Detainees to get the “state-always-wins” system of “justice”

Obama's announcement to try 9/11 defendants would be commendable if it applied to all, rather than some, detainees.

By Glenn Greenwald

** FILE ** Khalid Sheikh Mohammed, the alleged Sept. 11 mastermind, is seen shortly after his capture during a raid in Pakistan in this file photo from March 1, 2003 in this photo obtained by the Associated Press. Mohammed, who could face the death penalty for his role in the Sept. 11 attacks, has been peppering his military lawyer with questions in advance of his war crimes trial at Guantanamo, the attorney tells The Associated Press. (AP Photo-File) (Credit: Associated Press)

Topics:Guantanamo, Washington, D.C.

(updated below – Update II)

According to The Associated Press, Eric Holder will announce later today that Khalid Sheikh Mohammed and four other 9/11 defendants will be brought from Guantanamo to New York to stand trial, in a real criminal court, for the crimes they are accused of committing. This is a decision I really wish I could praise, as it’s clearly both politically risky and the right thing to do.

An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks. It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done — I expect to have an interview later today with one of those family members — and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism. So this component of the Obama administration’s decision, standing alone, is praiseworthy indeed.

The problem is that this decision does not stand alone. Instead, it is accompanied by this:

Holder will also announce that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.

It was not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.

So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials. This is a point I’ve been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different “categories” of terrorism suspects who would be treated differently based on the category into which they fell:

If you really think about the argument Obama made yesterday — when he described the five categories of detainees and the procedures to which each will be subjected — it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we’ll give real trials only to those detainees we know in advance we will convict. For those we don’t think we can convict in a real court, we’ll get convictions in the military commissions I’m creating. For those we can’t convict even in my military commissions, we’ll just imprison them anyway with no charges (“preventively detain” them).

Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process. Those are called “show trials.” In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped “system of justice” is hard to imagine.

That the Obama DOJ is now explicitly picking and choosing different levels of due process in the very same announcement — we can give that defendant a trial because we know we’ll win, but that one over there needs to go to a military commission because we’re less sure — highlights how manipulative this “justice system” is.

Former Air Force lawyer Morris Davis was the Chief Prosecutor of the Guantanamo Military Commissions system during the Bush years and resigned in 2008 to become one of its leading critics. Although he still believes that military commissions are a viable option for detainees captured on an actual battlefield — and even believes the President has the right to detain terrorism suspects indefinitely with no trial — he made the same point last week in a Wall St. Journal Op-Ed about the practice of picking and choosing the system of justice one receives based on how likely the state is to win:

In a preliminary report submitted to Mr. Obama in July, the Detention Policy Task Force recommended the approval of evaluation criteria developed by the Department of Defense and the Department of Justice. The task force stated its preference for trials in the federal courts, but added the decision would be based in part on “evidentiary issues” and “the extent to which the forum would permit a full presentation of the accused’s wrongful conduct.” A Washington Post editorial endorsed the proposal, arguing that there should be an alternative forum when a trial in federal court is “not an option because the evidence against the accused is strong but not admissible.”

Stop and think about that for a moment. In effect, it means that the standard of justice for each detainee will depend in large part upon the government’s assessment of how high the prosecution’s evidence can jump and which evidentiary bar it can clear.

The evidence likely to clear the high bar gets gold medal justice: a traditional trial in our federal courts. The evidence unable to clear the federal court standard is forced to settle for a military commission trial, a specially created forum that has faltered repeatedly for more than seven years. That is a double standard I suspect we would condemn if it was applied to us. . . .

The problem is trying to have it both ways: the credibility that comes from using federal courts with admissible evidence under the very strict rules of civilian tribunals, and military commissions for cases that are often comparable except for the fact that they depend on evidence (such as hearsay testimony) that is not normally admissible in civilian courts. What if Iran proposed the same for the three American hikers it is currently holding? We would surely condemn what we now stand ready to condone. . . .

Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.

