Salon Radio: ACLU on Obama, Bagram and secrecy

What's behind the latest embrace by the Obama administration of more controversial Bush theories of executive power?

By Glenn Greenwald

Published February 24, 2009 5:04PM (EST)

(updated below w/transcript)

Today on Salon Radio, I speak with two ACLU lawyers regarding recent controversial actions taken by the Obama administration: 

First, Jonathan Hafetz discusses Obama's embrace of Bush's position that detainees imprisoned by the U.S. in Bagram, Afghanistan have no rights of any kind to challenge their detention (we also discuss the March 23 deadline in the Al-Marri case for the Obama DOJ to tell the Supreme Court whether they will defend or abandon the radical Bush/Cheney claim that the President has the power to order legal residents inside the U.S. detained in a military brig as an "enemy combatant");

Second, Jameel Jaffer discusses the administration's refusal thus far to disclose a whole slew of Bush-era documents which it has long vowed it would disclose.

Regarding the Bagram issue, the most reasonable argument to make in favor of the Bush/Obama position -- and it's well-articulated here by Hilzoy -- is that standard POWs in an active "war theater," who are captured engaging in hostilities on a battlefied, are not entitled to obtain a habeas corpus hearing in the civilian courts of the capturing nation.  That would be a perfectly reasonable (though, in my view, ultimately unpersuasive) justification if the Bagram detainee were standard POW's captured on a battlefield in Afghanistan.

But (as Hilzoy recognizes) many of them are not, including the ones seeking habeas review in these cases.  Instead, they are individuals abducted by the U.S. in other countries far away from Afghanistan and nowhere near a battlefield -- many snatched from their homes, work places or on the street, and then brought by the U.S. to Afghanistan to be imprisoned at Bagram.  Basically, then, Bagram is just another Guantanamo (though with worse conditions) -- and, indeed, as Hafetz explains, once the Supreme Court ruled in 2008 that Guantanamo detainees could not constitutionally be denied habeas review, the Bush administration began sending detainees to Bagram instead of Guantanamo to ensure they could be detained indefinitely with no judicial review.  

For the Obama administration to defend that system and the theory underlying it is quite disturbing.  It remains to be see how they will use that power if they prevail, but the mere fact that they seek to preserve that power is objectionable in its own right, to put it mildly.

Each discussion is roughly 15 minutes in length and can be heard by clicking PLAY on the recorder below.  As always, the discussion can also be downloaded in MP3 or ITunes.  On a technical note, we're using a new and superior microphone that should improve sound quality.  A transcript will be posted very shortly.


UPDATE:  The transcript is here.

Glenn Greenwald: My guests today on Salon Radio are two ACLU lawyers -- both with the national security project. First we will talk to Jonathan Hafetz concerning the Obama administration's recent filings in the case ibrought detainees at the prison at Bagram, Afghanistan in the efforts to obtain habeas corpus rights.

And after that, will be Jameel Jaffer, also with the ACLU's national security project, to talk about various Obama actions surrounding secrecy and disclosure.

First let's begin with Jonathan.  So, Jonathan, let's begin, if we could, by having you describe this case, which has got a fair amount of attention over the last few days in terms of what the factual nature of it is, and where things are with regard to the rights of detainees at Bagram.

Jonathan Hafetz: The case involves, it's four cases, filed in federal court in Washington, DC, on behalf of detainees at Bagram. The detainees were picked up, seized -- none of them were picked up in Afghanistan; they were all picked up in various places around the globe -- and brought to this prison at the Bagram Air Force Base in Afghanistan, that's run by the United States. They've been held for various periods of time, some more than five years, I believe, without due process, without access to a lawyer, and in conditions that are sometimes brutal and at a minimum failed to satisfy even the basic requirements of the Geneva Conventions.

The prison at Bagram is, in some respects, it's like the prison at Guantanamo used to be. It's a prison established by the United States to exist outside the law.

The detainees filed habeas corpus petitions in federal district court in Washington challenging their detention, and demanding that they be given some judicial review, the review that's provided for by habeas corpus, which is the basic safeguard for individuals held by a government. The United States and the Bush administration moved to dismiss the habeas petition, saying that the courts had no power to review the Bagram detentions, and that they could effectively exist and hold people there without access to the court system. The judge in that case, Judge Bates from Washington, DC, heard arguments in the case January, early January, and after the arguments, he recently asked the new administration whether they would be willing to submit, whether their position had changed.

