Mitt Romney Names Two Torture Lawyers to “Justice Advisory Committee”

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The headline news about Mitt Romney’s new advisory committee of 63 lawyers is that Robert Bork is co-chairing it.

But even more troubling is that he has named two of the lawyers that okayed torture–Steven Bradbury and Tim Flanigan–to it.

Bradbury, of course, wrote the Combined Torture memo, which found, in part, that waterboarding someone 183 times in a month does not shock the conscience.

He also told DOD it could do whatever it wanted, so long as it called it “Appendix M.” Bradbury failed to mention that memo from Congress, too, when they asked for a list of all the torture memos he had been involved in.

Bradbury would have been investigated over the memos he wrote, had Michael Mukasey not intervened.

Flanigan was one of the three lawyers–along with David Addington and Alberto Gonzales–who told John Yoo to turn the Torture Memo into a “Get Out of Jail Free” card by saying that if the Commander-in-Chief ordered torture, then it couldn’t be prosecuted.

Now, why would Presidential Candidate Mitt Romney appoint two men who called torture legal to his Justice Advisory Committee?

Richard Ben-Veniste Calls out Obama for Spiking the Privacy Board

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I just watched a scintillating panel at the Aspen Security Forum. It featured former LAPD Chief Bill Bratton, Alberto Gonzales, ACLU’s Anthony Romero, John Yoo, and David Cole, moderated by Dahlia Lithwick.

The panel itself was notable for the staging of it. The panelists were seated right next to each other, with no table in front. Gonzales sat right next to Romero; Yoo sat right next to Cole. So when Romero corrected Lithwick’s assertion that the Bush Administration had showed respect for using civilian trials with terrorists by recalling that Gonzales had argued for holding American citizen Jose Padilla without trial, Gonzales shifted notably, uncomfortably, by my read. And when Cole rehearsed the language people like Michael Mukasey and Jack Goldsmith used to describe Yoo’s memo all the while pointing with his thumb at Yoo sitting next to him–“solvenly,” he emphasized–Yoo also shifted, though aggressively towards Cole. Before it all ended, Romero started reading from Yoo’s torture memo; Yoo accused him of using Dickensian dramatic delivery.

The physical tension of these men, attempting to contain the contempt they had for each other while sitting in such close proximity, was remarkable.

There were a number of other highlights: John Yoo made the ridiculous claim that no one in the human rights community had come out against drone strikes (Romero came back later and reminded him the ACLU had sued on precisely that issue, representing Anwar al-Awlaki’s family). Gonzales insisted there should be accountability (no matter that he escaped it, both when he politicized DOJ and when he took TS/SCI documents home in his briefcase). Romero hailed Obama’s “willingness to shut down secret sites,” apparently missing Jeremy Scahill’s recent scoop about the CIA-paid prison in Somalia. Yoo, as is typical, lied to protect his actions, not only repeating that canard that torture helped to find Osama bin Laden (rather than delayed the hunt as is the case), but also to claim that warrantless wiertaps helped find the couriers; they did, but those were warrantless wiretaps in the Middle East, not the US!

Just as interesting, though, were the questions. Yoo was somewhat stumped when an IAVA member and former officer asked what an officer who had taken an oath to support and defend the Constitution should do if he received what he believed was an unconstitutional order.

Finally, most interesting came when Richard Ben-Veniste–the former Watergate prosecutor and 9/11 Commissioner–asked questions. He said, first of all, that Mohammed al-Qahtani had been providing information before he was tortured (a claim I’m not sure I’ve heard before, made all the more interesting given that we know the Commission received interrogation reports on a running basis). But then his torture turned him into a “vegetable,” which meant the US was unable to prosecute him.

And then Ben-Veniste raised something that the panel, for all its discussion about accountability, didn’t mention. The 9/11 Commission recommended a privacy board to ensure that there was some balance between civil liberties and security. Bush made a half-assed effort to fulfill that requirement; after 2006, at least, there was a functioning Privacy and Civil Liberties Oversight Board. But Obama has all but spiked it, killing it by not appointing the Board.

