Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.

The Center for Constitutional Rights (CCR), which is representing Arar and filed his petition for certiorari yesterday, has a collection of resources on the case here. ACS also has a wealth of resources, including Issue Briefs on the "state secrets" privilege and the U.S. ban on torture by Prof. Amanda Frost and Devon Chaffee, respectively. ACS also hosted Prof. David Cole, who is working with CCR on the case, as part of a national security and human rights symposium at the National Press Club in Washington, D.C. last fall. Video of that event is available here. 

[Image via CBC.]

On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.

It cannot be that the United States views itself as the only legitimate prosecutorial authority. We certainly allowed Iraq to adjudicate Saddam Hussein and be hanged without so much as a blink of an eye. Indeed we provided security for the proceedings which if conducted on U.S. soil would most likely have been a violation of cruel and unusual punishment by hanging him and severe deprivations of due process in that the system of justice that adjudicated him and carried out the sentence was tantamount to a lynch mob.

As President Obama prosecutes the "Overseas Contingency Operation" (formerly known as the War on Terror) we must consider that this is a position of unilateral preemptive war which is a paradigm shift in foreign policy of titanic proportions, ratified by both political parties. We are conducting this "war" in violation of human rights, international law, and national sovereignty.

Reflection upon the Vietnam War era informs the absurdity of our position. As has been noted in "The Dark Side" by Jane Mayer, the "North Vietnamese refused to respect U.S. pilots as legitimately covered by the Geneva Conventions, calling them 'pirates' in an illegal war." Many of these pilots were tortured and killed. "The Viet Cong, meanwhile, defied conventional rules of warfare, often fighting without uniforms, disguised as civilians. The United States nonetheless gave the Viet Cong the protection of the Third Geneva Convention." The Vietnam Conflict demonstrates that even under the most challenging circumstances we as a Nation were able to "stay above the fray." This was in the face of over 58,000 service members who died during that conflict (as compared to the over 5,000 during Operation Iraqi Freedom/Operation Enduring Freedom) and the civil outrage that permeated throughout the Vietnam conflict.

As Newton discovered "for every action there is an equal and opposite reaction." The shortsightedness of this policy determination does not make us safe as a Nation, nor does it contemplate third and fourth order consequences. President Obama just proclaimed in his first State of the Union that he will not "accept second place for the United States of America." I hope that this is not just another empty promise and that we apply this philosophy with regard to human rights and the rule of law.

[Image via smith5334.]

Justice at Guantánamo

One Woman’s Odyssey and Her Crusade for Human Rights

By Kristine A. Huskey

[Available Here]

"Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."

My colleagues and I at the white-shoe law firm of Shearman & Sterling began representing Kuwaiti citizens detained at Guantánamo in March of 2002, just six months after 9/11. Then, it was worse than controversial to do so, it was considered unpatriotic. We were called terrorists by some and The Washington Post printed a letter to the editor suggesting that we be sent to Cuba to join our clients. Because Guantánamo really was a legal black hole back then, we sued the government on behalf of our clients and wound up before the Supreme Court in the case, Rasul v. Bush, which ultimately held in 2004 that the detainees had a statutory right to habeas. We had won! When we went to Guantánamo for the first time -- soon after Rasul -- we ecstatically told our clients about the ruling that would allow them a fair hearing and eventually to go home. But, Congress intervened twice -- first with the Detainee Treatment Act in 2005, and then with the Military Commissions Act in 2006 -- all in attempt to cut off the basic right of these imprisoned men to challenge their detention.

Following our "win" in Rasul, we had four more years of litigation and countless visits to Guantánamo to deliver bad news to our clients -- men who had not seen or spoken with their families in years, men who had been abused and tortured and who had participated in hunger strikes to protest the injustice of their situation. One of my most upbeat and ever-optimistic clients wrote out his last will and testament and sliding it across the small card table, quietly told me that he just "couldn't take it anymore." Then in 2008, the Supreme Court ruled in Boumediene that the Guantánamo detainees had the constitutional right to habeas -- the right to challenge their detention -- a right which couldn't be taken away by Congress or the lower courts. We had won, again! But, the Department of Justice intervened and delayed, slowing the habeas litigation down to a crawl such that in the year and a half since the Court concluded the detainees were entitled to "prompt habeas hearings" only 41 detainees have had habeas hearings. In bittersweet victory, federal judges have determined that in 32 of those cases, the government's evidence did not justify the detentions. Some of those men are still at Guantánamo today.

