Human Rights First

Holder – and the Administration – Must Stand Strong on Federal Courts

2010-03-19T08:55:00.000-07:00

As reports come in that the administration may buckle to political fearmongering and abandon plans to try detainees in federal courts, Attorney General Holder has held strong.

Tell the Attorney General you support his decision to try suspects in federal courts - and send a copy to key White House officials as well.

He made strong statements favoring trials in federal courts for Guantanamo detainees at a House subcommittee hearing on Tuesday and mentioned that a decision would be made in weeks - not months. He will go before the Senate Judiciary committee this coming Tuesday. So now is the time to show your support.

The Senate Judiciary Committee hearing on Tuesday will likely get heated as certain members of Congress will undoubtedly try to block his efforts. His announcement this fall that he would pursue trials in New York federal courts brought a wave of criticism - and fearmongering - from people like Liz Cheney and her father, the former Vice President, that has jeopardized his efforts to close Guantanamo.

Opposition is based on fear, not facts. The federal courts have an excellent track record at tackling these cases - hundreds of convictions since 9/11 vs. 3 in military commissions.

Human Rights First brought national security experts to the Hill to give these facts and figures to key members of Congress and their staff. We're now trying to build voices of citizens to join our efforts on the Hill and in the administration to show skeptics in the White House that there is public support for federal trials.

It was just reported in the Wall Street Journal today that the White House may be buckling under the politics of fear. Help us push back: Thank Mr. Holder for his efforts and retweet our response to the Wall Street Journal - pointing out the facts behind federal courts. They work; military commissions don't.

Holder: Facts, not fear

2010-03-17T15:11:00.000-07:00

By Melina Milazzo
Pennoyer Fellow, Law and Security Program

In a hearing yesterday before the House Appropriations Subcommittee on Commerce, Justice, Science, and other Related Agencies, Attorney General Eric Holder held firm that facts, not fear must be the basis of our discussion in determining how to prosecute detainees and terrorist suspects.

“We cannot allow politics of fear to drive us apart,” Holder said in his opening remarks. “Today, our challenge is to remain not only safe but also true to our heritage, true to our principles and true to our best selves.”

Holder articulated that history and experience show that civilian courts are tested, tried, secure, and able to guard secret information, and therefore, are a viable and necessary tool in fighting global terrorism. Highlighting the benefits of using Article 3 trials over military commissions, Holder noted that our allies support civilian trials over military commissions, we are able to obtain cooperation and critical intelligence from terrorist suspects, and civilian trials, unlike military commissions, accept guilty pleas in capital cases.

Both Holder and Chairman Mollohan also underscored that hundreds of terrorists have been effectively tried and convicted in civilian courts. Indeed, Human Rights First found article 3 courts have convicted 195 self-described Islamic terrorists while the military commissions have convicted only 3, 2 of whom are now free.

Moreover, Holder dispelled misperceptions which he characterized as “make [his] blood boil.” First, he cited studies that demonstrate how a substantial number of people continue to talk even after being provided a lawyer. Defense lawyers, he stated, often advise their clients of the benefits of talking such as, receiving reduced sentences. Frequently, he stated, “the defense lawyer helping his client, also helps the government.” Also, he challenged his critics to point to proof that military commissions would provide better or more information. Finally, he countered the claim that Article 3 courts will be a forum for defendants to spout hateful propaganda giving examples of instances such as in the recent case of terrorism suspect Siddiqui where the judge removed the defendant from the courtroom after she was deemed disruptive.

Chairman Alan Mollohan and Rep. Adam Schiff criticized the politicization of these issues by highlighting how similar decisions under the Bush Administration were not denounced by these same critics. “Former officials from the last administration also support the civilian trial option and believe that precluding civilian trials out of hand is a dangerous proposal,” said Mollohan. “The decision about whether to try a case in a civilian court is best left to the Department of Justice to determine, void of politics, just as was done in the previous administration.” Rep. Schiff echoed this sentiment, suggesting that critics’ arguments were based in politics, not policy. Attorney General Ashcroft under Bush, he noted, was not criticized for deciding to Mirandize the so-called shoe bomber. In fact, Ashcroft has reportedly stated that holding civilian trials for terrorists has “use and utility.”

Holder received support for his initial decision to try Khalid Sheikh Mohammed, the alleged 9/11 mastermind, in New York City. Rep. Chaka Fattah characterized avoiding a civilian terror trial in a major city as “cowardly.” “It doesn’t befit a great nation to hesitate or equivocate on the question of following our own laws,” he said. Rep. José Serrano added, “I thought it was very dramatic to say, ‘We’re not afraid of you. We will try you at the scene of the crime.’”

In response to Rep. Frank Wolf asking when a decision will be made regarding where to try KSM, Holder responded he is “weeks away from making a determination.”

Finally, in a heated exchange with Rep. John Culberson, Holder fiercely fought back against the claim that a law enforcement approach suggests that the Administration does not understand that we are at war. “I know we are at war,” said Holder. “Let me make this very, very clear. If you were to take away from the Justice Department, from this government, from this administration and subsequent administrations the ability to use Article 3 courts, you would weaken our ability to fight successfully these wars. It is as simple as that.”

Attorney General Holder is scheduled to appear before the Senate Judiciary Committee on March 23rd. Let’s hope he stands firm in pushing back on the fearmongering again then. And that the decision we see from the Obama administration on trials for the 9/11 defendants in the coming weeks is one that brings them to justice – in federal court.

Protecting Refugees: an American Commitment and Tradition

2010-03-17T13:47:00.000-07:00

By Elisa Massimino
President and CEO

This week marks the 30th anniversary of the Refugee Act of 1980, a landmark piece of legislation that changed the U.S. approach to refugee protection by creating the legal status of asylum and a formal process for resettling refugees from around the world. It affirmed the U.S. commitment to providing refuge to victims of religious, political and other forms of persecution.

Every day at Human Rights First we see up close the ways in which the Refugee Act makes a difference in the lives of individual refugees. There is no more concrete reflection of the Refugee Act’s achievements than seeing refugees and their families find safe haven in the United States.

Watch our video highlighting what this Act meant – including how it helped one of our clients restart his life.

While the last 30 years has seen much progress in protecting refugees fleeing persecution, we also have seen in our work at Human Rights First where the United States has at times faltered in it its commitment – interdicting Haitians at sea without adequate protection safeguards, allowing political preferences to undermine the objectivity of asylum adjudications in the 1980s, and nearly shutting down the resettlement system in the wake of the September 11 attacks.

Particularly in the last fifteen years, a barrage of new laws, policies and legal interpretations have undermined the institution of asylum in the United States and led this country to deny asylum or other protection to victims of persecution. Detention has escalated dramatically, and refugees with well founded fears of persecution are barred from asylum due to a filing deadline that limits access to asylum.

We can do better. Our history as a country of refugees, our tradition as a safe haven and beacon of hope for the persecuted, and our obligations under the UN Refugee Convention and Protocol all tell us we must do better.

Yesterday, on the anniversary of the signing of the act, Human Rights First held a symposium bringing together policymakers and experts in U.S. refugee and asylum law to discuss how we can overcome the current challenges in the U.S. refugee resettlement and asylum systems. It was an inspiring meeting that gave me hope for future reform.

This week we have seen movement: Senators Patrick Leahy (D-VT), Carl Levin (D-MI), Richard Durbin (D-IL), and Daniel Akaka (D-HI) have introduced the Refugee Protection Act of 2010 (S. 3113), legislation designed to strengthen America's commitment to protecting refugees by repairing many of the most severe problems in the U.S. refugee and asylum systems. Human Rights First commends these Senators for their leadership. You can demonstrate your support for their efforts here.

Millions of Americans are here today because at some point they or their parents – or grandparents – had to flee from oppression or persecution and were either granted asylum or resettled as refugees here in the United States. After reflecting on the last 30 years since this law was passed, we have a lot to be proud of, but there is still a lot of work to be done. Together, we can ensure that our nation lives up to the promise of the Refugee Act.

State Dept Promises To Produce Legal Justification for Drone Attacks

2010-03-17T11:30:00.000-07:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted on the Huffington Post.

