there. Subscribe to our podcast feed in iTunes, or subscribe via RSS. Learn more about detention: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Close Gitmo, detention, Gitmo at 10, guantanamo, Lakhdar Boumediene
Check Out Our "Close Gitmo" Activist Toolkit! Tomorrow marks 10 years since the first prisoners were sent to the prison camp at Guantánamo Bay, making it the longest-standing war prison in U.S. history. To learn how you can amplify the call to close Guantánamo, once and for all, check out our new activist toolkit. And in case you missed them, be sure to check out the “Gitmo by the Numbers” Infographic that we blogged about yesterday, and our blog post about Lakhdar Boumediene, an innocent man who was imprisoned at Guantánamo for seven and a half years without charge or trial. Tomorrow, we’ll feature a podcast conversation with Mr. Boumediene. And be sure to let President Obama know that you’re counting on him to make good on his original promise to close Guantánamo and to shut down the un-American and illegal policies that it embodies. Learn more about detention: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Close Gitmo, detention, Gitmo at 10, guantanamo, indefinite detention
INFOGRAPHIC: Guantánamo by the Numbers This Wednesday, January 11 marks 10 years since the first prisoners were sent to Guantánamo. Over the last decade, the prison camp has become a symbol of injustice, abuse and disregard for the rule of law. Since it opened, almost 800 men have passed through Guantánamo’s cells. Today, 171 men remain imprisoned there; 89 of those men have been unanimously cleared by intelligence and military officials, but remain at the prison camp. A new ACLU infographic details this information, as well as other alarming facts and figures about Guantánamo. Click here to view the infographic. In case you missed it, this weekend we wrote about Lakhdar Boumediene, an innocent man who was imprisoned at Guantánamo for seven and a half years without charge or trial. Later this week, we’ll feature a podcast conversation with Mr. Boumediene. On this shameful anniversary, the ACLU renews our call for the prison camp to be shuttered. Join us: ask President Obama to close Guantánamo, once and for all. Learn more about Guantánamo: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Close Gitmo, detention, Gitmo, Gitmo at 10, guantanamo, indefinite detention
Injustice at Guantánamo: Past and Present Image, left: Lakhdar and Yusuf (born 8/2010) - September 2011 This Wednesday marks 10 years since the prison at Guantánamo Bay opened. Today in The New York Times, Lakhdar Boumediene reflects on that anniversary and tells the harrowing tale of the seven and a half years he spent imprisoned in Guantánamo Bay. Mr. Boumediene always maintained his innocence, fought his case all the way to the Supreme Court in a case that bears his name, and ultimately won his freedom before a federal court in Washington. Today, he lives in France with his wife and three children. Mr. Boumediene’s personal experience goes to the heart of what is wrong with Guantánamo. Originally from Algeria, he became a Bosnian citizen and worked there for the Red Crescent — the Muslim equivalent of the Red Cross. In October 2001, he was taken away from his wife and two daughters, arrested and falsely accused of being an al Qaeda operative. After three months of investigation, Bosnia's highest court found there was no evidence against him, but instead of tasting freedom, he was kidnapped by the United States government, trussed up and flown to Guantanamo. There, he was brutally treated, beaten, subjected to extreme temperatures, forced to stay in painful positions for hours at a time, sleep deprived and beaten. His wife and young children were never allowed to visit and their letters were either rejected entirely or heavily censored. Mr. Boumediene went on hunger strike to peacefully protest his incarceration without charge. He was force-fed for two years.
Still, somehow, Mr. Boumediene maintained the strength to fight for his freedom. In his historic 2008 case, Boumediene v. Bush, the Supreme Court ruled that prisoners like him must have a meaningful opportunity to challenge their confinement. Months later, a federal judge ruled that the U.S. had no credible evidence against Mr. Boumediene and ordered him set free. It turns out the government’s entire case relied on a single unnamed informant, whom U.S. Embassy officials in Bosnia had found untrustworthy at the time Mr. Boumediene was originally seized. Yet he remained imprisoned for seven and a half years. He was finally reunited with his family in France in May 2009. “Some politicians say that people in Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again....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.” While Mr. Boumediene is finally free, over 170 men remain in Guantánamo, stuck in a limbo created by the politics of fear that surround anything to do with terrorism. The majority of Guantanamo prisoners have been unanimously cleared for release by the United States intelligence and military communities, but remain incarcerated, to the cost of over $70 million a year. The reason is politics and failure by all three branches of government to act to bring an end to Guantánamo. It is a lot easier to bang the drum of fear than to sound the call of justice.
