HRF Lauds Decision to Indict Al-Marri in U.S. Criminal Courts

Human Rights First has been at the forefront of a national debate over the fitness of federal courts to handle terrorism cases. In May 2008, we released a report, In Pursuit of Justice, written by two former federal prosecutors, examining more than 120 international terrorism cases prosecuted in the federal criminal justice system. The report found that existing laws, in the vast majority of cases, provide an effective basis for detaining, monitoring and prosecuting terrorist suspects. We commend the Obama Administration's decision to end al-Marri's illegitimate imprisonment without criminal charge for five years as an "enemy combatant." Our colleague Deborah Colson said in a statement:

Yesterday's announcement that al-Marri will instead face criminal charges in the tried and true federal criminal justice system is welcome news. That's where this case started and that's where it should end.

The federal courts have proven to be highly adaptive and flexible in delivering justice in complex terrorism cases. There was never any need - nor was there any legal authority - to label al-Marri an 'enemy combatant' and hold him in military detention without criminal charge.

Read more about the case here.

Nancy Pelosi: Find the Truth about Torture without Immunity

On MSNBC's "The Rachel Maddow Show” last night House Speaker Nancy Pelosi supported calls for a "Truth Commission," but emphasized that there should be no immunity in exchange for testimony. Here is the relevant portion of the interview:

MADDOW: This is something that liberals have really been pushing. And you have stated your support for John Conyers convening an investigation into potential lawbreaking in the Bush administration.

PELOSI: Absolutely.

MADDOW: You've been outspoken about contempt of Congress charges related to the politicization of the Justice Department and that investigation. You have been less specific about how Congress should proceed on wireless warren less wiretapping and torture. Why is that?

PELOSI: …Senator Leahy has a proposal, Truth and Reconciliation Commission, which is a good idea. What I have some concern about there is it has immunity. And I think that some of the issues involved here, like politicizing of the Justice Department and the rest, may have criminal ramifications, and I don't think we should be giving them immunity.

But we'll find a way to go forward -- because American people want us to go forward -- but also making sure that the Constitution's respected -- and that's what our issue is, whether you’re talking about separation of power, whether you’re talking about Karl Rove, Josh Bolten, and the others at the White House, not responding to subpoenas by the Congress on the subject of the Justice Department politicizing. And so those issues are still alive.

…I don’t want to look back, I want to go forward, but as we try to have reconciliation, I'm a little hesitant to have immunity… More than a little bit hesitant, let me say. I don't think we should have immunity for some of those issues.

When asked about prosecutions, Speaker Pelosi said that no one is above the law, and again emphasized the importance of getting to the truth of what happened:

MADDOW: Then in terms of moving forward, if the inspector general report that comes out this summer suggests that there has been criminal activity at the official level on issues like torture, or warrant less wireless wiretapping, or rendition, or any of these other issues...

PELOSI: No one is above the law. The president has said that.

MADDOW: ...you would support a referral for a criminal investigation, potential prosecution.

PELOSI: Absolutely. No one is above the law, but we have to go through -- we have to have the facts. I mean, we are unhappy about certain things, we anecdotally know about certain things. We will have the documentation of it, and we can go forward. I don't know what other criminal investigations are going on concurrently, because they are not usually publicly disclosed. But I'm hopeful that as we go forward, the American people will have more confidence in their government and how we protect them. Get liberty and security, they're very compatible. You don't have to choose one or the other.

Human Rights First believes that President Obama should direct Attorney General Eric Holder to investigate individuals and hold them accountable for authorizing or engaging in the abuse of detainees.

And, as Senator Leahy has said, “we must read the page before we turn it.” It is vital that we learn if significant mistakes were made. The project of a Truth Commission, no matter what form it takes, should include an analysis of strategic gains (such as attacks provably averted) and strategic losses (such as failure to gain reliable information or harm to U.S. counterterrorism efforts) due to these policies and practices. We need to ask these hard questions so that we can craft strong and lawful national security policies going forward. House Speaker Pelosi is correct: liberty and security are compatible, and an investigation into past practices will serve as necessary support for this idea.

Possible al-Marri Indictment May Signal Shift to Treating Terror Suspects as Criminals

According to sources close to the case, the Obama Administration appears close to resolving the case of Ali Saleh Kahlah al-Marri, the last “illegal enemy combatant” imprisoned inside the United States. A federal grand jury is meeting today in Peoria, Illinois, and may indict al-Marri on terrorism charges, including providing material support for terrorism.

Jane Mayer writes in a New Yorker blog:

An indictment would signal a major shift in legal policy from the Bush years. It would also fulfill President Obama’s campaign pledge to restore traditional American legal practices by treating terror suspects as common criminals, rather than stripping them of standard legal rights and classifying them neither as criminal defendants nor prisoners of war.

