Torture is Illegal, Immoral and Counterproductive

by Mike Pheneger, Colonel, US Army (Ret.), a participant in the International Human Rights Committee's teleconference on the CIA and the use of torture to combat terrorism

*Please click on the title of this post to read the post in its entirety.

I was stunned to learn that the United States government had authorized the torture of suspects captured during the War on Terror. I am not naïve. As a professional soldier, I know individuals captured by the US military have been abused in the past, but abuse usually occurs at the point of capture during or immediately after a fire-fight when tempers are hot and units have sustained casualties. Some prisoners were tortured, but this was an aberration not national policy. It is important that we ensure that the record of our involvement with torture is laid bare. That is the only way to ensure that we never again stride purposely and confidently down that dark path.

Our greatest presidents rejected torture and abuse. Washington refused to follow the British practice of torturing prisoners; he believed our new nation should be noted for its humanity. Lincoln believed that “military necessity shall not permit of cruelty.”

The Bush Administration abandoned our traditions and made a calculated decision to authorize torture as a matter of national policy. Immediately after 9/11, Vice President Cheney noted that we would have to go the “dark side” to counter the al-Qaeda threat. After 9/11, the administration “took the gloves off” and approved “harsh” interrogation techniques that individually and in combination amount to torture. Alberto Gonzales advised that Geneva Convention prohibitions against torturing and abusing prisoners did not apply to al-Qaeda and Taliban prisoners.

The torture policy and its “legal” justification were developed in secret by a small group of attorneys closely associated with the Vice President. They simply assumed that “harsh” interrogations would be necessary to obtain actionable intelligence. There is nothing in the public record to indicate that anyone with actual knowledge of or experience in interrogation participated in making the decision. Service Judge Advocates were frozen out of the process because they were considered “unreliable.” When Alberto Mora, then General Counsel of the US Navy, learned the Department of Defense was about to approve harsh interrogation methods, he brought his concerns to DoD General Counsel William Haynes. After unsuccessfully trying to bring Mora on board, Haynes froze him out of the process. The torture policies were not subject to the normal interagency coordination process that is designed to weed out really bad ideas.

Uighurs Denied Remedy of Release into U.S.

On February 18, 2009, the Court of Appeals for the District of Columbia Circuit issued its opinion in Kiyemba v. Obama, a case addressing whether 17 Uighurs currently held in detention at Guantanamo Bay have the right to a remedy of release into the United States. Senior Judge A. Raymond Randolph (appointed by George H.W. Bush) authored the majority opinion, concluding that the Uighurs have no remedy of release into the United States because the political branches control exclusively the entry of aliens into the country. Judge Judith W. Rogers (appointed by Bill Clinton) concurred in the judgment, noting that the Executive has not yet determined if the Uighurs can be detained lawfully pursuant to U.S. immigration laws, but criticizing sharply the conclusion that the United States can indefinitely detain the Uighurs without a lawful basis for that detention.

Judge Randolph relied on the "ancient principle" that "a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission." Judge Randolph denied that the Uighurs possess any constitutional right to a habeas remedy based on their lack of citizenship and detention at Guantanamo, which Judge Randolph concluded is not part of the sovereign territory of the United States. In addition, Judge Randolph rebuked the district court's reliance on the principle that where there is a right (in this case a right to habeas), there is a remedy, emphasizing that doctrines such as sovereign immunity and political question preclude remedies in many instances. Ultimately, Judge Randolph concluded that the courts have no power to order the remedy sought by the Uighurs.

Judge Randolph focused the second half of his opinion on responding to Judge Rogers' concurrence. He called her statements "confused and confusing" and emphasized that whether or not the United States can continue to detain the Uighurs under immigration law is irrelevant because the Uighurs have not applied for admission under immigration law. Judge Randolph stated that the courts need express authorization by law in order to review a determination by the political branches to exclude an alien from entry into the United States. In addition, Judge Randolph concluded that the Supreme Court's decision in Boumediene v. Bush extends constitutional rights to aliens only with regard to the Suspension Clause.

The majority opinion and Judge Rogers' concurrence differ in which party bears the burden. Judge Randolph requires statutory authority for the remedy sought - namely, release into the United States, and Judge Rogers requires a showing of unlawful detention, thereby warranting a remedy. As noted in Judge Rogers' concurrence, "the majority has recast the traditional inquiry of a habeas court from whether the Executive has shown that the detention of the petitioners is lawful to whether petitioners can show that the habeas court is 'expressly authorized' to order aliens brought into the United States."