Particularly given Ron Wyden’s and Mark Udall’s concerns about secret law, it’s time the civil liberties community returned its focus on Obama’s refusal to fulfill the law and support this board. That board is precisely the entity that should be balancing whether or not the government is making appropriate decisions about surveillance.

Update: David Cole corrected for John.

DOJ’s Twisted Notion of Rule of Law Is Poisoning Our Country

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Yesterday, Tim DeChristopher was sentenced to 2 years and a $10,000 fine for his successful efforts to expose an improper BLM drilling auction.

At his hearing, DeChristopher rebutted the prosecution’s claim that he needed to face a tough sentence to uphold rule of law.

Mr. Huber also makes grand assumptions about my level of respect for the rule of law. The government claims a long prison sentence is necessary to counteract the political statements I’ve made and promote a respect for the law.

[snip]

This is really the heart of what this case is about. The rule of law is dependent upon a government that is willing to abide by the law. Disrespect for the rule of law begins when the government believes itself and its corporate sponsors to be above the law.

Mr. Huber claims that the seriousness of my offense was that I “obstructed lawful government proceedings.” But the auction in question was not a lawful proceeding. I know you’ve heard another case about some of the irregularities for which the auction was overturned. But that case did not involve the BLM’s blatant violation of Secretarial Order 3226, which was a law that went into effect in 2001 and required the BLM to weigh the impacts on climate change for all its major decisions, particularly resource development. A federal judge in Montana ruled last year that the BLM was in constant violation of this law throughout the Bush administration. In all the proceedings and debates about this auction, no apologist for the government or the BLM has ever even tried to claim that the BLM followed this law. In both the December 2008 auction and the creation of the Resource Management Plan on which this auction was based, the BLM did not even attempt to follow this law.

[snip]

I’m not saying any of this to ask you for mercy, but to ask you to join me. If you side with Mr. Huber and believe that your role is to discourage citizens from holding their government accountable, then you should follow his recommendations and lock me away. I certainly don’t want that. I have no desire to go to prison, and any assertion that I want to be even a temporary martyr is false. I want you to join me in standing up for the right and responsibility of citizens to challenge their government. I want you to join me in valuing this country’s rich history of nonviolent civil disobedience.

And in response, of course, the judge did lock DeChristopher away. It’s a farce given the facts of the case, but consider how it looks when, as DeChristopher invites, you consider DOJ’s other efforts to “uphold rule of law.”

Compare the damage–if any–DeChristopher’s actions did to that which BP has done. As bmaz noted in April, a year after the Macondo explosion, no one has yet been held accountable for 11 deaths, to say nothing of the physical damage to the Gulf. And as Jason Leopold recently reported, our unwillingness to heed whistleblowers has led to more damage from BP. Part of the problem, of course, is the difficulty finding a judge without a financial interest in BP.

Or compare DeChristopher’s punishment with that of Massey energy. DOJ has records that Massey faked safety records for the Big Branch mine, yet over a year after 29 people were killed, no one has been held responsible. Don Blankenship not only got to retire with $12 million, he continues to get paid by the company as a “consultant.”

Or compare DeChristopher’s punishment with that of Angelo Mozilo or Lloyd Blankfein. Between them, they had a huge role in causing Americans trillions of dollars in preventable losses. After fining Mozilo $67 million he won’t pay personally, DOJ judged that Mozilo’s actions did not constitute criminal wrongdoing, so he remains free to enjoy his corruptly gained riches. And in spite of the apparent fact that Blankfein lied to Congress last year about the ways Goldman crashed the economy, DOJ has only now begun to make motions of investigating his lies.

And consider the others who tried to expose government wrong-doing. The government spent three years trying to prosecute Thomas Drake for whistleblowing–apparently because they suspected he leaked details of the illegal wiretap program. And it is currently pursuing a strategy that may land James Risen in prison–Risen says, in retaliation for his reporting on the illegal wiretap program. Yet DOJ went to great lengths to avoid holding anyone responsible for actually doing the illegal wiretapping.

We’re about to try Abd al Rahim al-Nashiri for his alleged role in the USS Cole bombing, which is fine. But the government not only hasn’t punished his torturers, but it hasn’t punished those who destroyed exonerating evidence of his torture.