So after the judge heard the arguments, the new administration came in, and he asked the Obama administration whether they were going to maintain the position of the Bush administration, that the prison could exist without judicial review, without habeas corpus. And on this past Friday, the Obama administration filed a very very short response in court and said, yes, we, at least for the time being, continue to take the position that the detainees there have no right to habeas corpus.

GG: So, now there is a view that has been expressed in defense of what the Obama administration did, that goes along this line. There is such a thing, in international law; I think virtually everybody recognizes, is the right of a country at war to detain prisoners of war in detention. POW camps that comply with the Geneva Conventions, in all sorts of different conflicts, and people who are in standard POW camps who are captured on the battlefield when two armies fight each other and the army that wins captures various soldiers from the other side, and put them in POW camps. I don't think anybody argues that those soldiers have the right to file habeas corpus complaints in the civil courts of the capturing country in order to ask that they be released.

So, I guess the question is, is that true in general, the general principle I just described, is that one that you recognize? And if so, what's the difference between a regular POW camp, where you keep people until the end of hostilities, and what the United States is maintaining in Bagram, given that there is a war in Afghanistan?

JH: I think first of all there are a couple different points. First of all, it's important to recognize that this is not a traditional POW camp. None of the detainees in Bagram are being held as prisoners of war. They're not being treated under the Geneva Conventions, and they're not being given the rights that prisoners of war have. Second of all...

GG: Let me interrupt you there. What rights do standard POWs have under the Geneva Conventions have that the prisoners at Bagram are not being given?

JH: Well, there are a number of different rights. They have certain rights to a process, an immediate process that they get when they're picked up on the battlefield to determine their status. They have a right to be free not only from torture, but from abusive treatment, humiliating treatment, any kind of coercion. And they have a right to release immediately upon the cessation of hostilities. Once the war is over, they have a right to be returned to their home.

The Bagram detainees are not being - first of all, there are two different groups. There are individuals who were seized in Afghanistan, and those individuals are not being treated in accordance with the Geneva Conventions, and the second group, broadly, is individuals who were seized, they were not seized in Afghanistan at all; they were picked up in for example Thailand, various other places far, thousands of miles from Afghanistan as part of the global war on terror that the Bush administration commenced and are brought to Bagram. These are the exact same people that were brought to Guantanamo in 2004.

What happened was, these people were picked up in this global war on terror, were brought to Guantanamo in 2004, and once Guantanamo became subject to habeas corpus review, the administration basically, the Bush administration stopped bringing people there, and started bringing them to Bagram, and Bagram's population has shot up, and it's become in some sense the new Guantanamo. Again, it's misconception to say that everyone there is picked up on the battlefield, and it's a misconception to say they're being treated in accordance with Geneva Conventions.

But the second issue is, there's a difference also between, there's also a question of habeas corpus review, the right to review, and what that review entails. It can be narrow, or it can be broad, and I think it really depends on the treatment that the prisoners are receiving, whether they're being treated in accordance with the legal framework, whether they can be held as military detainees or not, and the idea that you need to have some kind of review in order to keep the political branches, the executive in particular, in check, and there is no judicial review at Bagram.

And so what you have is you have a situation where the Bush administration, was free to, and the Obama administration will continue to be free to, create a prison outside the law. The Obama administration may ultimately change other things at Bagram; they may treat prisoners more humanely and comply with the Geneva Conventions, they may cease bringing prisoners seized outside of Afghanistan to Bagram as part of a global war on terror, they may provide a fair process to those who are held, or they may not.

But what was troubling about what the Obama administration did on Friday is they said, the courts don't even have a role in evaluating or saying whether we're following the law. They basically continued the task of cutting the courts out of the equation, and I think that's problematic because we've seen at Guantanamo and elsewhere what happens when there is no judicial oversight, especially when you're doing things and you're not adhering to the strict requirements of the Geneva Conventions. And I think that's where you go down this road and you get Guantanamo all over again.

