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

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.

Lawyers Call Military Commissions a Bad Idea

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

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

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

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:

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

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.

Supporting 9/11 Trials in New York

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!

Powell and Petraeus Refute Cheney

By Sharon Kelly
Crossposted from Huffington Post, February 21, 2010

The experts have spoken.

Last week the former Vice President went on television to claim that ending torture, closing Guantanamo, and relying on our federal courts to try terrorism suspects somehow undermines American security. He's wrong. And today, Colin Powell and General David Petraeus definitively refuted him. General Petraeus, speaking on Meet the Press, said that torture has "bitten us in the backside" and that legal interrogations work. He also said that Guantanamo should be closed.
On Face the Nation, Colin Powell agreed with General Petraeus that torture should not be American policy and that Guantanamo should close. Powell went on to state his support for trying terrorism suspects in federal court and to highlight flaws in the military commissions system. Some highlights:

Powell on How Article III Courts Beat Military Commissions:

The issue about sending people to military commissions, we-- we're not using
military commissions like we should. Any time you lock somebody up or you catch
a terrorist let's give them the military commission. In eight years the military
commissions have put three people on trial. Two of them served relatively short
sentences and are free. One guy is in jail. Meanwhile, the federal courts,our
Article III, regular legal 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.

Powell on Misconceptions around Military Commissions:

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.

Powell on the Christmas Day Bomber:

Well, I was a little surprised at what seemed to be a lack of coordination
among the different agencies as to how they handle a guy and should he have been
given his Miranda rights either after ninety minutes or fifteen hours. The story
kept changing. And so I would have thought after all these years we would have
had a process in place either in the previous administration or in this
administration that when you get somebody like that we all know how to respond
and how to interrogate him or not interrogate him. But he's in jail. He's facing
trial. And I don't think it will be a difficult trial to handle. And, also, he's
still talking. They found other ways to interrogate him. But even in the
military commission, whoever is before that commission has legal rights. They
get lawyers.

Powell on the Importance of Closing Guantanamo:

. . .As does Secretary Gates and General Petraeus and so many others, John
McCain and so many others, I think Guantanamo has cost us a lot over the years
in terms of our standing in the world and the way in which despots have hidden
behind what we have at Guantanamo to justify their own-- their own positions.
Let's remember, Guantanamo once had seven hundred people there. It's down to two
hundred. Five hundred were released in the previous administration and some in
this administration. So, let's get this population of one hundred ninety-two
sorted out. If many of them are of the kind that can be put before trial, either
military commission or in our Article III courts, let's do it.

Powell on Bringing Terrorism Suspects to the United States for Trial:

I have no problem with them being tried here in the United States. 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. And
so I think we ought to remove this incentive that exists in the presence of
Guantanamo to encourage people and to give radicals an opportunity to say, you
see, this is what America is all about. They're all about torture and detention
centers.

Powell on trying KSM in New York:

I have no problem with him being tried in our federal system here in the United
States. I would not have picked Downtown New York. I would have picked, I don't
know, I don't want to single out anywhere, but I think I could have found a--
a-- military base or some facility far away from New York or a populated area
where it would not become a circus.

Others from the military concur - Human Rights First has been working with a group of retired military leaders who agree that Guantanamo must be closed and federal courts are the place for terrorism trials. Read more.

The OPR Report Is Only the Beginning

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted at Huffington Post.

In reporting on the Justice Department's long-delayed ethics investigation of the work of lawyers who approved the Bush administration's torture of detainees, The New York Times wrote on Saturday that the report's release “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”

The Washington Post, meanwhile, said the report marked “the end of a 5-year internal battle” at the Justice Department.

In fact, the release of the Office of Professional Responsibility report marks the beginning of a bigger and more important battle. Legal ethics investigators concluded that former Office of Legal Counsel lawyers John Yoo and Jay Bybee committed “professional misconduct” in advising the Bush administration that it was not against the law to torture, humiliate and abuse detainees despite longstanding domestic and international prohibitions against doing so. The battle now will be over whether the U.S. government will meet its obligations to thoroughly investigate what happened and hold the perpetrators accountable.

The final OPR report chastises the two OLC lawyers for reaching bizarre legal conclusions that were wholly unsupported by the law. For example, one of their memos claimed that torture was legal so long as an interrogator’s goal was to obtain information rather than to inflict severe pain or suffering – even if he knew he would inflict severe pain or suffering in the process. As one OLC lawyer commented on the memo at the time: “The way it reads now makes you wonder whether this is just an anti-sadism statute."

Meanwhile, the memo’s now-infamous definition of “severe pain” as necessarily “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” not only relied on an irrelevant medical benefits statute for its definition, which the OPR report calls “illogical,” but actually misquoted the language of that statute so as “to add further support to their ‘aggressive’ interpretation of the torture statute,” the OPR report concludes. Ultimately, the definition could lead an interrogator to believe, the OPR found, “that pain could be inflicted as long as no injury resulted.” It’s the “leave no marks” theory of torture.

The list of twisted and inexplicable legal conclusions is long and impressive. In another instance, the lawyers relied on extremely narrow interpretations of the international Convention Against Torture proposed by the Reagan administration that the U.S. had never adopted. And they completely ignored far more relevant sources of law on torture, such as federal court cases interpreting the Torture Victims Protection Act, which found torture had occurred in situations far less severe than the brutal interrogation techniques being contemplated in these memos. In one case, for example, a federal court held that imprisonment for five days under bad conditions while being threatened with bodily harm, interrogated and held at gunpoint amounted to torture.

David Margolis, the Deputy Associate Attorney General, ultimately overrode the recommendations of the ethics office to refer the lawyers to state bar associations for disciplinary proceedings, because he decided that the OLC’s standards for referral were unclear. But the report of the investigators who actually read and analyzed the memos that authorized such brutal conduct as “waterboarding” (controlled drowning), slamming prisoners’ heads repeatedly against a wall (“walling”), weeks of sleep deprivation, stress positions, and confinement in a cramped box with insects provides an astonishing look at how the lawyers tasked with providing objective legal advice to the White House on its most sensitive policies completely contorted ordinary logic and legal reasoning to reach the conclusions desired.

Justice Department lawyer Patrick Philbin at one point asked John Yoo why he included a wholly unsubstantiated section in one of the memos that concluded that the president of the United States, as commander in chief, can completely ignore any law he wanted – such as the prohibition against torture. Yoo said it was in the memo because “they want it in there” -- "they" presumably being whoever had requested the opinion. The memo never explained how the prohibition against torture could be construed in any reasonable way so as to conflict with the president’s authority as commander in chief.