DOJ has apparently given up any pretense of supporting the rule of law. The law is a tool used to punish political protest and exposure of wrong-doing. And it is a tool to protect the corporations whose crimes do far more damage to this country.

John Robb recently predicted that after a Soviet-style collapse, our legal system will collapse.

What happens to the legal system when the US suffers a Soviet style collapse?  Answer:  It will rapidly decay.

Here’s a simple formula for this (it works for both legal systems and government bureaucracies):

Low legitimacy + slashed operating budgets = rampant corruption

Regardless of any decay in the legal system, business will still be conducted.  Small disputes will be resolved through the existing system, with graft tipping the scales or speeding the outcome.  Large disputes involving substantial wealth transfer will be something else entirely.  These disputes will be resolved through the ability of one party or the other to apply the threat of (or actual) violence to the negotiation process.

These pressures won’t only be the result of counterparties that have access or control the large mafias/gangs/militias (or corporate militaries) that will spring up during economic collapse (far larger than we’ve seen the US to date).  Threats will also be mounted by government/defense/security officials that use their government sanctioned command of violence (police, SWAT, military units, etc.) as a means to personal enrichement.

But (as his suggestion about the impunity people like Mozilo and Blankfein were given shows) he gets the chronology wrong. Aside from the bribed BP judges, it’s not corruption per se that is collapsing our judicial system. It’s the apparently conscious choice on the part of the government to void the concept of rule of law, the choice to treat political speech and whistleblowing as a much greater crime than the corporate crimes that have devastated our country.

I think DeChristopher is right: seeing his sentence isn’t going to scare anyone into cowing in the face of such a capricious legal system. Rather, it makes it clear what the stakes are.

What shall we condone?

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Abd al Rahim al-Nashiri’s lawyers end their letter to Navy Vice Admiral Bruce MacDonald–who will decide whether al-Nashiri will face the death penalty–with an appeal to his role in deciding what we as a nation will condone:

One pivotal and constant question has been–what shall we condone? Shall we condone a trial that allows evidence obtained from torture? Shall we condone a trial for a detainee who has been tortured?

Indeed, one of their most surprising arguments was a reminder that his predecessor, Judge Susan Crawford, refused to refer charges against Mohammed al-Qahtani because he had been tortured.

Your predecessor, Judge Susan Crawford, did not refer charges against Mohammed Al-Qahtani for his direct role in the September 11th Attacks because he was tortured. Judge Crawford stated, “His treatment met the legal definition of torture. And that’s why I did not refer the case[.]” Here, the government’s treatment of Mr. Al-Nashiri undoubtedly meets the legal definition of torture and cruel, inhuman and degrading treatment. Judge Crawford was able to review the interrogation records and other documents of Mr. Al-Qahtani’s abuse before making her decision. In this case, we assume the CIA has not provided those records to you. Even without the cooperation of the CIA, sufficient evidence has been publicly released to prove that Mr. Al-Nashiri was tortured.

[snip]

In essence, the United States has lost its moral authority to seek the death penalty. Accordingly, you should not refer charges–or authorize the detah penalty–against Mr. Al-Nashiri.

I find a few things surprising. First, the suggestion that MacDonald has probably not officially been informed of al-Nashiri’s treatment. While I suppose that’s possible (it’s clear, for example, that the CIA limited how much Gitmo personnel learned of former CIA detainees), that would still be surprising.Though of course, at the very least, MacDonald has not seen the video tapes that were destroyed.

Also note that in this passage, at least, al-Nashiri’s lawyers are calling on the government to drop charges entirely against al-Nashiri, based on the Crawford precedent. Not that the appeal will work (because, particularly given that KSM is now slotted for a Gitmo Military Commission, it would take charges and the death penalty for him off the table, too). But it is notable that they asked.

Much of the rest of the letter lays out reasons I expected: al-Nashiri’s torture itself, the CIA’s destruction of exonerating evidence, the dicey appellate record for MCs, the length of time since the alleged crimes and the delay in charging, and the safety restrictions on travel to Yemen now.

And then there’s the predictable objection on legal grounds: al-Nashiri’s lawyers argue that since we weren’t at war when most of his alleged crimes occurred, an MC is an improper venue to try him. Powerfully, they cite Presidents Clinton and Bush to prove we were not at war.