GG: One of the problems with the POW analogy at Guantanamo that made Guantanamo so problematic was always that in a traditional POW center, the people who are literally on the battlefield, wearing a uniforms, having engaged in armed conflict, and so the potential for error or for abuse is much, much lower, and yet even then they have the right to claim that they were improperly captured in a case of mistaken identity. And yet at Guantanamo of course, huge numbers of the detainees, I think most, weren't captured in the act of any kind of hostility at all.

They were dragged out of their homes, or arrested on the street, or abducted from their workplaces, and so to deny them the right of any kind of judicial review is what's so problematic. So are there people at Bagram who are the plaintiffs in this lawsuit and who are otherwise detainees who have been detained under a similar circumstances, that is, not engaged in any shooting at American troops or in the act of detonating bombs, but literally from their homes, from their workplaces or off the street?

JH: Yeah, it's an excellent point. There are many people at Bagram who were picked up literally at their homes, were not picked up on the battlefield, but they're taken from their homes and held by the United States. And again there are other people who were picked up thousands of miles from Afghanistan and basically rendered to Afghanistan.

I see Bagram, like Guantanamo, as really consisting of two big problems in terms of the approach to, the Bush administration's approach, which I hope the Obama administration will not follow. One is that they've extended the concept of war without limit. It's allowed people to seize people from their homes, who are not involved in any kind of hostilities, to seize people who even are thousands of miles from a battlefield in a different country, and treat them as part of this global conflict that has no limit in time, that has not limit in where it takes place - a global battlefield. So extending war beyond any limit.

And the second is for individuals who may be picked up in the context of actual shooting or actual military operations, not following the rule that the laws of war dictate. So, for individuals who are picked up in a war setting, or war situation, they're not being given the rights that you would have under the Geneva Convention, the right that people who were picked up on the battlefield are entitled to.

So it's both extending the war too far, and not following the rules where you actually have a situation of war, that what to me characterizes a lot of Guantanamo, and unfortunately characterizes Bagram. And the problem with what happened last week with the Obama administration is they're continuing the policy of trying to cut the courts out of the equation.

GG: Last question on this, and that is, did the Bush administration in its brief, which now the Obama administration has literally adopted in full without any kind of deviation, make the argument that the war on terror encompasses a world-wide battlefield and that the reason that the courts have no role to play even in reviewing the detention of people who are picked up off the battlefield or outside of Afghanistan and brought to Bagram, is because the entire world is basically now our battlefield, and the war powers of the United States extend over all of it?

JH: Certainly, they made that argument about the scope of the armed conflict. I think in terms of whether there's habeas corpus review, I think either their argument tried to rest on trying to say, Afghanistan is in a theater of operations, and try to diminish the degree of US control and tried to distinguish it from Guantanamo when it really very very similar to Guantanamo. And this is interesting because in the Supreme Court case, the landmark case from 2008 just last year, the Boumediene case, the issue was whether Guantanamo detainees had a right to habeas corpus, a constitutional right. The Congress could not take away, or the President could take away.

And the court could have done two things, the Supreme Court. They could have said, there is a right, but it's limited to Guantanamo because of Guantanamo's unique situation, its proximity to the United States, the length of time the US has been there, basically a century. Or, they could have said something different, something broader than that, not limited to Guantanamo, that they weren't just limiting their ruling to Guantanamo. And the court chose that second option.

It did not say this is only about Guantanamo, it basically said, you can't just detain people without habeas corpus simply because you're holding them outside the United States. We're not saying that habeas corpus is everywhere, maybe it doesn't go on the battlefield, or there may be certain situations where there's no habeas corpus review, but the fact that they're being held outside the United States is not enough and it's not just limited to Guantanamo, and we need to look at the nature of the prison, how long people are held, what process they're provided to see if there's review.

Under that analysis, I think it's very clear that there needs to be review of Guantanamo. You've got basically a US-run prison, created to act outside the law, individuals being held for years without fair process, being mistreated, and this is a place where the courts need to play a role to ensure that the Executive acts in accordance with the Congress and international law.