I had the honor of interviewing Mr. Boumediene last week, and our conversation will be available online later this week as a podcast on the ACLU’s website. It is a unique opportunity to hear the words of a man who has actually experienced Guantánamo Bay from the inside, with all its failings and profound ugliness. We ask that you stand today with Mr. Boumediene and call upon the U.S. government to finally end the blight on our reputation — and our security — that is Guantánamo Bay. Join us in asking President Obama to keep his promise to close the prison camp by charging and trying the prisoners who are there, or sending them home. Learn more about Guantánamo: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Close Gitmo, Close Guantanamo, detention, Gitmo at 10, guantanamo, indefinite detention, Lakhdar Boumediene
ACLU in Court Defending the Freedom of Speech for Ex-Gitmo ProsecutorToday the ACLU was in court arguing that the Library of Congress violated Col. Morris Davis’s First Amendment rights when it fired him from his job at the Congressional Research Service (CRS) because of opinion pieces he wrote criticizing the Obama administration’s decision to try some Guantánamo detainees in federal courts and others in the military commissions system. Col. Davis served as Guantánamo’s chief prosecutor until October 2007, when he resigned because he came to believe that the military commission system had become fundamentally flawed. He has openly and publicly criticized the commissions ever since. Col. Davis’s lawsuit charges that CRS violated Col. Davis’s right to free speech and due process when it fired him for speaking as a private citizen about matters having nothing to do with his job. In March 2011, the D.C. District Court denied motions to dismiss by the defendants, former CRS Director Daniel Mulhollan and Librarian of Congress James Billington. Mulhollan appealed from that decision, and today the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in the matter. ACLU attorney Aden Fine told the three-judge panel that the lawsuit should be allowed to continue. The AP reports: Fine noted that Davis had spoken out repeatedly against the use of the system by the Bush and Obama administrations before his was hired by the library in December 2008 and during his 11 months there overseeing research on foreign affairs, defense and trade policy issues… The First Amendment protects the right of public employees to discuss matters of great public concern, and federal officials who violate that right should be held accountable. We hope the Court agrees. A decision on the appeal is expected in the coming months. Learn more about free speech: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.
The Road to Death at Guantánamo Tomorrow, we start down the dark path to a possible execution in Guantánamo. As the Supreme Court has long said, death is different. Putting someone on trial for his life requires — at a bare minimum — a rigorously fair process if even the appearance of legitimacy is to be maintained. Nowhere will that be clearer than in the first Guantánamo military commission death penalty case, that of Abd al-Rahim Hussayn Muhammad al-Nashiri, who was held secretly for years by the CIA, and — as the government has admitted — tortured. On Wednesday, Mr. al-Nashiri will appear before the world for the first time since he was seized more than eight years ago. He will stand up and state whether he pleads guilty or innocent to planning the 2000 bombing of the U.S.S. Cole. Should he be found guilty, he may be executed. But the Guantánamo military commission he will appear before will not provide justice for him, for the U.S.S. Cole victims, or for Americans anywhere. I will be at Guantánamo tomorrow to observe the proceedings for the ACLU. John Brennan, President Obama’s chief counterterrorism advisor, claimed in a speech at Harvard on September 16, 2011 that “reformed military commissions… provide all of the core protections that are necessary to ensure a fair trial.” But if that is the case — if the basic structure of a Guantánamo military commission is the same as a civilian court — why is a Guantánamo military commission necessary at all? After all, a U.S.S. Cole indictment sits waiting in federal court. The answer comes from Brennan as well: real differences do remain between a commission and a federal trial. Among them are the admissibility of hearsay, on which the government plans to rely heavily in this case, and the admissibility of coerced evidence. As Mr. Brennan conceded, those are “differences that can determine whether a prosecution is more likely to succeed or fail.” Put another way, the Obama Administration has chosen a Guantánamo military commission for Mr. Al-Nashiri because they think the rules of evidence there are lax enough that they are certain to win. It is hard to make the argument that you are in favor of the rule of law when you make decisions based on the rule of victory. But the flaws of the Guantánamo military commissions are such that any victory will be years in the making — and may well prove pyrrhic. Since this is a system designed entirely from scratch, there is virtually no legal history testing its contours. Unresolved legal clouds loom. Can a Guantánamo military commission try someone for crimes, like those alleged here, that took place before September 11, 2001? A Guantánamo military commission has jurisdiction only over war crimes, but were we at war before 9/11? If not, the power of the Guantánamo commission to hear this case vanishes. Was one of the key charges against Mr. al-Nashiri, conspiracy, a war crime at the time Mr. al-Nashiri was allegedly acting? Four of the eight Supreme Court justices who have considered this have said no. If it was not a war crime, did Congress violate the Ex Post Facto Clause of the Constitution when in 2006 it retroactively made it one? Is it legitimate to use evidence that is the poisonous fruit of coercion? Even if the coerced statement itself is thrown out, can the prosecution still use information that was gathered only thanks to that coercion, such as the names of possible witnesses? In all likelihood, it will take years for the Supreme Court to resolve these issues. Keep in mind that federal death penalty cases usually take two to two and a half years. And this is far from a usual case. The usual criminal defendant has not been tortured and secreted away for years by the government. The usual criminal case does not involve legal questions about whether the court has the power to hear the case at all. The usual criminal prosecution does not require flying the judge, lawyers, and court staff hundreds or thousands of miles every time there is a hearing. The discovery process alone will likely consume all of 2012, especially if — as expected — the government resists disclosing much of the evidence Mr. al-Nashiri’s lawyers will request, most critically anything to do with Mr. al-Nashiri’s torture in the CIA’s secret prison system. A trial may be years away. There is far more at stake than Mr. al-Nashiri’s fate. The debate about Guantánamo military commissions versus federal courts is not just one of rhetoric, inflamed by the upcoming elections. It is one of real consequences. Some of our European allies —Germany, Sweden, the UK, Belgium, the Netherlands, and the Czech Republic, to name a few — refuse to cooperate with us on terrorism cases if intelligence being shared or a suspected terrorist being extradited is going to end up before a Guantánamo military commission. That lack of cooperation is one reason why even the CIA’s former General Counsel John Rizzo favors federal court trials for terrorism suspects. How many other allies will withhold cooperation in fighting terrorism if we do not get this right? Are we willing to risk our allies’ cooperation — and our own reputation for fairness — for the sake of putting one individual to death? Stay tuned for more updates from Guantánamo this week. Learn more about torture and detention: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: Abd al-Rahim al-Nashiri, Close Gitmo, Close Guantanamo, guantanamo
ACLU Studio: A Fall from Grace, or Business as Usual at Guantánamo? Many people saw the torture and abuse of prisoners and indefinite detention at Guantánamo Bay in the wake of 9/11 as a fall from grace. Harvard Historian, Jonathan Hansen disagrees. “America,” he says, “scarcely has any grace to fall from.”