When convened outside areas under martial law or military occupation, military commissions are strictly limited to the punishment of enemy forces for violations of the laws of war committed in the context of and associated with hostilities.

The limitation was affirmatively recognized and enacted by Congress into the Military Commissions Act, when it mandated that “An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.

Mind you, the government will cite Osama bin Laden’s declaration of war against the US in 1996, but it’s hard to see how that refutes President Clinton’s assertion that “America is not at war” delivered in his eulogy to those lost on the USS Cole.

If that’s not enough, though, al-Nashiri’s lawyers now have the legal opinion of Harold Koh’s conditions that define hostilities for Libya.

The question this letter asks–whether we as a country ought to impose the death penalty on someone we tortured–is a key question. But the legal argument may well be just as compelling.

Obama DOJ Doubles Down on President’s Ability to Detain US Citizens with No Charges

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Back in February, Obama’s DOJ stopped defending Donald Rumsfeld and others in Jose Padilla’s Bivens suit against them (though we’re still footing the bill for their pricey lawyers). At the time, it seemed DOJ might have concerns about the claims Rummy’s crew wanted to make about the torture Padilla was suing for.

But DOJ just filed an amicus brief in Padilla’s appeal. In it, they basically double down on the claim the President can deprive a citizen already detained in the US of all due process simply by engaging in some specious word games (in this case, by unilaterally labeling someone an enemy combatant).

Critically, the government is dodging the question of what happens in detention; as I’ll show below, rather than addressing that torture, they simply engage in circular logic.

Remember why Padilla is suing: he’s arguing that Rummy’s crowd violated his constitutional rights by seizing him from a civilian jail, designating him an enemy combatant, using that designation to deprive him of due process, and while he was detained on those terms, torturing him. He’s arguing the government violated his constitutional rights both by depriving him of due process and then torturing him. Illegal detention to enable illegal torture. The government wants to pretend they can separate those issues and argue just the basis for detention.

The government argues that allowing Padilla to sue for that treatment would infringe on national security.

Where, as here, the claims principally implicate national security and war powers, courts have recognized that it is not appropriate to create a common-law damage remedy.

Once again, they’re arguing that if the President says he did something–no matter how clearly unconstitutional–for national security reasons, citizens have no recourse against the President or his top aides.

After arguing “national security” as a threshold matter, the government then makes a threefold argument: Padilla should not have access to Bivens because Congress gave him another means of recourse–a habeas corpus petition (that doesn’t address torture, but the government claims UMCJ addresses torture, even though the defendants here are civilians).

Padilla had a congressionally-authorized mechanism for challenging the lawfulness of his detention. In the wartime context presented, the habeas process should preclude the creation of a Bivens remedy.

Then the government argues that since this very court–the Fourth Circuit–okayed Padilla’s detention in 2005, it’s clear Rummy must have qualified immunity because it was reasonable to think military detention of a citizen was cool.

The issue here, for the purposes of qualified immunity, is not whether this Court’s decision was correct, whether the Supreme Court would have agreed had it reviewed the decision, or whether the detention of Padilla was ultimately constitutional or appropriate as a matter of policy. The issue, rather, is whether the conclusion by three Judges of this Court upholding the detention rebuts any claim that the contrary view was clearly established at the time. It does.

The government’s brief makes no mention of the Michael Luttig opinion cited in Padilla’s appeal that suggested the government’s legal treatment of Padilla was all about expediency, not justice, nor does it here mention the torture allegations.

Finally, it says Rummy shouldn’t be held liable for Padilla’s torture because Iqbal requires Padilla show further proof of personal involvement in his treatment.

But ultimately, all that is based on the notion that no one could have known detaining a US citizen with no due process was unconstitutional.

Now, as I said, the government tries to sever the relationship between Padilla’s illegal detention and his treatment while in detention. Given my earlier speculation that the government withdrew from defending Rummy because Padilla is suing, in part, for the death threats he was subjected to in prison–treatment John Yoo found to be (and communicated to Jim Haynes, another defendant in this suit, to be) torture–I find the government’s circular logic to be particularly telling.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

All this implicates the government’s discussion of Padilla’s lack of access to lawyers, too. They claim he can’t complain about not having access to the courts because he can’t point to any claim he was prevented from making while deprived of his lawyers and access to law.