State Department Legal Adviser Harold Koh has promised to produce the Obama administration's legal justification for its increased use of drone strikes to kill suspected terrorists, reports Shane Harris of the National Journal.

"I have studied this question," Koh told the audience at an American Bar Association breakfast yesterday. "I think that the legal objections that are being put on the table are ones that we are taking into account. I am comfortable with the legal position of the administration, and at an appropriate moment we will set forth that in some detail."

Let's hope that "appropriate moment" comes pretty soon, because controversy over the drone attacks is heating up. The ACLU in January filed a FOIA request asking the government to turn over that legal justification, as well as the facts underlying it. Then this week, after receiving a response from the CIA that it can neither confirm nor deny the existence of any relevant documents, the ACLU filed a lawsuit.

Meanwhile, as Adam Serwer points out at The American Prospect, a New America Foundation study raises concerns that about a third of the victims of drone attacks have been civilians, and international lawyers have been debating for months now whether the targeted killings violate international law. (Jane Mayer's story on drone attacks in The New Yorker last October does an excellent job of laying out the controversy.)

Such an eminent legal expert as Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, has said that the drone attacks, despite their obvious appeal to the U.S. and the U.K., raise serious legal concerns.

As he explained in a recent article in The Guardian with Hina Shamsi, "Drones may only be used to kill in an armed conflict. The killing must fulfill a military need, and no alternative should be reasonably possible." In Afghanistan, where U.S. forces are fighting armed militants but not the troops of another country, "the target must have a direct connection to the combat, either as a Taliban or al-Qaida 'fighter', or as a civilian who is 'directly participating in hostilities'. The use of force must be proportionate, meaning that commanders must weigh any expected military advantage against possible harm to civilians." Violating these requirements could constitute a war crime.

Given the secrecy of the United States' drone program, it's impossible to know whether the government has met these legal requirements. That's left the administration open to critics' suggestions that it has not, and may well be fomenting anger among the residents of areas being targeted.

General Stanley McChrystal has said that reducing civilian casualties in Afghanistan is critical to a key part of his counterinsurgency strategy -- winning the "hearts and minds" of the Afghan people. Revealing the facts about how the United States is using its expanded and now well-known drone program must be a critical component of that strategy.

Taking on the Enablers of Mass Atrocities

2010-03-16T10:12:00.000-07:00

By Julia Fromholz & Ann-Louise Colgan*

This week’s arrival of a new National Security Council Director for War Crimes, Atrocities and Genocide Prevention marks an important step in enhancing the administration’s capacity to address these terrible crimes. However, a single new position can achieve limited effect without a new policy approach––one that includes a focus on those who enable, and not only those who perpetrate, mass atrocities.

Atrocities always take place amidst complex tensions, whether political, environmental, or historical. But they also tend to share some basic dynamics. These horrors visited upon civilians are organized crimes. And while U.S. and international policymakers rightly focus attention on the perpetrators of these crimes, inadequate efforts are aimed at the enablers who make these violent acts possible—those countries and commercial actors who provide the goods, services, and resources critical to the commission of crimes against humanity.

In Darfur, for example, transfers of arms and ammunition by China, Russia, Chad, and other states to the Sudanese government or rebel forces have helped sustain violence for the past six years. Yet the United Nations (U.N.) has made no serious effort to enforce its arms embargo on the region or to use other means to halt the supply of weapons.

A less known example of enabling appeared in last November’s report by the U.N. expert panel charged with monitoring the embargo, which noted the dependence of the belligerents in Darfur on “technicals.” These trucks mounted with weapons allow armed groups to commit attacks across vast desert regions in western Sudan. The panel presented evidence that more trucks came from the official Toyota dealership and second-hand dealers in the United Arab Emirates than from any other source. Yet despite the international community’s rhetorical commitment to stopping the violence in Darfur, no attempt has been made to interrupt that supply.

In the Democratic Republic of the Congo, the illicit mineral trade generates revenues for rebel groups, materially sustaining their capacity to commit atrocities against civilians. The commercial actors––some licit and some not––involved in the extraction, transportation, and trade of these natural resources form a broad and loose network. Attempts to halt the atrocities in eastern Congo would benefit from more concerted efforts to disrupt the enabling network and stanch the flow of money and arms to the perpetrators.

To overcome the challenges that have vexed past administrations, the Obama administration would do well to take on the enablers as an integral part of its approach in all atrocity cases. Identifying enablers and curbing their activities can choke off the perpetrators’ access to the necessary means. This can change their crude cost-benefit analysis and alter the dynamics in these situations where many civilian lives are at stake.

The first step of taking on enablers is finding more information on them. In order to effectively prevent or halt atrocities, the U.S. needs a clear picture of all the players who sustain the crimes. If enablers are included in intelligence gathering and analysis on the identity of key actors and the levers that can be employed to influence them, policymakers will have both a more complete view of how the atrocities are happening and a wider range of options for response.

In some cases, those options might start with simply shining a light on the role of enablers, as that alone may be sufficient to change the behavior of some. If countries or companies are involved unwittingly or are particularly susceptible to concerns about negative publicity, being associated with an atrocity situation may prompt them to adopt new due diligence commitments to avoid complicity.

In other cases, providing assistance to build the law enforcement capacity of weak states can strengthen their efforts to address illicit trafficking practices that enable the commission of atrocities.

For more resistant enablers, a further range of options could slow or interdict their activities. Diplomatic pressures can start with expressions of concern but progress to reductions of diplomatic ties or of various forms of assistance. Economic sanctions can be broad or targeted; enforcing embargoes focused on specific commodities, such as arms, may be especially effective in tackling commercial enablers. Travel bans and asset freezes focused on key individuals can quickly gain their attention and cause them to rethink their actions.

Establishing a focus on enablers as a core element of U.S. efforts to prevent and halt atrocities can help end these complex crimes. It can shift the calculus of perpetrators and change the circumstances that permit their crimes. It can provide policymakers with a broader set of levers to influence urgent situations. And by targeting those same actors and networks that are often also engaged in other forms of illicit activities and transnational crimes, it can also address a broader set of national security concerns.

As this administration takes new steps to get ahead of future atrocities, it should widen its view: those who enable the world’s worst crimes should be put on notice that they, too, are on the hook.

* Julia Fromholz is Director of the Crimes Against Humanity Program at Human Rights First, and Ann-Louise Colgan is Senior Associate in that program.

Protecting Refugees: an anniversary, a new bill, and some recommendations

2010-03-16T08:44:00.000-07:00

Yesterday a bill was introduced in the Senate that would strengthen America's commitment to providing safe haven to refugees fleeing persecution. It would repair many of the most severe problems in the U.S. refugee and asylum systems. Take action now - urging your senators to cosponsor the bill.

The introduction of the bill - the Refugee Protection Act of 2010 - comes at an opportune time, s we're celebrating the 30th anniversary of the Refugee Act of 1980, a groundbreaking piece of legislation that set the framework for the U.S. refugee and asylum systems.

Today Human Rights First is hosting a symposium marking the 30th anniversary of the Refugee Act of 1980 - in Washington D.C. today. Watch it live - and follow our commentary on Twitter.

Learn about the Refugee Act and its impact in our video:

Human Rights First also unveiled a series of key policy reform recommendations for the Obama Administration and Congress to renew U.S. commitment to protecting refugees.

These recommendations aim to prevent the unnecessary and prolonged detention of asylum seekers, end the practice of barring refugees with a well-founded fear of persecution on the basis of an arbitrary asylum filing deadline, and ensure the protection of refugees at risk of imminent harm by creating a fast-track resettlement process.

Lindsey Graham's Third Strike?

2010-03-15T14:56:00.000-07:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted on The Huffington Post

Given Senator Lindsey Graham’s military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terrorists since the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.

In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees’ legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration’s military commissions were unconstitutional.

So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.

Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.

With Graham’s urging, Congress passed the law anyway.

Since then, the military commissions have convicted exactly three terrorists – one of whom did not even put up a defense. The other two have already been set free.

In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees’ access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.

That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government’s Guantanamo detainee dilemma.

Given his track record, does Graham really have any credibility on this issue?

This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.