Whereas Judge Randolph emphasized that the Uighurs are seeking "an extraordinary remedy," Judge Rogers emphasized that the Uighurs face potentially indefinite detention. What counsels in favor of permitting such an extraordinary remedy is that the U.S. government created this dilemma. Unlike an individual who is seeking entry into the United States, the Uighurs were forcibly captured and detained. What is most appalling is that the Uighurs are not - and have never been - enemy combatants, yet they face indefinite detention at Guantanamo. Although release into the United States may constitute an extraordinary remedy, the Uighurs are entitled to a remedy, and release into the United States appears to be the only remedy available in light of the potential torture they face if they return to China and reluctance of any third-party country to accept the Uighurs, as recognized explicitly by the U.S. government. Any denial of the only remedy available to the Uighurs renders the Supreme Court's decision in Boumediene meaningless and is fundamentally unfair.

See Kiyemba v. Bush: "Let’s Be Very Careful Here Before We Taint People Without Evidence", Circuit Court of Appeals Precludes Uighurs' Release into U.S., "Unchartered Territory": A Remedy of Release into the U.S. for GITMO Detainees. See also Deborah Pearlstein, Opinio Juris, Constitutional Right, no Gitmo Remedy.

Saleh v. Titan: Political Divisions in Determining Accountability of Private Military Contractors

On February 10, 2009, the Court of Appeals for the District of Columbia Circuit heard oral argument in Saleh v. Titan, a case in which 250 Iraqi plaintiffs are attempting to hold accountable CACI International, Incorporated and L-3 Communications (formerly Titan Corporation) for allegedly committing torture, as well as other state law tort violations, in their provision of interrogation and translation services at Abu Ghraib and other prisons in Iraq. The case raises the familiar issue of accountability of private military contractors (PMCs) in the so-called war on terror. (For a good summary of the factual and procedural history of the case, see the following link from the Center for Constitutional Rights.) The panel, consisting of Judges Brett M. Kavanaugh (appointed by George W. Bush), Merrick B. Garland (appointed by Bill Clinton), and Laurence H. Silberman (appointed by Ronald Reagan), was unsurprisingly divided on ideological grounds.

On November 6, 2007, District Judge James Robertson issued a Memorandum Order granting Titan's motion for summary judgment, thereby dismissing the case against Titan, but denying CACI's motion for summary judgment and ordering a jury trial. Judge Robertson analyzed the level of control exercised by the U.S. government over the PMCs to determine whether the claims were preempted by the federal contractor defense. He concluded, "The critical differences between the ways that contract translators and contract interrogators were managed and supervised lead to different outcomes. Because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military’s command and control of CACI's employees will be for the jury."

At argument before the Circuit Court, the judges questioned heavily both parties on the combatant activities exception under the Federal Tort Claims Act (FTCA), which divests district court jurisdiction over civil actions for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Judge Silberman emphasized that the exception applies to claims "arising out of" combatant activities of the U.S. military and not "claims against" the U.S. military, and therefore could include combatant activities engaged in by non-U.S. military personnel. Judge Garland countered that the FTCA is a liability statute and therefore the exceptions should be read narrowly. Judge Kavanaugh noted congressional silence about whether federal preemption applies in this context but stated that war time activity likely falls within the scope of implied preemption.

Ultimately, the decision whether to preempt liability based on the federal contractor defense depends on how the judges interpret congressional silence on the issue. Judges Silberman and Kavanaugh appear to subscribe to the idea that congressional silence supports the conclusion that preemption applies, especially in light of the Executive's primacy in war-related matters. Judge Garland, on the other hand, appears to support the conclusion that if Congress had intended to preclude liability for non-U.S. military personnel, it would have done so explicitly. As commonly transpires on the Court of Appeals for the D.C. Circuit, the outcome will likely be driven by each judge's political persuasions.