Padilla’s access to the courts claim (Br. 36) likewise fails. To properly allege such a claim, one must identify a legal claim that could not be brought because of the actions of the defendants. See Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Here, the only such claim was Padilla’s habeas action, which he was able to litigate.

This, in spite of the fact that the Appeal notes the limits on his access to lawyers presented specific barriers for him to complain about his treatment.

Padilla was told not to trust his lawyers and warned against revealing his mistreatment.

Now, frankly, I suspect this effort is all part of a strategy the government devised back in February, when they dumped Rummy.

Rummy needs them to make the threshold argument–that this is a national security issue, meaning the courts should butt out.

But the government seems to have clear awareness that Padilla alleges–with some basis in fact–to have been tortured and that it can’t defend against the torture complaint because they know it was torture and know at least some of the named defendants knew it was torture (and note, the judge in Padilla’s criminal case, as well as judges in other cases where the accused was tortured, always say the torture victim can make a Bivens complaint.)

But that’s not stopping them from saying that, by applying an arbitrary label with no review, they should be able to ignore very clear constitutional principles. And if it was okay for the government to use an arbitrary label in the past to completely ignore the Constitution, then it would be okay going forward to do the same.

Why Assign the Met’s Counterterrorism Squad to Investigate Murdoch?

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The NYT has a long article exploring why Scotland Yard allowed bags and bags of evidence showing News of the World’s widespread hacking to sit unopened for four years. One reason, it explains, is because Scotland Yard’s counterterrorism unit led the investigation, rather than the special crimes unit. Since the counterterrorism unit was so busy investigated alleged terrorism, it had no time to investigate Murdoch.

The police have continually asserted that the original investigation was limited because the counterterrorism unit, which was in charge of the case, was preoccupied with more pressing demands. At the parliamentary committee hearing last week, the three officials said they were working on 70 terrorist investigations.

Yet the Metropolitan Police unit that deals with special crimes, which had more resources and time available, could have taken over the case, said four former senior investigators. One called the argument that the department did not have enough resources “utter nonsense.”

Another senior investigator said officials saw the inquiry as being in “safe hands” at the counterterrorism unit.

The NYT further explains how often key police figures and NotW figures socialized together.

Executives and others at the company also enjoyed close social ties to Scotland Yard’s top officials. Since the hacking scandal began in 2006, Mr. Yates and others regularly dined with editors from News International papers, records show. Sir Paul Stephenson, the Metropolitan Police commissioner, met for lunch or dinner 18 times with company executives and editors during the investigation, including eight occasions with Mr. Wallis while he was still working at The News of the World.

[snip]

Andy Hayman, who as head of the counterterrorism unit was running the investigation, also attended four dinners, lunches and receptions with News of the World editors, including a dinner on April 25, 2006, while his officers were gathering evidence in the case, records show. He told Parliament he never discussed the investigation with editors.

And it shows how much money exchanged hands between the police and Murdoch’s empire.

But that still doesn’t explain how the counterterrorism unit would ever have been the appropriate entity to investigate illegal wiretapping by a newspaper.

Meanwhile, I can’t help but think, in addition to all the ways Murdoch’s empire has corrupted journalism and politics in the US and UK, its other great sin: making torture (and Dick Cheney’s absolutist approach to counterterrorism) popular. It did so with its news programs. But even more so, it did it with 24.

For all its fictional liberties, “24” depicts the fight against Islamist extremism much as the Bush Administration has defined it: as an all-consuming struggle for America’s survival that demands the toughest of tactics. Read more →

On Two Torture Investigations

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photo: design wallah via Flickr

Across the pond–in the investigation of British complicity with the torture of Binyam Mohamed and others–the Supreme Court has told the government it can’t present secret evidence.

The supreme court has outlawed the use of secret evidence in court by the intelligence services to conceal allegations that detainees were tortured.

The decision will be seen as a significant victory for open justice, but the panel of nine judges pointed out that parliament could change the law to permit such “closed material procedures” in future.