“I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen,” said Senator Lindsey Graham. “It has never been done in the history of warfare and now is not the time to start.”

Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.

Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham’s proposal is a very bad idea.

“It’s sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president,” said Retired Admiral John Hutson at a recent press conference.

Retired General Harry Soyster called on President Obama to stand firm in “administering the great justice system of this country,” adding that he should “not give into political pushes that would push us clearly in a wrong path with long-term consequences.”

Retired Major General William Nash said pushing the 9/11 trials into military commissions would “give aid to our enemies” and “lessen our reputation with our allies.”

Even General Colin Powell opposes the idea: “The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS’s Face the Nation.

Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists’ right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.

Graham doesn’t seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.

“There is a law already on indefinite detention,” Senate Armed Services Chairman Carl Levin, (D-MI), told Congressional Quarterly. “It’s called the Geneva Convention.”

Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said “I don’t think there’s any need for a new statute,” adding that it “confuses the issue to suggest that we don’t have that authority now.”

That hasn’t stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.

The question is whether anyone will fall for it this time around.

Families of 9/11 Victims Support Federal Courts

2010-03-11T07:17:00.000-08:00

As the debate continues around federal courts or military commissions for 9/11 terrorist suspects, it’s worth listening to those who lost family members in the attack. Kristen Breitweiser, who lost her husband on 9/11, writes about talking to her fourth grade daughter about the news that President Obama may soon reverse the decision to try KSM in federal courts. Talat Hamdani lost her son, a NYPD cadet who died trying to evacuate the World Trade Center, writes that such a reversal “would send the message that our principled decisions become expendable when the going gets tough. That is not the legacy I wish for my son.”

Trying 9/11 suspects in federal courts is the surest way to serve justice for Kristen and Talat. They have waited long enough.

Our federal courts are best equipped to handle the case against KSM and the other 9/11 defendants for a multitude of reasons: they have a successful track record, especially compared to the flawed military commission system, they have the necessary tools to protect sensitive information, they would signal to the country and the world American faith in the rule of law and our institutions upholding it. The facts and the experts are behind federal courts.

Lawyers Call Military Commissions a Bad Idea

2010-03-10T14:32:00.000-08:00

Two experienced Guantanamo lawyers, Darrel Vandeveld and Joshua Dratel, explain why military commissions are a bad idea and how using federal courts is being tough on terror, in Salon today.

The authors raise a simple question:

There are times in life when you don't want to hear, "Well, this will be a
learning experience for us all." Open-heart surgery. In-flight emergencies.
Repairing your Toyota. So what about the most important terrorism trial in
United States history?

Read the argument they mount - it's compelling, as are the facts. Why the debate?

Bush Administration National Security Officials Don't Want to Rule out Federal Courts for Terrorism Trials

2010-03-09T10:46:00.000-08:00

A New York Times article today cites many national security officials from the Bush Administration who want to keep the option of using federal courts for terrorism trials.

Juan C. Zarate, deputy national security adviser for combating terrorism to Mr. Bush from 2005 to 2009 was quoted in the article:

We shouldn’t inadvertently handcuff ourselves by taking this tool completely out
of our tool kit.

Indeed, federal courts have a better track record than military commissions. Read the facts.

Round-Up: Retired Military Leaders for federal court trials of KSM

2010-03-08T14:43:00.000-08:00

On Friday March 5, 2010, after reports that President Obama might change course and use military commissions, rather than federal courts, to prosecute the 9/11 defendants - a big mistake - HRF quickly mobilized some voices of reason for a press call.

The call featured HRF CEO & President Elisa Massimino and three members of a distinguished group of retired military leaders, with whom we have been working for years to end torture and close Guantanamo.

Listen to the call / read the transcript.

The press call received a flurry of press – see the major articles below:

Debate Flares Anew on Civil vs. Military Terror Trial New York Times, March 5, 2010
Terrorism trial creates political problem for Obama Los Angeles Times, March 5, 2010
Obama Administration Considers Trying 9/11 Suspects in Military Tribunal Wall Street Journal, March 5, 2010
Gen. Nash: Don’t Let Fearmongers ‘Drive Us Away From Doing the Right Thing’ Washington Independent, March 5, 2010
Rights groups slam rumors of Obama flip on KSM trial Washington Times, March 6, 2010
Possible KSM Trial Move Draws Backlash, CBS News, March 5, 2010
Obama Aides Still Reviewing Moving Sept. 11 Trial From New York, Bloomberg Business Week, March 5, 2010
Rights groups warn Obama on 9/11 trial U-turn, AFP, March 5, 2010

Call the White House today to urge the President to not make this wrong decision. And spread the word!

Cheney's Fearmongering Spurs Conservative Backlash

2010-03-08T09:09:00.000-08:00

The tide is turning on Liz Cheney and her fearmongering. This weekend there was a flood of criticism, from Republicans and Democrats alike, about her ad calling Department of Justice lawyers the "Al Qaeda 7" and the DoJ the "Department of Jihad."

Politico reported on a letter signed by a number of conservative policy experts and lawyers calling the attacks made by Keep America Safe and conservative media as "shameful" and against the U.S. legal tradition going back to John Adams and carrying through today.

Daphne Eviatar, a senior associate at Human Rights First, also questioned the timing of this attack - following the recent release of the Justice Department ethics report calling into doubt Bush Administration lawyers John Yoo and Jay Bybee.

Finally, Human Rights First also responded to this latest video with some humor - another in our "Keep America Afraid" series:

Liz Cheney's Impeccable Timing

2010-03-07T13:18:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at The Huffington Post

It’s nice to see that even conservatives are disgusted with Liz Cheney’s latest attack on Eric Holder. As you've no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that’s what defense lawyers are supposed to do, but that doesn’t stop Liz Cheney from creating scary videos insinuating that defending someone swept up by US forces and accused of terrorism is somehow fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.

Cheney and her small but highly vocal group Keep America Safe know how to prey on people’s worst fears and prejudices. So I’m not all that surprised by their attack on lawyers like Neal Katyal, a Georgetown law professor and now Principal Deputy Solicitor General, who previously argued that the Bush administration's military commissions were unconstitutional – and convinced a conservative U.S. Supreme Court that he was right.

But there’s another reason Cheney’s latest attack should not have come as a surprise. Consider the timing: late on Friday, February 18, the Department of Justice released a long-delayed report that set out the details of how two Justice Department lawyers, in close contact with the Vice President’s office, wrote a series of legal memos that grossly perverted existing law and longstanding legal precedent to justify some of the most heinous acts of torture and institutionalized abuse of U.S. prisoners in American history. Although a career official at the Justice Department ultimately decided that the department’s internal ethics rules were too unclear to recommend sanctions, the facts of the underlying report remain a damning indictment of attorneys John Yoo and Jay Bybee, among others, who gave the legal green light to criminal and immoral conduct.

What better time for Liz Cheney to change the subject?

Sure enough, a little more than a week later, and just days after the Senate Judiciary Committee held a hearing on the Justice Department’s ethics report, Keep America Safe on March 2 released its video on “The Al Qaeda 7” – seven unnamed lawyers in the Justice Department with some connection at some point in their careers to the defense of a Guantanamo detainee.

Immediately, the media shifted gears: it was no longer John Yoo we cared about, now it was the “Al Qaeda 7” – mysterious Justice Department lawyers who pal around with terrorists. Republican lawmakers such as Sen. Chuck Grassley of Iowa quickly jumped on the bandwagon.

Sure, the argument came to look kind of silly after The Huffington Post unearthed a 2007 article by Bush administration Solicitor General Ted Olson in which he specifically stood up for those detainees’ defense lawyers, saying they represented the best of American values and were the real patriots. And then several prominent conservative lawyers, such as former DOJ officials John Bellinger and Peter Kiesler, publicly criticized the Cheney attack ad as “unfortunate” and “wrong.”

But maybe none of that really matters. After all, it wasn’t like the Al Qaeda 7 had actually done anything wrong or were at risk of any criminal or professional censure. On the contrary, they’d done exactly what the legal profession requires them to do: zealously defend their clients. But Cheney’s attack conveniently shifted the spotlight away from other former Justice Department officials who actually are at risk of professional and criminal sanction.