Closing Guantanamo: President Bush's Legacy in the Fight Against Terrorism

President Barack Obama signed an executive order on January 22, 2009, to close the Guantánamo Bay detention center within one year and halt trials of detainees under the Military Commissions Act. The executive order is symbolic in its repudiation of the Bush Administration’s policies in the so-called war on terror, as well as its assurances that the United States will comply with its obligations under international law, including Article 3 common to the Geneva Conventions. (A separate order goes so far as to revoke President Bush's Executive Order 13440, which provided a controversial interpretation of Common Article 3, and to prohibit interrogators from relying on any interpretation of federal criminal law, the Convention Against Torture, Common Article 3, or the Army Field Manual issued by the Department of Justice between September 11, 2001, and January 20, 2009.) President Obama’s executive order will likely go far to counter negative perceptions of the United States and should limit the ability of terrorist organizations to fuel anti-United States sentiment and recruit individuals to their cause. As noted by Alberto Mora, Navy General Counsel, Guantánamo is one of the two leading causes of U.S. combat deaths in Iraq “because of the effectiveness of [this] symbol[] in helping recruit jihadists into the field and combat against American soldiers.”

By order of President Obama on January 20, 2009, Defense Secretary Robert Gates directed the Chief Prosecutor to seek continuances of 120 days in all pending military commissions proceedings. The Chief Prosecutor noted that the Obama administration’s review of the status of detainees held at Guantánamo may result in changes that would “(1) render moot any proceedings conducted during the pendency of the review, (2) necessitate re-litigation of issues, or (3) produce legal consequences affecting the options available to the Administration following its review.” Military Judges in commission proceedings involving Omar Khadr and five individuals charged in the September 11 attacks, including Khalid Sheik Mohammed, subsequently issued rulings granting the Chief Prosecutor’s request, stating that “the interests of justice served by continuing the proceedings to allow the new Administration sufficient time to review the Military Commission’s process and decide the proper forum to prosecute the accused or to make appropriate changes to the current commission rules and procedures and avoid unnecessary duplication of effort outweigh the best interests of the accused and public in a prompt trial.” According to a Washington Post article, the government has similarly sought and obtained delays in habeas proceedings of Guantánamo detainees before District Judge Reggie B. Walton, and SCOTUSblog reports that President Obama has ordered the Justice Department to review a detention case awaiting a Supreme Court ruling - although that case does not involve an individual held at Guantánamo.

Despite its goal “to affect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base . . . and promptly to close detention facilities at Guantánamo,” President Obama’s executive order contains few details regarding the structure and process for releasing, transferring, and/or prosecuting detainees currently held at Guantánamo, or the future of preventive detentions. The executive order does not address the status of detainees at Bagram Air Base in Afghanistan or other CIA holding facilities - although a separate order ensuring lawful interrogations calls on the CIA to close detention facilities. In addition, it is unclear whether detainees currently held at Guantánamo will be released or transferred to other military facilities - within the United States or abroad - or whether they will face trial. President Obama will need to determine whether to continue trial by military commissions - and if so, whether to modify the military commission procedure, whether to try detainees in federal courts, or whether to create a hybrid court. It is worth noting that even though military commissions are problematic, the political branches of government, as well as the judiciary, have developed and altered military commissions procedures in an attempt to comply with United States and international law. Whether federal courts are capable of prosecuting suspected terrorists and whether a hybrid court would correct the pitfalls of the military commissions process is questionable.

As noted by President Obama in a separate order addressing detention policy options, review of detention policy is multi-faceted and includes “apprehension, detention, trial, transfer, release, or other disposition of [the] individuals captured.” The fundamental downfall of Guantánamo stems from an initial failure to adhere to requirements under international humanitarian law regarding status determination hearings under Article 5 of the Geneva Conventions. Article 5 hearings are a screening mechanism designed to reduce the likelihood that non-combatants are detained and to ensure that individuals whose status is ambiguous are afforded proper protections under the Geneva Conventions. Article 5 hearings become increasingly ineffective as detainees are removed in time and distance from the battlefield. For that reason, status determinations before Combatant Status Review Tribunals, held subsequent to an individual’s capture, are flawed. This failure, in addition to the use of coercive interrogation practices, has marred the process of detention and may render subsequent prosecutions futile for those currently detained at the base.