Obama has been forced to grapple with the Marri case because the American Civil Liberties Union has filed a challenge contesting the legality of his prolonged and indefinite detention. The Supreme Court agreed to hear the case this spring, requiring the Obama Administration to file papers stating its position by March 23rd. The federal grand jury in Peoria meets only once a month, so today is likely the last chance to indict Marri before the Supreme Court’s deadline. An indictment would transfer Marri from military detention into the criminal-justice system, perhaps rendering the Supreme Court case moot.

Stay tuned.

Guantanamo Harms U.S. National Security

Yesterday, National Intelligence Director Dennis Blair told the House Intelligence Committee that the detention center at the U.S. naval base at Guantanamo Bay, Cuba, has to be closed because of the damage it has done to America's reputation and to its ability to achieve foreign policy goals. "Countries won't deal with us. Our popularity's down. We don't have blue chips to trade," said Blair.

Attorney General Eric Holder, who visited the detention center on Monday, said the facility should be closed even though it's well-run and professional. "It does not in any way decrease our determination to close the facility, even though ... it is being well-run now."

Top officials agree: Guantanamo must be closed because it harms the United States. It has damaged our reputation, imperiled our foreign policy, and thus put the country (and our troops) at increased risk.

Hearing on Truth Commission Must Include Cost-Benefit Analysis of Torture

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced today that the Committee will hold a hearing exploring ideas on how to establish a commission to investigate past national security policies. The hearing is entitled "Getting to the Truth Through a Nonpartisan Commission of Inquiry." The hearing will be held next Wednesday, March 4, at 10:00 a.m. A number of different models have been proposed for what such a Commission might look like, but hopefully this hearing will focus in on what is perhaps the most pragmatic task a Commission will face, that is examining the efficacy of harsh interrogation techniques – torture – and the strategic costs of policies allowing torture. As Senator Leahy notes in his statement announcing the convening of the hearing,

Vice President Dick Cheney continues to assert unilaterally that the Bush administration's tactics, including torture, were appropriate and effective. But interested parties' characterizations and self-serving conclusions are not facts and are not the unadulterated truth. We cannot let those be the only voices heard, nor allow their declarations to serve as historical conclusions on such important questions. An independent commission can undertake this broader and fundamental task.

Major General Tony Taguba, who is well known for conducting an honest investigation of prisoner abuse at Abu Ghraib, told Salon.com that he supports a commission. General Taguba emphasized that any review must include close analysis of claims from Bush administration officials that abusive interrogations worked. "Some of those activities were actually not effective and those who thought so were in the academic or pristine settings of their offices," Taguba said. "What would they know?" Senator Sheldon Whitehouse (D-Ri.), a member of both the Judiciary Committee and the Intelligence Committee, who is spearheading Senate efforts to establish a commission, agrees with General Taguba. He told Salon.com, "But it is important to prove the point, because they keep saying, 'We saved lives. We interrupted plans. We did this, that and the other.' Well, when you drill down, there is never a fact there. It turns into fog and evasion."

But an examination into the effectiveness of torture is not enough. We need an independent commission to determine what actionable information – if any – has been uncovered by engaging in torture and cruelty in intelligence-gathering, whether that information could have been uncovered using other techniques, and then weigh that against the enormous costs of those policies on our national security.

Former General Counsel of the U.S. Navy Alberto Mora in testimony before the Senate Armed Services Committee in June 2008, said

Our Nation’s policy decision to use so-called “harsh” interrogation techniques during the War on Terror was a mistake of massive proportions. It damaged and continues to damage our Nation in ways that appear never to have been considered or imagined by its architects and supporters, whose policy focus seems to have been narrowly confined to the four corners of the interrogation room. This interrogation policy – which may aptly be labeled a “policy of cruelty” – violated our founding values, our constitutional system and the fabric of our laws, our over-arching foreign policy interests, and our national security. The net effect of this policy of cruelty has been to weaken our defenses, not to strengthen them, and has been greatly contrary to our national interest.

In that testimony Mr. Mora raised the important point that this is not an abstract or intellectual concern. Not only have these policies harmed our relationships with U.S. allies and made the world a more dangerous place for Americans, but our troops have also been endangered. Indeed, “There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

President Obama: "The United States of America does not torture."

President Obama addressed Congress last night, February 24, 2009:

To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

In words and deeds, we are showing the world that a new era of engagement has begun.

