ACLU, CCR Sue to Protect Anwar al-Awlaki’s Right to a Lawyer

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Some weeks ago, the ACLU and Center for Constitutional Rights had planned to sue the government on behalf of Anwar al-Awlaki’s father. But in remarkable bit of timing, the government designated Awlaki a specially designated terrorist, meaning ACLU and CCR would have to get a “license” before they could engage in a transaction like legal representation on behalf of Awlaki. So now, the two groups are suing to make such licensing illegal.

Glenn Greenwald has the full story:

Early last month, the ACLU and the Center for Constitutional Rights were retained by Nasser al-Awlaki, the father of Obama assassination target (and U.S. citizen) Anwar al-Awlaki, to seek a federal court order restraining the Obama administration from killing his son without due process of law.  But then, a significant and extraordinary problem arose:   regulations promulgated several years ago by the Treasury Department prohibit U.S. persons from engaging in any transactions with individuals labeled by the Government as a “Specially Designated Global Terrorist,” and those regulations specifically bar lawyers from providing legal services to such individuals without a special “license” from the Treasury Department specifically allowing such representation.On July 16 — roughly two weeks after Awlaki’s father retained the ACLU and CCR to file suit — the Treasury Department slapped that label on Awlaki.  That action would have made it a criminal offense for those organizations to file suit on behalf of Awlaki or otherwise provide legal representation to him without express permission from the U.S. Government.  On July 23, the two groups submitted a request for such a license with the Treasury Department, and when doing so, conveyed the extreme time-urgency involved:  namely, that there is an ongoing governmental effort to kill Awlaki and any delay in granting this “license” could cause him to be killed without these claims being heard by a court.  Despite that, the Treasury Department failed even to respond to the request.

Left with no choice, the ACLU and CCR this morning filed a lawsuit on their own behalf against Timothy Geithner and the Treasury Department.  The suit argues that Treasury has no statutory authority under the law it invokes — The International Emergency Economic Powers Act — to bar American lawyers from representing American citizens on an uncompensated basis.  It further argues what ought to be a completely uncontroversial point:  that even if Congress had vested Treasury with this authority, it is blatantly unconstitutional to deny American citizens the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a permission slip from Executive Branch officials.

Click through for much more.

Netroots Nation: Close Gitmo and Use the Legal System

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I’m going to be liveblogging today’s panel discussion, Close Gitmo and Use the Legal System at Netroots Nation 2010. Panelists featured are Adam Serwer, Matthew Alexander, Rep. Jerry Nadler, Vince Warren, and your very own emptywheel, Marcy Wheeler. (Video of this panel may be available later, technology permitting.) This is a rough paraphrase, not a word-for-word transcript.

Wheeler: Lists good news and bad news about the topic of detention and Gitmo; we have seen some positive changes but over the big picture, no real change.

Nadler: Very frustrated as not much has happened this year. Notes that the administration has not behaved as anticipated prior to taking office. Congress has enacted bills to restrict transfers of detainees; although it’s possible to try detainees in court, nothing has happened.

Gitmo used as a tool of political fear. 192 detainees remain at Gitmo; 35 have been identified as those who could be charged with offenses, the majority could be released.

President has outlined procedures which are different, but outcomes are the same. Detainees may be charged, tried in civilian court, tribunals, or detained indefinitely — simply because we say a detainee is dangerous. Habeas corpus has not been recognized. We still have people who have been cleared altogether who have been detained because we can’t release them. The refusal to take some of these people into the U.S. has made it difficult to negotiate with other countries to take some of the same. If they are not dangerous, there’s no good reason why they cannot be released into the U.S.

Gitmo is not under writ of habeas corpus; also a question as to whether Bagram airport is also under writ of habeas corpus. Also in contention whether black sites are as well. May be maintained that battlefield sites may not be covered by habeas corpus, but what about detaining individuals seized in Sweden? Or case of individuals who were taken into detention by locals and turned over for bounties.