Although President Obama’s executive order sends a message to the world regarding the United States’ commitment to the rule of law, it fails to address many underlying issues regarding closure of Guantánamo and the larger issue of treatment of detainees in the “war on terror.” The projected year that the Obama administration will need to close Guantánamo in no doubt stems from flaws in the Bush administration’s treatment of detainees, beginning with their capture and extending to their interrogation and prosecution. What President Bush has succeeded in accomplishing as “the decider” is far from what is best for this country and the fight against terrorism. Instead, President Bush has left a legacy of ill-thought-out and poorly executed policies that have led to the detention and mistreatment of innocent individuals and will lead to the delay in prosecution and potential release of the few bona fide terrorists detained in the “war on terror.”

One can only hope that President Obama’s efforts to correct the Bush administration’s detention policies at Guantánamo will not hinder his ability to develop a new detention policy in the “war on terror” that both respects the rule of law and protects the national security interests of the United States.

Hamdan Returns to Yemen: A New Beginning?

On November 26, 2008, the U.S. government transferred Salim Ahmed Hamdan, Osama bin Laden's former driver and bodyguard, to Yemen to serve the remainder of his 66-month prison sentence for providing material support for terrorism. The decision to transfer Hamdan follows a jury trial before Military Judge Keith J. Allred in August 2008. During the trial, the U.S. government argued for a 30-year sentence, and stated that a life sentence would be appropriate. According to the New York Times, one prosecutor stated, "Your sentence should say the United States will hunt you down and give you a harsh but appropriate sentence if you provide material support for terrorism." On October 29, 2008, Military Judge Allred, in a brief Ruling on Motion for Reconsideration and Resentencing, refused the government's request that it reconsider its decision to credit Hamdan for 61 months served at Guantánamo before trial.

Despite the Supreme Court's rulings in Rasul v. Bush (holding that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with the war on terror and held at Guantánamo), Hamdi v. Rumsfeld (holding that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker), Hamdan v. Rumsfeld (holding that Combatant Status Review Tribunals lack the power to proceed because their structure and procedures violate both the UCMJ and the Geneva Conventions), and Boumediene v. Bush (upholding the habeas corpus rights of Guantánamo detainees and holding that Combatant Status Review Tribunals are an inadequate substitute for habeas review), the U.S. government maintains that it has the authority to detain so-called enemy combatants - and even individuals who are not enemy combatants - indefinitely. 

Colonel Lawrence Morris, the Pentagon's lead prosecutor, stated that the government will consider certain factors when considering transfer of a detainee overseas, according to the Washington Post. "The critical factor is that they are held accountable for their conduct and that they are disabled for the appropriate time period from their involvement in terrorism. When out leaders evaluate whether to return them somewhere that is foremost in their mind, and they would not return them unless they were satisfied on both fronts." It is unclear why the U.S. government, which sought a 30-year sentence for Hamdan and fought against Military Judge Allred's application of a credit for time served, would now believe that Hamdan will be "disabled for the appropriate time period from [his] involvement in terrorism." Perhaps, the U.S. government has transferred Hamdan to Yemen to avoid complicated questions that are sure to arise, such as whether to close Guantánamo and how to handle the release of detainees. In addition, keeping released Guantánamo detainees out of the United States avoids a PR nightmare related to the U.S. government's manufactured legal scheme in the "war on terror."

Hamdan is scheduled for release from a Yemeni prison on December 27, 2008.  Approximately 100 individuals still held at Guantánamo are of Yemeni nationality. For more information on the Yemeni rehabilitation program for terrorists, see "Terrorists in Rehab."

Kiyemba v. Bush: “Let’s Be Very Careful Here Before We Taint People Without Evidence”

On November 24, 2008, at 9:30 a.m., the Court of Appeals of the District of Columbia Circuit heard arguments in Kiyemba v. Bush. The panel, composed of Judges Judith W. Rogers (appointed by Bill Clinton), Karen LeCraft Henderson (appointed by George H.W. Bush), and A. Raymond Randolph (appointed by George W. Bush), questioned counsel for the Uighurs and the Solicitor General in a public hearing, followed by closed proceedings to address classified issues. The argument exceeded the 15 minutes allotted to each side, ending at approximately 10:30 a.m. The argument follows an order issued by the Circuit Court (see Circuit Court of Appeals Precludes Uighurs Release into U.S.) granting the government’s request to stay the release into the United States of 17 Uighurs held at Guantánamo, as directed by District Court Judge Ricardo M. Urbina. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants,” the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable.