Whether John Yoo and Jay Bybee face professional sanctions (that’s now up to their respective state bars) is far less important than whether we get to the bottom of what really happened at the Bush White House: who ordered these lawyers to come up with legal reasoning to justify torture? The OPR report suggests that David Addington, Chief of Staff to Vice President Dick Cheney, played a significant role. Who was he getting his orders from?

The OPR report is just another piece of the slowly-emerging puzzle of how the country plunged into what Dick Cheney has aptly called “the Dark Side,” abandoning its most basic belief in human dignity and the rule of law to zealously combat terrorism in a way that’s ultimately backfired; we’re now less safe, and mired in a vicious and protracted war.

In concluding that Yoo and Bybee exercised “poor judgment” rather than “professional misconduct”, Margolis emphasizes that “his decision should not be viewed as an endorsement of the legal work that underlies these memoranda,” which he notes were “seriously flawed” and represent “an unfortunate chapter in the history of the Office of Legal Counsel.” In Yoo’s case, his conclusions represented a “loyalty to his own ideology and convictions” which “clouded his view of his obligations to his client” and led him to author opinions reflecting “extreme” views of executive power.

Yoo was among the very small group of lawyers entrusted to write these opinions for the White House because he was already known to hold these extreme opinions. That he ignored or contorted opposing views should not have come as a surprise to his employers; that’s what he’d been doing all along as an academic.

It’s clear from the report, too, that that’s what Yoo was expected to do. As John Bellinger, the Bush administration’s legal advisor to the State Department told OPR: “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.”

Some of those memos were also being demanded under very tight time frames to justify particular interrogations.

So who asked Yoo and Bybee to write these memos, and what exactly were the instructions given? Were they pressured to reach a particular conclusion and provide a “golden shield” for illegal conduct that the White House had already chosen to undertake? The report points out that the OPR investigators were not able to access most of John Yoo's e-mail messages from the time period: "most of Yoo's e-mail records had been deleted and were not recoverable." Why did Yoo delete those messages, and what did they say?

Even Jack Goldsmith, the former head of the Office of Legal Counsel under President Bush, read the memos to ultimately function as a “blank check” for the military to engage in illegal and unauthorized interrogation techniques. If that’s the case, then not only the lawyers but the officials who instructed them could be guilty of a criminal conspiracy.

The OPR report, then, hardly ends this chapter of history; it only begins to open the book. Before we can really reach the end of this sad saga and put it to rest, we need to know much more.

This post has been updated.

Freedom and Security are not Enemies

By Gabor Rona
International Legal Director

Vice President Joe Biden hit the nail on the head when he said Dick Cheney cannot change history and that his recent rhetoric is misinforming Americans. The former Vice President’s hypocrisy was clear last weekend when he criticized of the Obama Administration’s handling of alleged Christmas bomber Umar Farouk Abdulmutallab. It’s time to set the record straight.

It turns out that Umar Farouk Abdulmutallab is providing current, actionable intelligence about al Qaeda in Yemen, despite having been charged in federal court instead of in a military commission, despite being in civilian law enforcement rather than military custody, despite having been spared torture, despite Miranda warnings, despite having been afforded a lawyer who is advising him every step of the way.

The FBI enlisted his family to encourage his cooperation. That would not likely happen in military custody. FBI Director Mueller testified that the U.S. criminal justice system can offer suspects incentives to give truthful information. He emphasized the word “truthful” as if to drive home the point that coercive interrogation is counterproductive, since suspects will say whatever they think will make the abuse stop.

Meanwhile, the “tough on terrorism” – including former Vice President Cheney – crowd is ramping up the rant: “Why should we give alien terrorists constitutional rights?”

First, the words “give” and “rights” do not belong in the same sentence. We do not speak of “constitutional privileges,” we speak of “constitutional rights.” Privileges are given and may be withheld. Rights are rights.

Second, “alien” (meaning non-U.S. citizen) serial killers, bank robbers and drunk drivers are no less the owners of constitutional rights than are American citizens. Same goes for terrorists. For a country built on immigration and precepts of equality under the law, a “debate” about whether non-citizens accused of crimes in the U.S. have constitutional rights is about as relevant as whether they are also subject to the law of gravity. Those who doubt these propositions, including several Senators who should know better, doubt the very concept of constitutional rights.

Third, what really seems to be animating this debate is the false assumption that military treatment results in better intel than its civilian counterpart.

Let’s start with interrogation. Whether in civilian or military custody, a suspect has the right to remain silent. If you think otherwise, it can only be because you believe that coercive interrogation is permitted. Aside from the well-established fact that abusive treatment is counterproductive, it is also immoral (remember John McCain correctly and eloquently noting that this is about who we are, not about who they are?) and illegal.

Well, then what about Miranda warnings? Turns out, Abdulmutallab was questioned for some time prior to Miranda. This is permissible for any reason so long as the results of that initial interrogation are not offered at trial. In other words, failure to give Miranda is not a constitutional violation. It’s the introduction of non-Mirandized statements at trial that is the violation. And if the reason to withhold Miranda warnings is really public safety (e.g., are there other bombers on other planes right now?), then the non-Mirandized statements may still be used at trial. Abdulmutallab is, in fact, a poster child for why Miranda is not an issue in a typical terrorist attack case. There were solid eyewitnesses, so prosecutors don’t need his confession to convict him and can interrogate him to their heart’s content without Miranda and without jeopardizing a prosecution. Consistent with this understanding of the law, he was only Mirandized after he stopped providing information following his initial interrogation, and following consultation between the FBI, CIA, Justice Department and State Department.

What about the right to counsel? Here too, no real difference. “Unprivileged enemy belligerents” in military custody in the U.S. are just as entitled to lawyers as are criminal suspects in federal criminal custody.What about trials? Fact is, federal courts have put away over 200 international terrorism-related suspects since 9/11. The discredited, dysfunctional, on-again-off-again Military Commissions have put away 3, two of whom are now free and the third is still contesting the validity of the proceedings. Military commissions simply provide defendants with many more grounds to challenge their convictions than federal courts do.

True, the international laws of war authorize detention without charge or trial in some instances. But the promiscuous abuse of that power has led us into a quagmire of illegality that values cheap “tough on terrorism” sound bites at the expense of sound counterterrorism policy.

Remember Richard Reid, who also tried to blow up a plane with a bomb in his clothes and who pled guilty to federal charges in 2003 and got life? “Enemy combatant” detention was already well established but there was no outcry then about the choice of civilian interrogation, detention and prosecution. He was given Miranda warnings within minutes of arrest and they were repeated five times! What’s the difference? Shoes v. underwear? Bush-time v. Obama-time? “Reid” v. “Abdulmutallab?” White vs. black? I hope none of the above. But what then?

Dick Cheney and other “tough on terrorism” lawmakers and pundits play a dangerous, cynical game by falsely painting the administration as weak. Enough from those who are willing to sacrifice both civil liberties and national security to score political points.