When President Obama signed an executive order -- just two days after taking office -- requiring the closure of Guantánamo within one year, we rejoiced. We had won, big time! But, Congress and the fear-mongering talking heads intervened by passing legislation and inciting public opinion that would make closing Guantánamo and transferring the men to their home countries or other safe countries extraordinarily difficult.

Some people have remarked that the title of my book "Justice at Guantánamo" is an oxymoron and sadly, I couldn't agree more. I wrote the book -- a memoir -- because I wanted to tell the story of Guantánamo and how it came to be. I wanted to tell the story of my clients and me-as human beings. The book is far from a legal text, rather it is the human side of Guantánamo-an attempt to reveal the cost to the men there and the difficulties and discoveries I encountered as a young attorney. The book ends with my HOPE that President Obama would make good on his word. Yet, Obama's promise of change has atrophied into empty rhetoric.

This January is a significant month for Guantánamo observers: January 11th marked the 8th year of its existence and January 22nd was the deadline for its closure. The latter date passed without much fanfare by the government. No new deadline has been set for the prison's closure nor has any official plan been announced for dealing with the men still detained there. It is time to close the detention center, not by transporting it to Illinois, but by really closing it and all U.S.-run prisons outside the law. Justice at Guantánamo and an end to the injustice it has come to represent is long overdue.

After publishing his latest, extensive review of the Seton Hall study on three questionable detainee deaths at Guantanamo Bay, Harper's Magazine's Scott Horton took to the airwaves last night to discuss the details provided by a new whistleblower and the government's response.

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The Obama Administration's decision to bring criminal charges against Umar Farouk Abdulmutallab (pictured at left), the suspected perpetrator of the attempted Christmas Day bombing of a jetliner over Detroit, has provoked a firestorm of controversy. What is the appropriate balance between a foreign national's right to due process and the national security concerns of the American public? Critics insist that alleged terrorists not be afforded Fifth Amendment rights, including that against self-incrimination, lest it delay or obstruct the timely collection of intelligence. Others suggest that a betrayal of American values is in and of itself a betrayal of American security. The only thing that both sides can agree on is that the Congress should reform the rules and procedures governing terrorism prosecutions to better protect intelligence sources and methods, the legitimacy of the justice system, and the rights of the accused. In the interim, however, there are a number of pragmatic reasons to believe that subjecting at least some classes of suspected terrorists to criminal proceedings would improve our ability to prevail in the fight against terrorism.

Most importantly, by adhering to the principles of due process, the U.S. Government increases the likelihood that the family and friends of individuals contemplating terrorist attacks in the future will inform the appropriate authorities. We stand to prevent far more attacks by enlisting the cooperation of the moderate associates of radicalized individuals -- parents, siblings, friends, and co-workers -- than we do by subjecting suspected terrorists to harsh interrogation and indefinite detention.

Second, the criminal justice system affords the government the credibility to offer incentives to suspects in exchange for truthful, timely cooperation. Interrogations sometimes yield information of dubious quality in the hours and days after an attack, in part, because security officials don't always possess the credibility to incite meaningful cooperation from suspects facing an uncertain fate. On the other hand, FBI interviewers and federal prosecutors have successfully worked within the criminal justice system for decades to secure intelligence, run informants, and aggressively dismantle organized crime networks. Why shouldn't we put their experience to good use against terrorists too?

Third, the humane, transparent, and just treatment of terrorism suspects denies al-Qaeda one of its most valuable recruiting tools. Al-Qaeda propaganda materials draw heavily on perceptions of American injustice to Muslims. The harsh interrogation and indefinite incarceration of terrorism suspects figures prominently in al-Qaeda's hate-infused narrative. We can only begin to succeed in the fight against terrorism when al-Qaeda loses members faster than it recruits them. In other words, it is not enough to simply "drain the swamp" by incarcerating terrorists. We must also "turn off the faucet" by undercutting al-Qaeda's recruiting message.

Finally, it's important to note that the U.S. Government maintains an excellent track record of putting indicted terrorists behind bars. According to the New York University School of Law - Center on Law and Security, the government has successfully convicted over 88% of the individuals charged with terrorism or national security violations since September 11, 2001. Even in cases far more dubious than that of Mr. Abdulmutallab, the government is wholly-capable of subjecting terrorists to American justice.

The problem of Islamist radicalization and al-Qaeda inspired terrorism is not going away anytime soon. As the events of the past few months demonstrate, the threats of homegrown and transnational terrorism are growing increasingly complex. The stop-gap measures of years past are no longer sufficient. For too long now, we have alienated the very people who are most essential to preventing terrorist attacks against America -- the moderate Muslim community at home and abroad and friendly governments around the world. It's time for the U.S. to get savvy about how it deals with suspected terrorists by engendering the respect, trust, and cooperation of the only people who can help us to prevail.