The appeal was brought by lawyers for MI5 seeking to overturn an earlier appeal court ruling that prevented the service from suppressing accusations British suspects had been ill-treated at Guantánamo Bay and other foreign holding centres.

And here in the land where such secrets have become the norm, Apuzzo and Goldman reveal one of the reasons why DOJ is taking a closer look at Manadel al-Jamadi’s death: because the CIA guy in charge of an unofficial interrogation program in Iraq went beyond clear directions from HQ.

Steve Stormoen, who is now retired from the CIA, supervised an unofficial program in which the CIA imprisoned and interrogated men without entering their names in the Army’s books.

The so-called “ghosting” program was unsanctioned by CIA headquarters. In fact, in early 2003, CIA lawyers expressly prohibited the agency from running its own interrogations, current and former intelligence officials said. The lawyers said agency officers could be present during military interrogations and add their expertise but, under the laws of war, the military must always have the lead.

This detail is interesting for another reason. The AP notes that Stormoen asked to use torture tactics.

Tactics such as waterboarding and sleep deprivation, which the CIA used in other overseas prisons, were prohibited at Abu Ghraib without prior approval. In videoconferences with headquarters, Stormoen and other officers in Iraq repeatedly asked for permission to use harsher techniques, but that permission was never granted, one former senior intelligence official recalled.

This would have put Stormoen in Iraq asking to use things like waterboarding not long after someone in OVP suggested waterboarding a different detainee, Muhammed Khudayr al-Dulaymi.

At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups.

[snip]

Duelfer says he heard from “some in Washington at very senior levels (not in the CIA),” who thought Khudayr’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere. “They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer will not disclose who in Washington had proposed the use of waterboarding, saying only: “The language I can use is what has been cleared.” In fact, two senior U.S. intelligence officials at the time tell The Daily Beast that the suggestion to waterboard came from the Office of Vice President Cheney.

Now, I have always imagined that Cheney tried to order up military interrogators to waterboard Khudayr; OVP wasn’t exactly getting along with the CIA in 2003. But you do have to wonder why Stormoen ignored HQ’s directions on torture.

How the Government Hid Their Pacha Wazir Mistake by Denying Habeas Corpus

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Scott Horton’s revelation that the detainee described as “CAPTUS” in Glenn Carle’s book, The Interrogator, is an Afghan named Pacha Wazir reveals something else: in spite of the fact that Carle realized the CIA had been mistaken about Wazir’s ties to al Qaeda sometime in 2002, Wazir was not released from US custody until February 24, 2010.

We held Wazir for over seven years after the time Carle first figured out the CIA had made a mistake.

Of particular concern, however, are the decisions the government made to prevent Wazir from getting any kind of review of his detention.

Rather than move Wazir from the Salt Pit to Gitmo–where he would have received a Combatant Status Review Tribunal–he was instead moved to Bagram in 2003 or 2004. At Bagram–as John Bates summarized in his opinion regarding habeas petitions for three other Bagram detainees–the review was much less stringent.

The initial “enemy combatant” determination is made “in the field.” Tennison Decl. ¶¶ 11-12. For detainees at Bagram, the initial determination is reviewed within 75 days, and then every six months thereafter.19 Id. ¶ 13. The reviewing body is the Unlawful Enemy Combatant Review Board (“UECRB”), a panel of three commissioned officers. The UECRB reviews “all relevant information reasonably available,” and detainees have the opportunity to make a written statement.20 Id. ¶¶ 12-13. The UECRB then makes a recommendation by majority vote to the Commanding General as to the detainee’s status. Id. ¶ 13. There is no recourse to a neutral decision-maker.

Respondents concede, as they must, that the process used for status determinations at Bagram is less comprehensive than the CSRT process used for the Guantanamo detainees. Tr. at 53. Focusing the inquiry on the flaws Boumediene identified in the CSRT process, the UECRB process is plainly less sophisticated and more error-prone. Unlike a CSRT, where a petitioner has access to a “personal representative,” Bagram detainees represent themselves. Obvious obstacles, including language and cultural differences, obstruct effective self-representation by petitioners such as these. Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. Respondents’ far-reaching and everchanging definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

In September 2006, Wazir did file a habeas petition–his suit was ultimately consolidated with the three Bagram detainees whose DC Circuit habeas denial remains the relevant decision denying Bagram detainees habeas. But Wazir’s petition was denied in spite of the fact that a former Bagram detainee revealed that Wazir had been told some time in June or July 2008 there was no evidence against him.