Prisoner of war is used as an excuse for indefinite detention, but it’s the war is not clear. No uniform, taken away from battlefield, no change over the year on this issue. Not an optimistic assessment.

Serwer: Not one of the happier panels here at NN10 because so little has happened. One of the places where uniformity of Republican opposition has been affected has been on issue of Gitmo; even Bush said Gitmo should be closed, Republicans agreed, and yet the resolve has changed. The lack of urgency now gives impression that Gitmo is not as bad as it is.

Alexander: Aware that al Qaeda uses Gitmo as a recruiting tool, showing our hypocrisy in detaining people, making this a key reason why Gitmo should be closed. We compromised our principles in using and keeping Gitmo open, partly out of fear, partly out of prejudice against Muslims and Arabs. One of the fundamental reasons Gitmo should be closed is one the left doesn’t use — it should be closed for patriotic reasons. It should be closed to remove it as a recruiting tool for terrorism.

Warren: Points out that Nadler is his congressman; Nadler had fought the defunding of ACORN as an unconstitutional bill of attainder. Believes Alexander’s point about Gitmo as a recruiting tool is important, but brings a couple other perspectives to the table. This is Obama’s Guantanamo. Previously fought against the Bush administration on the Boumediene case, but now this is the current administration.

Roughly 177 men in Gitmo, some have been cleared. The underwear bomber incident stopped the release of the 60 men cleared, brought process to a halt.

Obama’s story is about what we hear as well as what we don’t hear. Chinese Uighurs were ordered released as they were no threat; Bush administration fought the order. Now the Obama administration maintains that the Uighurs should not be released because China might detain and torture these individuals. Yet Obama administration has vigorously opposed release Uighurs into the U.S. as it was in conflict with immigration laws. Abdul Aziz Naji has been injured, poorly treated, could be released to Algeria, but could be tortured or killed by one of two factions — Algerian government or fundamentalists, which Naji described as being caught between two fires. His case went to Supreme Court, was released to Algeria but “disappeared” as no record of his arrival in Algeria has been recorded. A source has said Naji has been taken into custody for “routine interrogation” but the Algerian government itself has not acknowledged. This is a situation which Obama administration claimed it was trying to get away from.

Obama administration is now itself caught between two fires.

(cont’d.) Read more →

Closing Gitmo: Unintended (?) Consequences

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As you all presumably know, I’ve been in the city of sin all week, doing two days of training and then, yesterday, attending some really good panels at Netroots Nation.

One highlight of the week for me will surely be my panel Saturday at 1:45 Las Vegas time (4:45 ET). Congressman Jerrold Nadler, Center for Constitutional Rights Director Vince Warren, Matthew Alexander, American Prospect’s Adam Serwer, and I will talk about why we need to close Gitmo and how we can do it.

I fear we’re going to be talking as much about unintended consequences as we will about closing Gitmo the right way.

Take the case of  Abdul Aziz Naji. He’s the Algerian who had been detained at Gitmo, who objected being sent back to his home country because he feared torture. Though he appealed his repatriation all the way to SCOTUS (here’s Balkinization on the legal issues), he ultimately lost his bid to stay in Gitmo rather than be returned home.

And now, after being returned to Algeria on Monday, he has apparently disappeared.

The New York-based Center for Constitutional Rights, which represents many Guantanamo detainees, said Naji’s lawyers and family have been unable to locate or contact him since he was repatriated by the U.S. government.

“His whereabouts and well-being in Algeria are currently unknown,” it said in a statement. “Mr. Naji has disappeared since his return to Algeria, and is presumably being held in secret detention by Algerian state security forces.”

Pardiss Kebriaei, a lawyer with the center, said: “We know that he’s been transferred. But as for where he is … we don’t know. It’s very concerning.”

Now, Algeria’s government has denied that he was detained. Which is interesting since–as the Long War Journal points out–our own government called his repatriation a transfer, not a release. That usually means transfer into custody. That seems to suggest we did intend Algeria to hold him.

So where is he?

Anyway, hopefully CCR’s Warren will have an update when he speaks on Saturday.