GG: Now, shifting gears for a minute, you are the lawyer who represents Ali al-Marri, who is the only remaining designated enemy combatant inside the United States who has been held without process, without charge, for many years, ever since 2003 by the Bush administration canceled his criminal trial shortly before it was to begin. That case has been winding its way through the federal courts and is now before the Supreme Court, which will decide one of the most significant questions, which is what is the scope of the President's authority to declare people to be enemy combatants, even inside the United States, legal residents or US citizens.

The big question has been, will the Obama administration raise the Bush administration's extremist view that the President does have the power to declare people enemy combatants and hold them without any real charge. Where is that case currently, what is it that the Obama administration needs to do, and what is it, when do they need to do it, and what should we be watching for in the next days?

JH: The al-Marri case is now before the Supreme Court, the Supreme Court granted our petition to hear the case over the government's objection, and has scheduled the case for argument in late April. The Obama administration's response to our brief is due March 23rd; it will need to make a decision at that point whether or not it's going to continue to defend the extraordinary and radical assertion of power made by the Bush administration that the government can seize a legal resident or American citizen from the United States and transfer him to military custody and detain that person indefinitely, potentially for life, without charge, and without trial, based on a determination that they are enemy combatants in the war on terror.

And the Obama administration should renounce unequivocally this claim of executive power, and the lower court decision upholding it should be overturned, so that this may not be done again against any individual. It is an act of defiance of our most basic constitutional principles, and I think the most far-reaching extreme assertion of detention power since the September 11th attacks, in the so-called war on terror.

GG: The Obama administration has embraced several of the most controversial and radial Bush legal theories already, but I think that if they were to do so in this case, and embrace that theory of the president's authority to detain people as enemy combatants, that would take things to an entirely new level in terms of the Obama administration's failure to adhere to its pledge to reverse the radical abuses of the last eight years. So we will definitely follow with interest what the Obama administration does on the 23rd, and undoubtedly we'll have lots to talk to you about once they file that brief.

So, Jonathan, thanks very much for taking the time with us, it was enlightening as always, and we'll talk to you again shortly.

JH: Okay, thank you.

* * * * 

Glenn Greenwald: My guest today on Salon Radio is Jameel Jaffer. Jameel is with the ACLU's national security project. Jameel, thanks very much for joining me today.

Jameel Jaffer: Thank you.

GG: I wanted to begin by asking you in general what your assessment of the Obama administration thus far is with regard to constitutional and civil liberty issues. You were on MSNBC, on the Rachel Maddow Show, I think the first or second week of the Obama presidency, and were quite positive about the executive orders that had been issued, that sort of flurry of executive orders issued in that first week, and although you emphasized that there were lots of important issues left unresolved, you were fairly enthusiastic.

Since then there have been several episodes that shed more light into the Obama administration's take on civil liberties. So, are you as optimistic, less optimistic, roughly the same? What's your overall view of where things stand?

JJ: Well, you're right. I was, and still am optimistic about certain decisions that President Obama made very early on. I think the executive orders on Guantanamo, on interrogation, on detention, on transparency and FOIA -- those memos that are relatively overlooked, or haven't been given the attention they deserve. I think that all of those directives and memos are great things, and that President Obama deserves a lot of credit for having made those early on in his presidency.

Now that said, you're right, that there are a number of things that have happened since then, that make a lot of people, including me, question whether the administration really is committed to translating all of their great rhetoric into reality. Perhaps most troubling of those things is the position that the administration took in the Jeppesen case, the rendition case out in California.

The administration essentially signed on to the Bush administration's position with respect to state secrets, arguing that the entire case should be dismissed, because the very subject matter of the case was a state secret. That was ludicrous under the Bush administration, and it's ludicrous now -- the only place that we can't talk about the rendition program is in US courts; everybody else knows everything about it, and the European governments are coming out with very detailed and comprehensive reports about the rendition program, at the same time the US government is arguing in court that rendition is a matter of secrecy, and such a matter of secrecy that it doesn't even permit litigation.

So I think that's a unacceptable position, and it's a great disappointment that the Obama administration has signed on to it. Now, there's still time, and we're hopeful that the Obama administration will reconsider the position that they took in the Jeppesen case, but I won't pretend that that decision wasn't a great disappointment.