Last night's edition of "The Daily Show with Jon Stewart" featured a discussion with John Yoo, current professor at UC Berkeley School of Law and former Deputy Assistant Attorney General in the Justice Department's Office of Legal Counsel (OLC). Yoo worked at the OLC during that office's production of the "torture memos" and was a signatory to some of those memos.

Yoo discusses that work in the clip below.

Despite renouncing torture, the Obama administration continued to defend alleged torture perpetrators from civil liability yesterday. Before the U.S. Court of Appeals for the Ninth Circuit, the administration again invoked the "state secrets" privilege, attempting to scuttle litigation brought by persons claiming to have been victims of the Bush administration's torture program.

The plaintiffs allege that they were kidnapped and transported to CIA black sites -- a practice known as "extraordinary rendition." At the black sites, the plaintiffs assert that they were tortured in the Bush administration's pursuit of the "War on Terror." They filed suit against a Bay Area subsidiary of Boeing for helping arrange the flights on which they were transported. The Justice Department promptly intervened on behalf of the company.

"The Obama administration, following the legal strategy of its predecessor, asked the court to throw out the suit - and insisted that even the question of whether the company, Jeppesen Dataplan, was working with the government could threaten national security," reports The New York Times. "'We are not asking you to do anything radical here,' insisted Douglas Letter, the lawyer for the Justice Department. 'This case cannot proceed without getting into state secrets.'"

According to the San Francisco Chronicle's Bob Egelko, "Several judges noted that most of the essential facts of the case have been widely aired -- the existence of the 'extraordinary rendition' program under President George W. Bush, the five plaintiffs' accounts of their abduction and torture, and the alleged participation by Jeppesen Dataplan of San Jose," a Boeing subsidiary.

The Northern District of California heeded the government's assertion of privilege, dismissing the case from its docket two years ago. The suit saw new life when a three-judge panel of the Ninth Circuit overturned the trial court's decision. Yesterday, the case returned to the circuit -- this time before an 11-judge panel. Both parties are anticipated to appeal an unfavorable decision to the U.S. Supreme Court, which just this week declined to review a civil suit against government officials who orchestrated torture in the name of national security.

[Image via Graeme Bird.]

The Obama administration announced today that it will move detainees from Guantanamo Bay to the correctional facility at Thomson, Ill.

"The administration plans to expand the security perimeter of the facility, make it the most secure in the country and hold U.S. military commission trials inside its walls," Reuters reports. "The move is part of Obama's struggle to fulfill a campaign pledge to close the Guantanamo Bay, Cuba, U.S. naval detention camp prison, which was opened in 2002 after the Sept. 11, 2001 attacks to house foreign terrorism suspects."

Supporters of the plan have come from across the political spectrum, though there were vociferous criticisms lobbed upon the administration's announcement. Among those eager to have the facility house Guantanamo detainees are residents of Thomson. "The move is expected to bring about 3,000 new jobs to ... a region afflicted by high unemployment," reports The Guardian. 

[Image via courthouselover.]

On Countdown with Keith Olbermann, Scott Horton examined the report released by Seton Hall University on three "suicides" of Guantanamo detainees in 2006.

"The task that the Seton Hall authors took upon themselves was to review the work that was done by the military investigators, not to do their own investigation," said Horton. "And I think they demonstrate conclusively that the military investigation was profoundly flawed, that it rushed to judgments that really weren't supported by the evidence."

"We need a new, serious investigation," Horton concluded.

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Suspicious Deaths at Guantanamo: Jeralyn, at TalkLeft, outlines a new report calling into question three detainees' "suicides" at Guantanamo in 2006.

Three Guantanamo Deaths; Three Takes: By Glenn Greenwald, Marcy Wheeler and Scott Horton.

Protest of KSM Trial: New York City played host to a protest, this weekend, of the domestic trial for Khalid Shaikh Mohammed and other suspects, recently announced by Attorney General Eric Holder.

Explaining Resistance to Domestic Terror Trials: Dahlia Lithwick and Adam Serwer take stabs at understanding opposition.

Mumbai Terror Suspect Charged: The Justice Department announced charges against former Drug Enforcement Agency cooperator David Headley.

Movin' On Up?: The federal government appears likely to purchase the Thomson Correctional Center in Illinois for housing Guantanamo detainees.

[Image via openDemocracy.]