Jay Bybee Suggests He Wouldn’t Recuse on Ghost Detainee Case

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When Jerry Nadler asked Jay Bybee whether or not it would legal to disappear someone for three years, the Appeals Court Judge refused to answer, saying he might have to rule on such an issue.

Nadler: Let’s assume you had been asked the question, would it be legal to keep people incommunicado in solitary confinement for over 3 years with no knowledge of where they were being held, with no contact with anyone other than the interrogators for 3 years?

[snip]

Nadler: I’m asking under the laws of the United States generally, is it legal or illegal in your opinion to do what I just described?

Bybee: I don’t think I can answer it. I’m very hesitant to speculate because these are the kinds of questions that may come up before my court. I don’t want to be prejudging.

So the guy whose signature set up our entire detainee abuse regime pretends, at least, that he might rule on the issue of ghost detainees as a Judge.

Anyone need any more reasons why Jay Bybee should no longer serve as an Appeals Court Judge?

Omar Khadr Condemns the Military Commissions

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Carol Rosenberg, recently freed from her arbitrary banning at Gitmo, posts this picture of a statement Omar Khadr read aloud in court today explaining why he wants to boycott any further proceedings. [my transcription; I’ve added punctuation but not changed spelling]:

Your honor, I’m boycotting this military commission because:

  • Firstly, the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human right organization or any person say that the commission is fair, or looking for justice, but on the contrary they say it is unfair and unjust and that it has been constructed solely to convict detainees and not to find the truth (so how can I ask for justice from a process that does not have it or offer it?) [new color ink–apparently added later] and to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the US government look good in the public eyes and other political causes.
  • Secondly, the unfairness of the rules that will make a person so depressed that he will admit to alligations or take a plea offer that will satisfy the US government and get him the least sentence possible and ligitimize the show process. Therefore I will not willingly let the US gov use me to fullfil its goal. I have been used to many times when I was a child and that’s why I’m here taking blame and paying for thing I didn’t have a choice in doing but was told to do by elders.
  • Lastly I will not take any plea offer or [several words redacted] because it will give excuse for the gov for torturing and abusing me when I was a child.

In some of her tweets, Rosenberg said the judge has proposed reconvening on the suppression hearing August 9 and moving forward with the trial in October.

Update: Corrected post to note that Khadr read this aloud. Also note Rosenberg’s latest:

Guantanamo prosecutor: Omar Khadr is trying to mock the war court. Judge notes the Canadian did try to fire his lawyers this time last year

God forbid anyone mock our kangaroo court. Follow Rosenberg on twitter yourself here.

Update: Here’s Rosenberg’s article on today’s hearing.

DOD Allows Carol Rosenberg to Return to Gitmo Next Week

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There are two pieces of good news in this McClatchy story reporting that Carol Rosenberg, one of four journalists banned from Gitmo because she published the previously reported name of Omar Khadr’s first interrogator, Joshua Claus, will be allowed to return next week rather than after August 5, as they had previously decided. The first piece of good news is that Rosenberg, easily the best and most experienced Gitmo reporter out there, will be back on the job.

The Pentagon on Thursday reversed its ban on a Miami Herald reporter from covering military commissions at Guantánamo Bay, Cuba, and said the reporter can return to the naval base there to cover a hearing next week.

The other piece of good news is that McClatchy appears uncowed by DOD’s efforts to intimidate. The story reports precisely the piece of news for which Rosenberg got banned in the first place!

Before a May hearing, Rosenberg and the three Canadian journalists published the name of a witness that the government had said should be identified as “Interrogator No. 1.” The name of the witness, former Army Sgt. Joshua Claus, had been known for years after he voluntarily gave a newspaper interview to one of the banned Canadian reporters denying that he had abused Khadr.

Claus also had been convicted by a U.S. court martial of abusing detainees in Afghanistan and sentenced to five months in prison. [my emphasis]

So much for DOD’s efforts to prevent readers from learning that the same guy that threatened Khadr with rape was convicted in association with Dilawar’s death.

