Indefinite Detentions

Suit Charges U.S. Using Other Countries To Indefinitely Hold Terror Suspects

Zachary Roth | November 18, 2008, 11:14AM

The ACLU is today filing a suit alleging that the Bush administration has asked other countries to hold terror suspects whom the U.S. lacks the evidence to charge.

The poster boy for the case is Naji Hamdan, an American Muslim, who, reports McClatchy, has been held for nearly three months in the United Arab Emirates without charges, access to a lawyer, or contact with his family.

"If the U.S. government is responsible for this detention and we believe it is, this is clearly illegal because our government can't contract away the Constitution by enlisting the aid of other governments that do not adhere to the Constitution's requirements," an ACLU spokesperson told McClatchy.

An FBI spokesman said: "The FBI does not ask foreign nations to detain U.S. citizens on our behalf in order to circumvent their rights."

Hamdan served on the board of a Los Angeles mosque, and had originally been questioned by the FBI about possible ties to Osama Bin Laden as early as 1999. He moved with his family to the UAE in 2006, and was arrested by local law enforcement in August of this year.

Hamdan's family, which is bringing the lawsuit, says he's no friend of OBL. "Naji hates war. He hates what happened on September 11. He hates terrorism," his wife told McClatchy.

Indefinite Detentions

DoJ Confirms Internal Investigation in Case of Maher Arar

Kate Klonick | June 6, 2008, 1:53PM

Richard L. Skinner, the inspector general of the Department of Homeland Security, revealed yesterday that his department had reopened the investigation into whether U.S. officials knew that Canadian citizen, Maher Arar would be tortured when he was turned over to Syria following his U.S. detainment. The investigation was reopened based on "new information," Skinner testified in his appearance before the House Subcommittee on International Relations, Human Rights and Oversight.

The Inspector General also revealed that the Department of Justice's own Office of Professional Responsibility has started an investigation into the role of the DoJ lawyers in the case.

From the New York Times:

A Justice Department spokesman, Peter A. Carr, said that its inquiry, by the department's Office of Professional Responsibility, was begun in March 2007 and was examining the role of department lawyers in expelling Maher Arar to Syria, which has long been identified by the State Department as habitually using torture on prisoners.

The DoJ Office of Professional Responsibility already has its hands full with a number of investigations into the Justice Department's role in Bush Administration scandals. OPR is currently investigating allegations of selective prosecution relating to the prosecutions of Don Siegelman ; John Yoo's torture memos; Monica Goodling's possible firing of an attorney because she'd heard a rumor that he might be gay; officials who gave legal approval to waterboarding and other harsh interrogation techniques; the role of Department of Justice attorneys in the authorization and oversight of the warrantless electronic surveillance program and of course the probe into the firings of U.S. Attorneys.

Torture

2004 G'tmo Manual Restricted Chaplains

Spencer Ackerman | December 4, 2007, 3:07PM

Check out Dan Matthews and Julian Assange's Wikileaks analysis of the difference between the 2003 and 2004 Guantanamo Bay manuals. Matthews and Assange note that the 2004 manual restricts detainees' access to prison chaplains -- most likely in response to the case of James Yee, an Army chaplain then suspected of espionage for al-Qaeda and since cleared of all charges. The result of the Yee Affair was, apparently, a transformation of religious-comfort services into a potential intelligence-collection operation:

In March 2003, the chaplain could access detainee areas unaccompanied, and could “speak freely with detainees”, but by March 2004, the chaplain is “assigned an escort” to visit detainee holding areas – potentially a form of surveillance. And the chaplain can “speak with detainees” - but apparently not so freely as before.

Furthermore, in other parts of the manual, the chaplain is again disempowered – from making announcements on the PA system (sections 16-3 and 16-5), from providing religious items (section 16-13). And guards are no longer encouraged to seek the chaplain's advice on religious matters (section 16-14).

Matthews and Assange also note how the manual expresses hostility for the International Committee of the Red Cross:

Edits to the manual suggest that further hurdles may have been placed in the way of the Red Cross. Sction 17-2 stipulates that the Red Cross “is restricted from all buildings without prior approval... except the Detention Clinic and the Detention Hospital.” Then, the Red Cross is required to be aware of “scheduled guard feeding times” and adjust their schedule accordingly.

The Red Cross is prohibited from passing mail between detainees in both manuals. The 2003 manual stipulates in chapter 13 that “At no time should [Red Cross] reps pass any mail between detainees”.

By 2004, the military saw fit to make the stipulation, if nothing else, louder: “AT NO TIME should ICRC reps pass any mail between detainees.”

Must Read

Today's Must Read

Spencer Ackerman | December 4, 2007, 8:55AM

Score another one for Wikileaks. This morning -- thanks to a source known only as "Peryton" -- the open-source website for whistleblower documents published the 2004 manual for U.S. military detention operations at Guantanamo Bay. You can read it, with commentary, here.

Last month, Wikileaks published the 2003 edition of the manual. Among other controversial provisions, the manual instructed officials to hide certain detainees from the International Committee of the Red Cross, a practice that the military repeatedly denied was in existence at Guantanamo. Spokespeople for the U.S. military's Southern Command, which oversees Guantanamo Bay, said the manual was outdated and assured that some instructions that violated the Geneva Conventions were no longer in effect.

It's unclear so far what portions of the 2004 manual remain in place. (Maybe Peryton will enlighten us in the future.) The Washington Post's Josh White quotes Guantanamo Bay spokesman as saying that "things have changed dramatically" at the camp since 2004. But Wikileaks finds that, in key areas, the 2004 manual didn't change so much from 2003:

Systematic denial of Red Cross access to prisoners remains. The use of dogs remains. Segregation and isolation are still used routinely and systematically – including an initial period of at least 4 weeks "to enhance and exploit the disorientation and disorganization felt by a newly arrived detainee", only terminated at the behest of interrogators. Both manuals assert that detainees will be treated in accordance with the "spirit" of the Geneva conventions "to the degree consistent with military needs", but never assert that the conventions are actually being followed at Guantanamo. Put into practice, neither manual complies with the Geneva conventions.