Judge Rogers, who dissented from the Circuit Court’s order granting the government’s stay, questioned the Solicitor General persistently concerning the basis for the government's authority to continue to detain the 17 Uighurs. The Solicitor General, representing the President of the United States, argued that the Executive has this authority on two grounds: (1) its authority under the Authorization for Use of Military Force to wind-up operations at Guantánamo and (2) its inherent constitutional authority to detain aliens before their entry into the United States – an authority the Solicitor General argued is not subject to review. Judge Rogers questioned the Solicitor General regarding its second ground for Executive authority, noting that the case cited in support of that argument, Shaughnessy v. Mezei, relates to continued detention of aliens under the immigration laws of the United States. In addition, counsel for the Uighurs argued that Mezei involved an individual attempting voluntarily to enter the United States, whereas the U.S. government detained the Uighurs against their will.

Judge Randolph, author of Circuit Court’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush – all reversed by the Supreme Court – stressed that the Supreme Court’s decision in Boumediene v. Bush, although stating that GITMO detainees have habeas corpus rights, does not give detainees other constitutional or statutory rights. Emphasizing that the Circuit Court has held that these individuals have no due process rights, Judge Randolph concluded that the court would have to go en banc to rule otherwise. Judge Randolph also stated that the government has already satisfied any requirement for “conditional release,” as mandated in Boumediene, because the Uighurs are merely awaiting relocation. Judge Randolph noted that under U.S. immigration laws, terrorists include any individuals who train to commit terrorist acts in any country. Judge Rogers, noting that the government’s brief refers repeatedly to the Uighurs “dangerousness,” chastised the Solicitor General for stating that at least some of these 17 men have trained with terrorists and pose a threat to U.S. national security. She stated forcefully, “Let’s be very careful here before we taint people without evidence.”

The government argues that the appropriate remedy here is to release the 17 Uighurs to a third country. As noted by the Uighurs' lawyers, however, the government’s continued efforts to relocate the Uighurs have been unsuccessful. The U.S. government has detained these individuals for seven years, and it is questionable whether their future detention would be anything but indefinite. Although the Solicitor General recognized that the Uighurs could seek a remedy under the immigration laws of the United States, he also conceded that the immigration laws of the United States do not apply to individuals held at Guantánamo. In addition, it is difficult to believe that the U.S. government would provide any discretionary relief, such as granting refugee status or parole, where it is the government that has argued consistently that these individuals are dangerous terrorists, despite the Circuit Court’s holding that the government had insufficient evidence to deem them enemy combatants. The government’s circular logic leads to the conclusion that although these individuals have a right to habeas they have no right to a meaningful remedy.

Judge Rogers and Judge Randolph questioned both parties heavily during the argument, at times raising their voices and talking over the parties and each other. Judge Henderson, notably silent throughout most of the argument, sat between Judges Rogers and Randolph, imposing a physical and symbolic barrier between their apparent disagreements over the disposition of Kiyemba v. Bush. The Circuit Court’s ruling on the government’s request for a stay provides evidence regarding each judge’s initial leaning regarding the merits of the case. Therefore, Judge Rogers will likely dissent from an opinion in which Judges Randolph and Henderson will likely hold that the 17 Uighurs held at Guantánamo – who are not enemy combatants – can be held indefinitely without judicial review. If the Supreme Court chooses to hear this case, however, it is possible that the Court will reverse such a decision, as it has reversed Judge Randolph’s prior decisions regarding the rights of GITMO detainees.

The Aftermath of Boumediene v. Bush

On October 27, 2008, Judge Richard J. Leon of the U.S. District Court for the District of Columbia issued a decision on remand from the Supreme Court in Boumediene v. Bush. In the decision he addressed the definition of “enemy combatant” that the court will use in upcoming hearings in the case. Judge Leon rejected both parties’ proposed definitions, but also rejected the proposition that the judiciary should engage in defining the term. Judge Leon concluded that “the prudent and reasonable course under these circumstances is to review and evaluate the various iterations of the definition drafted by the Executive and/or Congress over the past four years and determine whether there is one version consistent with both the AUMF and Article II.”