Contrary to the fear mongers’ platform, freedom and security are not enemies. They are interwoven threads of one fabric that is America. Those who understand this should be pulling the lever for civilian, not military, treatment of terrorism suspects every time.

A New Yorker's Analysis of the Politics Behind the 9/11 Trials

In the New Yorker this week, Jane Mayer analyzes the politics - and the tension - behind the debate on the Administration's decision to try the perpetrators of the 9/11 terrorist attacks in federal courts.

Human Rights First's President and CEO Elisa Massimino looks beyond the politics, emphasizing:

Politically, these issues are poisonous. That’s what Rahm Emanuel is looking at. You can’t finesse it, and you can’t spin it. The President just has to lead the American people away from fear.

Mayer rightly points to the fact that the Bush Administration itself tried more terrorists in federal courts than in military commissions:

For all the tough rhetoric of the Bush Administration, it prosecuted many more
terror suspects as criminals than as enemy combatants.

Human Rights First's research showed 195 terrorists convicted in federal courts since the 9/11 attacks - compared to 3 in military commissions. Other studies come to similar numbers - read Daphne Eviatar's recent blog explaining the difference in the stats.

Whatever politics are at play, the fact is Guantanamo needs to be closed. If you haven't signed our petition yet, sign today, and help us send that message to the White House. They could use your support.

Andy McCarthy’s Analysis Doesn’t Add Up

By Gabor Rona
International Legal Director

Andy McCarthy is playing 3 Card Monte, and not very well, at that. His thesis appears to be that the highly respected Human Rights First report, In Pursuit of Justice, is inflating (or in his words, "cooking the books" on) the number of successful terrorism prosecutions in federal courts.

The report, co-authored by experienced former federal prosecutor Jim Benjamin and (now) chief of the criminal division of the Manhattan U.S. Attorney’s office, Rich Zabel, meticulously details the many criminal cases involving international terrorism that the federal courts have successfully handled since 9/11. It busts several myths that McCarthy and others have been peddling to slander the federal courts, such as "they can’t protect classified evidence" and "they can’t handle cases that arise in a context of armed hostilities."

McCarthy attacks the report’s conclusion that federal courts have convicted 195 individuals in international terrorism-related cases since 9/11. He says this number is "false and an exercise in hypocrisy." In the same breath, he notes that "report does not claim that 195 international terrorists have been convicted. Rather, it says that 195 defendants have been convicted so far in 119 cases that have some connection, however attenuated, to terrorism."

So which is it Mr. McCarthy, are we lying because we claim that all 195 were "international terrorists" or because we do not claim that they were all "international terrorists?" You can’t have it both ways.

Fact is, there’s one thing Mr. McCarthy gets right. It’s that many of these convictions were, as the report claims, of individuals "with some connection" to international terrorism. Mr. McCarthy seems to suggest that since not all of these convictions were of Osama bin Ladens and for the crime of mass murder, it somehow diminishes the claim that federal courts are proper venues for such cases. Huh? Seems that if Mr. McCarthy were truly interested in bringing terrorism’s hangers-on to justice instead of trying to make political hay out of thin air – and if he were supportive of the use of the criminal justice system to thwart the next terrorist attack, rather than just punish the last one – he would speak glowingly of the fact that such individuals can be prosecuted under a vast menu of crimes that are within federal jurisdiction, including "material support" for terrorism, as well as false statements, financial fraud, and immigration fraud.

His complaint about the resolution of the al Marri case is another bait-and-switch exercise. He doesn’t like the sentence al Marri received. But his complaint is not about federal courts vs. other options, it’s about the fact that al Marri pled guilty to "material support" instead of some other charge that McCarthy thinks would have merited a tougher sentence. If Mr. McCarthy thinks federal prosecutors mishandled the case by allowing this plea bargain, he should focus his criticism on them, not on the use of federal courts, and make his case for the alternative of military commission trials (see below)..

What really galls Mr. McCarthy, though, is not that federal courts have done well in prosecuting those in supporting roles for international terrorism. It’s that they’ve also done well in prosecuting the few major players that have been caught. McCarthy declines to mention the Moussaoui case, the Shoe Bomber, the First World Trade Center bombing case – all successful federal court prosecutions of the kinds of people Mr. McCarthy would put into the "real terrorist’ category. This, it seems, does not accord with his preference for bringing such cases in the discredited, dysfunctional military commissions which in their eight years of on-again/off-again existence, have managed to convict only 3 people, 2 of whom are now free.

In a grand finale that is meant to bring us to the barricades, Mr. McCarthy warns of the Christmas bomber being prosecuted for an immigration violation instead of attempted murder (seems he simply has not seen the indictment: attempted use of weapon of mass destruction, attempted murder, willful attempt to destroy aircraft, placing a destructive device on an aircraft, illegal possession of a destructive device) and of KSM being accorded due process that his victims will never again enjoy. The point being what exactly? Should murder suspects not be accorded trials? Whatever the unspoken details of Mr. McCarthy’s proposed alternative to federal prosecution might be, to hamstring law enforcement is a radical proposal that flies in the face of crucial counter-terrorism victories of the past decade. Every single terrorism suspect arrested in the United States during the Bush administration after September 11 was initially held under federal civilian criminal law. More than 200 terror suspects have been interrogated by the FBI and tried in civilian courts since 9/11, including Richard Reid, the "shoe bomber," who is now serving a life sentence. Vital actionable intelligence can–and has–been obtained from terrorism suspects after they’ve been arrested as criminal suspects. Interrogation of terrorism suspects after criminal arrest has resulted in vital intelligence information that has saved American lives. Such terrorism suspects have given information about al-Qaida sleeper cells within the United States, training camps in Afghanistan, and details about high-level terrorism suspects such as Khalid Sheik Mohammed. Umar Farouk Abdulmutallab, the suspected Christmas day bomber, who was appropriately questioned before he was Mirandized, provided valuable intelligence and is now reportedly cooperating with investigators. On the other hand, detainees in military custody in the United States and tried before U.S. military commissions are also entitled to a legal representation, limiting any alleged advantage for interrogations conducted in military custody.

Andy McCarthy is an experienced federal prosecutor. He could put his knowledge to much better uses than knocking down straw man arguments and sowing counterproductive discord that impedes consensus on efforts to prevent further attacks and hold terrorists accountable. Please Andy, let us all instead put an end to the fear-mongering and rancorous cacophony that continues to divide us.