Obama is certain to be bombarded with all sorts of right-wing idiocy and fear-mongering as a result of his decision to bring 9/11 defendants into the U.S. in order to give them trials. Doing that is clearly the right thing to do: trials and due process is how civilized countries treat people who are accused of engaging in terrorism. Given how Democrats and Republicans will talk about this decision, media coverage will almost certainly fixate on the narrow question of whether (a) 9/11 defendants should be given trials in the U.S. or (b) we’re all now Endangered because these Omnipotent Monsters are being brought into our communities (in handcuffs, shackles, and maximum-security prisons). The AP article already includes this preview of the inane attacks on Obama certain to come:

It is also a major legal and political test of Obama’s overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about notorious terrorists being brought to their home regions, they may fight back against other parts of Obama’s agenda.

In a just-posted New York Times article, Charlie Savage also notes that bringing an accused terrorist of Mohammed’s notoriety to the U.S. for trial is unprecedented and likely to provoke intense political controversy. In that “debate,” I’m squarely on Obama’s side, as is any person who believes in the most basic Constitutional precepts.

But the more consequential impact of Obama’s decision is likely to be overlooked: we’re now formally creating a multi-tiered justice system for accused Muslim terrorists where they only get the level of due process consistent with the State’s certainty that it will win. Mohammed gets a real trial because he confessed and we’re thus certain we can win in court; since we’re less certain about al-Nashiri, he’ll be denied a trial and will only get a military commission; others will be denied any process entirely and imprisoned indefinitely. The outcome is pre-determined and the process then shaped to assure it ahead of time, thus perfectly adhering to this exchange from Chapter 12 of Alice in Wonderland:

“Let the jury consider their verdict,” the King said, for about the twentieth time that day.

“No, no!” said the Queen. “Sentence first — verdict afterward.”

“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”

“Hold your tongue!” said the Queen, turning purple.

“I won’t!” said Alice.

“Off with her head!” the Queen shouted at the top of her voice.

How is that remotely just or fair under any definition of those terms? As Davis wrote: ”We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.” There’s nothing ”pragmatic” or “moderate” about creating a multi-tiered justice system where only some people get trials; it’s both counter-productive and profoundly unjust.

UPDATE: Omar Khadr — the Canadian “child soldier” imprisoned at Guantanamo for the last seven years, since he was 15 years old, for allegedly throwing a grenade at an American soldier in Afghanistan (that’s apparently “terrorism”) and the subject of a difficult-to-watch video of him weeping like the child he is while being interrogated — will reportedly be one of those denied a trial and instead allowed only a military commission, according to Canada’s Canwest News Service (h/t sysprog):

Canadian-born terror suspect Omar Khadr faces continued prosecution in the U.S. military tribunal established in Guantanamo Bay, Cuba. . . .

The federal system offers the full panoply of defendant rights available to U.S. citizens under the U.S. Constitution, while civil rights groups have argued the military commissions at the U.S. naval base in Cuba do not meet that standard.

The decision regarding Khadr means that the Obama administration has, for now at least, rejected calls by his U.S. and Canadian defence teams for the repatriation of the Canadian-born terror suspect” . . . My view is, he should be prosecuted,” said navy Capt. John Murphy, chief prosecutor in the military commissions system.

So even for 15-year-olds who we imprison for seven years with no charges, we refuse to give them a trial. And note how the Canadian press account stresses our multi-tiered system of justice and how their citizen is receiving second-tier due process — an observation that one can be sure will repeat itself worldwide.

UPDATE II: In his Press Release, Eric Holder says his decisions today were “based on a protocol that the Departments of Justice and Defense developed” whereby he “looked at all the relevant factors and made case by case decisions for each detainee.” In other words, there’s no categorical determination driving the process (e.g., all those who attack military targets get commissions and all those who attack civilian targets get trials). To the contrary, federal prosecutors choose, in their sole discretion, the level of due process each defendant gets (including ”none” – as in: indefinite detention with no trial), and Holder himself emphasized that “it is important that we be able to use every forum possible to hold terrorists accountable for their actions.”