Upholding a definition crafted by the Department of Defense for use in Combatant Status Review Tribunals and approved by the Supreme Court in Hamdan v. Rumsfeld, Judge Leon concluded that the term “enemy combatant” includes individuals “who [were] part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Judge Leon will hold hearings in the Boumediene case on November 6, 7, 10, 11, 12, and 13. Portions of the hearing were public on November 6, 2008, but Judge Leon has closed the court to the presence of the public and the detainees based on national security concerns. As noted in the New York Times, the detainees’ lawyers have not been permitted to discuss classified evidence with their clients. Department of Justice Lawyers submitted an additional file of sealed evidence to Judge Leon and instructed the Judge to open the envelope if the evidence presented during the closed hearings is insufficient to justify continued detention.

“I Do Believe I Have Relevant Testimony To Offer”: Vandeveld, Military Commissions, and the Use of Exculpatory Evidence

On October 21, 2008, the Pentagon announced that it had dropped war crimes charges against five detainees at Guantánamo Bay, Sufyiam Barhoumi, Binyam Mohammed, Noor Uthman Muhammed, Jabran Said Bin al Qahtani, and Ghassan Abdullah al Sharbi. The chief prosecutor at Guantánamo Bay, U.S. Army Colonel Lawrence Morris, has appointed new trial teams, and according to Clive Stafford Smith, a civilian attorney representing Mohamed, “The Military . . . plan[s] to charge [Mohamed] . . . after the election.” According to an article in The Guardian, Mohamed has accused the U.S. military of subjecting him to 18 months of torture, “including razor cuts to his genitalia.” Mohamed has sued the UK government in an attempt to procure evidence supporting his claim.

As reported by the New York Times, the former prosecutor for all five cases, Army Lieutenant Colonel Darrel Vandeveld, not only withdrew from these cases, but also criticized the Military Commissions Act trials as unfair at a pretrial hearing for a sixth detainee. Vandeveld resigned on September 9, 2008, and submitted a four-page affidavit related to the Office of Military Commission’s (OMC) trial in United States v. Mohammed Jawad. After Vandeveld resigned, he made himself available to testify on behalf of Jawad’s defense, claiming, “I do believe I have relevant testimony to offer.” According to an article in The Nation, the OMC barred him from doing so and ordered Vandeveld to undergo a mental health evaluation, despite no previous symptoms of psychological issues. As of October 20, 2008, Vandeveld was under a gag order regarding his potential testimony.

Vandeveld’s affidavit emphasizes his belief that OMC prosecutors fail to disclose potentially exculpatory or mitigating evidence to the defense in prosecutions of Guantánamo Bay detainees. As stated by Vandeveld, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense.” OMC accused Vandeveld, in his words, of “forming an attorney-client relationship with the detailed military defense counsel for Mr. Jawad” solely for his attempts to provide exculpatory and mitigating evidence or reasons why he could not provide such evidence.

Jawad is charged with attempted murder in violation of the laws of war, as noted in a Human Rights Watch account of the trial. Although Vandeveld initially discounted defense counsel’s assertions that the Afghan militia drugged Jawad and forced him to fight, he came to believe that Jawad was a juvenile at the time of the alleged crime based on a bone scan undergone at Guantánamo Bay, and therefore the U.S. military should have segregated Jawad from adult detainees in accordance with U.S. and international law. In addition, Vandeveld eventually conceded that Jawad was subject to abuse while in detention. Jawad’s trial will continue despite a motion to dismiss based on Jawad’s torture. In a decision on September 24, 2008, Military Judge Stephen R. Henley, noting that “[the] Accused has not apparently suffered any permanent physical injuries as a result of his detention in U.S. custody,” did not determine whether U.S. military personnel tortured Jawad and concluded that the remedy of dismissal was not appropriate.

Circuit Court of Appeals Precludes Uighurs' Release into U.S.

On October 20, 2008, the Court of Appeals for the District of Columbia Circuit issued an order granting the government’s request for a stay in Kiyemba v. Bush. The stay applies to the district court’s order directing appellees release into the United States. (See “Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees). The order calls for an expedited appeal schedule, and the Court of Appeals will hear oral argument on November 24, 2008, at 9:30 a.m.

The panel is composed of Judges Karen LeCraft Henderson (appointed by George H.W. Bush), A. Raymond Randolph (appointed by George W. Bush), and Judith W. Rogers (appointed by Bill Clinton). Judge Randolph wrote the Court of Appeal’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush. In these decisions, the Court of Appeals denied the habeas rights of GITMO detainees and upheld the validity of military commissions to try GITMO detainees. Judge Rogers dissented in the Court of Appeal’s decision in Boumediene.  The Supreme Court has disagreed with each of these decisions.