In this episode of ACLU Studio, ACLU National Security Project Litigation Director, Ben Wizner talks with Hansen about his new book, Guantánamo, An American History. Listen and learn how Guantánamo is a reflection of America; revealing the good, the bad and the ugly. Learn more about indefinite detention: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: ACLU Studio, Close Gitmo, guantanamo, indefinite detention, interrogation, Jonathan Hansen, podcast, Torture, waterboarding
Remembering 9/11 and Reclaiming Accountability for Human Rights Many people in the United States and around the world remember the horrific events of September 11th, 2001 as some of the worst crimes against humanity of the last decade. These attacks savagely flouted the fundamental values of international human rights. While the international community was united behind the U.S. call to bring those responsible to justice, the struggle against terrorism — hardly a new enterprise — took a wrong turn towards undermining the international legal frameworks and accountability mechanisms that were developed after World War II.
U.S. counter-terrorism policies today often blur the distinction between the more permissive rules that regulate the use of force and treatment of fighters and civilians in theatres of war, and the more restrictive rules that apply in all other contexts. The U.S.-led 'War on Terror' has resulted in the erosion of hard-fought human rights achievements, including the absolute prohibition on torture, and undermined accountability mechanisms against governmental abuses of power. We all remember that President Bush's White House counsel Alberto Gonzales determined that the Geneva Conventions were "quaint" and "obsolete." We also recall the legal memos crafted by the U.S. Department of Justice, which distorted the legal definition of torture and purported to redefine U.S. obligations under the Convention against Torture — justifying systemic cruelty and barbaric treatment in legal black holes like Guantánamo Bay and CIA "black sites." After 9/11, the U.S. engaged in policies in which anti-terror ends justified terrible means. In pursuit of such ends, the government justified racial and ethnic profiling, baseless surveillance of religious communities, warrantless wiretapping, unfair trials, indefinite detention, and the egregious use of torture. And Secret America became the rule rather than the exception. Sadly, the post 9/11 anti-Muslim backlash continues to this date. In just the past year, more than twenty-five state legislatures have proposed (and some have enacted) measures designed to limit the role of "international" or "foreign" laws, including Sharia law, in state adjudication. These misguided and unconstitutional measures are largely driven by post-9/11 anti-Muslim rhetoric, which unfortunately seems to have become a national sport. Commendably, the Obama administration has taken important steps to re-engage the international human rights community, including joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities and supporting U.S. ratification of Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. At the same time, however, the Obama administration has refused to provide accountability for torture by, for example, invoking the "state secret privilege" to deny torture victims their day in court, and it has continued, and even expanded, the Bush Administration's targeted killing program in which killings are carried out without transparency or accountability. The Obama administration has also implemented federal programs that encourage racial and ethnic profiling rather than securing communities. Combined, these conflicting attitudes risk perpetuating a disastrous double standard on human rights issues and undermine the U.S. government's ability to hold foreign governments to account for their rights violations. The Obama administration also has yet to issue an executive order to fully implement U.S. treaty obligations and create an accountable and transparent mechanism to integrate international human rights into domestic policy. While enforcement levels of some anti-discrimination laws have increased across the nation due to the hard work of the Justice Department's Civil Rights Division, more needs to be done in order to bring U.S. laws and policies in line with international human rights norms. The legacy of a post-9/11 world must be reshaped from a narrative of violations of the rule of law into one in which the United States embraces human rights principles consistent with both the U.S. Constitution and international law. Ten years later, it is not too late for the U.S. to turn things around and do the right thing by making it clear that human dignity is of paramount importance and that accountability for human rights is a U.S. national interest, not just another foreign policy tool. Learn more about human rights: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook. Tags: 9-11 blog series, alberto gonzales, detention, Geneva Conventions, guantanamo, human rights, Torture, United Nations
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