There’s supposed to be one justice system for everyone — not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ’s investigation of al-Nashiri was originally classified as a standard criminal case, but — as his counsel pointed out today — he was assigned to a military commission because there simply isn’t sufficient evidence to convict him in a real court.

Vividly illustrating the perverse mentality behind all of this, here’s a question asked today of President Obama by AP’s Jennifer Loven:

President Obama, how can you assure the American people that a trial of Khalid Sheikh Mohammed, now that your administration has now decided will take place in a civilian court in New York, will be safe and secure, but also not result in an innocent verdict for him?

Apparently, we’re only supposed to give trials to people if we can assure in advance that it won’t ”result in an innocent verdict.” Jennifer Loven — and many of her media colleagues — seems to yearn for the U.S. to be a lot more like North Korea.

And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is “tainted,” or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration’s use of military commissions on the same grounds that you’re defending Obama today?

: Follow Glenn Greenwald on Twitter: @ggreenwald. More Glenn Greenwald

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Guantanamo’s deepening failure

The secretive military system for prosecuting accused terrorists is a travesty, says the man who once ran it

By Morris Davis

Morris Davis (Credit: AP/Reuters/Yuri Gripas)

Topics:War on Terror, Guantanamo, Morris Davis, Editor's Picks

The U.S. Defense Department specializes in euphemism. “Limited kinetic action” is a polite way of saying “war,” and “collateral damage” does not sound as blunt as “dead children.” When I was chief prosecutor for the military commissions at Guantanamo Bay during the Bush administration, I was told not to say publicly that a detainee had “attempted suicide.” The government-approved term for the act was “self-injurious behavior.” I could not say “torture,” or as some called it, the “T-word.” Instead, I had to say “enhanced interrogation techniques.”

The euphemism tradition remains alive and well in the Obama administration. The slogan “fairness, transparency, justice” is featured prominently throughout the military commissions’ new half-million-dollar website. The slogan even shows up when case document links lead to a notice saying the “document you are trying to access is currently undergoing a security review” and might be posted later if the government decides it is “publicly releasable.”

Say you are interested in the case against Abd Rashim Nashiri, the alleged mastermind of the USS Cole bombing in Yemen in October 2000 that killed 17 U.S. sailors. You are not allowed to see the judge’s docketing order setting April 11-13 for the next session to consider motions.

You are not allowed to see a key motion seeking authorization for Nashiri’s lawyers to depose former Yemeni President Ali Abdullah Saleh while he is in the United States. The Obama administration is permitting Saleh to visit New York City for medical care; many believe he should be at the International Criminal Court facing charges for turning his forces on Yemeni protesters resulting in 270 civilian deaths.

Before being elected to the presidency, Barack Obama condemned what he said were “flawed” Bush-era military commissions. He voted against the Military Commissions Act of 2006 when he was a member of the Senate and he argued that detainees accused of criminal conduct should be tried in federal courts or courts-martial, either of which he said would “demonstrate our commitment to the rule of law.” Six years later it appears all it takes to transform fatally flawed into fundamentally fine for Barack Obama is to tack a new word onto an old title to give it a euphemistic revival: now we have “reformed military commissions.”

Brig. Gen. Mark Martins, the sixth and current chief prosecutor for the military commissions, gave a talk to the New York City Bar Association last month. In it, he used the phrase “reformed military commissions” more than three dozen times. Apparently tacking the word “reformed” onto “military commissions” and using it over and over is supposed to erase a decade-long record of failure that has, as then-Sen. Obama said, tarnished “our credibility as a nation committed to the rule of law.”

The failure of the military commission system is well documented. President Bush first authorized military commissions in an order he issued on Nov. 13, 2001. Six military commission trials were completed in the decade that followed. Two of the six “worst of the worst” war criminals – David Hicks and Salim Hamdan – have served their short military commission sentences and are free men back in their home countries.