The Office of Professional Responsibility’s final report provides ample evidence former Justice Department attorneys John Yoo and Jay Bybee intentionally wrote legal memos that were blatantly wrong. It also suggests that White House officials were intimately involved in that process. The fact that John Yoo’s e-mails were “deleted” and unavailable to the ethics investigators is no small matter either, both for what additional evidence those e-mails might have contained and because destroying federal records is a crime -- as is obstruction of justice.

Liz Cheney may have managed to temporarily distract the news media from the subject of her father’s role in developing illegal policies that authorized torture. But let’s hope that the Senate Judiciary Committee continues to press its probe, for there are many observers out there, both at home and abroad, who have not so easily forgotten.

Daphne Eviatar Q&A on Facebook

2010-03-07T11:31:00.000-08:00

Last week, Daphne Eviatar took time to answer user questions via the Human Rights First Facebook Page. She recently attended the Senate Judiciary committee hearing on the investigation into memos the Justice Department sent authorizing the torture of detainees during the Bush administration.

Here is the conversation as it happened on Facebook:

Q: In your blog you wrote "Under strong questioning from Senator Patrick Leahy (D-Vt.), Grindler did promise to look into the mysterious disappearance of John Yoo's and Patrick Philbin's e-mails, which Office of Professional Responsibility investigators noted "hampered" their investigation. After all, government ... See Moreofficials are legally required by law to maintain their official e-mails, as Leahy reminded Grindler, picking up a copy of the U.S. Code."

For those unfamiliar with the issue - can you elaborate a bit on the missing emails?

A: Yes, well that was the highlight of the hearing! In the OPR report, the investigators mention that one small problem with their investigation was that ALL of John Yoo's e-mails had been deleted. Whoops!

So Leahy's now insisting that DOJ try to find out what happened to them, and if Yoo broke a law (another one, I mean).

Q: Sarah Phillips wrote: What can we do to ensure that someone is actually held accountable and prevent something like this from happening in the future?

A: I think it's important to keep the heat on the judiciary committee and the DOJ to insist that the disappearance of these e-mails be investigated. It may be the only way to keep even some small part of this investigation alive.

Another way to force an investigation is to pressure President Obama and Congress to appoint an independent, nonpartisan commission -- kind of like the 9/11 commission -- to investigate the full story of what really happened. There's strong precedent in the US for doing that, and it takes it away from the politicians, so the outcome isn't politicized.

Q: Celia Morgan wrote: They are the bottom of Bush's National Ocean Preserve with the rest of the missing GOP e mails. How do we go The Hague and beg for assistance?

A: Celia, I wish there was a way to go to the Hague, but the US has not signed on to the International Criminal Court, so there's no way any case would be brought there. However, some other countries, such as Spain, do have prosecutors who are looking into whether US officials during the Bush administration broke laws, like the anti-torture laws. That's a start.

Q: Cody Merritt wrote: Hi Daphne. Do you think that there is hope the "Commission of Inquiry" will gain some momentum?

A: I think Cody and I were writing at the same time -- and thinking along the same lines. Yes, it's a possibility, but it needs political momentum... some real public pressure.

Q: Scott Nicolson wrote: ^This is an excellent question. This isn't just a matter of U.S law - these are violations of international law we're talking about. As I understand it, we are legally obligated to investigate and prosecute torture by virtue of the treaties to which we are a part. Does this not mean that, if the DoJ and/or Senate refuse to do so, that means that ... See Morethey are all in violation of international law? Are they not *concerned* about this?

And last I heard, Spanish courts are pressing on with investigations into allegations of torture. The UK's ongoing investigations into the Iraq debacle are interesting too. How embarrassing would it be if other nations or bodies had to investigate and prosecute because we don't have the "political will" to do so - or whatever excuse the Powers That Be would like to make this time....

A: Scott, you're absolutely right. It's very embarrassing. At least to us. But what's amazing is that the Justice Department, the president, and most members of Congress don't seem concerned enough about it to insist on an investigation. But yes, it's a violation of the Convention Against Torture and domestic laws implementing it. And if you read the ... See Morefinal OPR report that was issued, you realize just how flimsy and preposterous were the legal justifications that John Yoo and Jay Bybee made up to say it was all legal.

It's funny, when I read the OPR report, I was both incredibly proud that the Justice Dept put together this exhaustive investigation, analyzing the completely twisted legal reasoning of their own lawyers, AND thoroughly disappointed that the lawyers' conduct was still not considered "professional misconduct" let alone criminal conduct. But then, the DOJ report wasn't addressing the criminal conduct piece.

Q: Alysha Havey wrote: Is there anything that I (and everyone reading this) can do to see some justice here?

A: Alysha, I know it doesn't sound like much, but you and everyone else can contact your representatives, and contact the Obama administration -- they say they love to hear from people -- and tell them what you think. Honestly, that does make a difference. Politicians do pay attention to constituent calls more than you think. Hey, look at the Tea Partyers--why let them get all the attention?

Just send them an e-mail! and I'll see if Human Rights First can put together a petition that we can send around.

The other thing people can do is just use these sorts of online forums, blogs, etc. to get your voices heard -- comment on stories you see on this issue and say what you think, because you'd be surprised at how much lawmakers pay attention to blogs and other online postings these days. They're huge -- modern politics has its problems (lots of them), but the internet is a hugely empowering tool for people.

Q: Scott Nicolson wrote: I'm not sure I understand the issue of ICC jurisdiction. According to Wikipedia, the ICC has jurisdiction in Afghanistan. It may also have jurisdiction in other nations where torture was committed on behalf of the United States, though I'm not sure.

A: Scott, that's a great question. The ICC is very confusing. Generally, the ICC only has jurisdiction over countries that are members of the court, and the US is not a member. But you're right that there are exceptions. For example, if the crime took place in a country that is a member, then the ICC can exercise jurisdiction over it if the country ... See Morerefuses to prosecute the case itself. Or, the country is not a member, then the UN Security Council can still refer a case to the ICC. The problem is, the US has so much control over the Security Council that no case against the US would ever get referred to the ICC without the US's consent. So as you can see, there are serious limitations to the ICC's jurisdiction.

Q: Allyson Gavaletz wrote: Daphne - this is the first I am hearing about all this. Why isn't this a big news story?

A: Allyson, thank you for that question! You're absolutely right, it's been basically buried. I think the reason is that most mainstream press just assume that the Justice Department won't criminally investigate this case for obvious political reasons, and as a result has adopted the view that an investigation isn't realistic, so it doesn't matter, so... See More it's not newsworthy... even though, as several people have pointed out here, a criminal investigation is legally required by our international obligations. So it's basically a failure of the mainstream press.

Q: Haley Nicholson wrote: Are there any members of either the House or Senate who has strongly pursued this issue? So when we contact our members we can say whose efforts they should join?

Q: Cody Merritt wrote: Is there a strong group of Congressman that are behind some kind of inquiry? Or are people more hands off?

A: Wait, one last response to Haley and Cody: yes and no. A few key people have been strong supporters of further investigation: in the Senate, that would be Leahy, Whitehouse, Feingold and Durbin. (sorry if I'm forgetting someone else, but that's who comes to mind.) In the House, Nadler and Conyers have been very strong on this too. Conyers introduced legislation for a commission that seemed very strong. Do push them to take this further, they definitely need to hear from supporters that people care!

We have a petition running for a commission to get the truth about past abuses. Sign that here: http://bit.ly/cFw0rM and we'll soon be in touch with further actions you can take!

Thanks for participating in our chat!

Pushing back on Cheney Fearmongering: Who are the Real Crazies?

2010-03-05T11:05:00.000-08:00

Human Rights First released a new video shooting down the most recent bout of Cheney fearmongering - in the spirit of the recent release of the film "The Crazies."

When you call Justice Department lawyers Al Qaeda members, who are the real crazies?

Did you miss our previous hit "Keep America Afraid"? This one spoofs the original Keep America Safe video:

If you would like to learn more and stay involved, join our Guantanamo campaign:

Sign our petition if you haven’t.
Follow us on Facebook and Twitter!
Get the facts about why federal courts are the right place to try suspected terrorists.