Pentagon Report Underscores Need for Independent Monitoring of Conditions at Guantanamo

A report issued by the Pentagon yesterday concluded that the conditions of confinement at the Guantanamo Bay detention facility comply with the humane-treatment requirements of the Geneva Conventions. The report was completed at President Obama's request by Vice Admiral Patrick M. Walsh, the vice chief of naval operations.

Admiral Walsh acknowledged yesterday in a press conference that his team did not attempt to determine whether the camp had complied with the Geneva standards throughout its seven-year history. "I was not in a position to look back," Walsh said at a Pentagon briefing. "My mandate was specifically to determine whether the camp was in compliance today, and it is."

For years, prisoners' attorneys have detailed inhumane conditions of confinement at Guantanamo, including extreme isolation, lack of access to fresh air and natural light, limited access to attorneys, mental health deterioration, hunger strikes and the force feeding of hunger strikers. This report underscores the need for independent and transparent monitoring of detention conditions. Human Rights First released a statement on the report:

Though Human Rights First supports many of the improvements recommended in Admiral Walsh's report, and encourages their implementation as soon as possible, Admiral Walsh's findings stand in stark contrast to the real-time accounts of prisoners and their attorneys. We welcome the recommendation that President Obama consider inviting non-governmental organizations to Guantanamo, and we reiterate our request for full access to the detention facility so that we may examine the conditions there and, as improvements are made, credibly, independently and publicly report them to the world. Such access and reporting would set an example of transparency and inspire domestic and international confidence that the United States is re-committed to the humane treatment of prisoners in its care.

Given that Admiral Walsh was not in a position to “look back” the Pentagon report doesn’t address past violations of the Geneva Conventions at Guantanamo. As the administration works to improve conditions and close Guantanamo, an independent body should conduct a full investigation into past conditions of detention there, so that we can learn from past mistakes and abuses, and ensure that they are not permitted to occur again.

General Taguba Supports Truth Commission: "You can't sweep unlawful activities under the table"

Our friend retired Major General Tony Taguba in an interview with Salon.com called for a nonpartisan fact-finding commission to provide some degree of accountability for misguided and illegal U.S. detention and interrogation policies. General Taguba would like to see a broad mandate for the commission, including a study of administration claims that abuse gleans good intelligence, which he fervently disputes. He has a particular interest in getting to the bottom of civilian leaders' claims for the legality of the administration's interrogation and detention policies.

Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.

...

You can't sweep unlawful activities under the table and just forget about it. I feel strongly about this because we have future generations who will be the beneficiaries of these actions. We have a president who declared that torture is illegal. He signed executive orders repudiating torture and unlawful interrogation practices.

We have a lot of unanswered questions on accountability, questions that need to be answered and hold responsible officials -- civilians and military -- accountable. These include contractors. We ought not to refer to accountability as a bumper sticker or to be used loosely. We have an integrity issue to contend with if we are to prevent this matter from recurring.

Four Ways to Investigate Torture

An article in the New York Times this weekend explored several models for a potential investigation into the Bush Administration’s counter-terrorism policies, including torture and secret prisons. In a poll this month, 62% of Americans favor investigation of some kind. The possible models for such an investigation include: 1) Criminal Investigation, such as Iran-Contra; 2) Congressional Investigation, such as the inquiry by Senator Frank Church into intelligence abuses in the mid-1970s; 3) A Blue-Ribbon Panel, such as the 9/11 Commission; and 4) Doing nothing at all, and letting the inquiries in progress conclude.

For all the debate about the potentially divisive effects of an investigation, doing nothing at all is the most dangerous option. We may already know a lot about what went wrong with the Bush Administration’s policies. But a full reckoning is called for if we are to ensure that similar abuses are never again permitted, and in order to assess the full extent of the damage of those policies. Please join our Facebook group in support of an investigation.

Chinese Uighurs Should Be Released From Guantanamo

Our colleague Deborah Colson has a blog up at The Hill expressing deep disappointment at the ruling this week by the D.C. Circuit reversing Judge Ricardo Urbina’s October 2008 decision ordering the U.S. government to release the 17 Uighers imprisoned at Guantanamo into the United States. The Uighers have been held without charge in Guantanamo for nearly seven years despite the government’s inability to put forth any evidence against them, and even the Bush Administration acknowledged that they are “no longer” enemy combatants.

So why not resettle them here in the United States? President Obama is unlikely to succeed in closing Guantanamo without the cooperation of other countries. Resettling the Uighers in the United States would send an important message and increase the likelihood that other countries will accept some Guantanamo prisoners themselves. The D.C. Circuit ruling underscores the need for President Obama to act quickly.