Over the same period, hundreds of terrorism-related cases were tried with success and without incident in federal courts resulting in typical sentences that exceeded those in military commissions by a wide margin. The Bush administration’s initial notion that military commissions would be more swift, more secret and more severe than federal courts has proven clearly wrong. Nonetheless, the Obama administration intends to press ahead with “reformed military commissions,” U.S. credibility be damned.

I was one of the most public advocates of the original military commission structure that the U.S. Supreme Court ruled was illegal in June 2006. Congress revived and reformed the military commissions in September 2006 with the Military Commissions Act (that Sen. Obama voted against). These “reformed” military commissions were implemented through a series of documents that set out new rules and procedures to improve the process that the Supreme Court had struck down. Once again, I publicly praised their virtues to an increasingly skeptical world audience. Before I resigned as chief prosecutor in October 2007, I personally authorized charges against David Hicks, Salim Hamdan and Omar Khadr under the 2006 “reformed” military commission system.

President Obama ordered a halt to military commissions as soon as he took office in January 2009, but he backtracked a few months later in the face of conservative fear-mongering. Nine months after President Obama took office, the Democrat-controlled Congress passed the Military Commissions Act of 2009 to replace and reform the process it had created in 2006 to replace the process President Bush created in 2001. The slight change in 2009 is supposed to let President Obama save face. The military commissions authorized in 2001, 2006 and 2009 have so far generated 51 implementing documents totaling 2,352 pages setting out rules and procedures. Each series of reforms purports to be better than the last, which had purported to be better than ones before. Each has failed.

I honestly believed we were committed to full, fair and open trials when I became chief prosecutor in 2005, but I lost confidence in that commitment over time as political appointees tried to manipulate the process and make it more like a theatrical production than a judicial proceeding. After more than a decade of futility and failure, the question is no longer whether the U.S. could proceed with “reformed again and again and again military commissions,” but whether it should.

In his recent talk, Brig. Gen. Martins said, “while federal courts will and should objectively be the appropriate forum in most instances, reformed military commissions will sometimes be the better choice.” His rather vague statement raises some issues that should be considered before lumbering along even further down the sullied military commission path.

Which cases are candidates for military commissions? Brig. Gen. Martins said federal courts are the appropriate forum in most instances and that military commission cases may be “numerically few.” The administration has identified fewer than three dozen detainees they intend to prosecute for alleged criminal conduct. How will those cases be divided between federal courts and military commissions? Sen. Dianne Feinstein hinted at the answer during a Senate Judiciary Committee hearing in 2010 when she told Attorney General Eric Holder that in choosing between the two forums, “make the decisions based on the legal facts and where we best get a conviction.” If you peel back the rhetoric and examine the ground truth, military commissions likely end up the “better choice” when there is a chance the U.S. government might not be assured of a conviction elsewhere. In other words, the U.S. will afford an accused all the justice possible while ensuring the cards are stacked decidedly in the government’s favor.

Military commission proponents rationalize the need for this peculiar forum citing the exigencies of war and the unique circumstances presented on the battlefield. That argument would be more persuasive had most of the Guantanamo detainees been captured under circumstances bearing some resemblance to battle. They were not. For example, Khalid Sheikh Mohammed was rousted from a bed in a house in Rawalpindi, Pakistan, by Pakistani authorities, and Abd al-Rahim al-Nashiri was captured in the United Arab Emirates without any U.S. military involvement. In the end, it is not so much what the detainees did that make military commissions the better choice, it is what the U.S. did that may not stand up to traditional principles of justice.

The U.S. has invested a great deal of effort in trying to revive a military commission process it last used in World War II and make it fit the unique circumstances of a handful of post-9/11 terrorism cases. There have been 779 men detained at Guantanamo over the past decade. Only 171 remain, and a majority of them have been cleared for transfer (about 89 men) or designated for indefinite detention without trial (about 46 men). Four more have already been convicted and sentenced, leaving 32 potential cases for prosecution. The last of the 32 was captured in 2006, so the facts of any case have not changed in more than five years.