A Reversal on the 9/11 Trial Would Send All the Wrong Messages

2010-03-05T06:56:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at The Huffington Post

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

To be sure, the Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.

Update: The blogs are abuzz about today's WaPo story. Here are a few noteworthy opinions on the controversy, from Deborah Pearlstein, Glenn Greenwald, Scott Horton and Marcy Wheeler. And a nice editorial from the New York Times on Lindsey Graham’s “assault on the courts and prosecutorial discretion.”

Update II: This post, from a 9/11 widow upset that Obama may not keep his word on the trial, is definitely worth a read.

Thiessen Watch: A REAL expert calls Marc out on torture

2010-03-04T09:55:00.000-08:00

By Renée Schomp
Law and Security

On Slate yesterday, former senior military interrogator Matthew Alexander raised a metaphorical eyebrow at the sometimes bizarre, sometimes chilling pro-torture assertions made by Marc Thiessen in his recently published book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama is Inviting the Next Attack. Alexander sums it up when he points out that frankly, “Courting Disaster is nothing more than the defense's opening statement in a war crimes trial.”

It is a relief to hear from a real expert on military interrogations, and yet a shame that it is Thiessen who gets the spotlight on this issue. Human Rights First has been working for years with Matthew Alexander and a group of interrogators who maintain that torture does not get results. Furthermore, as Alexander points out,

Thiessen and the torture apologists mock every American soldier who has followed
the rules of law and ethical warfare. He insults every interrogator who has
learned to elicit information without resorting to medieval abuses.

All voices have a right to be heard—but The Washington Post should know tht Americans are unimpressed by the decision to give Marc Thiessen a column in which he continues to promote abusive interrogation practices and crumble any moral ground our country still stands on.

Send a letter to The Washington Post today letting them know their choice is disappointing—and irresponsible. We’d like to hear from some REAL experts on national security.

Supporting 9/11 Trials in New York

2010-03-03T12:42:00.000-08:00

The LA Times ran an article yesterday underlining that there is support for holding the 9/11 terrorism trials in New York.

Though Manhattan officials and New York lawmakers have forced Holder to
reconsider, lawyers, federal marshals and security experts on other high-profile
terrorism cases think that a trial can safely go forward.

Human Rights First is focusing campaign efforts around getting Guantanamo closed and trying suspected terrorists in federal courts. We have experts and the facts behind us, and substantial research on terrorism trials since 9/11. Join our campaign!

Pressure Mounts on DOJ to Produce Missing Torture Memo E-mails

2010-03-01T14:44:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

The pressure is growing on the Justice Department to produce supposedly "deleted" e-mails that could reveal whether government lawyers during the Bush administration were instructed to devise legal justifications for torture.

These are, as I noted last week, most of John Yoo's e-mails, and a chunk of those of his colleague Patrick Philbin at precisely the time that Philbin was involved in reviewing two of the controversial Office of Legal Counsel memos approving torture, stress positions, prolonged sleep deprivation and other abusive interrogation techniques. As the Office of Professional Responsibility pointed out in its final report on the lawyers' ethical obligations, those e-mails were all oddly deleted and unretrievable

So far, Citizens for Responsibility and Ethics in Washington (CREW), the National Archives, Senator Patrick Leahy (D-Vt.), and The New York Times have called on DOJ to find and produce the e-mails or lauunch a criminal investigation if they were indeed destroyed.

Then on Monday, Rep. John Conyers (D-Mich.) took a different tack; he called on the the National Archives to produce the White House side of those missing e-mails, since those are presidential records that must be retained under the Presidential Records Act.

Over the weekend, John Yoo, while railing at the “incompetence” of the OPR, which was “obviously biased” and “selectively tried to persecute only a few officials” in the OLC (they should have gone after the whole Justice Department, apparently), denies that OPR didn’t have his e-mails and adds that in any event, the Justice Department’s e-mail system is unclassified and so couldn’t be used to discuss interrogation techniques that were “classified at the highest levels of secrecy.”

Of course, discussions between Yoo and the White House or CIA about the memos he was writing didn’t necessarily have to contain classified information in them for them to reveal whether senior officials were instructing Yoo to find a justification for breaking the law. In fact, many e-mails referenced in the report related to the memos were not classified, as Marcy Wheeler pointed out on Sunday.

Meanwhile, the National Security Administration, as it notes on its website, provides “security configuration guides” for government agencies to help them transmit classified material electronically. So whether it was through his DOJ e-mail or another government e-mail address, Yoo was almost certainly able to send classified material to his “clients” – the White House and the CIA -- by e-mail.

There doesn't appear to be any real question that Yoo was required to retain those e-mails. As CREW wrote in its letter, the Federal Records Act requires the preservation of government documents. Over the weekend, Jason Leopold pointed out on Truthout that the DOJ’s web site explains that an e-mail is probably a federal record that must be preserved if it documents "agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities; Provides comments on or objections to the language on drafts of policy statements or action plans; or Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities.” The DOJ rules also say that "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Even if Justice refuses to further investigate whether high-level officials in the former administration broke the law, it may feel some pressure to at least investigate whether a DOJ attorney broke the DOJ’s own rules – which may turn out to be an attempt to cover up some much more serious lawbreaking.

Senate Judiciary Committee Hearing on Ethics Report Disappoints

2010-02-26T09:28:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted from Huffington Post.

For anyone hoping the Justice Department would commit to further investigation of the latest evidence that White House officials instructed their lawyers to find legal justifications for torture in the aftermath of Sept. 11, today was a disappointment.

Testifying to the Senate Judiciary Committee, Acting Deputy Attorney General Gary Grindler told Senators that the department's legal ethics report issued last Friday, and its decision not to recommend disciplinary sanctions for Office of Legal Counsel lawyers John Yoo and Jay Bybee, constitute "this department's final action."

Under strong questioning from Senator Patrick Leahy (D-Vt.), Grindler did promise to look into the mysterious disappearance of John Yoo's and Patrick Philbin's e-mails, which Office of Professional Responsibility investigators noted "hampered" their investigation. After all, government officials are legally required by law to maintain their official e-mails, as Leahy reminded Grindler, picking up a copy of the U.S. Code.

But what about all the other evidence that wasn't available to the OPR investigators? There was no discussion of the fact that almost all of the White House witnesses refused to speak to the Justice Department investigators, as did former Attorney General John Ashcroft.

Leahy opened the hearing with a reminder that a year ago he'd recommended creation of a nonpartisan "Commission of Inquiry", along the lines of the 9-11 commission, that would thoroughly investigate how torture became part of official U.S. policy. But that proposal never really won much support, and we heard no indication today that Senators plan to insist it happen.

Senator Richard Durbin (D-Ill.) made an eloquent statement acknowledging that the Yoo and Bybee memos defining torture as so extreme that it must be equivalent to the pain accompanying organ failure or death "provided legal cover for the Bush administration to authorize waterboarding," which he called "a torture technique that our country has historically repudiated as torture and even prosecuted as a war crime."

“We have learned that even when America is fearful and concerned about terrorism we should never forget our basic values," concluded Durbin, who's been pressing for release of the OPR report for over a year. "The time will come when those who do will have to answer for it."

Really, they will? How?

That's the big question left open after this hearing. Will anyone be held accountable for the unlawful torture and abuse of detainees in the never-ending "war on terror"? And if they're not, what's to stop such "enhanced" measures from being taken again?

Indeed, some Senators are already urging just that, and using the decision of career Associate Deputy Attorney General David Margolis not to recommend that the lawyers be disciplined by their state bar associations as evidence that Yoo and Bybee were right all along.

"The Department's decision confirms that John Yoo and Jay Bybee deserve nothing but thanks from a grateful American public" for saving us from the next terrorist attack, declared Sen. John Cornyn (R-Tx), adding that the department's preliminary inquiry into whether any CIA interrogators went beyond the memos' authorizations should be dropped as well.

Sen. Jeff Sessions (R-Ala.) similarly criticized the current administration for repealing "tough and effective interrogation techniques that are lawful," at the same time as he said the investigation was an embarrassment that "has created the impression worldwide that there's been consistent torture, that the president had a policy to violate the law." He then called on the Justice Department to investigate who had embarrassed Yoo and Bybee by leaking earlier versions of the report, before hammering away at the Obama administration for giving Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, the right to a lawyer.