There are a number of other areas where we are seeing the Obama administration's policies unfold. One of them is Guantanamo, and we have one case, we represent Mohammed Jawad who is a guy who was picked up as a juvenile, and has been held at Guantanamo for something around six years now, and the administration, the Obama administration had asked to put his habeas petition on hold pending a decision with respect to the military commissions, because the Obama administration has not decided what to do with the military commissions. Whether to shut them down altogether, whether to just tweak them, whether to move all the detainees into federal court, into Article 3 courts.

The Obama administration has said, this guy, Mohammed Jawad, shouldn't be permitted to challenge his detention until we've sorted out how we're going to proceed with the military commissions. And that, too, is a disappointing thing from our perspective. This prisoner, again, is someone who was picked up as a juvenile, who was held for six years now without ever having been given an opportunity to challenge his detention. All of the evidence that the government has pointed to is evidence that was obtained through torture. So we don't think that that makes sense to hold off, to ask the court to hold off on hearing the habeas decision, and yet that's what the Obama administration has done. So that's another area where we've been disappointed by the position that the administration has taken.

GG: Let me interrupt you there for one minute, and we'll talk about a few other specific issues, some of which are not quite as pessimistic, and others of which might be as much if not more so. Clearly it doesn't take much explanation to understand why the ACLU is disappointed with the Obama's position on state secrets and the habeas case, as well. What do you think it is, if you can speculate, or if you know, that is motivating these positions to be taken?

Is it just simply the case, as a lot of Obama supporters will say, that it's too early in the administration for them to abandon Bush positions, that there's a lot more they need to know and figure out, and think about before they go and do something that rash, as just simply reversing major secrecy doctrines. Or are there other, less benevolent motives that are driving some of these things?

JJ: The short answer is, we don't know. I am completely sympathetic to the fact that some of these questions are difficult ones, and some of the cases involve a great deal of information that will take the new administration's officials some time to get on top of. And I'm totally sympathetic to that, and they have said in many cases that they will go back, or are going back to reconsider the positions that the last administration took. We want to give them the time to do that.

That said, delay here is not at all costless, when it comes to detention, again, we represent somebody who's been in custody for six years, and never been given a chance to challenge his detention. So, we can't just sit around or weeks or even months and let the administration take its time to sort out what it's going to do with the military commissions. Delay has a real price.

And if the same is true when it comes to secrecy -- there's a debate going on right now, about accountability for the abuses of the last eight years, and about the CIA's role going forward -- and we think that that debate should be informed by actual facts. And the public doesn't have those facts. The public doesn't have the facts about the rendition program, it doesn't have the OLC memos that were the basis for Bush administration's torture and rendition programs. All those facts are missing from the debate. And we're making all these decisions, or the government is making all of these decisions about what policy is going be going forward without the public knowing what the policy has been for the last eight years.

GG: Now, one of the mechanisms that the ACLU has pursued with great success -- although you've been stymied every step of the way, and have had to fight even for the successes you've had -- is the FOIA request mechanism, and you've obtained and shaken loose from the government a lot of very revealing and incriminating documents over the last eight years. But there's a lot of FOIA requests that the Bush administration had refused to respond to or to disclose documents in response to, and those litigations are pending, and some of them involve documents that the Obama administration explicitly promised, before even taking office, that they would disclose. Others are ones that would seem like they would be documents that they would disclose, consistent with their transparency obligations. Talk about what's going on with those FOIA cases, and a few of the most egregious cases, where you would think that the Obama administration would have no problem whatsoever disclosing some of these documents.

JJ: There was a lawsuit in New York about the Bush administration's interrogation and rendition policies. We have another lawsuit in DC about the Bush administration's warrantless wiretapping policy. Both of those lawsuits arise out of a FOIA request that we filed in some cases as many as six years ago. And we've been trying to get the documents that were the basis for all of these policies.

Among the many documents that are still being withheld are dozens of memos written by the Office of Legal Counsel. And those memos, we think, are of particular importance to the public debate. If they were released they would tell us a little bit about how those national security policies were developed, who was responsible for their development, how far the policies actually went.