Rather than developing these few cases to conform to the rules of regular federal court, the U.S. has tried to develop an irregular military court to accommodate the cases. The end result – at least until the next reform attempt – is a process where an accused can spend a decade or more waiting for his day in court; nearly all of the information is classified and the accused only gets to see what the prosecution decides is appropriate; the government demands that it gets to see the information shared between the accused and his attorney; and even if the accused wins, he is likely to still spend the rest of his life in prison.

This is the kind of “heads we win, tails you lose” process the U.S. condemns when it is used in other countries. If President Obama thinks this is going to restore America’s reputation as a nation committed to the rule of law he is mistaken. Pinning the word “reformed” to the title does not make a silk purse out of this sow’s ear of justice.

: Morris Davis was chief prosecutor for the military commission at Guantanamo Bay, Cuba, from 2005-2007. He is a retired U.S. Air Force colonel and a member of the faculty at the Howard University School of Law in Washington, D.C. More Morris Davis

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Guantanamo’s system of injustice

The first trial of an accused terrorist exposes the flaws of "reformed" military commissions

By Laura Pitter

In this June 27, 2006 file photo US military guards walk within Camp Delta military-run prison, at the Guantanamo Bay US Naval Base, Cuba

Camp Delta, the military-run prison, at the Guantanamo Naval Base in Cuba (Credit: AP)

Topics:Guantanamo, on

Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, has lately appeared at bar association conferences promoting “reformed military commissions” at Guantanamo. Speaking to the New York City bar association on January 11, Martins said the military commissions were “comparable to federal courts in their incorporation of all of the fundamental guarantees of a fair and just trial demanded by our values.” Indeed, a new masthead on the military commission website, put up after Martins took over, reads: “Fairness, Transparency, Justice.”

Yet this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems. One notices first the physical – the few observers permitted to visit the isolated island base reach the courthouse through a maze of walkways secured by high dark-mesh fences, guards and double barbed wire on both sides. Instead of sitting in the courtroom, observers sit in an adjoining room, behind glass, and hear voices on 40-second delay to allow court security officers to cut off the audio should any classified information be uttered. In the dock this week was Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent accused of planning and participating in the bombing of the destroyer, the USS Cole, on October 12, 2000. The attack killed 17 US servicemen and injured many more. With US service members killed a federal court clearly would have jurisdiction over the case, so the government must have some other reason for choosing a military commission.

Nashiri’s is the first death penalty case to move forward in the military commissions. The fact that it is just being heard now, nine years after he was apprehended, demonstrates one of the starkest differences between the military commissions and federal courts – the absence of any real right to a speedy trial. This type of delay would never occur in federal court and greatly prejudices both sides, as memories fade and witnesses disappear.

Further, nearly every substantive issue litigated in Guantanamo this week would never have arisen in civilian court. For example, the defense asked the judge to order the military to stop reading mail marked attorney-client privileged. In a federal prison, while mail might be inspected for physical contraband, a warden wouldn’t read clearly marked legal mail to determine if it was truly a privileged communication.

The defense also sought permission from the judge alone to request funds for expert witnesses, a routine motion in federal court. But in the military commissions, the defense normally shares its request with the prosecution, potentially revealing its case theory and litigation strategy. Observers and reporters dozed during the hours of debate about whether defense email could be encrypted –- a seemingly dry issue until one realizes that request was being made because the Defense Department has been reading all the defense attorneys’ email.

The defense has still not received roughly 70,000 pages of documents deemed relevant and material to the defense. Much of the evidence in the case is classified. After his capture, Nashiri was held in a secret CIA “black site” for four years, and waterboarded — a form of mock execution by inducing near suffocation long considered torture under US and international law. He was also threatened with a gun and, later, with a revving power drill near his head while he was hooded but otherwise naked. Details of his torture, while available in the public domain, are largely treated as classified.

The classified nature of the evidence means the defense only gets summaries of parts the prosecution deems relevant and that the judge approves. A request by the defense to challenge the accuracy of the summaries was denied. But civilian judges recognize that the parties should be able to challenge summaries, and may do so with a motion to reconsider.