Vice President Biden calls Bush Policies a “Recruiting Tool” for Al Qaeda

Yesterday Vice President Joe Biden spoke forcefully and eloquently about the harmful impact that Bush Administration interrogation and detention policies have had on U.S. national security as he visited the CIA to swear in Leon Panetta as its director. Vice President Biden praised President Obama for signing executive orders to close Guantanamo and CIA secret prisons and end torture, which “reverse the policies that in my view and the view of many in this agency caused America to fall short of its founding principles and which gave Al Qaeda a powerful recruiting tool.” It is refreshing to have a Vice President who can see and acknowledge the grave strategic consequences of the Bush Administration’s most egregious national security policies.

Al-Marri, The Last “Enemy Combatant” in America

Jane Mayer has a terrific article in the New Yorker this week on Ali Saleh Kahlah al-Marri, the last “enemy combatant” being detained in America. She touches upon important questions, such as the meaning of the term “enemy combatant”, the possibility of creating a new system of indefinite detention for terrorism suspects, and the ability of the U.S. federal courts to try terrorism cases. Human Rights First believes that U.S. courts are up to the challenge, and in fact our report was cited in an amicus brief in al-Marri’s case for demonstrating the success of federal prosecutions in difficult terrorism cases involving classified evidence.

Tackling one of the issues in Mayer’s piece, HRF’s International Legal Director Gabor Rona has a post up at Jurist.com urging the Obama Administration to define “enemy combatant” consistent with traditional laws of war. The Bush Administration’s overly broad, elastic definition of “enemy combatant” was not:

In the laws of war, a combatant is an individual who is privileged to participate in hostilities and is therefore, always targetable and always detainable without criminal charge. Civilians who directly participate in hostilities without a legal privilege to do so may also be targeted and may also be detained without charge under applicable domestic law, but they do not thereby become "combatants." They remain civilians…

…In short, a combatant is a combatant and a civilian is a civilian and never the twain shall meet.

To expand the class of persons designated by domestic law and practice as "combatants" beyond this long-understood limitation in international law is a recipe for confusion, at least, and disaster, at most. Conflating the distinction between civilians and combatants - the most fundamental principle in the laws of war - places both civilians and combatants at unwarranted risk and thus, undermines the single most significant purpose served by laws of war: the protection of the civilian population.

By declaring al-Marri an “enemy combatant” and locking him up in the brig in Charleston indefinitely, the Bush Administration missed a crucial opportunity to bring him to justice in U.S. courts long ago. Now the Obama Administration faces a number of challenges as it tries to move forward. One of Al-Marri’s attorneys, the ACLU’s Jonathan Hafetz says, “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush Administration’s war on terror.”

In a dissenting opinion in the Supreme Court case Rumsfeld v. Padilla, Justice John Paul Stevens reminded us of what is at stake beyond the fate of al-Marri himself:

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Looking Back to Move Forward: The Case of Maher Arar

An editorial in yesterday’s New York Times highlights a key opportunity for President Obama to demonstrate his commitment to human rights and the rule of law. Today, when President Obama meets with Canada’s Prime Minister Stephen Harper, the President should take time to discuss the case of Maher Arar.

Maher Arar, a Syrian-born Canadian, was passing through the United States in 2002 on his way from Zurich to his home in Canada when he was stopped by U.S. immigration officials and FBI agents under suspicion of having links to al-Qaeda. Twelve days later, chained and shackled, he was flown by the U.S. government to Jordan, where he was turned over to Syrian officials. In Syria he was held in a tiny underground cell and there was beaten and forced to make a false confession before pressure from the Canadian government resulted in his release a year later. He is the most well-known victim of the Bush Administration’s notorious policy of extraordinary rendition, the transfer of detainees to other countries that are known to torture and otherwise abuse prisoners, without judicial process.

A September 2006 report produced following the Canadian government’s inquiry into his case exonerated Mr. Arar of any wrongdoing. The report concluded that there was no evidence that he had committed any offense or constituted a security risk and that the information which led to his detention and deportation was inaccurate and misleading.

In 2007, the Canadian government formally apologized and offered millions of dollars in compensation to Mr. Arar. In contrast, the Bush Administration did not acknowledge any inappropriate conduct. It has also become clear, from a redacted report by the Inspector General of the Department of Homeland Security released in June 2008, that U.S. officials involved in the rendition of Mr. Arar to Syria knew that it was likely that he would be tortured. The U.S. government has long been critical of Syrian detention practices and has condemned the Syrian government for abuse of prisoners.

The Arar case is a clear example of the tragic consequences of extraordinary rendition, To restore our country’s reputation as a world leader on human rights, President Obama should pledge to review the case, and issue a full report on Mr. Arar’s mistreatment, along with an apology and an offer to compensate him for his injuries.

