Monday, January 03, 2005

The Rule of Law, part 2

Long-term imprisonment, including lifelong detentions, are being considered for 'detainees' that the administration does not want to charge, set free, or turn over to any court.

Leading Senators of both parties have already stepped forward to condemn the plan.

Meanwhile, a Republican judge is mounting a challenge to the government's policies.

"I don't know any organized bar group that has taken the position that the government is right. I think most lawyers probably think the government has gone crazy."


Blogger Management said...

Long-Term Plan Sought For Terror Suspects

By Dana Priest
Washington Post Staff Writer
Sunday, January 2, 2005; Page A01

Administration officials are preparing long-range plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries, according to intelligence, defense and diplomatic officials.

The Pentagon and the CIA have asked the White House to decide on a more permanent approach for potentially lifetime detentions, including for hundreds of people now in military and CIA custody whom the government does not have enough evidence to charge in courts. The outcome of the review, which also involves the State Department, would also affect those expected to be captured in the course of future counterterrorism operations.

"We've been operating in the moment because that's what has been required," said a senior administration official involved in the discussions, who said the current detention system has strained relations between the United States and other countries. "Now we can take a breath. We have the ability and need to look at long-term solutions."

One proposal under review is the transfer of large numbers of Afghan, Saudi and Yemeni detainees from the military's Guantanamo Bay, Cuba, detention center into new U.S.-built prisons in their home countries. The prisons would be operated by those countries, but the State Department, where this idea originated, would ask them to abide by recognized human rights standards and would monitor compliance, the senior administration official said.

As part of a solution, the Defense Department, which holds 500 prisoners at Guantanamo Bay, plans to ask Congress for $25 million to build a 200-bed prison to hold detainees who are unlikely to ever go through a military tribunal for lack of evidence, according to defense officials.

The new prison, dubbed Camp 6, would allow inmates more comfort and freedom than they have now, and would be designed for prisoners the government believes have no more intelligence to share, the officials said. It would be modeled on a U.S. prison and would allow socializing among inmates.

"Since global war on terror is a long-term effort, it makes sense for us to be looking at solutions for long-term problems," said Bryan Whitman, a Pentagon spokesman. "This has been evolutionary, but we are at a point in time where we have to say, 'How do you deal with them in the long term?' "

The administration considers its toughest detention problem to involve the prisoners held by the CIA. The CIA has been scurrying since Sept. 11, 2001, to find secure locations abroad where it could detain and interrogate captives without risk of discovery, and without having to give them access to legal proceedings.

Little is known about the CIA's captives, the conditions under which they are kept -- or the procedures used to decide how long they are held or when they may be freed. That has prompted criticism from human rights groups, and from some in Congress and the administration, who say the lack of scrutiny or oversight creates an unacceptable risk of abuse.

Rep. Jane Harman (D-Calif.), vice chairman of the House intelligence committee who has received classified briefings on the CIA's detainees and interrogation methods, said that given the long-term nature of the detention situation, "I think there should be a public debate about whether the entire system should be secret.

"The details about the system may need to remain secret," Harman said. At the least, she said, detainees should be registered so that their treatment can be tracked and monitored within the government. "This is complicated. We don't want to set up a bureaucracy that ends up making it impossible to protect sources and informants who operate within the groups we want to penetrate."

The CIA is believed to be holding fewer than three dozen al Qaeda leaders in prison. The agency holds most, if not all, of the top captured al Qaeda leaders, including Khalid Sheik Mohammed, Ramzi Binalshibh, Abu Zubaida and the lead Southeast Asia terrorist, Nurjaman Riduan Isamuddin, known as Hambali.

CIA detention facilities have been located on an off-limits corner of the Bagram air base in Afghanistan, on ships at sea and on Britain's Diego Garcia island in the Indian Ocean. The Washington Post reported last month that the CIA has also maintained a facility within the Pentagon's Guantanamo Bay complex, though it is unclear whether it is still in use.

In contrast to the CIA, the military produced and declassified hundreds of pages of documents about its detention and interrogation procedures after the Abu Ghraib prison scandal. And the military detainees are guaranteed access to the International Committee of the Red Cross and, as a result of a U.S. Supreme Court ruling, have the right to challenge their imprisonment in federal court.