In other words, a hearing on the outcome of a 5-year investigation into how the United States came to authorize torture and cruel, inhuman and degrading treatment of detainees in its custody, in violation of longstanding U.S. laws, values and policies, devolved into partisan politics. Maybe it's what we should have expected. But it was still a disappointment.

What We Need to Hear About the Torture Report

2010-02-25T14:00:00.001-08:00

SPECIAL ANNOUNCEMENT:

Author responds to your questions live on Facebook, Friday at 3:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted from Huffington Post.

At 10 a.m. on Friday, February 26, the Senate Judiciary Committee will hold a hearing on the Office of Professional Responsibility’s investigation into the Justice Department memos that authorized the torture of detainees in U.S. custody during the Bush administration.

That’s a good start for a committee that’s closely followed this issue, but it should be just the beginning.

Human Rights First will be attending and blogging on the hearing. We’ll also be answering readers’ questions about the report, the Senate hearing, and the various ways of holding accountable the government officials who participated in plans to interrogate prisoners using torture and cruel, inhuman, and degrading treatment.

So far, the only witness scheduled to testify at that hearing is Gary G. Grindler, the Acting Deputy Attorney General who’s temporarily replaced David Ogden, the senior DOJ official who resigned in December.

Given that the OPR report found that Office of Legal Counsel lawyers deliberately or “recklessly” twisted the law to justify the use of interrogation techniques that amounted to torture, the Justice Department now has strong evidence of a criminal conspiracy. But we need to know more, and we hope the Senators on the Judiciary Committee tomorrow will be asking the right questions.

Here are some questions we'd like to put to the Justice Department, and to the Committee:

1) Where will the Justice Department take this investigation from here? What are the next steps?

2) The OPR said its investigation was hampered by the mysterious disappearance of John Yoo’s e-mails, as well as those of his colleague, Patrick Philbin. The FBI has the technology necessary to recover deleted emails. Will the Justice Department employ that technology?

3) The disappearance of Yoo’s and Philbin’s e-mails are more than just suspicious. It may amount to a deliberate obstruction of justice. Will DOJ investigate when and why the messages were deleted, and whether their deletion amounts to a crime?

4) In addition to the missing e-mails, the OPR investigators noted that many key witnesses “declined” to speak with OPR, seriously limiting its investigation. Witnesses who refused to speak to investigators included every former White House official except Alberto Gonzales, and almost all of the CIA attorneys. CIA records also were not available. Only by collecting all of this relevant evidence can we know what instructions White House and CIA officials gave to the OLC lawyers, and whether the lawyers were told to draft legal justifications for what both lawyer and client knew was criminal conduct. Will DOJ use its subpoena power to require those witnesses to provide testimony and relevant records?

5) The Justice Department has so far suggested that it will not criminally investigate the conduct of any senior officials or lawyers in the prior administration. Will the Senate Judiciary Committee schedule further hearings of its own to find the answers to these questions?

6) Some lawmakers have proposed an independent, nonpartisan "Commission of Inquiry" to investigate how the U.S. came to abuse and torture detainees. A commission could go a long way toward revealing what really happened and making concrete recommendations to keep it from happening again. Will the Justice Department and Senate Judiciary Committee support creating a commission to ensure that we learn from our past mistakes?

Please suggest any more questions you’d like to see answered, and follow up with any questions for us after the hearing!

Lindsey Graham v. The U.S. Military

2010-02-24T13:51:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

Senator Lindsey Graham (R-S.C.) likes to tout his experience as a former military lawyer. Graham apparently thinks this makes him sound more convincing when he goes around advocating military trials for all suspected terrorists, as he's been doing lately. Graham's now trying to get that idea signed into law in a bill he's introduced in the Senate. A similar provision is likely headed to a vote today in the House of Representatives.

The odd thing is, in doing this, Graham is going up against a huge and rapidly-growing number of military leaders – including Defense Secretary Robert Gates himself – who say that forcing the government to try suspected terrorists in military commissions is a really bad idea.

In October, Gates joined Attorney General Eric Holder in a letter to Senators urging rejection of the Graham amendment. Noting that the Pentagon and Justice Department now work jointly to evaluate every terrorism case, they wrote that “it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions.”

As the defense secretary put it: “We must be in a position to use every lawful instrument of national power—including both courts and military commissions—to ensure that terrorists are brought to justice and can no longer threaten American lives.”

Then on Sunday, former Secretary of State General Colin Powell, who served in both the Bush I and Bush II administrations, made the point that civilian federal courts have been far more effective than any military commissions.

“In eight years the military commissions have put three people on trial,” said Powell. “Two of them served relatively short sentences and are free. One guy is in jail.” Meanwhile, the civilian court system “has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions."

In an apparent reference to Graham, Powell added:

"I think a lot of people think, 'just give them to the military and the military will hammer them.' Well, guess what? Officers in the military are obliged to follow the constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no more whether he's a terrorist or not. And so you didn't get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning."

Even the former chief judge of the Army’s Court of Criminal Appeals in the JAG Corps disagrees with Lindsey Graham, despite Graham’s former JAG credentials.

Military investigators know how to get information on an actual battlefield, Retired Brigadier General James P. Cullen told the New York Times the other day. But prosecutors and FBI agents are better able to link intelligence to track down more terrorism suspects. They’re also better at winning convictions.

“You’ve had about 800 cases that were supposed to be run through the military commissions in Guantánamo, and there have only been three convictions,” said Cullen. “You have three-eighths of 1 percent return on military commissions, versus 90 percent plus when they are tried in the federal court.”

Yeah, but what about all those lawyers who Graham says will tell their clients not to talk? As Graham put it recently: “Is reading Miranda rights to terrorists any way to fight a war?”

Actually, retired 4-star General Colin Powell doesn’t have a problem with that.

"I have no problem with them being tried here in the United States," said Powell. "We have two million people in jail. They all have lawyers. They all went before the court of law and they all got hammered. We have got three hundred terrorists who have been put in jail not by a military commission but by a regular court system.”

As for Khalid Sheikh Mohammed, who Graham seems to think has special powers that will be unleashed against Americans as soon as he enters a federal courthouse, Powell said: "I have no problem with him being tried in our federal system here in the United States.”

Here’s what four other retired generals had to say about Lindsey Graham’s idea back in September:

“We believe that it would be wrong to treat the leaders of al Qaeda as warriors deserving of military trials,” said Retired Rear Admirals Don Guter and John Hutson, and Retired Brigadier Generals David Brahms and James Cullen in a letter to President Obama.

“America's well established system of civilian justice is not just well equipped to handle these cases, it is far better suited to the task of discrediting and defeating the terrorist enemy we face. When the planners of 9/11, including Khalid Sheikh Mohammed, are finally brought to justice, it will be an extraordinarily important moment in the struggle against terrorism. If these trials are held before civilian judges and juries, it will highlight the strength and legitimacy of our system of justice, and at long last focus the world's attention where it belongs: on the crimes these men committed against us, rather than on how we are treating them.”

Even the new-and-improved military commissions will not be able to achieve that, the military men warned. Not only are they still tainted with the stigma of Gitmo, but their questionable legitimacy will become a tactical advantage for terror suspects:

“Defendants before military commissions will have the advantage of being able to challenge the legitimacy of the system in which they are being tried, instead of simply having to face the evidence against them.” That will further delay justice: “Particularly in the most prominent terrorism cases, our nation cannot afford more legal controversy and doubt; and we will not have another chance to get this right.”

Even if the military commissions were flawless, military leaders claim that giving terrorists warrior status only bolsters their cause.

“Like virtually all terrorists throughout history, al Qaeda members want to be seen as soldiers, not as criminals. That warrior mystique helps them recruit more misguided young men to their ranks, and justifies, in their own minds, the murder of their enemies. This is why al Qaeda has always described its crimes as acts of 'war.' "

Counter-terrorism advisor John Brennan has said exactly the same thing.

And in January, a group of 33 different retired military leaders, with experience in every war the U.S. has waged since 1941, came together to urge President Obama not to treat terrorists as warriors deserving of special military tribunals.

“Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals,” they wrote. “On the contrary, we believe that Abdulmutallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of “enemy combatant” reinforces their claims to be jihadist warriors. They are not warriors. There is neither nobility nor ideological justification in murdering innocent civilians.” As for the claim that they’ll get a high-profile platform to spew their hateful ideologies, the military leaders wrote: “On the contrary, we are confident that these trials will showcase America at its best, a nation of laws.”

So the overwhelming majority of actual military leaders, with hundreds of years of military experience behind them, all disagree with Lindsey Graham.

I know Senator Graham spent six and a half years as an Air Force lawyer, but he’s never prosecuted a single terrorist. After all, that’s not what military lawyers do. For the most part, they prosecute and defend U.S. military personnel for mostly minor crimes.

So who should we believe?

I think Judge William Young, the federal court judge who sentenced "shoe bomber" Richard Reid to life in prison without parole after the Bush administration won his conviction in a civilian trial, put it best when he said to Reid at his sentencing:

"You are not an enemy combatant.

“You are a terrorist.

“You are not a soldier in any war.

“You are a terrorist.

“To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or if you think you are a soldier.

“You are not--you are a terrorist.

“And we do not negotiate with terrorists.

“We do not meet with terrorists.

“We do not sign documents with terrorists.

“We hunt them down one by one and bring them to justice.

“So war talk is way out of line in this court. You are a big fellow. But you are not that big.”

What a Russian Human Rights Activist Said to President Obama

2010-02-24T12:38:00.000-08:00

By Yuri Dzhibladze, President of the Center for the Development of Democracy and Human Rights, a Russian public policy and advocacy NGO. Yuri met with President Obama prior to the Human Rights Summit, an international gathering of human rights defenders organized by Human Rights First and Freedom House

Crossposted from Huffington Post

What I Said to President Obama

Last week, I joined nearly two dozen human rights defenders for a White House meeting with President Obama and senior National Security Council staff. It was an opportunity for human rights defenders from around the globe who have gathered in Washington, DC for the 2010 Human Rights Summit to tell the President and his team about what is happening on the ground in our respective nations. Here is what I said:

We have no doubt that we are living through a period of global backsliding of democracy and autocratic assault on vital freedoms. We, human rights defenders in different countries, feel it with our own skin, in our own work and life, not only read in the Freedom House reports.

While ultimately responses to the challenge of autocracy lie with the ability of the public in our own countries to get organized and nonviolently change our political systems, our common prospect to successfully respond to the global anti-democratic backlash depends very much on restored international credibility of the U.S. as a moral leader in the field of human rights and democracy and in its ability to lead by example. In this context it is important to look at challenges of America's new engagement with non-democratic governments and the difficult choices the United States face at home in dealing with the dilemma of protecting fundamental rights while fighting terrorism.

First, have no doubt that we understand and agree with arguments behind the choice of the engagement strategy. In fact, many of us urged the U.S. that arrogance, self-righteousness, and lecturing should give way to ability to listen, act respectfully, and build dialogue, even with unpleasant and difficult interlocutors. We acknowledge the value of this approach; we see how anti-Americanism has indeed started to decrease and how you have been able recently to secure new level of cooperation with many governments in vitally important areas of military security, counter-terrorism, nuclear non-proliferation, and trade. We know that building dialogues with difficult partners is by no means an easy process.

We have heard a message from you that engagement with non-democracies will be not happening at the cost of addressing human rights and democracy issues and American support to democratic activists and human rights defenders. However, so far it has not worked this way. Many autocrats have taken search for common interests and a more intelligent and discreet approach of the U.S. government for its weakness, and in fact quite a few of them have not delivered what they promised to the U.S. At the same time they successfully continue their anti-democratic practices and their attack on fundamental freedoms, putting in jail and murdering opposition members, silencing criticism and dispersing protests, rigging elections and manipulating courts.

Many of us on the ground feel forgotten, fear that human rights and democracy have been traded in, taken out of the equation of new relationships based on engagement. Can it be that in order to maintain dialogue and build good will the U.S. have changed not just the tone but the message? One may say that it is not true and that we do not know what really goes on behind the doors. But this is the way we feel, our public feels, and this is the way our governments feel too - with a different attitude, of course.

This should not be happening. Successful U.S. engagement with non-democracies should incorporate all key elements that are vital for American interests. We dare to believe that human rights and democracy are still among them, equally important to security and trade. They should be an integral, essential and permanent part of bilateral dialogues, not just occasional ad hoc expressions of concern by the White House when something terrible again happens in our countries. These statements are easily ignored by the autocrats because there are more important "real" things for both sides to focus on.

After all, while you are trying hard to secure cooperation of non-democracies now, in the long run you must be really interested in these nations becoming democratic: we know that democracies do not go to war with each other. Even when one speaks with others with respect and good will, it is important to base one's behavior on values and principles, to be consistent, to speak clearly, to call things by their real names and to avoid pursuing engagement at any cost. We know that you are grappling with these dilemmas but we want you to hear that we are not happy with the way things are going on now.

Likewise, we want you to know that America's decisions at home matter greatly to us. When the previous U.S. administration violated human rights while professing to spread liberty across the globe, it allowed autocrats in various countries to accuse America of double standards, justify their own violations, and attack human rights defenders. When President Obama ended torture and promised to close Guantanamo, you started to restore American moral leadership in human rights. We were all excited. The time has come now to deliver on these promises.

We say to you loud and clear: close this base, try the terrorism suspects in a due process in a court of law, do not give in to the growing pressure to adopt statutory regime for indefinite or preventive detention, and ensure accountability for the crimes of torture. Destructive practices eroding human rights standards could be dismissed as a temporary detour when they were pursued by the previous administration. But if they are adopted by this administration, this will make a permanent and hard blow to the whole system of international human rights norms.

Is indefinite detention and impunity for torture the kind of legacy this President would like to leave behind? Millions in this country and across the world who celebrated the dawn of a new hope with election of Barak Obama would be devastated and their expectations dashed. Equally important, America's ability to revitalize multilateral institutions and talk persuasively with others about human rights and democracy would be fundamentally undermined.

Please remember that these decisions are not only very important for the health of American nation but directly affect our ability to continue carrying on our struggle for democracy, rule of law and human rights in our countries across the globe.

Who Told Yoo To Do Those "Bad Things"?

2010-02-23T13:34:00.000-08:00

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

Among the many striking aspects of the Justice Department’s recently-released ethics report on the creation of the “torture memos” are the repeated indications that John Yoo, the memos’ principal author, was in frequent direct contact with the White House and under intense pressure to quickly approve abusive interrogation techniques that policymakers had already chosen to implement but knew might amount to torture.

The final report reveals that despite repeated criticism of Yoo’s draft opinions and conclusions from the most experienced, knowledgeable senior attorneys and military officials within the Bush administration, the memos, written by a relatively junior attorney within the Office of Legal Counsel and representing an admittedly “aggressive” view of the law, were adopted and used to determine CIA and defense department interrogation policy.

Those facts underscore that the long-delayed final report from the DOJ’s Office of Professional Responsibility should be the beginning, not the end, of any investigation. What we still need to know is who was instructing the OLC lawyers and what exactly the lawyers were told. If White House officials were instructing them to create legal justifications for a program those officials knew was likely illegal, then we have evidence of a high-level criminal conspiracy.

Yoo Was Under “Significant Pressure” to Justify Torture

That’s in fact what National Security Counsel legal advisor John Bellinger suggested, perhaps inadvertently, when he told the OPR investigators, as they describe in their report: “Yoo was ‘under pretty significant pressure to come up with an answer that would justify [the program]’ and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006.”

The final report provides lots more evidence of that. For example, Yoo began drafting the sections of a memo concluding that the president has extraordinary power to ignore the law and setting out several possible defenses to torture directly after a meeting at the White House. Although Former Deputy Assistant Attorney General Patrick Philbin told Yoo that “he thought the sections were superfluous and should be removed,” Philbin said that “Yoo responded,‘They want it in there.’” OPR recounts that “Philbin did not know who ‘they’ referred to and did not inquire; rather, he assumed that it was whoever had requested the opinion.”