The case also underscores the need for a full investigation of the United States’ use of torture. In order to move forward, we must confront incidents such as the Arar case, acknowledge past mistakes, and take the necessary corrective measures. Human Rights First is calling for the establishment of a Truth Commission to evaluate the intelligence that has been gathered through torture - including the torture of prisoners who have been rendered to other countries - to evaluate the value of this intelligence and weigh it against the enormous costs to our moral authority and national security.

General Johns: "President Obama... is thoroughly knowledgeable of what he's doing and the consequences."

Residents of Loudon County, in the D.C. metro area, were treated to a special profile (printed in the Loudon extra section of the Washington Post) of Brigadier General John H. Johns, a member of Human Rights First's coalition of retired military leaders, who was with President Obama as he signed the executive orders last month. General Johns, a resident of Leisure World, praised the President for sending a message that the United States would no longer tolerate torture as an interrogation tactic. "It was clearly a high item on his agenda," General Johns said. "It signals a new era."

"You have to follow America's ideals -- while you're getting the job done."

Our colleague David Danzig has a post at Huffington Post celebrating Senator Jay Rockefeller for asking tough questions of Admiral Denny Blair, the nation’s top intelligence chief.

Poll: Majority of Americans Want Investigation of Bush Administration's Use of Torture

A USA TODAY/Gallup Poll released today finds that a majority of Americans are in favor of investigating whether Bush Administration interrogation and detention policies broke the law.

Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants. Almost four in 10 favor criminal investigations and about a quarter want investigations without criminal charges. One-third said they want nothing to be done.

Human Rights First is calling for the establishment of a non-partisan truth commission that would investigate those policies and establish a comprehensive record of what went wrong. This would be a critical step towards effectively banning torture for good by evaluating the true costs of previous policy. Join the Facebook group in support of a commission here.

"We need to read the page before we turn the page."

Our colleague David Danzig has a new blog up at Huffington Post. In his post, he calls for the establishment of a truth commission on torture, arguing that senior Bush Administration officials, like former Vice President Cheney - who continue to insist that the use of abusive interrogation techniques like waterboarding has saved American lives - can and should be proven inaccurate. There is still a lot we don't know about torture, and a truth commission would provide clarity and a way forward.

A thorough review of all information obtained through torture is warranted.

A truth commission could also perform a sophisticated cost-benefit analysis which would assess the damage done to U.S. interests due to the use of torture against the gains made in the interrogation room when these methods were employed. My guess is that the unintended consequences of employing these techniques far outweighs the benefits.

Definitive answers to these questions - rendered by a non-partisan commission with unimpeachable integrity - would help end the public debate in this country about the use of torture.

As Senator Leahy has said, "we need to read the page before we turn the page."

Jon Stewart Responds to Former Vice President Cheney

On the Daily Show last week, Jon Stewart debunked former Vice President Cheney's myths more succinctly than we did:

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Debunking Former Vice President Cheney’s Myths: Returning to the Battlefield

Cheney Myth: Citing intelligence reports, Cheney said at least 61 of the inmates who were released from Guantanamo during the Bush administration — “that’s about 11 or 12 percent” — have “gone back into the business of being terrorists.”

The 200 or so inmates still there, he claimed, are “the hard core” whose “recidivism rate would be much higher.”

“If you release the hard-core al Qaeda terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks,” he said. “If you turn ’em loose and they go kill more Americans, who’s responsible for that?” (February 4, 2009)

THE FACTS
The figure that 61 former detainees from Guantanamo have returned to the fight against the United States and its allies has been bandied about a lot lately. But even in the Pentagon’s own statement, that figure breaks down, with only 18 confirmed and 43 suspected.

The Department of Defense has announced this statistic on numerous occasions over the years, and each time the number of returnees to the battlefield is reported, the number is different, with no information offered: they don‘t identify a date, a place, a time, a name or an incident to support their claims.

And their methods of determining what constitutes a “return to the fight” were quite seriously exposed as flawed in late 2007 by Seton Hall Law School’s Center for Policy and Research. In a detailed report using public information, they examined the government’s claim at that time that some 30 Gitmo detainees had returned to the battlefield. They found the bases for that claim highly questionable:

The Department of Defense has publicly insisted that “just short of thirty” former Guantánamo detainees have “returned” to the battlefield, where they have been re-captured or killed, but to date the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. According to the data provided by the Department of Defense:

• At least eight (8) of the fifteen (15) individuals alleged by the Government to have “returned to the fight” are accused of nothing more than speaking critically of the Government’s detention policies;

• Ten (10) of the individuals have neither been re-captured nor killed by anyone; and

• Of the five (5) individuals who are alleged to have been re-captured or killed, the names of two (2) do not appear on the list of individuals who have at any time been detained at Guantánamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantánamo detainees but who, after his death, has been alleged to have been detained under a different name.