But no public hearings in Congress have been held on CIA detention practices, and congressional officials say CIA briefings on the subject have been too superficial and were limited to the chairman and vice chairman of the House and Senate intelligence committees.

The CIA had floated a proposal to build an isolated prison with the intent of keeping it secret, one intelligence official said. That was dismissed immediately as impractical.

One approach used by the CIA has been to transfer captives it picks up abroad to third countries willing to hold them indefinitely and without public proceedings. The transfers, called "renditions," depend on arrangements between the United States and other countries, such as Egypt, Jordan and Afghanistan, that agree to have local security services hold certain terror suspects in their facilities for interrogation by CIA and foreign liaison officers.

The practice has been criticized by civil liberties groups and others, who point out that some of the countries have human rights records that are criticized by the State Department in annual reports.

Renditions originated in the 1990s as a way of picking up criminals abroad, such as drug kingpins, and delivering them to courts in the United States or other countries. Since 2001, the practice has been used to make certain detainees do not go to court or go back on the streets, officials said.

"The whole idea has become a corruption of renditions," said one CIA officer who has been involved in the practice. "It's not rendering to justice, it's kidnapping."

But top intelligence officials and other experts, including former CIA director George J. Tenet in his testimony before Congress, say renditions are an effective method of disrupting terrorist cells and persuading detainees to reveal information.

"Renditions are the most effective way to hold people," said Rohan Gunaratna, author of "Inside al Qaeda: Global Network of Terror." "The threat of sending someone to one of these countries is very important. In Europe, the custodial interrogations have yielded almost nothing" because they do not use the threat of sending detainees to a country where they are likely to be tortured.

2:53 PM  
Blogger Management said...

Lugar Condemns Plan To Jail Detainees for Life

Monday, January 3, 2005; Page A02

A leading Republican senator yesterday condemned as "a bad idea" a reported U.S. plan to keep some suspected terrorists imprisoned for a lifetime even if the government lacks evidence to charge them.

The Pentagon and the CIA have asked the White House to decide on a more permanent approach for those it is unwilling to set free or turn over to U.S. or foreign courts, The Washington Post said in a report yesterday that cited intelligence, defense and diplomatic officials.

Some detentions could potentially last a lifetime, the report said.

Influential senators denounced the idea as probably unconstitutional.

"It's a bad idea. So we ought to get over it and we ought to have a very careful, constitutional look at this," Sen. Richard G. Lugar (R-Ind.), chairman of the Senate Foreign Relations Committee, said on "Fox News Sunday."

Sen. Carl M. Levin (Mich.), senior Democrat on the Armed Services Committee, cited earlier U.S. Supreme Court decisions. "There must be some modicum, some semblance of due process . . . if you're going to detain people, whether it's for life or whether it's for years," Levin said, also on Fox.

The White House did not immediately respond to a request for comment. The State Department declined to comment, and a Pentagon spokeswoman, Lt. Col. Ellen Krenke of the Air Force, had no information on the reported plan.

As part of a solution, the Defense Department, which holds 500 prisoners at Guantanamo Bay, Cuba, plans to ask Congress for $25 million to build a 200-bed prison to hold detainees who are unlikely to ever go through a military tribunal for lack of evidence, defense officials told The Post.

The new prison, dubbed Camp 6, would allow inmates more comfort and freedom than they have now and would be designed for prisoners the government believes have no more intelligence to share.

The Post said the outcome of a review underway would also affect those expected to be captured in the course of future counterterrorism operations.

One proposal would transfer large numbers of Afghan, Saudi and Yemeni detainees from the Guantanamo Bay detention center into new U.S.-built prisons in their home countries, it said.

2:58 PM  
Blogger Management said...

By Gail Appleson, Law Correspondent

NEW YORK (Reuters) - Far from the typical corporate Christmas card, a former U.S. federal judge's law firm is embracing controversy with holiday cards showing the historic Supreme Court session where he sucessfully challenged the Bush administration's treatment of Guantanamo Bay detainees.

Even more unusually, the attorney who argued the case before the nation's highest court is a Republican and former federal appeals judge appointed by President Richard Nixon.

"Human rights issues are not Republican or Democratic issues," said John Gibbons, whose arguments led to the Supreme Court's landmark June ruling that foreign terror suspects held at the U.S. naval base in Cuba can have access to U.S. courts.