About four months ago, in June or July of this year, one of the investigators in Bagram told Haji Wazir that there was no incriminating evidence against him.

More troubling, Wazir’s petition was denied on jurisdictional grounds because he’s an Afghan citizen. Yet even before that decision, Afghan prosecutors determined on June 26, 2008 that coalition forces had no evidence of collaboration with al Qaeda, so Wazir should be freed.

In the documents from coalition forces, it has been mentioned that evidence, physical supporting material and pictures do not exist to prove the accusations, he has not been arrested in a face to face battle, has not performed any terrorism related actions, polygraph tests show that there are no evidence of deception.

Based on the requirements of his job and business he has performed currency exchange activities in all parts and corners of the world legally to earn his livelihood.

Therefore, the commission believe that there are no documents in his file that would support the allegations against this person and he has already spent more than five years in prison. Thus, it is considered appropriate if the suspect is released from prison, introduced to National Independent Commission on Peace and Reconciliation and a report be delivered to the President of Islamic Republic of Afghanistan.

Nevertheless, several weeks after the Afghan determination that coalition forces had no evidence against Wazir, a DOD UECRB determined that he was an unlawful enemy combatant.

Petitioner Wazir is a detainee at BTIF. See id. ¶ 19. DoD’s records reflect that he was captured in Karachi, Pakistan, and was determined to be an unlawful enemy combatant both when he was first brought under DoD custody and in subsequent reviews. See id. ¶ 20. The UECRB’s most recent reevaluation of his status was on July 17, 2008. Id. Following that review, his status as an unlawful enemy combatants was reaffirmed. Id.

So ultimately, John Bates denied his petition on jurisdictional grounds to prevent tensions between the US and Afghans. But the US recertified Wazir as an unlawful enemy combatant even after the Afghans had determined there was no evidence to support such a designation.

Now, there’s a lot else that’s funky about the government’s treatment of Wazir. For example, they claimed he had been arrested November 13, 2003 in Karachi, even while it was clear he had been arrested a year earlier in Dubai. Then, the US sent paperwork transferring custody of Wazir to an Afghan prison, but did not transfer Wazir himself (and then went on to to reaffirm his enemy combatant status).

But ultimately, there’s also the question of why they left someone of such purported import in Afghanistan, rather than Gitmo. And while the government insists they don’t make detention decisions to avoid giving detainees access to habeas, the three other detainees whose habeas petitions were denied recently submitted new evidence, including two WikiLeaks documents disproving a government claim that it had never moved detainees from Gitmo to Bagram. Of particular note is the detainee who–according to an Afghan War Log cable–was transferred from Gitmo to Bagram on January 18, 2009, just two days before Obama would become President.

Of course, even if they had granted jurisdiction for Wazir to file a habeas peittion, two key pieces of evidence had already been disappeared: the two cables Carle wrote in late 2002 or early 2003 documenting that Wazir was not the al Qaeda banker the CIA had made him out to be.

For much of the time the CIA was fighting with Glenn Carle over how much detail he could write about Wazir, Wazir was stuck in Bagram, having already been cleared for release by the Afghans yet still–in spite of the lack of evidence–claimed to be an enemy combatant by the US.

That’s the kind of injustice our refusal to offer habeas corpus to Bagram detainees permits.

Is Anwar al-Awlaki The Unnamed “National of the United States” In Warsame Indictment?

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As Marcy noted Tuesday afternoon, and has been large in the news the last two days, there is a new terrorism prosecution announced by Eric Holder and the Obama DOJ. The case concerns Ahmed Abdulkadir Warsame, and is interesting in that Warsame is alleged to be a member/leader of al-Shabaab, and none of the allegations involve acts of plots against the US or its citizens directly.