Seton Hall discovered a July 2007 news release from the government that included brief descriptions of the Government’s bases for asserting that each of seven identified “recidivists” had “returned to the fight.” They included in the list “The Tipton Three,” who, upon release from Guantánamo, have publicly criticized the way they were treated at the hands of the United States in the documentary film “The Road to Guantanamo.” On this basis, they were deemed to have participated in “anti-coalition militant activities” despite having neither “returned to a battlefield” nor committed any hostile acts whatsoever.

Also on the list, were a group of Uighurs in Albania who were in a refugee camp until relatively recently resettling in Tirana, except for one, who lives with his sister in Sweden. Apparently, DoD categorizes as “anti-coalition militant activity” the writing of an opinion piece in the New York Times by one of the Uighur men, Abu Bakker Qassim, which urged American lawmakers to protect habeas corpus. If critical of the United States Government, speech is evidently considered “anti-coalition militant activity.”

The government curiously admitted in that news release above that it does “not generally track ex-GTMO detainees after repatriation or resettlement.” It is unclear how the Government is able to identify returnees to the fight if it doesn’t keep track of ex-detainee whereabouts. This admission further undermines the basis for the statistics.

The new number – 61 former detainees – should not be accepted simply because DoD says it is so. In fact, the numbers made public by the government are incoherent and baseless. Even the government is only confident of 18 returnees, and if the basis of that confidence is anything like the methodology behind the 2007 statistics, the government’s – and former Vice President Cheney’s – assertions ring hollow.

Debunking Former Vice President Cheney’s Myths: The Worst of the Worst?

Cheney Myth: “When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” Cheney said. “These are evil people. And we’re not going to win this fight by turning the other cheek.”

Cheney said he has heard from few members of Congress eager for Guantanamo transfers to their home-state prisons, and asked: “Is that really a good idea to take hardened al Qaeda terrorists who’ve already killed thousands of Americans and put ’em in San Quentin or some other prison facility where they can spread their venom even more widely than it already is?”(February 4, 2009)

THE FACTS
Some 779 detainees have passed through Guantanamo since it opened in 2002. Since 2004, when the Pentagon set up a review system to evaluate the 558 detainees remaining at the base, 330 detainees have been transferred or released. It is therefore obvious that, since the beginning, it was wrong for senior government officials to label all those held at Guantanamo as the “worst of the worst.”

Although much information about the approximately 242 detainees who are still being held remains obscure, we do know something about a number of them. Among the population still there, some detainees have been ordered released pursuant to court order, but are still being held at Guantanamo, including:

• 17 Uighurs (they are now being held at Camp Iguana, detained without clarity on their date of release despite a federal court ordering their release into the U.S. last autumn)
• 2 Boumediene petitioners, Lakhdar Boumediene and Saber Lahmar (now in Camp Iguana, ordered released by court, but not yet released)
• el Gharani (a Chadian child who was detained at the age of 15 and who remains in solitary confinement despite a court order to release him)

In total, the government has claimed that approximately 60 detainees who are still at Guantanamo are cleared for release.

In the last three months, at least 24 detainees have been declared improperly held, and many of these men have been sent home, including:

• Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella, who were ordered released by federal court order and sent home in December.
• Haji Bismullah, who was repatriated to Afghanistan some weeks ago as a result of a second CSRT in which he was classified as a "No Longer Enemy Combatant."
• Four Iraqis and an Algerian were also repatriated along with Bismullah. These were not transferred home pursuant to court order.

The cases have provided “a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely,” according to the New York Times. The government has failed to make its case against many of the detainees, which calls into question the validity of continuing to hold those who remain in Guantanamo today.

Are statements like Cheney’s characterizing the entire population of Guantanamo as ruthless terrorists – without regard to the facts – designed to protect American lives – or simply the political careers of the people who architected this disastrous detention policy? To listen to Cheney, one would think that simply being held at Gitmo makes you guilty of terrorism, but we know that this is not the case. And the more we learn about the people who are there, the more necessary a comprehensive review of all the cases becomes, and the less accurate the Bush Administration’s oft-repeated statements about those held at Gitmo appear to be.

Looking Back in Order to Move Forward

Yesterday, Senator Patrick Leahy (D-VT) called for a truth commission to investigate controversial actions of the Bush administration, including the politically inspired firings of U.S. attorneys, the treatment and torture of terrorism suspects and the authorization of warrantless wiretapping. He said his proposal is meant to launch a fact-finding inquiry into key decisions of the Bush Administration. "Sometimes the best way to move forward is getting to the truth, finding out what happened, so we can make sure it does not happen again," he said.