Putting the State of the Union Speech into Practice

By Devon Chaffee, Advocacy Counsel, Law and Security

Tonight, in his State of the Union Speech, President Obama said, "Let's reject the false choice between protecting our people and upholding our values. Let's leave behind the fear and division, and do what it takes to defend our nation and forge a more hopeful future - for America and the world." While his administration has made progress over the past year toward realigning our national security policy with our laws and values, additional steps must be taken to reform U.S. detention policy. The following are steps the Administration should take to put last night's words into practice:

Close Guantanamo

The Obama administration continues to hold 198 men in prolonged detention without charge at Guantanamo and it will not meet the one year deadline it set for closing the detention facility. Further steps need to be taken to ensure prompt closure of Guantanamo and to bring the number of Guantánamo detainees held without charge down to zero. These steps include:

• Bring Guantánamo prisoners suspected of crimes to justice in federal civilian courts. On November 13, 2009, Attorney General Eric Holder announced that the Justice Department would prosecute five Guantánamo detainees suspected of conspiring to commit the 9/11 attacks in federal courts of New York. These suspects and other detainees for whom there is sufficient admissible evidence that they have committed crimes should be promptly transferred for prosecution before federal civilian courts.

• Abandon the flawed military commissions. The military commissions, revamped for the third time in 2009, continue to fail to achieve justice or provide due process and have resulted in only three convictions in over seven years. This process should be abandoned in favor of the proven federal criminal justice system that has convicted over 145 terrorism suspects since the 9/11 attacks.

• Increase efforts to repatriate & transfer Guantánamo detainees to third countries. The Obama administration must intensify efforts to repatriate detainees not suspected of crimes or otherwise cleared for release and to find homes in third countries for detainees that cannot be repatriated for fear of persecution or torture.

The Administration must work closely with Yemeni officials to address current security concerns and to minimize potential risk before reinstating transfers there. With all transfers the administration can and should take steps to mitigate risk by focusing on expanding risk assessment efforts, monitoring, and other security programs, including allotting sufficient resources to successfully reintegrate former detainees into society.

Prevent Torture and Promote Humane Treatment

• Ensure that all detention and interrogations continue be governed by a clear standard of humane treatment. Very little has been made public about the standards that will govern the High Value Interrogation Group (HIG) established pursuant to the recommendations of the Special Interagency Task Force on Lawful Interrogation. The administration must ensure that the HIG has the clear guidance it needs to conduct its interrogations effectively and humanely and must make clear that cruel and coercive interrogation techniques, such as sleep and sensory deprivation and extreme isolation, are off the table. Apart from interrogation, conditions of detention must also be humane, and in compliance with applicable provisions of the Geneva Conventions.

• Provide the International Committee of the Red Cross (ICRC) with access to all armed conflict and security detainees. Holding prisoners incommunicado increases the risk of torture and abusive detention and interrogation practices. The administration should ensure that the ICRC has prompt notice of all detentions and timely access to all prisoners in U.S. custody in Afghanistan and to all Guantanamo detainees that remain in U.S. custody, wherever that may be, including those that will face prosecution in U.S. federal courts.

• Provide all U.S. interrogators with the tools they need to fulfill their responsibilities legally and effectively. Ensure that U.S. interrogators have the education, training, and support, they need to conduct lawful and effective interrogations. This should include resources for research and professional developments as well as a review of existing interrogation protocols--such as those in Appendix M of the Army's field manual on interrogation--that have questionable utility and are particularly vulnerable to abuse.

Ensure Accountability for Past and Future Abuses

• Hold perpetrators to account for crimes of torture and prisoner abuse. Attorney General Holder announced in August that he was launching a preliminary review into the whether federal laws were violated in connection with overseas interrogations. This review needs to be expanded to examine the architects of the system of prison abuse, not only those who implemented it or engaged in conduct beyond the bounds of unlawful guidance and orders.

• Make public the results of Justice Department investigation of the role of government lawyers in authorizing torture and other abuse. In 2005 the Justice Department's Office of Professional Responsibility began investigating the role of key lawyers from the Office of Legal Counsel in authorizing cruel interrogations. In mid-November 2009 Attorney General Holder told the Senate that the report was finally completed, in the last stages of review, and would be issued by the end of the month. It is far past time for the results of this investigation to be made public.

• Establish a nonpartisan commission of inquiry. It is not enough to put an end to unlawful practices. To ensure avoiding their repetition, they must also be thoroughly renounced. A nonpartisan commission should be established to ensure the U.S. government learns from past mistakes and effectively prevents future abuse. Such a review is needed to identify the systematic failures that lead to widespread prisoner abuse and to evaluate the impact of those policies on U.S. national security.

• Provide victims of torture and other abuse with access to remedies. The United States government has a legal obligation to provide victims of torture and other human rights abuses with access to enforceable remedies. The administration should cease attempting to block victims of torture, lesser forms of abuse, and arbitrary detention from having their day in court through invocation of doctrines such as the state secrets privilege and immunities that violate international law.

• Promptly investigate and prosecute all instances of arbitrary detention and detainee mistreatment by military and civilian personnel, including private contractors. Changes in policy are necessary but insufficient to ensure lawful detention. Detention policies and practices must be transparent. Where violations of the law are suspected, prompt investigation must ensue and individuals reasonably suspected of violations must be held accountable.

In the case of private contractors, a mandatory code of conduct should be established to ensure compliance with the law. Authorities must ensure that legal mechanisms are in place to hold contractors and their employees accountable for abuses. Where contract personnel violate the code of conduct and the law, prompt and transparent investigations leading to civil and criminal accountability, where warranted, must follow.

An Intelligent Way to Enhance National Security?

By Daphne Eviatar, Senior Associate, Law and Security
Crossposted from Huffington Post

Ever since the failed attempt to blow up a Northwest airline carrier on Christmas Day, critics have been pressing to militarize the treatment of all terrorism suspects and deny them the basic due process rights provided by the law.

On Tuesday, bills were introduced in both the House and the Senate to require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense before filing any civilian charges against a foreigner suspected of engaging in or materially supporting terrorists, regardless of where he’s arrested. Senators Joseph Lieberman of Connecticut and Susan Collins of Maine have also written to Attorney General Eric Holder urging him to transfer the failed Christmas bomber, Umar Farouk Abdulmutallab, to military custody. And on Wednesday, six Senators wrote to Holder “in light of recent events” urging him not to try the four 9/11 suspects in a federal civilian court.

Political posturing to look tough on terrorism is not a new strategy for federal lawmakers. But the level of disingenuousness involved in this particular instance is genuinely striking.
After the State of the Union speech last night, Virginia Governor Bob McDonnell complained that “this foreign terror suspect was given the same legal rights as a U.S. citizen” – as if foreigners have not always been entitled to Constitutional due process when brought to trial in the United States.

At hearings last week, Sen. John McCain (R-Arizona) called the decision to place Abdulmutallab in the federal judicial system "a terrible, terrible mistake when it's pretty clear that this individual did not act alone."