Despite the volume of documents, the prosecution pressed for trial to begin on March 3. That type of timeline is unheard of in federal court, especially in a death penalty case. The federal court case against 9/11 conspirator Zacarias Moussaoui took more than four years. Richard Kammen, one of Nashiri’s defense attorneys, called the prosecution’s proposed schedule “a time line for secret justice, for expedient justice, for under-resourced defense justice, and for justice that is fundamentally unfair.” He asked for ten months to two years depending upon whether he gets the resources and access to documents he needs. Ultimately the judge did not fix a trial date but gave the defense only two months to read all the documents and file any motions to challenge their adequacy.

Even in the presentation of evidence, the military commissions have vastly different rules of evidence. Statements from the accused obtained by torture are prohibited. But evidence derived from other types of coercion may be admitted. In federal court, any evidence derived from coercion would be barred, absent a showing that it would have been discovered in another lawful way. Also, unlike in federal court or the US courts martial system, multiple levels of hearsay are admissible (like a memo reporting on a conversation), denying a defendant any genuine right to confront witnesses against him.

Given the stark differences on display this week, it was startling to hear Martins say after the proceedings that military commissions “like federal court and courts martial” provide a fair system of justice. The US does not need to use this fundamentally flawed military commission system. As Martins himself admits, and the Obama administration has acknowledged, detainees can be prosecuted in either system for virtually the same offenses.

Whether one agrees with the use of military commissions or not, Martins and the Obama administration should at least be honest about the differences: as demonstrated by the proceedings this week, fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.

: Laura Pitter is counterterrorism advisor in Human Rights Watch’s US Program. More Laura Pitter

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Jon Stewart blasts Congress, Obama over terror bill

The Comedy Central host voices amazement at the government's newest encroachments on civil liberties

VIDEO

By Peter Finocchiaro

Topics:Morning Clip, The Daily Show, Guantanamo

If you’re a stickler for civil liberties, then you probably find the National Defense Authorization Act to be somewhat troubling. The annual defense appropriations bill, which received the seal of approval from Congress last week, contains provisions that would allow the government to detain terror suspects (and associates thereof) for an indefinite period of time, without a trial.

The Obama administration has suggested that it’s open to a veto of the bill — a move that would appear consistent with his opposition to indefinite detentions when he was running for president. The only problem — as Jon Stewart pointed out on “The Daily Show” last night — is that the President Obama would veto the bill not because it runs counter our conception of liberty … but because it doesn’t go far enough.

: More Peter Finocchiaro

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Is Guantanamo forever?

The Senate contemplates a bipartisan bill to make permanent the failed system of indefinite detention

By Andrea Prasow

A guard looks out from a tower in front of the detention facility on Guantanamo Bay U.S. Naval Base in Cuba. (Credit: Associated Press)

Topics:Guantanamo, National Defense Authorization Act

A decade ago, after the Sept. 11attacks, President Bush authorized the detention without charge of alleged terrorist suspects. It had been decades since the United States had detained people without charge or trial on national security grounds. The last time was during World War II when thousands of Japanese-Americans were unjustly detained in internment camps. The U.S. has since acknowledged this mistake, paying reparations to those wrongly detained.

The Bush system of indefinite detention established at Guantanamo and elsewhere attempted to stand outside and circumvent the rule of law. This system has failed to prosecute more than a handful of terrorist suspects, while wrongfully detaining hundreds more. Yet Congress is now poised to make this system a permanent feature of U.S. law.

The National Defense Authorization Act, scheduled to be voted on by the Senate this week, contains several provisions that, if passed, would have the military police the streets, expand Guantanamo and indefinite detention elsewhere, and force certain terrorism suspects into military custody instead of charging them with crimes in civilian courts.