When asked about Senator Leahy’s announcement at his first evening press conference last night, President Obama said that he hadn’t yet seen the proposal. But he did reaffirm that his administration is determined to get it right, moving forward:

Obama: What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture, that we abide by the Geneva Conventions, and that we observe our traditions of rule of law and due process, as we are vigorously going after terrorists that can do us harm. And I don't think those are contradictory; I think they are potentially complementary.

My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.

But that, generally speaking, I'm more interested in looking forward than I am in looking backwards. I want to pull everybody together, including, by the way, the -- all the members of the intelligence community who have done things the right way and have been working hard to protect America and I think sometimes are painted with a broad brush without adequate information.

So I will take a look at Sen. Leahy's proposal, but my general orientation is to say let's get it right moving forward.

An important part of moving forward will be the establishment of a truth commission; we hope President Obama will take the idea into serious consideration. Please join our Facebook group calling on the President to establish a truth commission here.

Mr. President: Please Establish a Truth Commission on Torture

Torin Nelson, an experienced interrogator, has a piece up at Huffington Post calling for President Obama to establish a truth commission to establish a comprehensive record of what went wrong and the true costs of abusive interrogation and detention policies under the previous administration. To truly end torture, he argues, we need such a commission; otherwise we will be haunted by past mistakes as we try to move forward.

There are those who continue to promote the use of torture, although experts – people who have gathered actionable intelligence in the interrogation booth like Mr. Nelson – agree that torture is neither necessary nor effective. And in many cases we know that torture has provided bad, tainted information.

As Mr. Nelson writes, “It ought to be possible to conduct a sophisticated cost-benefit analysis that examines the unintended consequences related to our actions. We know, for example, that Abu Ghraib was a boon to Al Qaeda recruiting. How much does the use of these "tools" undermine our efforts?”

With Human Rights First, Mr. Nelson has started a Facebook group to show support for the establishment of such a commission. Please join our Facebook group here.

“Punish the guilty. But don’t punish the innocent.”

Today in the New York Times, Clyde Haberman profiles Valerie Lucznikowska, a woman who met recently with President Obama. She, like the others who were invited to attend the meeting, had lost a relative in the attacks of Sept. 11, 2001. This group (along with relatives of victims of the of the Navy destroyer Cole in Yemen in 2000) were invited by President Obama so that he could explain to them personally why he had ordered Guantanamo to be closed within a year, and why he suspended military trials until his administration figured out how to prosecute the remaining terrorism suspects. Be assured, he told them, that those people would receive “a swift and certain justice.”

Not all the participants shared President Obama’s views on Guantanamo, but Ms. Lucznikowska had this to say:

“I’m not interested in revenge. Revenge is useless if you don’t uphold your own principles. What good is it to punish someone if you are not punishing them justly? That’s what America is all about.”

“I don’t want to see Khalid Sheikh Mohammed go scot-free,” she said, referring to the confessed 9/11 mastermind. “I’m not an idiot. I want to see justice. Punish the guilty. But don’t punish the innocent.”

U.S. Must Regain Respect By Rejecting Former Vice President’s Claims

Last week former Vice President Cheney gave an interview where he continued to espouse his dangerous claims that President Obama’s moves to correct some of the Bush Administration’s most egregious abuses make us less safe. He continued to defend the Bush Administration's support for Guantanamo Bay and inhumane interrogation of terrorism suspects, and he notably claimed that “we're not going to win this fight by turning the other cheek.” This is a shameful attitude.

Not to mention a groundless one. His statements offer sweeping and totally unverifiable pronouncements about the effectiveness of the Bush policies. “If it hadn't been for what we did -- with respect to the terrorist surveillance program or enhanced interrogation techniques for high-value detainees, the Patriot Act and so forth -- then we would have been attacked again,” Cheney claimed.

In fact, the policies have had a deleterious effect on our troops in Iraq; interrogator Matthew Alexander has posited that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. As he wrote in the Washington Post, “How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.”

A Washington Post editorial this weekend does a nice job of debunking some of the outrageous statements made by Cheney:

Most profoundly, Mr. Cheney fails to recognize the damage these policies have done to the country's reputation at large. They have alienated even once-stalwart allies, and they have played into the hands of terrorist leaders, who use the sordid images from Abu Ghraib and tales of abuse at secret CIA prisons overseas as political ammunition to recruit the next wave of suicide bombers and foot soldiers. Thanks to Mr. Cheney and his allies, global respect for the United States is at a low point. Part of the mission of preventing attacks must be to repair that damage.