Judge Rogers filed a dissent from the order granting the government’s stay in Kiyemba, emphasizing that the government cannot continue to detain appellees and that their release poses no threat. She noted that the Court of Appeals had held that the government failed to present evidence supporting that one of the appellees was an “enemy combatant,” and the government then advised the district court that the 16 other Uighur detainees were not “enemy combatants.” She also noted that “[t]he [district] court’s release order was based on findings that are either uncontested by the government or clearly supported by the record.” In addition, the government presented no evidence that appellees pose a threat to the national security of the United States or the safety of any individual.

She then addressed the four factors considered in deciding whether to grant a stay: (1) the likelihood that the government will succeed on the merits, (2) the potential for irreparable harm to the government posed by the Uighurs release, (3) the Uighurs substantial interest in release, and (4) the public interest. With regard to the government’s likelihood of success on the merits, Judge Rogers concluded that the government’s argument that the political branches have “plenary powers over immigration” is “both inadequate and untrue.” The government has attempted to extend a unitary executive theory to the sphere of immigration and is attempting to use immigration statutes to bar release of GITMO detainees. In addition, Judge Rogers rejected the government’s argument that the Uighurs have no constitutional rights because they are outside the territory of the United States. This argument is disingenuous because the Uighurs were forcibly captured and taken to Guantánamo, where they were held for seven years, despite the government’s failure to ever show that they are “enemy combatants.”

Judge Rogers then balanced the potential harm to the government and the Uighurs. She stated that the harm of unlawful imprisonment faced by the Uighurs outweighs the potential “cloud over their status” the government would face if it did not maintain exclusive authority over admission of aliens and the winding up of detention policies at GITMO. With little discussion, Judge Rogers noted that the Uighurs have a substantial interest in release and emphasized the public's interest in maintenance of the writ of habeas corpus as “an indispensable mechanism for monitoring the separation of powers.”

This order provides a glimpse of how the Court of Appeals judges are likely to analyze the case on appeal. Because one of the factors considered in determining whether to grant a stay is likelihood of success on the merits, we know (at least pre filing of the parties’ briefs) how each judge feels about the merits of the case. Judge Rogers’ dissent notes the many inconsistencies in the government’s argument. The government cannot invoke immigration laws to preclude entry for individuals who were forcibly detained without any showing that they are “enemy combatants” and claim that they pose a national security and safety threat.

“Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees

On October 7, 2008, District Judge Ricardo M. Urbina issued an oral ruling calling for the release of 17 Guantánamo Bay detainees. The 17 men are Uighurs (Turkic Muslims) who said that at the time of their capture they were in Afghanistan seeking refuge from oppression in China. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants”, the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable. The government admits that these individuals are “no longer enemy combatants” – implying that they were “enemy combatants” at some time – and urges the court to grant the Executive broad leeway in detaining these individuals indefinitely.

The Supreme Court recently held in Boumediene v. Bush that Guantánamo Bay detainees have habeas corpus rights, but left unclear what remedies are available to these detainees. The difficulties of the Uighurs case stem from the government’s inability to release the 17 individuals outside of the United States. As the government’s attorney stated, “there is no willing country and their own home country is one that U.S. policy prevents us from returning them to . . . forcibly because of humanitarian concerns.” The government presented the familiar argument that although the detainees have habeas corpus rights, there is no remedy for a violation of these rights. (The Bush administration raised this argument when it concluded that even if the Geneva Conventions applied to “enemy combatants” in the “war on terror,” the federal courts could not enforce the Conventions or provide a remedy.)

The government continues to argue its right to detain individuals based on their presumed guilt: “For the Court now to say that such individuals, individuals who have received paramilitary training on AK-47, Kalashnikov assault rifles, to be released into the United States because their original basis for detention is one the Government is no longer contesting would fundamentally alter and frankly chill the effective waging of war by the Executive.” This disingenuous argument ignores that the D.C. Circuit ruled that the government lacked sufficient evidence to conclude that these individuals were “enemy combatants.” In addition, the government relies heavily on principles akin to the political question doctrine, arguing that foreign policy issues are committed to the Executive branch and that the government must speak with one voice.