Gibbons, a former chief judge of the U.S. Third Circuit Court of Appeals in Philadelphia, told Reuters that he has never heard criticism of his fight for detainee rights from other lawyers, regardless of their party affiliation.

"I don't know any organized bar group that has taken the position that the government is right. I think most lawyers probably think the government has gone crazy," he said.

Certainly this soft-spoken former jurist, who takes long thoughtful pauses before answering questions, is no rabble-rouser. Gibbons is a devoutly religious man of conviction, his colleagues say, who time and again has put himself on the line when he thinks a wrong needs righting.

The strong human interest views held by Gibbons and his Newark, N.J.-based corporate law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione have led the former judge and his colleagues, who usually handle business matters, to become involved in a range of controversial cases.

These have led the lawyers to take on such causes as fighting for the rights of sex offenders and challenging death penalty sentences.


In December, Gibbons -- at age 80 -- even went beyond the actual courtroom to take on a brief stint in the well-received off-Broadway play "Guantanamo: Honor Bound to Defend Freedom." The drama, which caused a sensation when it premiered in London this spring, is a stinging indictment of the Bush administration's handling of detainees.

While the play has helped to publicize the plight of prisoners, it is Gibbons' recent Supreme Court appearance and support of other lawyers that has struck the greatest blow to date at the Bush administration's policies in Guantanamo Bay.

Arguing on behalf of foreign nationals from more than 40 nations held there as part of anti-terror sweeps, Gibbons urged the justices to reject the government's view that federal courts have no jurisdiction to rule on whether the prisoners are being held illegally. He said the situation in Guantanamo amounts to "a lawless enclave."

Although this may seem a strange stance for a Republican appointee to the bench, Gibbons said neither he nor his firm hesitated to take on Guantanamo Bay cases at the very early stages of litigation.

"The decision for us was easy," he said, explaining that the firm established a fellowship program 15 years ago that pays lawyers to do public interest work.

While the Gibbons firm was one of the first to get involved, there are now some 15 corporate law firms providing free representation to about 70 Guantanamo detainees, according to the Center for Constitutional Rights which is coordinating the effort.

Asked why not all of the some 550 detainees have lawyers, Gibbons responded, "It isn't an absence of lawyers at this point."

Instead, the lack of representation is due to problems lawyers and civil rights groups are having in getting the U.S. government to provide names and other identifying information about the detainees. In addition, detainees are hindered in attempts to contact the outside world because their letters are often significantly delayed and heavily censored by the government, Gibbons said.

"The families of detainees don't know where they are, haven't heard from them and don't realize they can hire a lawyer," he said.

Gibbons predicted one of the next areas of litigation will be aimed at forcing the government to facilitate detainees' access to lawyers. "But I anticipate the government will strenuously resist that," he added.

Indeed, litigation aimed at preserving civil rights in the face of Bush administration anti-terrorism policies appears to be expanding Gibbons' resume at an age when many lawyers would be retiring. He has already left two jobs he could have held for life -- his position on the federal bench and that as a tenured law professor at Seton Hall University.

Asked if he plans to make any more job changes, he responded, "I'm right where I want to be."

But what about his fledgling stage career?

"I don't think I'll quit my day job," he said.

3:07 PM  
Blogger Management said...

A global gulag to hide the war on terror's dirty secrets

Bush is now thinking of building jails abroad to hold suspects for life

Jonathan Steele
Friday January 14, 2005
The Guardian

The promise of imminent release for four British detainees held at the notorious US prison at Guantánamo Bay is obviously welcome, but it is only a tiny exception in the surge of bad news from the Bush team on the human rights front. The first few days of the new year have produced two shocking exposures already.

One is the revelation that the administration sees the US not just as a self-appointed global policeman, but also as the world's prison warder. It is thinking of building jails in foreign countries, mainly ones with grim human rights records, to which it can secretly transfer detainees (unconvicted by any court) for the rest of their lives - a kind of global gulag beyond the scrutiny of the International Committee of the Red Cross, or any other independent observers or lawyers.