With his executive orders on Guantanamo, secret prisons, and torture, President Obama has begun the project of restoring America’s reputation – and making us safer. But there is more work to be done, including the establishment of a non-partisan commission investigating the facts and circumstances relating to U.S. detention and interrogation since September 11, 2001, and identifying lessons learned so that our country can avoid future abuses. Such a commission could be instrumental in assessing the strategic impact of the policies Cheney has continued to praise without cause or reflection.

Listen: General Cullen on The Leonard Lopate Show

Brigadier General James P. Cullen is one of over 40 retired generals and admirals who have joined forces with Human Rights First to push for the reforms to the detainee system that President Obama implemented on January 22nd when he signed three executive orders guaranteeing humane and lawful treatment of terror suspects held by the U.S. General Cullen was in the room when President Obama signed the orders. He appeared on The Leonard Lopate Show on WNYC this morning to speak about these important first steps and the work HRF has done with the retired military leaders. Listen here:

NYTimes Op-Ed: Torture Makes Successful Interrogation Impossible

There was a nice op-ed piece by a former interrogator in the New York Times this weekend, in response to recent statements by former Vice President Cheney. Donald P. Gregg worked for the CIA for 30 years, including during the Vietnam War. In his op-ed, he recalls an occasion when humane treatment of a prisoner in Vietnam yielded "a flood of actionable intelligence" that allowed him to disrupt planned operations, including rocket attacks against Saigon, saving many lives. He concludes:

The key to successful interrogation is for the interrogator — even as he controls the situation — to recognize a prisoner’s humanity, to understand his culture, background and language. Torture makes this impossible.

There’s a sad twist here. Mr. Cheney forgets that the Bush administration followed this approach with some success. A high-value prisoner subjected to patient interrogation by an Arabic-speaking F.B.I. agent yielded highly useful information, including the final word on Iraq’s weapons programs.

His name was Saddam Hussein.

General Petraeus: "What sets us apart from our enemies... is how we behave."

Last Sunday, you may have noticed General David H. Petraeus, commander of U.S. Central Command, performing the ceremonial coin toss at the Super Bowl. We thought this would be a good opportunity to share the letter General Petraeus wrote to the troops in Iraq in May 2007. His clear messages - that what distinguishes us from our enemies is our values, and his condemnation of the use of torture and other “expedient” interrogation methods – are even more memorable than a very exciting Super Bowl, and should stick with us long after post-Super Bowl hangovers and tummyaches have subsided. Here is the text in its entirety:

HEADQUARTERS
MULTI-NATIONAL FORCE - IRAQ
BAGHDAD, IRAQ
APO AE 09342-1400

10 May 2007

Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen serving in Multi-National Force-Iraq:

Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we - not our enemies - occupy the moral high ground. This strategy has shown results in recent months. Al Qaeda's indiscriminate attacks, for example, have finally started to turn a substantial proportion of the Iraqi population against it.

In view of this, I was concerned by the results of a recently released survey conducted last fall in Iraq that revealed an apparent unwillingness on the part of some US personnel to report illegal actions taken by fellow members of their units. The study also indicated that a small percentage of those surveyed may have mistreated noncombatants. This survey should spur reflection on our conduct in combat.

I fully appreciate the emotions that one experiences in Iraq. I also know firsthand the bonds between members of the "brotherhood of the close fight." Seeing a fellow trooper killed by a barbaric enemy can spark frustration, anger, and a desire for immediate revenge. As hard as it might be, however, we must not let these emotions lead us - or our comrades in arms - to commit hasty, illegal actions. In the event that we witness or hear of such actions, we must not let our bonds prevent us from speaking up.

Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequency neither useful nor necessary. Certainly, extreme physical action can make someone "talk;" however, what the individual says may be of questionable value. In fact, our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.

We are, indeed, warriors. We train to kill our enemies. We are engaged in combat, we must pursue the enemy relentlessly, and we must be violent at times. What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also all human beings. Stress caused by lengthy deployments and combat is not a sign of weakness; it is a sign that we are human. If you feel such stress, do not hesitate to talk to your chain of command, your chaplain, or a medical expert.

We should use the survey results to renew our commitment to the values and standards that make us who we are and to spur re-examination of these issues. Leaders, in particular, need to discuss these issues with their troopers - and, as always, they need to set the right example and strive to ensure proper conduct. We should never underestimate the importance of good leadership and the difference it can make.

Thanks for what you continue to do. It is an honor to serve with each of you.

David H. Petraeus
General, United States Army
Commanding