Sen. Lieberman called it "a kind of 'Alice in Wonderland' turning of the world of common sense on its head." And former New Jersey Republican Governor Thomas Kean, who led the investigation into the 9/11 terrorist attacks, said he was "shocked and upset" that Abdulmutallab was read his rights before being fully questioned.

Meanwhile at the National Review, Bill Burck, former Deputy Counsel to President George W. Bush and a former federal prosecutor, was “startled” by Dennis Blair’s and Michael Leiter’s admissions last week that “they were never even consulted about the decision” (his emphasis, not mine) to let the FBI handle the interrogation.

But is the FBI’s handling of Abdulmutallab, arrested at a Detroit, Michigan airport, really so shocking?

In fact, as these critics surely know, every single terrorism suspect arrested in the United States during the eight years of the Bush administration after September 11 was initially interrogated by the FBI, as was Abdulmutallab. Ultimately, every one that was tried had their trial in a civilian federal court. Only two individuals arrested in the United States were ever transferred to military custody – Jose Padilla and Ali Saleh Kahlah al-Marri. And in both cases, after years in military detention, the men were charged as ordinary criminals and accorded a civilian trial.

More than 200 terror suspects have been interrogated and tried this way since Sept. 11, including Richard Reid, the “shoe bomber,” in the case most comparable to Abdulmutallab’s.

So as Senator Claire McCaskill pointed out a hearing last week, to start turning all terror investigations in the United States over to the CIA or the military would be a drastic departure from longstanding precedent.

The critics’ mantra since Christmas that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence is also wholly unsubstantiated. Last week Senator Jeff Sessions (R-Ala.) chastised FBI Director Robert Mueller for allowing FBI agents to read Abdulmutallab his Miranda rights. But as Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney, pointed out, an actual review of real-life terrorism prosecutions reveals that “very successful interrogations have been conducted and very significant intelligence information has been obtained from suspects who have been Mirandized.” In fact, sometimes giving Miranda warnings “is actually a part of an interrogation plan for that particular subject,” he said.

Cooperation of suspects arrested in the U.S. criminal justice system has led to invaluable intelligence about the existence of al-Qaida sleeper cells within the United States, training camps in Afghanistan, how to safely dismantle the device used by Richard Reid (the shoe bomber) and details regarding some of the most high-level terrorism suspects, such as Khalid Sheik Mohammed and Hambali, the mastermind of Jemaah Islamiah, a terrorism network in Southeast Asia.

Previous Senate Judiciary Committee hearings have also revealed that FBI-led interrogations have actually been more effective than the far more aggressive ones conducted by the CIA and Defense Department.

In any event, a detainee arrested in the United States and held in military custody is still entitled to a legal representation.

Meanwhile, civilian trials have been far more successful than military commissions, which have won only three convictions in eight years, as compared to 195 in civilian criminal court.

None of this is to suggest that the Bush administration was ‘soft on terror.’ But it wasn’t very smart on terror, either. Not only haven’t most military detainees been convicted, but the detention of hundreds of suspects for years without charge or trial created a national security nightmare for the United States. Hundreds of Muslims were subjected to unlawful and ineffective “enhanced” interrogation techniques devised by inexperienced and unprofessional psychologists with no background in intelligence gathering. The use of those techniques fomented so much anger in the Muslim world against the United States that even President Bush and former presidential candidate John McCain eventually acknowledged that the Guantanamo Bay detention facility had become a liability for the United States and should be closed.

FBI Director Mueller made clear last week that the FBI brought in high-level interrogators who first questioned Abdulmutallab for intelligence purposes, and obtained valuable information, before reading him his Miranda rights. That’s part of FBI protocol for handling terror suspects. But to forbid the United States from trying terrorists as criminals is to force the US government to continue down the same reckless course that’s landed us in our current national security quagmire.

If there was one thing Senators agreed on at their hearings last week, it was that the government needs a rational way of deciding where and how to interrogate and try terror suspects, based on input from top terrorism specialists and interrogators. Administration officials have promised to create just that. But if the administration bows to political pressure and starts subjecting every terror suspect to CIA interrogation and indefinite military detention, it’s only going to exacerbate the current conundrum.

The U.S. Supreme Court has said the government can detain “enemy combatants” – now called “unprivileged enemy belligerents” -- captured on a battlefield for the duration of a military conflict. But the court in the Hamdi case was talking about the battlefield in Afghanistan; it did not suggest that the airport in Detroit could be a battlefield. To expand the definition that broadly would allow the government to get around the Constitution in almost any criminal investigation by simply declaring the target a potential terrorist. And what would prevent the government from throwing a U.S. teenager surfing Jihadi web sites at home in New Jersey into coercive interrogation and years of indefinite detention? Could that possibly comport with the U.S. Constitution, let alone international law?

Members of Congress pressing for legislation that would require the government to respond to all potential terror cases militarily are stepping onto a slippery slope they’ll likely regret if they can convince their colleagues to join them.

In his State of the Union speech, President Obama called on Congress to “put aside the schoolyard taunts about who is tough” and “reject the false choice between protecting our people and upholding our values.”

He could have gone further and said that rejecting our values actually increases the danger to Americans. Guantanamo Bay was bad enough; hundreds of jihadi suspects subjected to secret interrogations and indefinite detention on U.S. soil is hardly an intelligent way to enhance national security.

For the Love of Conan, Close Guantanamo Already

For those of us who fight for change, we have learned a hard lesson recently: Things can change, but they can also quickly change back. For those of us who supported President Obama when he pledged one year ago to close the Guantanamo Detention Center, today’s announcement that the Administration will continue to hold some detainees indefinitely without charge is frustrating and disappointing. The kerfuffle over Conan O’Brien in the past weeks embodies the feeling.

For a few months there in late 2008 and early 2009, it was an exciting time. It seemed like things were changing. We were tired of the old ways, and, entrenched though they seemed, we discovered that we could upset them and replace them with something better. We watched a beloved ‘outsider’ hero, Conan O’Brien, take over The Tonight Show. And President Obama signed an executive order pledging to close Guantanamo in one year.

These are hardly events on the same scale. But this week, as President Obama’s self-imposed deadline to close Guantanamo passes, Team Conan, a Facebook group in support of Conan hosting The Tonight Show, boasts some 200,000 members. Many people are furious – and disappointed – that Conan has been usurped by the old guard of Jay Leno, who seems to most of us to be unfunny and hopelessly out of touch.

One big reason real change is so hard is that, as a species, we tend to like the status quo. Things could always be better, sure, but they could also be worse, and known evils are more comfortable than unknown ones. Fear can be a powerful motivator. NBC knows what it’s like to have Jay Leno host The Tonight Show, while Conan has only been at the helm for a few months. It seems like a surer bet to bring Leno back. When people are scared, they don’t want to take risks.