Because of the urgency of the process – there are frequent references to time pressures imposed by the White House throughout the report -- Philbin advised Bybee that he could sign the opinion despite its problematic sections on defenses and executive power because “they are telling us this has to be signed tonight.”

Former Attorney General Alberto Gonzales, meanwhile, who was White House counsel at the time the memos were drafted, told OPR that he didn’t recall discussing the two controversial sections of the memo, but “speculated that because David Addington had strong views on the Commander-in-Chief power, he may have played a role in developing that argument.”

Gonzales later commented that Addington was “ ’an active player’ in providing his view and input on the draft memorandum.”

“I’d be very surprised if David [Addington] did not participate in the drafting of this document,” Gonzales said at one point.

But if OLC’s job is to provide the executive branch with objective legal advice, then why would the Vice President’s legal advisor actively participate in the OLC memo drafting process? Addington appears to have been not just interested in the outcome, but eager to influence it.

Senior Administration Lawyers Objections Were Ignored

Significantly, throughout this drafting process, Michael Chertoff, then chief of the Justice Department’s criminal division and apparently the only lawyer involved who was actually an expert on criminal law -- refused to sign on to parts of Yoo’s analysis and refused to provide a letter promising not to prosecute interrogators for the conduct specified in the memos.

Chertoff at one point told Yoo that he was concerned that the memo could be interpreted as providing “blanket immunity.” He also told Yoo that for the interrogation techniques to be defensible, he needed more evidence that OLC had researched their actual effects on individual subjects. But the final memos instead simply adopted the CIA’s blanket assertions that the techniques would not cause lasting harm and were effective.

Philbin also told Yoo that he disagreed with parts of his memos and their analysis, including his use of an irrelevant medical benefits statute to define the “severe pain” necessary for abuse to constitute torture. Construing severe pain as the kind associated with organ failure, Philbin said, “did not provide ‘useful, concrete guidance concerning what amounts to ‘severe pain,’ ” because “there is no readily identifiable level of pain that precedes medical events such as organ failure.”
Yet despite these criticisms, OPR notes that as the drafts progressed of Yoo’s torture memo – what Yoo euphemistically called the “bad things” memo – the drafts increasingly emphasized that the pain had to rise to extraordinarily “severe” levels in order to be considered torture – deliberately including the comparison to pain that accompanies organ failure.

Philbin and Chertoff also both expressed concerns about the “specific intent” required by Yoo’s definition of torture, which seemed to excuse anything except sheer sadism. The Bybee memo, for example, principally authored by Yoo and signed by Bybee, who was then head of the office, concluded that an interrogator could torture subjects so long as he didn’t have the intent to cause them severe pain or harm:

“Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.”

But as former Acting OLC director Daniel Levin told OPR: “It sort of suggested that if I hit you on the head with a, you know, steel hammer, even though I know it’s going to cause specific pain, if the reason I’m doing it is to get you to talk rather than to cause pain, I’m not violating the statute. I think that’s just ridiculous…It’s just not the law.”

The OPR report notes that Yoo also had “a lot of arguments” with members of the Pentagon’s Working Group on the interrogation techniques, who strongly disagreed with OLC’s legal analysis. Those critics included Navy General Counsel Alberto Mora, who specifically said he believed some of the EITs constituted cruel and unusual treatment or torture and would violate domestic and international law. Army JAG Major General Thomas J. Romig also had “serious concerns” about approving detainee interrogations that “may appear to violate international law, domestic law, or both.”

That the final memos ignored the concerns of senior military attorneys in the administration yet were relied upon to set policy strongly suggests that criticism was not what the client wanted to hear.

Having provided the White House with the opinions it wanted, Yoo was well-positioned to replace Jay Bybee as head of the OLC when Bybee left to become a federal judge. The only reason Jack Goldsmith was hired instead, according to footnote 83 of the report, is that Ashcroft objected “because he thought Yoo was too close to the White House.”

Critical Evidence Is Still Missing

To anyone who’s actually read the report, the White House’s fingerprints on the torture memos may seem obvious. But it’s significant that the OPR investigators were unable to reconstruct exactly what the White House instructed Yoo and his colleagues to do, because critical information – including “most of Yoo’s e-mail records and Philbin’s e-mail records during the period when key memos were being drafted and completed – “had been deleted and were not recoverable.”

OPR was also kept from reconstructing the chain of command by the fact that key witnesses “declined to be interviewed,” including former Attorney General John Ashcroft, former counsel to Vice President Dick Cheney David Addington, and former Deputy White House Counsel Timothy Flanigan.

OPR also had “limited access to CIA records and witnesses (including almost all of the CIA attorneys and all witnesses from the White House other than former White House Counsel Alberto Gonzales.)”

Ultimately, these missing pieces – plus Jay Bybee’s suspiciously “poor memory of the drafting process” made it impossible for OPR to connect the dots: to determine who instructed whom to do what.

Witnesses in the report repeatedly characterize John Yoo and Jay Bybee’s legal analyses as “aggressive” – not unlike Justice Department Assistant Attorney General David Margolis’s conclusion that the lawyers’ work exhibited “poor judgment” rather than criminal intent. Perhaps that would be an appropriate conclusion if these lawyers were advising a client making an argument to a court, where they’d face an equally aggressive opponent and the final decisions would be made by a neutral judge.

But that’s not what happens when the Office of Legal Counsel advises the president. There is no neutral judge. Indeed, OLC’s role is more like that of a judge – stating what the law is for the executive branch. That’s why the role of OLC lawyers is supposed to be different than the usual attorney-client relationship.

Indiana law professor Dawn Johnsen, President Obama’s nominee to head the OLC (and whose confirmation has been held up in the Senate for almost a year now) has written that the “paramount principle that should guide OLC’s work is the imperative to provide accurate and honest legal appraisals, unbiased by policymakers’ preferred outcomes.” The guidelines that should guide OLC lawyers, Johnsen wrote, referring to a set of “ten commandments” that she and 18 other alumni of the Office of Legal Counsel agreed upon, “come down squarely on the side of accuracy over advocacy. . . . In short, OLC must be prepared to say no to the President.”

The OPR report makes clear that Yoo and Bybee didn’t – or were not allowed to – just say no. The question that remains, and that Congress must now investigate, is whose position were they advocating, and were they instructed to ignore contradictory legal authority?

If so, then they and their “client” may have crossed more than the line between advocate and arbiter. The line that matters now is the one between “poor judgment” and criminality. And that’s far more important than whether John Yoo and Jay Bybee face ethical sanctions from their respective state bar associations.

Thiessen Watch: Marc fights for the “tummy slap”

2010-02-23T12:00:00.000-08:00

By Renée Schomp, Law and Security

It’s too terrifying to be true: we now have one of America’s most recent (self-appointed) torture apologist darlings, former Bush administration speechwriter Marc Thiessen, using his new weekly column in the Washington Post to argue that his position represents the “middle ground” on U.S. national security policy.

Then he rebukes Obama for eliminating “effective interrogation techniques” such as the “tummy slap” and a “diet of liquid Ensure,” among others.

The crux of Thiessen’s argument this week is that use of the Army Field Manual, which Obama instituted to serve as a guideline for U.S. interrogation practice, is an extreme policy that dangerously sidelines a “middle ground” on interrogation techniques. This is an absurd framing of a debate that really should have been over when the American public learned with horror years ago of Abu Ghraib and the torture of detainees at countless CIA “black sites.”

The fact of the matter, as Human Rights First’s Daphne Eviatar explained at the beginning of the month, is that the Army Field Manual itself still allows for the use of abusive interrogation techniques on detainees in U.S. custody—it certainly is not a radical bookend to this mythical “middle ground” written by Thiessen.

To keep things in perspective, let’s keep in mind that the man talking about a “middle ground” is none other than the one who said during an interview with Christiane Amanpour on CNN that torture techniques (such as controlled drowning) are okay because they do not cause “extreme pain,” and who said in the National Review that anyone who opposes such abusive techniques argues from a position of “radical pacifism.”

Sorry, Thiessen, we care about the moral integrity of our country too much to let you characterize your position on national security policy as anything approaching a middle ground. Even if you are saying it in the Washington Post.