The other horror is the light shone on the views of Alberto Gonzales, the White House nominee to be the chief law officer, the attorney general. At his Senate confirmation hearings last week he was revealed to be a man who not only refuses to rule out torture under any circumstances but also, in his capacity as White House counsel over the past few years, chaired several meetings at which specific interrogation techniques were discussed. As Edward Kennedy pointed out, and Gonzales did not deny, they included the threat of burial alive and water-boarding, under which the detainee is strapped to a board, forcibly pushed under water, wrapped in a wet towel, and made to believe he could drown.
Since its establishment after 9/11, the US camp for foreigners at Guantánamo Bay has become a beacon of unfreedom, a kind of grisly competitor to the Statue of Liberty in the shopfront of authentic American images. The trickle of releases of prisoners from its cages has brought direct testimony of the horrors which go on there. So it is no wonder that the Bush administration would like to find less visible places to hold prisoners, and keep them there for ever so that they cannot tell the world.
The Guantánamo prisoners are held by the department of defence, but under the new scheme most foreign detainees are expected to be in the hands of the CIA, which submits to less congressional scrutiny and offers the Red Cross no access. They include hundreds of people who have been arrested in recent weeks in Falluja and other Iraqi cities.

According to the Washington Post, which broke the story last week, one proposal is to have the US build new prisons in Afghanistan, Saudi Arabia and Yemen. Officials of those countries would run the prisons, and would have to allow the state department to "monitor human rights compliance".

It is a laughable proposition, since the whole purpose of the exercise is to minimise scrutiny. CIA agents would have the right to question the detainees, with or without the aid of foreign interrogators, as they already do at other off-limits prisons at Bagram air base in Afghanistan, on ships at sea, in Jordan and Egypt, and at Diego Garcia.

The US policy of lending detainees to other countries' jailers and torturers, known as "rendition", began during the "war on drugs" as a way of arresting alleged Latin American narco-barons and softening them up for trial in the US. It has expanded enormously under the "war on terror". As one CIA officer told the Washington Post, "the whole idea has become a corruption of renditions. It's not rendering to justice. It's kidnapping."

He could have added that it's kidnapping for life. A senior US official told the New York Times last week that three-quarters of the 550 prisoners at Guantánamo Bay no longer have any intelligence of value. But they will not be released out of concern that they pose a continuing threat to the US. "You're basically keeping them off the battlefield, and, unfortunately in the war on terrorism, the battlefield is everywhere," he said.

Since the attack on Falluja, the US holds 325 non-Iraqis in custody, many of them Syrians and Saudis. Questioned by the Senate's judiciary committee, Gonzales said that the justice depart ment believes that non-Iraqis captured in Iraq are not protected by the Geneva conventions, which prevent prisoners being transferred out of the country in which they are held.

It was revealed last year that Donald Rumsfeld, the US defence secretary, had approved the secret holding of "ghost detainees" in Iraq. They were kept off the registers that were shown to the Red Cross and therefore lost the chance of being visited or having other rights. Now many new prisoners will be candidates for a deeper category of invisibility by being sent for detention in secret locations abroad.

While making bland statements during his Senate appearance that he found torture abhorrent, Gonzales gave no clear assurances that its practice would stop. As White House counsel he approved an administration memorandum against torture in August 2002 which was so narrow that it appeared to define it only as treatment that led to "dying under torment". In other words, if a victim survived, he could not have been tortured.

The memo also claimed that torture only occurs when the intent is to cause pain. If pain is intentionally used to gain information or a confession, that is not torture. Thanks to this narrow definition of what is forbidden, US officials have been systematically using inhumane treatment on prisoners - far beyond the few so-called bad apples exposed by the photographs from Abu Ghraib - while saying it did not amount to torture.

A few days before Gonzales's Senate hearings, the justice department hastily rewrote the memo so that a wider category of techniques are defined as torture, and thereby prohibited. But at the hearings Gonzales refused to give a clear negative answer to the question whether, in his view, American troops or interrogators could legally engage in torture under any circumstances.

One of the glories of the hearings was the appearance of Douglas Johnson, director of the Centre for Victims of Torture. He argued that the new memo fails to give clear guidance on what the appropriate standards for interrogation and detention are. He also pointed out that torture does not yield reliable information and corrupts its perpetrators.

Psychological torture was more damaging than physical torture, he said. Interviews with victims show that depression and recurrent nightmares decades later more often relate to memories of mock executions (of the "water-boarding" type) and scenarios of humiliation than to actual physical abuse.

That these points might have impressed the man Bush wants to have as America's top law officer is not to be expected. Nor does anyone in Washington expect the Senate to refuse to confirm him for the job. Happy New War on Terror 2005.

2:10 AM  

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