But in making fear-driven decisions, we forget something important. Keeping the status quo is not a risk-free option. In fact, it is often riskier than making changes. This is especially obvious when you look at the long term consequences. In allowing Jay Leno to reascend The Tonight Show throne, NBC gives the appearance of solving its immediate financial problems with minimal risk, minimal unknowns. But it misses an opportunity to develop the talent necessary to make money in the years to come. As NBC cannibalizes its future for quick cash, the hope we had for Conan and for our own entertainment this year withers.

In the last year, we have learned that the status quo of Guantanamo is powerfully entrenched. Despite calls across the board, from former President Bush to Robert Gates, to Colin Powell to close the prison – it remains open, more than eight years after the first detainee arrived, a year after President Obama ordered it closed. There have been practical difficulties in closing Guantanamo. But the main reason that it is open today is that many people believe that it is safer to have it open than the unknown alternative. A world without Guantanamo means, for some people, a degree of uncertainty: where would the worst of the worst (which clearly not all of them are) be, if not Guantanamo?

There might be risks associated with closing Guantanamo. Some people who have been held there could cause us harm, if they are transferred elsewhere.

But there certainly are risks, and concrete consequences, that we know, in keeping Guantanamo open. The prison serves as a recruiting tool for terrorism – for every individual we hold indefinitely, there are hundreds of people willing to take up the fight against us in the battlefield. It makes it difficult to work with our allies on key counter-terrorism efforts. It violates core American values and undermines our influential power throughout the world. It imperils the lives of the people held there who may be innocent.

The status quo is far from being a low-risk option. It endangers Americans every day. And it makes it hard for our country to flourish long-term. As the deadline for closing Guantanamo passes, the task of doing so is not impossible: President Obama must keep working to make this change. Please sign this petition to send a message that Americans are still committed to this change.

I’m sure Conan will land on his feet, and we children who grew up watching The Simpsons and Late Night will follow him to new projects on wiser networks.

But the rush of hope that filled the air a year ago is subdued, as we are humbled by how hard it is to usher in lasting change. All we can do is keep up the good fight anyway. And not watch Jay Leno.

We Don't Need No Legislation

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted from Huffington Post.

Benjamin Wittes has been arguing for years now that Congress needs to codify the U.S. government's right to imprison terror suspects indefinitely without trial. So it's hardly surprising that his newly-released study issued by the Brookings Institution and highlighted on National Public Radio this morning concludes that we need just that.

But an objective look at the rulings that courts have been issuing on the government's indefinite detention rights over the last two years reveals exactly the opposite: that the courts are perfectly capable of deciding under what conditions the U.S. can, and cannot, hold "enemy combatants" - what the Obama administration now calls "unlawful enemy belligerents" - in indefinite detention.

Given this morning's news that a Department of Justice Task Force recommends continuing to hold about 50 current Guantanamo detainees indefinitely, the question of whether new legislation is needed is likely to gain more urgency.

Contrary to the claims of Wittes, a Brookings Institution fellow, and his co-author Robert Chesney of the University of Texas Law School, judges are not "playing the role of the legislature," as Wittes told Ari Shapiro of NPR. Rather, they are doing their jobs - interpreting the law. That judges disagree on some particular interpretations of the law in different cases is hardly unusual; after all, if everyone read the laws the same way, we wouldn't need judges. What's more, the main point of disagreement between the government and the detainees in these cases is not over the legal standard for detention; it's over whether the government has had enough credible evidence to justify holding these suspects indefinitely without charge. These are issues that only judges, not legislators, can resolve. In the vast majority of cases -- 32 of 41 cases decided so far -- federal judges, including many conservatives appointed by President George W. Bush, have found that the government has failed to meet that burden.

A review of the 42 cases decided since the Supreme Court ruled in 2008 that detainees have a right to challenge their detention in federal court reveals that while there are some minor differences in the legal standards judges have agreed upon, every judge has agreed that the government has the right under existing laws of war to hold "enemy combatants" or "unlawful enemy belligerents" in indefinite detention until hostilities cease.

Although there have been disagreements among judges over what constitutes a "belligerent" - whether he must be "part of" the Taliban or al Qaeda or "substantially supported" them - that has not been the reason the government has lost most of these cases. Indeed, the latest court of appeals decision, issued early this month, now governs all of the pending habeas cases and adopts a detention standard that's even broader than what the Obama administration has asked for. In Al-Bihani v. Obama, the D.C. Circuit Court essentially accepted the Bush administration's definition of broad detention authority.

The matter may end up being decided by the Supreme Court. But then, that's what the Supreme Court is for. As Appeal for Justice Executive Director David Remes said on NPR this morning, "The fact that there's variety or variation in the trial courts is commonplace." Courts of appeals and the S.Ct. are there to make the ultimate ruling on what the law is. And given the Supreme Court's previous decisions in detention cases, the ultimate decision will likely uphold powers of detention sought by the government.

Inviting Congress to step into the fray risks injecting politics and posturing into what ought to be a legal determination, as lawmakers scramble to look tough on terror regardless of whether their proposals to lock people up indefinitely comport with what the Constitution, and sound policy, requires. Particularly if those people turn out to be mostly Muslims, such legislation also threatens to inflame animosity against the United States and provide yet more powerful arguments for terrorist recruiters.

In any event, the Wittes-Chesney proposal will not provide the legal certainty that its authors say they're after. Courts will still be making decisions on individual cases. And any new legislation that codifies the U.S. right to imprison suspects indefinitely without charge or trial is sure to face the same sorts of legal challenges already making their way through the courts in the habeas corpus cases right now. The result will be to delay legal certainty even longer. And in the end, the matter will likely ended up being decided in exactly the same way, which is how our system of checks and balances intends for such difficult constitutional questions to be decided: by the U.S. Supreme Court.

Tweeting to Close Guantanamo

Human Rights First is participating in a major campaign on January 21st and 22nd to focus attention on Guantanamo and the need to close the prison, end indefinite detention, and try terrorist suspects in federal courts.

In coalition with over a dozen national security and human rights organizations (see below), the campaign aims to support the President’s commitment to close the facility and show Congress and the media that thousands of citizens from across the country want the prison closed.

The initiative is centralized on Twitter, where organizations and participants are using a common hash tag (#closegitmo) to amplify the message and build grassroots support to close Guantanamo.

How can you participate? It’s easy:

1. Change your profile picture on Facebook and Twitter to the Close Gitmo image above (right click and save to your computer, then upload as your avatar).


2. Follow us on Twitter and retweet what you like of what we send. Sign and tweet our petitions to the White House and Senator-elect Scott Brown!


3. Remember to use the hashtag #closegitmo.


4. Check out our video we made with pictures of our constituents who have signed our petition. Sign, and then post or tweet the video and petition to your networks.