This, despite the fact that the civilian justice system has proven effective in the fight against terrorism, preventing future attacks and prosecuting, far more than the military, alleged terrorist cases. In the last 10 years over 400 people have been tried and convicted of terrorism-related offenses in U.S. federal courts. Many convicted in this system are serving their sentences in U.S. prisons. The criminal justice system, flawed though it may be, has stood the test of time.

Meanwhile, in the extra-legal military system, hundreds of detainees were abused in U.S. custody and some died. While a total of 779 people have been held at Guantanamo, only six have been prosecuted in a military commission and two are already free.

Immediately after the attacks of Sept. 11 the world rallied around the United States in a show of solidarity. But the support faded rapidly as the new U.S. counterterrorism policy became clear. The “global war on terror” and the ensuing cruel and illegal policies of torture, enforced disappearances and indefinite detention without trial damaged the international standing of the United States, to say nothing of the cruelty inflicted upon the people abused and detained and on their families. The detention provisions of the NDAA would reinforce this discredited idea of a “global war on terror.”

These provisions, the result of a bipartisan compromise sponsored by Sens. Carl Levin and John McCain, would effectively jettison the civilian law enforcement system and require the military to become the world’s judge, jury and jailor. This position is being closely watched by the U.S. allies who supported Obama’s now-defunct plan to close Guantanamo and agreed to serve alongside U.S. troops in Afghanistan and elsewhere. It is also being watched by the repressive regimes of the world who have long declared the U.S. had no authority to tell them how to respect human rights while Guantanamo and illegal detention persisted.

When the Senate Armed Services Committee considered these provisions, they did so behind closed doors, away from public scrutiny. Neither the Senate Judiciary nor Intelligence Committees were consulted and no hearings were held. In a powerful statement, all members of the Intelligence Committee and most members of the Judiciary Committee asked Majority Leader Harry Reid to refuse to allow the bill to proceed until the detention provisions were removed from the bill. Instead, the drafters made the bill even worse, prompting the secretary of defense to write a letter in opposition and the White House to issue a veto threat.

Secretary of Defense Leon Panetta wrote to Levin, saying the “advantages … of requiring that certain individuals be held by the military are, at best, unclear” and “restrain[] the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.”

The detention provisions don’t belong in the NDAA, or anywhere else in U.S. law. Sen. Mark Udall of Colorado has braved opposition from Levin and McCain – to oppose them. He has offered the only reasonable amendment to the bill – strip the detention provisions from it and allow Congress to move forward with the other relatively uncontroversial and important parts of the bill related to funding the Defense Department.

The administration has threatened to veto not only the Senate bill over these provisions, but also an earlier version of the bill passed by the House. Proponents of the provisions claim a veto would jeopardize funding for U.S. troops but the reality is, troops are funded by the defense appropriations bill, not the NDAA. The aggressive response from the administration, including statements from the Defense Department, Justice Department and director of National Intelligence, suggest that the veto threat is a serious one.

In the days after the Sept. 11 attacks, the U.S. stepped outside the law. Slowly, and with the benefit of hindsight, it has moved back to using the time-tested U.S. system of justice to prevent and prosecute terrorism cases. Congress should cease its attempts to cement in an extra-legal regime. It didn’t work before and it won’t work again.

: Andrea J. Prasow is senior counterterrorism counsel and advocate with Human Rights Watch in Washington, D.C. More Andrea Prasow

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“You Don’t Like the Truth”: Our first look at a Gitmo interrogation

A bewildered Canadian teenager goes to Guantanamo Bay in this disturbing look inside the War on Terror

By Andrew O'Hehir

A still from "You Don't Like the Truth"

Topics:Guantanamo, Our Picks, Movies, Taliban, Documentaries, Afghanistan, Canada, Al-Qaida, Terrorism

In the wake of the extrajudicial killing of American citizen Anwar al-Awlaki and several other people in Yemen this week, we’re faced (once again) with the realization that the United States Constitution has become a largely meaningless totem. It gets waved around enthusiastically by people on all sides of the political spectrum whenever it seems to serve their interests, but nobody pays much attention to what it actually says. Presumably President Obama, the military-intelligence establishment and the mainstream media are declaring Awlaki a special case. Thanks to the secret provisions of secret laws, he was deprived of all the rights of citizenship and not subject to the ordinary rule of law that extends back not merely to the Constitution but to the Magna Carta (at least).