Although recognizing that “[n]ormally . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches,” Judge Urbina recognized that “[t]his is a problem that the Government’s making.” For almost seven years these individuals have been held in detention, and the government has not shown that they are “enemy combatants.” Judge Urbina applied a new test for determining the constitutionality of continued detention and concluded that (1) the Uighurs detention was effectively indefinite, (2) it is reasonably certain that the Uighurs will not return to the battlefield to fight against the United States, and (3) the government has not provided an alternative legal justification for their continued detention. Judge Urbina ordered the Uighurs immediate release into the United States.

The government unsuccessfully sought a stay in the District Court pending appeal of the court’s ruling. The government threatened that without a stay the Department of Homeland Security could detain the Uighurs upon their entry into the United States. Judge Urbina responded harshly that a threat “that [the Uighurs] may be descended upon by I.C.E. officials, arrested and taken into custody, that’s not how the three branches of government work together. That is not how things work.” In a one-page order, the D.C. Circuit granted the government's request for a stay on October 8th and set a deadline of October 16th for additional filings.  It is uncertain when the D.C. Circuit will decide the issue.

Judge Urbina's ruling is not without problems.  It potentially pits the Judiciary against the Executive generally and the Department of Homeland Security specifically.  In addition, the supervision and management of the conditioned release of 17 individuals may present difficulties that the court is ill-equipped to handle.  And although the D.C. Circuit has said that the government cannot support its contention that these men are "enemy combatants," they may nonetheless present security concerns.  Is it fair and desirable to allow individuals into the country that we would not otherwise if it were not for the government-created situation at Guantánamo?

Obsession: the West's War Against Islam

My sister sent me a link to a blog post with a first-hand account of an incident at a mosque in Dayton, Ohio. The first-hand account differs drastically in tone and content from an article in the Dayton Daily News covering the same incident. Although police concluded that there was no evidence of a “biased crime,” individuals within the mosque noted that the recent release of a DVD, Obsession: Radical Islam’s War Against the West, may have provoked the incident.

The Clarion Fund, a “non-profit, non-partisan” organization whose primary focus is “the most urgent threat of radical Islam,” engaged in a mass mailing of the DVD beginning on September 14, 2008. The group’s web page for the DVD touts that 28 million copies of the DVD have been distributed. The web site contains little information regarding the content of the DVD, but the imagery is strong. Emblazoned across the top of the screen is the DVD’s logo: the “O” of “Obsession” is the star and crescent symbol commonly associated with Islam, and the “n” is formed in part by a gun.

The DVD is viewable on YouTube. The DVD appears in ten six-minute video clips that must be watched individually. Although the DVD begins with a statement that not all Muslims are terrorists, it proceeds in broad generalizations to link Islam to terrorism and to compare Islam to Nazi Germany. One commentator goes so far as to note that the “war on terror” is “history repeating itself,” i.e., a failure to act tough in the war on terror will result tragedies akin to the Holocaust. The DVD includes a barrage of images of large groups of Muslims worshiping, calls by individual Muslims to attack the United States, and pictures of Arab children with guns. The images are terrorizing; they invoke panic and mistrust, and play on our fear of future attacks against the United States.

The most striking aspect of the DVD is its lack of specification; the DVD conflates terrorist groups and acts, and associates these groups and acts with one religion. At the beginning of the DVD, images of terrorist attacks abound. A map is filled with red dots demarcating the locations of terrorist attacks throughout the world. The red dots expand, seeping outward like blood. Nonetheless, there is no explanation of the groups who perpetrated these acts or the ideologies underlying their attacks. In fact, there is little by way of factual development throughout the DVD. Each attack is attributed to Islam without distinction.

Linking a religion to terrorism is dangerous and invites hate crimes, such as the incident at the mosque in Dayton. Making the war on terror synonymous with a “war against Islam” continues down a road that has threatened the rule of law in the United States. The war on terror is not a war in the traditional sense: there is no defined enemy, time limit, or rules that apply. Guantánamo is an example of the ways in which this limitless war has affected individuals from countries all over the world, some of whom have only the most attenuated ties to any wrongdoing. It is grievous error to engage in broadscale attacks that are not based on specified wrongdoing. In this manner “Obsession” and the Clarion Fund’s attacks against Islam commit the same mistakes of the Bush Administration and its war on terror. As a result, many innocent individuals are caught up in campaigns playing on racist and nationalist fear of "the other."