5. Finally, please share. Spread the word through your networks.

Other participating organizations include:
New Security Action
Amnesty International USA
Human Rights Watch
American Civil Liberties Union
Physicians for Human Rights
MoveOn.org
Human Rights First
Common Cause
Constitution Project
Alliance for Justice
VoteVets.org
Center for Constitutional Justice
National Association of Criminal Defense Lawyers
Friends Committee on National Legislation
Bill of Rights Defense Committee
Rethink Media
National Security Network
Progressive Democrats of America
Democrats.com
World Can’t Wait

Participating Musicians:
Trent Reznor (Nine Inch Nails)
Tom Morello (Rage Against the Machine)
EMI Worldwide
Rosanne Cash
Henry Rollins
Anti-Flag
State Radio

Jack Bauer's False Exploits in New York

A New York Times article yesterday points out some discrepancies in the New York City that Jack Bauer roams in the new season of Fox's "24" - and how the exploits he will have there will likely return to the show's insistent fallacy that torture yields results. It references Human Rights First's Primetime Torture video that debunks this myth:

MORE important is the role that torture may play in Bauer’s journey through New York. In his hands, torture magically works. That aspect of “24” and similar programs has been criticized by human rights groups as legitimizing interrogation tactics said to be not only antithetical to American values but also ineffective in obtaining reliable information.

To make this point, the New York-based Human Rights First put together a short film called “Primetime Torture.” It also arranged for former military interrogators and others to meet with “24” producers to explain how Bauer’s world and the real world are light years apart.

Read more about our Primetime Torture project, and our coalition with retired military leaders against torture and Guantanamo.

Former Bush speechwriter wants more torture

By Renée Schomp

Apologists for post-9/11 Bush administration policies seem determined to convince us that torture is effective, justified, and necessary. Former Bush administration speechwriter Marc Thiessen’s commentary regarding detainees Abu Zubaydah, Khalid Sheikh Mohammed, and Jose Padilla misconstrues the facts on prolonged detention and the use of “enhanced interrogation techniques.” In so doing, he promotes a counterterrorism agenda that leads to the gathering of inaccurate intelligence, inadmissible evidence, and the destruction of our country’s moral standing in the eyes of the world.

On Monday, Thiessen publishes a book on CIA interrogation techniques entitled Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack. This book will likely follow the trend of his commentary on the subject to date. In December in USA Today, Thiessen used Umar Farouk Abdullmutallab’s attempt to detonate a bomb on Northwest Airlines flight 253 as a means of promoting Bush administration counterterrorism strategy. “In an earlier time, when we tracked down...big fish, we would take them in alive, hand them over to the CIA and find out their plans to kill Americans,” he states.

Making Abu Zubaydah talk

Citing evidence revealed in newly declassified sections of a Justice Department Inspector General’s report (IG report), Thiessen lambasted former FBI interrogator Ali Soufan in the National Review for speaking out against the use of “enhanced interrogation techniques,” such as simulated drowning. He cited evidence from the IG report to support his argument that such techniques are necessary for national security.

Contrary to Thiessen’s assertions otherwise, a review of the IG report shows that FBI interrogators Soufan and his colleague “Agent Gibson” played vital roles in the interrogation of detainee Abu Zubaydah. And according to the report, their use of “rapport-” and “relationship-building” techniques –not “enhanced interrogation techniques”—is what led Zubaydah to reveal to them the identity of KSM, the self-proclaimed mastermind of the 9/11 attacks.

“Gibson said that he and Thomas [aka Soufan] initially took the lead in interviewing Zubaydah at the CIA facility because the CIA interrogators were not at the scene when Zubaydah arrived…Gibson said he used relationship-building techniques with Zubaydah and succeeded in getting Zubaydah to admit his identity. When Zubaydah’s medical condition became grave, he was taken to a hospital and Gibson assisted in giving him care, even to the point of cleaning him up after bowel movements. Gibson told us he continued interviewing Zubaydah in the hospital, and Zubaydah identified a photograph of Khalid Sheik Muhammad as ‘Muktar,’ the mastermind of the September 11 attacks.” (68).

Based on the IG Report, it appears that authorities first learned of KSM, the alleged ringleader in the attacks of September 11th, because FBI interrogators chose to use time-tested relationship-building techniques to gather intelligence from detainee Abu Zubaydah—rather than spend years experimenting with “enhanced interrogation techniques.”

The interrogation that led to Jose Padilla

Soon after Abu Zubaydah provided information regarding KSM to FBI interrogators Soufan and “Agent Gibson,” he was transferred to the custody of the CIA and subjected to abusive interrogation techniques. In the National Review, Thiessen cited the IG report to demonstrate that Soufan lied about his role in gathering intelligence from Zubaydah regarding Jose Padilla.

The IG report, however, explains that the CIA “asked Gibson and Thomas [aka Soufan] to observe and assist” with Zubaydah’s interrogation after they took over. Shortly thereafter, the report quotes Gibson as stating that Zubaydah “’gave up’ Jose Padilla and identified several targets for future al Qaeda attacks, including the Brooklyn Bridge and the Statue of Liberty” (68).

In an April 2009 New York Times op-ed, FBI interrogator Ali Soufan stated, “There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics.”

Harsher techniques, such as forced nudity and sleep deprivation imposed by the CIA on Zubaydah, may have contributed to the gathering of information that would lead to identification of Jose Padilla. We can’t prove that he would or would not have provided that information subject to humane interrogation, alone.

But we do know that the picture Thiessen tries to paint as fact is simply wishful thinking built on unknowable assumption and conjecture. The dangerous implications that Thiessen’s assertions have on long-term American counterterrorism strategy are perhaps best described by the FBI itself.

Expert on American counterterrorism strategy?

An important section of the IG report that Thiessen doesn’t address in his writings provides FBI Assistant Director Pasquale D’Amuro’s explanation for why FBI interrogators Soufan and “Agent Gibson” were eventually pulled out of Zubaydah’s interrogation.

“First…he felt that these techniques were not as effective for developing accurate information as the FBI’s rapport-based approach…if ‘aggressive’ techniques are used long enough, detainees will start saying things they think the interrogator wants to hear just to get them to stop…Second…the use of the aggressive techniques failed to take into account an ‘end game.’ D’Amuro stated that even a military tribunal would require some standard for admissibility of evidence…Third, in addition to being ineffective and short-sighted, using these techniques was wrong and helped al-Qaeda in spreading negative views of the United States” (71-72). [Emphasis added].

Thiessen’s spin betrays his pedigree as a professional political speechwriter, rather than a dispassionate reporter of facts and the conclusions they suggest. His upcoming book will likely only prove his dedication to the inhumane practices that prevailed in the Bush administration. In the interests of both security and respect for human rights, we would do well to place far more faith in the wisdom and knowledge of real experts on these issues such as Ali Soufan and FBI Assistant Director D’Amuro, who have actual working knowledge of interrogation techniques.