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Obama Administration Follows Bush/Cheney On Politicization Of DOJ

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Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, Read more →

The Use of False Passports Does Not Make Someone an Al Qaeda Member

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Happy Fourth of July.

This week, the DC Circuit Court had to tell the government that using false passports does not make someone an al Qaeda member.

At issue is the appeal of Belkacem Bensayah, an Algerian who had been living in Bosnia alleged to have arranged travel for five others (the rest of the detainees set free after the Boumediene decision gave them habeas rights) to go to Afghanistan to fight the Americans. In the past, the government has claimed the phone number of a “senior al Qaeda member”–reported to be Abu Zubaydah–was found in his possession (PDF 19); in addition, a senior al Qaeda member (presumably also a reference to Abu Zubaydah) “reported he has known the detainee since 1993 when the detainee went to Afghanistan from the war in Tajikistan.”

But the evidence presented in his factual return consists of the following:

  • An intelligence report, labeled, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE,” which the District Court determined could not be relied upon by itself because of “uncertainty about the source of the document and how the information therein was gathered”
  • Claims that Bensayah had ties to Abu Zubaydah–though the Appeals ruling notes that the government provided no evidence of any contact between the two
  • Proof that Bensayah had traveled on false passports in the past (Bensayah said he did so to avoid being sent back to Algeria where he feared prosecution)
  • Questions about his whereabouts in the 1990s, none of which alleges a tie to al Qaeda

The Appeals Court bounced this case back to the District Court to see if the government could come up with any more evidence.

So at one level, this is another of the many cases where the government has detained someone for years based on what Courts say is a too-tenuous connection to al Qaeda.

But this case is all the more interesting because of the way it relates to questions I raised the other day about Kagan’s comments about indefinite detention. As Charlie Savage reported in detail in March, once the Obama Administration backed off Bush’s justification for detaining alleged terrorists under Article II, it set off a debate within the Administration over whether they could detain people who had just supported–but were not a part of–al Qaeda. Harold Koh said they could not, Jeh Johnson said they could, and David Barron, acting head of OLC, basically just punted. Read more →

Press Groups Call Gitmo Banning Prior Restraint

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“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” … The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” SCOTUS Pentagon Papers Decision

A coalition of press outlets have written DOD General Counsel Jeh Johnson, calling that the banning of four Gitmo reporters for publishing the name of Omar Khadr interrogator Joshua Claus an unconstitutional example of prior restraint.

In a letter to Pentagon General Counsel Jeh Johnson, the organizations argue that the Pentagon’s interpretation of the rules is “plainly illegal” because it bars publication of information considered “protected” even if the information is already widely known and publicly available.

Such a restriction is “a ‘classic example’ of a prior restraint” that “the Supreme Court repeatedly has refused to allow . . . even in the name of national security,” the organizations said.

The organizations include McClatchy Newspapers, which owns The Miami Herald and 30 other newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters and The Washington Post.

[snip]

“There must be a sufficiently strong, legitimate government interest before a contractual condition may legally restrict a citizen’s First Amendment rights,” attorney David Schulz wrote on the news organizations’ behalf. “As demonstrated above, no such legitimate interest justifies the overly broad censorship imposed by the ground rules.”

The news organizations are also taking issue with the way DOD reviews and deletes images for classification reasons.

What’s particularly interesting about this challenge, IMO, is how the timing is going to work out. As the article notes, DOD has agreed to lift the ban on the four reporters on August 5 (though I believe the reporters will have to “reapply” for credentials, providing one more opportunity for mischief).

The Pentagon has agreed to lift the ban on the four reporters on Aug. 5. That, however, isn’t enough, the organizations said, noting that the hearing the reporters were covering resumes on July 12.