Some similar exemption must also be made for the Canadian citizen Omar Khadr, who was 15 years old when he was found, badly injured and barely alive, after a 2002 firefight between U.S. troops and Taliban forces in Afghanistan. (Khadr’s father, an al-Qaida supporter and fundraiser, had apparently dropped him off at a Taliban compound a few weeks earlier.) Based on what we see in the painful, revealing documentary “You Don’t Like the Truth: 4 Days Inside Guantánamo” — the first film to show actual interrogation footage from inside the secret American military prison at Guantánamo Bay, Cuba — Khadr became a sort of ritual sacrifice by the Canadian government, an offering to its American allies and/or overlords. His case became a hot political issue north of the border, where Canadians pride themselves on a society that is more egalitarian, and more civilized, than that of their American neighbors.

Following a Canadian Supreme Court decision, most of Khadr’s seven-hour interrogation at Gitmo by CSIS officers — the approximate Canadian equivalent of the CIA — has been declassified, and veteran lefty documentarians Luc Côté and Patricio Henríquez use that claustrophobic, low-resolution 2003 footage as the basis for “You Don’t Like the Truth.” That sounds like something the interrogators might have said to Khadr, but it isn’t. It’s what he tells them after realizing they don’t want to hear his allegations that he was tortured by American forces, and that all his supposed confessions about knowing Osama bin Laden and attending al-Qaida barbecues were made up on the spot, to stop the pain.

You won’t see Khadr suffer physical torture on these surveillance tapes, although the interrogators rely on time-honored tactics of psychological abuse, alternately berating him and plying him with Big Macs. You will see a teenager who speaks idiomatic North American English, and who is obviously relieved to see fellow Canadians, whom he naively assumes have come to help him. And you’ll see him go through a near-total breakdown, sitting alone in the room weeping for his mother, after he realizes that no one cares about what happens to him and that he’s only interesting to his interrogators as long as he keeps making up stories about Osama and al-Qaida.

I have no idea whether Khadr actually threw a grenade that killed a U.S. Delta Force soldier, as was alleged after his capture. (Khadr has consistently denied it, and photographic evidence suggests that he had been shot through the back and was out cold before the soldier’s death.) But the Canadian interrogators barely mention it, and it feels suspiciously like an inflammatory distraction, thrown in mostly to alienate all possible North American sympathy. At best it’s an ancillary question. If Khadr was a genuine military combatant, then he can’t be prosecuted for killing an enemy soldier in battle. Furthermore, he would have to be considered a child soldier under international law, which theoretically immunizes him even for war crimes. Convicting him on such charges, as the government eventually did in a secret court on secret evidence, required the finding that he wasn’t a soldier but a civilian terrorist (even though he was supposedly linked to two organizations, al-Qaida and the Taliban, with whom the U.S. government has repeatedly said it’s at war).

Côté and Henríquez intersperse brief and highly effective interview segments between snippets of the interrogation tape, with subjects ranging from former U.S. military officers (including Khadr’s lawyer and psychiatrist) to former Guantánamo inmates (including Moazzam Begg, now a leading British activist for other detainees) to Khadr’s mother and sister (wearing full-face Islamic veils) to Damien Corsetti, the much-demonized former soldier who knew Khadr as a guard at Bagram. What comes through repeatedly is that questions of law and reason, or guilt and innocence, played no role in the case of Omar Khadr. He was a vulnerable and confused kid whose own government turned its back on him, which made him a perfect candidate to become one of the few Gitmo detainees convicted of something. He was 15 when he was captured, and will be 31 when he (supposedly) gets out.

“You Don’t Like the Truth: 4 Days Inside Guantánamo” is now playing at Film Forum in New York, with more cities and dates to follow.