Generals Speak Out Against Degrading our Values in Name of Fear: op-ed in Philadelphia Inquirer

Retired Generals Charles Krulak and Joseph Hoar, in an op-ed in the Philadelphia Inquirer today, take a strong stand for closing Guantanamo and using our federal courts to prosecute suspected terrorists.

They warn:

We must not allow ourselves to be terrorized into vandalizing our own
institutions of justice, our own values, or our own honor. If we do, the
terrorists win.

Founding members of Human Rights First's coalition of retired military leaders against torture, Gen. Krulak and Gen. Hoar are now taking on the issue of Guantanamo and military commissions. Read more about the work we've done with this group.

If you haven't, sign our petition to close Guantanamo. And visit our Guantanamo Resource Center to get the facts.

On the 8th Anniversary of the Opening of Guantánamo

Eight years ago today, the first detainee was transfered to the prison at Guantánamo Bay, Cuba. Human Rights First issued this statement, and has launched a campaign to get as many signatures on our petition to close the facility. Human Rights First CEO Elisa Massimino recommends:

The Obama Administration should work closely with Yemeni officials to
address current security concerns and to minimize potential risk before
reinstating transfers there. With all transfers the administration can and
should take steps to mitigate risk by focusing on expanding risk assessment
efforts, monitoring, and other security programs, including allotting sufficient
resources to successfully reintegrate former detainees into society.

To fully restore the rule of law and rebuild strained relationships with foreign
allies, the Administration must also commit to driving the number of detainees
held without charge down to zero and to pursuing timely federal criminal
prosecutions of those alleged terrorists who remain at Guantánamo.

You can help make sure the facility gets closed: sign our petition and send us a picture. We'll put you in our video!

Learn more: get the facts on Guantánamo.

Appeals Judge Disses Gitmo detainee, Geneva Conventions, Supreme Court and President

By Gabor Rona, International Legal Director and Interim Director, Law and Security Program, crossposted from Huffington Post

You could almost feel the pleasure taken by Judge Janice Rogers Brown in her opinion in al-Bihani vs. Obama (Jan. 5 - D.C. Circuit Court of Appeals), concluding that the international laws of armed conflict have no bearing on the scope of government power to decide who may be detained as a wartime enemy. It wasn't in her grandiloquent declaration that war trumps law ("War is a challenge to law, and the law must adjust") and it wasn't in the brazenness of this staunch conservative's extreme judicial activism. No, it was in a simple, almost invisible, aside; a gratuitously deprecating retort to the petitioner's claim that the lower court ruling against him was erroneous: "Al-Bihani's argument clearly demonstrates error, but that error is his own." Or, as I would say on the 5th grade playground when Freddy Harris called me a jerk, "I know you are, but what am I?"

OK, this is far from the most egregious display of judicial distemper on any given day. Still, it is not such a stretch to see Judge Brown's smack-down of the litigant and her treatment of the rule of law as parts of an imperious whole.

But let's focus on the law. And on the Judge's curious dismissal of international law applicable to detention in armed conflict. There is, says Judge Brown, "no occasion... to quibble over the intricate application of vague treaty provisions and amorphous customary principles." Well, tell that to the Supreme Court, which in its majority opinion in Hamdi made express reference to the international laws of war as a source of interpretive guidance on the scope of detention authority under the 2001 Congressional Authorization for the Use of Force (AUMF). That would be the same Supreme Court which, in Hamdan, decided that Guantanamo detainees are, indeed, protected by the Geneva Conventions.

Over at Balkanization, Deborah Pearlstein notes that Judge Brown invokes the President's Constitutional War Powers as authority to trump the international laws of war, but then ignores the same President who, like the Supreme Court, construes those war powers to be informed by the laws of war. Admittedly, the torture lawyers of the Bush administration hawked a vision of War Powers much like that of Judge Brown: unconstrained by international law. But is this Court also suggesting that the executive's vast powers in matters of war do not include the competence to determine that it will abide by its international legal obligations? Looks more like an exercise in judicial war powers, a citation for which I cannot find in the Constitution.

We all recall Attorney General Alberto Gonzales' characterization of the Geneva Conventions as quaint. More recently, U.S. Ambassador to the U.N. Susan Rice, on the occasion of the 60th Anniversary of the Geneva (most widely ratified international treaties in the world) Conventions said:

In recent years, some have called the Geneva Conventions outdated . . . If
anything, the conflict we are waging today in Afghanistan, and the struggle
against violent extremists and terrorists more broadly, make the Geneva
Conventions even more relevant and important. . . . Our enemies may reject the
values embodied in the Geneva Conventions. But that is just the point. . . . As
Senator McCain so rightly said when he challenged the Congress to reject
torture, this is not about who our enemies are - 'it is about who we are.'

Looks like Judge Brown will have none of that. She would, instead, force-feed the President a hefty helping of her "Geneva is quaint" pie.

What Do We Lose by Mirandizing Nigerian Who Sought to Blow Up Plane on Christmas Day?

By David Danzig, crossposted from Huffington Post

An army of political pundits is crying foul over the transfer of Umar Farouk Abdulmutallab to the federal criminal court system.

Transfer to the federal courts is a sure-fire way of "not making terrorists talk," The Wall Street Journal thundered today in an editorial, echoing similar sentiments expressed by Pat Buchanan, Tom Ridge, and The Weekly Standard recently. The editorial goes on to urge the administration not to charge future terrorists in the federal court system because it provides them with "a lawyer and all the legal protections against cooperating with U.S. interrogators."

The editors at the Journal seem to believe that once the dreaded "L" word is invoked, there is nothing U.S. interrogators can do but throw up their hands and deliver any would-be terrorist to his counsel of choice. This is a stunning misunderstanding of the way the criminal justice system operates.

U.S. interrogators have a wide array of "approaches" they can use to try to induce someone like Abdulmutallab to talk, whether he is being held at Guantanamo or in Miami. They can't beat him up. (We have been down that road.) But they can question him without first Mirandizing him ("you have the right to remain silent" etc.) and they don't have to put him in touch with an attorney immediately.

"Once someone is in custody, Miranda is only required if you want to introduce results of the interrogation into evidence at trial," explained my colleague Gabor Rona, an expert on prosecuting terrorists in federal courts. "In this case, they don't need his confession - there's more than enough other evidence."

So for intelligence purposes, interrogators can question Abdulmutallab at length no matter where his case is ultimately tried. The results of those interrogations can be used to catch other bad guys and stop other plots from unfolding; what is learned from this questioning, in most cases, can not be introduced in court as evidence.

Fear not, readers of the Wall Street Journal editorial page! We are no less safe because of the decision to try Abdulmutallab in federal court.