In fact, the only significant nexus to the United States contained within the indictment unsealed against Warsame is that he:

…conspires with a national of the United States…

This is unusual as to the complete lack of description and details about the “national of the United States” and the complete absence of any information indicating the nature of conspiracy and/or contact with the “national of the United States. To be fair, a charging document is not legally required to be a “speaking indictment” that fully lays out every minute detail of the jurisdiction, venue and facts; although this one is one of the more silent ones I have seen in a long time from the DOJ.

But, what is really fascinating is this today from Charlie Savage at the New York Times:

Meanwhile, new details emerged about Mr. Warsame’s detention on a Navy ship after his capture in April aboard a fishing skiff between Yemen and Somalia, and about internal administration deliberations on legal policy questions that could have implications for the evolving conflict against Al Qaeda and its affiliates.

A senior counterterrorism official said Wednesday that Mr. Warsame had recently met with Anwar al-Awlaki, the American-born radical cleric now hiding in Yemen. After his capture, he was taken to the Boxer, an amphibious assault ship that was steaming in the region and has a brig, a senior military official said.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters. (emphasis added)

So, we have Warsame allegedly “conspiring” with a “national of the United States” in the indictment with the identity and circumstances being unusually and ridiculously guarded and vague; and now we have Warsame having had contact with Awlaki.

Gee, I wonder what the odds are they are one in the same person???

Because, as you may remember, Awlaki is so secret that the US government saw fit to declare state secrets rather than explain to Awlaki’s parents why they feel justified to violently assassinate their son, a US citizen, without so much as a speck of due process. Now, I guess a guy that secret is someone the government might just be really vague about in an indictment of some tangential corollary person, say Warsame, for instance.

So, is it truly the case that Awlaki is indeed the unnamed “national of the United States” here in the Warsame indictment? I don’t know for certain, but it sure as heck fits the facts as we know them and the depraved refusal of the American government to talk about or let the public know its basis for impunity in marking an American citizen for extrajudicial termination with prejudice.

Now, back to the Warsame indictment for one last thought. While I agree with Marcy, Ben Wizner of ACLU and Adam Serwer that the Obama Administration decision to bring Warsame in front of an Article III court for trial was a brave one in relation to establishing credibility of traditional terrorism prosecutions, I wonder if Warsame is really the right case to do that with?

In Warsame, all the overt acts, heck all the acts period, took place outside of the US, and none of them, none, were particularly directed at all, much less with malice, at the US or US citizens. al Shabaab is a nasty group of terrorists to be sure, but is this really the use we want to make of US Article III courts? Shouldn’t the prosecutions the Administration uses to establish credibility have some, even minimal, overt act nexus to the United States and the Southern District of New York?

Yet Another Torture Cover-Up

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graphic: Lance Page/Truthout.org; Adapted: takomabibelot, Poe Tatum via Flickr

When the Brits announced a year ago they’d hold an inquiry into torture, I suggested it was an attempt to get torture victims like Binyam Mohamed to settle so the British government could conduct a sham investigation. In November, Mohamed and others agreed to a settlement.

And today we discover (shock!) that the investigation is a whitewash after all. (h/t fatster)

The government’s plans for an inquiry into the UK’s role in torture and rendition after 9/11 are in disarray after human rights groups queued up to denounce it as a sham and lawyers for the victims said they were boycotting the hearings.

Their anger was prompted by the publication of the detailed terms of references and protocols under which the inquiry will be run by Sir Peter Gibson, a retired judge. It showed that key hearings will be held in secret and the cabinet secretary will have the ultimate say over what the public will and will not learn.

Individuals subjected to rendition and torture during the so-called war on terror will not be permitted to ask questions of MI5 or MI6 officers and the inquiry will not seek any evidence from foreign intelligence agencies, such as the CIA, about British involvement in the torture and abuse of detainees.

The protocol states that the aim is to “establish a reliable account of what happened”, but critics point out that it also says the inquiry “will not request evidence from the authorities of other countries or their personnel”.

The Western democracies–Spain, Germany, the UK and, of course, the US (Poland has not yet thrown their inquiry)–are getting pretty good at this torture kabuki.

But I guess with all the practice they’ve had, that’s not surprising.