That is, in a show of faux-reasonableness, DOD has agreed to let the three best Canadian Gitmo reporters and the best Gitmo reporter, period, apply for credentials again on August 5. But, as the article makes clear, that means the journalists won’t be able to attend “the hearing the reporters were covering” which starts up again in a week. Canada’s best Khadr reporters and Carol Rosenberg will be able to reapply to cover Khadr’s actual trial, but they won’t be able to cover the rest of his suppression hearing, which reconvenes on July 12.

That hearing, of course, concerned whether or not Omar Khadr’s confessions should be thrown out because of abuse he suffered at the hands of his interrogators.

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Even the Crusades Weren’t “Forever”

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I’m going to assume John Cole was asking sincerely when he posted this request.

Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

 

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

The question of whether the GWOT will have a “definable end” that justifies indefinite detention means two things in practical terms. First, how long will a state of war exist that justifies our holding of 48 Gitmo detainees who can’t otherwise be prosecuted. And second, how long will a state of war exist that justifies holding people at Bagram, including bringing them to Afghanistan after being captured in other locations, for indefinite detention.

48 Gitmo detainees

So how long will we have a legal claim–both within US and international law–to justify holding the 48 detainees at Gitmo that we currently can’t charge but deem too dangerous to release?

As I pointed out in this post, the Gitmo Review Task Force Report provided the following reasons why we can’t charge these men:

  • At least some of these detainees can’t be charged because evidence against them is tainted (this probably includes people like Mohammed al-Qahtani and Abu Zubaydah).
  • For others, we only have evidence they were members of al-Qaeda, and not that they engaged in any actual terrorism against the United States, even including actions taken after October 2001 which might be legally considered self-defense but which in some cases (such as with Omar Khadr) we’ve chosen to label as terrorism. If these people had engaged in the same activities for which we’ve got evidence after October 2001–and especially after December 2004–we might be able to charge them, but they haven’t.
  • For a number of these men, we had evidence that we could have used to charge them with material support for terrorism but held them so long without charges that the statute of limitations has expired.
  • For some of these men, we purportedly could have charged them with material support, but did not because of “sentencing considerations,” which I take to mean we believed that the 15 year maximum sentence was too short, and so have not charged them (note, the Obama administration has not gone to Congress and asked for a change to this sentence).

Given that we can’t try these men, we are instead justifying holding them under the law of war. As Kagan explained,

Under the traditional law of war, it is permissible to hold an enemy combatant until the end of hostilities and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

And, as she made explicit elsewhere in this exchange and repeatedly during her hearings, our ability to invoke the law of war depends on our ability to invoke the AUMF passed after 9/11, which states,

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

We can only legally use this justification against people who either by themselves aided 9/11, or were members of an organization or nation that aided 9/11.

Now, we’re already pushing this, as the government’s lousy 14-36 record on habeas cases makes plain. For example, the Gitmo Task Force claimed the ability to hold people who simply have a “history of associations with extremist activity” without requiring that they have actually either membership in al Qaeda or direct participation in 9/11.

But to envision that the hostilities authorized by the AUMF will not end, you have to envision both that the  al Qaeda and affiliates that existed at the time of 9/11 will exist indefinitely, and/or that we will remain at war against the Taliban forever.  In some cases, this is obviously not going to be the case. Hamid Karzai is already talking about bringing Gulbuddin Hekmatyar into government. If he does so, will we still have justification to hold the members of Hezb-e-Islami Gulbuddin who are among the 48? Discussions about a deal with the Taliban are less optimistic, but if we really do withdraw in 2011, will we still have the basis to hold the Taliban members who are among the 48? If we kill or capture Osama bin Laden and Ayman al-Zawahiri, will we still claim holding someone who served as OBL’s guard in 2001 is too dangerous to release?

But even the al Qaeda and affiliates described in the AUMF seem to have a definite endpoint. After OBL and Zawahiri are gone and we’ve managed to kill our 217th “al Qaeda Number 3” will we still be able to say that the al Qaeda that hit us on 9/11 still exists? At some point, judges are going to consider the al Qaeda copycat groups that pop up in various locales to be too tenuously connected to the al Qaeda of 9/11 to be meaningfully the same group anymore.

Read more →