When it comes to surveillance, for example, we only really have a glimpse into what the Bush administration's policies were. We don't know how, we don't know the full scope of the warrantless wiretapping. We don't know the scope of the data mining program. Indeed, these memos, these OLC memos, would tell us a little more, possible a lot more, both about the policies, and who was responsible for them.

So, we feel very strongly that those memos should be released. Some of the Obama administration officials, the people who have been put in the Office of Legal Counsel are people who before joining the Obama administration made public statements in which they expressed the view these OLC memos were being kept secret inappropriately and that they should be released immediately, and that made us very hopeful about what would happen once they took charge at OLC. Now, we got in a bit of a skirmish with the Obama administration during the last couple of weeks about these OLC memos, or about three of the OLC memos; these were memos that were written by Steven Bradbury, one of the OLC lawyers, the Bush administration's OLC lawyers in 2005 relating to interrogation.

They were memos that essentially told the CIA that it doesn't matter that there are laws against torture and cruel inhuman degrading treatment; water boarding doesn't constitute torture or cruel degrading inhuman treatment. That's what these memos said, and they were written in May of 2005, and we're trying to hold of them. And we went to the administration, the new administration and said, listen, the Bush administration kept all of these memos secret, these three memos we think are of particular importance to the public view, reconsider the withholding of these memos and release them.

And they came back and they agreed to reconsider, but they said that they would need 90 days to do so. And again, for the reasons I just mentioned, that there's a debate going on right now, a delay isn't costless. We opposed their request for 90 days, and asked that they do it within two weeks. They ultimately, on the eve of the court hearing, proposed that they would drop their request for 90 days and commit to reviewing the memos within 30 days, and we agreed to that. I think we sort of got mixed signals in that, though we're happy about where it came out. We think that 30 days is a reasonable request, and we're hopeful that at the end of that 30 period, the result will be at least those three critical memos will be made public.

GG: But they haven't committed, just to be clear, they haven't committed that within the 30 days they will in fact hand over those memos?

JJ: No they haven't. They have committed to re-reviewing the memos in light of President Obama's executive orders on torture, detention, and his memos on FOIA and transparency. They haven't committed to any particular result of that review. But given, again, what they said, what these officials said before they became part of the Obama administration, and given what President Obama said in his directives, we are very hopeful that the end of the process they will release the memos.

Let me just say if they didn't release the memos end of that process, that would be a real breach of the promises that President Obama has made towards transparency and accountability.

GG: He has appointees, such as Don Johnson at the OLC who has railed against the very concept of secret law, which is what these memos in essence are. They were the DOJ essentially promulgating views of the law and not informing the public about them, and with regard to many of these programs, these programs are no longer operative. A lot of these programs have been abandoned or have terminated some time ago. Is that true, that these memos don't just cover active intelligence programs?

JJ: That's right. It's hard to see how - I don't think that the memos should have been kept secret in the first place, but even if you buy the argument that memos had to be kept secret because disclosing them would have disclosed active intelligence programs, well, those intelligence programs have now been shut down. That's true of the warrantless wiretapping program. Warrantless wiretapping goes on, but now it goes on under a federal statute, rather than under an executive order.

And the interrogation, the torture program and the CIA secret detention program have more or less been shut down by President Obama. So, these are interrogation methods that were unlawful at the time they were used; they've been completely taken off the table by President Obama. It's not clear at all what possible damage could be inflicted on the nation's security by releasing that kind of information.

GG: Well, we're obviously going to continue to follow these cases. I think the transparency in the FOIA cases are really the easiest ones for the Obama administration -- sooner rather than later -- to do the right thing, in part because they've promised to do exactly that, and in part because, as we just discussed, a lot of these documents don't even involve on-going intelligence programs and a lot of them are nothing more than pure law that never should have been secret in the first place as Obama's own appointees have indicated themselves.

So, we will definitely continue to follow it. Hopefully, within 30 days you and the ACLU can show more documents of a very significant nature that you've been able to uncover, and I hope to have you back and talk, hopefully about those documents, and not why the Obama administration continues to conceal then.

So, Jameel, thanks very much for taking the time to talk about these things today.

JJ: Thank you, Glenn.


[Transcript courtesy of Thames Valley Transcribe]



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