So is the past prologue? We'll find out. For now, though, dig into the 2004 manual and let us know in comments what you think is most significant.

Torture

Embattled CIA IG To Meet with House Intel Panel

Spencer Ackerman | November 6, 2007, 1:52PM

It's been awhile since we checked in on the plight of John Helgerson, the inspector-general of the CIA who's under "management review" by CIA Director Michael Hayden following Helgerson's investigation of CIA war-on-terror programs. Not much has happened in the case since Hayden defended his decision to investigate the straight-shooter IG to Charlie Rose late last month.

But today the House intelligence committee announced that the full panel is going to meet in closed session with Helgerson tomorrow at 2 p.m. Statutorily, the IG has a direct line to the congressional intelligence committees -- the better to investigate waste, fraud, abuse and mismanagement -- but it's not clear how far that can go in protecting Helgerson's job. Stay tuned.

Torture

Lawyers Want Senate To Hear About Ex-Ghost Detainee Before Mukasey Vote

Spencer Ackerman | November 5, 2007, 3:42PM

There isn't much time before tomorrow's vote on attorney general-designee and torture agnostic Michael Mukasey. But lawyers from the only former CIA "ghost detainee" still in U.S. custody and with access to legal counsel want the Senate to know what the consequences of a torture regimen are before they give Mukasey their stamp of approval. In a letter written November 1st, they requested a meeting with key Senators, but the letter was only cleared today for release by U.S. authorities.

Two lawyers for the Center for Constitutional Rights, Gita Gutierrez and J. Wells Dixon, recently returned from a two-week meeting with their client, Majid Khan, at Guantanamo Bay, where he's been detained since last September. Before he was taken to Guantanamo, Khan spent three years in an off-the-books detention facility run by or in cooperation with the CIA. Neither the Red Cross nor anyone outside a select few U.S. national security officials knew Khan's whereabouts. Since President Bush's 2006 decision to transfer 14 so-called "black site" detainees to Guantanamo, Khan is the first ghost detainee to meet with an attorney.

Gutierrez and Dixon, however, are subject to tight restriction over what they can say publicly about their client. They want to call attention to Khan's treatment from 2003 to 2006 when, for at least some portion of that time, he and other detainees in CIA custody were -- according to the president -- subject to the "enhanced interrogation procedures" that the Bush administration approved in mid-March 2002. While it's not clear what interrogation methods Khan endured, among those "enhanced" techniques was waterboarding -- the inducement or simulation of drowning that Mukasey won't say is torture.

But all of the notes that Gutierrez and Dixon took from their conversations with Khan are under scrutiny by Justice Department and CIA officials to ensure that classified information isn't revealed. Any information related to Khan that might be released in court filings or anywhere else by CCR goes to a CIA information officer for review. Gutierrez and Dixon experienced difficulty even letting Senators know that they had information about Khan that they wanted to share with the Senate.

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Detainees

Hayden: Probe of IG Is Just a 'Management Review'

Spencer Ackerman | October 23, 2007, 12:26PM

As Josh flagged, CIA Director Michael Hayden recently sat down with Charlie Rose for a two-part interview (the second part of which airs tonight). You'll be relieved to know that CIA has never made any mistakes in detentions, interrogations or renditions, and certainly not during Hayden's year-plus as director. Nor has the director made a mistake in examining the activities of John Helgerson, the CIA's inspector general, who himself was subjecting detentions, interrogations or renditions to review.

According to Hayden, his look into Helgerson's activities are no more than "a management review" -- "inquiry is the big and wrong word here," he said -- to see whether complaints made by the legal counsel's office and the CIA's clandestine operatives about Helgerson's fairness were merited. Hayden didn't say anything about whether such a management review will have a chilling effect on the IG's ability to conduct internal scrutiny of CIA programs, as many veteran intelligence watchers suspect. But not to worry: after all, the CIA doesn't make mistakes. (Except when it does.)

Hayden said that his special adviser, Robert Dietz, conducting the five-month-old Helgerson review, will wrap up work next week. Don't expect Dietz's report to be public.

Way Way Way Late Update: Here's the video from Hayden's chat with Rose:

Indefinite Detentions

Mukasey Punts on Indefinite Detentions of U.S. Citizens

Spencer Ackerman | October 17, 2007, 11:50AM

Among Michael Mukasey's most controversial decisions as a judge was to sign a material-witness warrant for suspected (and now convicted) al-Qaeda affiliate and U.S. citizen Jose Padilla, which allowed his detention after his mid-2002 arrival at Chicago's O'Hare Airport. A month later, the Defense Department declared Padilla an enemy combatant -- a decision that the Justice Department revoked three years later to bring Padilla to criminal trial. Mukasey wrote in an August op-ed that Padilla's trial showed that "current institutions and statutes are not well suited" to trying terrorists since Padilla's counsel-free "confession" of being involved in a dirty-bomb plot was inadmissible.

Sen. Dianne Feinstein (D-CA) asked, in light of Mukasey's involvement with the Padilla case, whether Mukasey thought the law -- and particularly the September 2001 authorization of military force for Afghanistan -- permitted seizing U.S. citizens on U.S. soil indefinitely without charge. Mukasey cited the 2004 Hamdi case as upholding the president's ability to detain U.S. citizens on the battlefield, but said he "can't say now" whether the "battlefield" applies to the United States. It remains unclear whether Mukasey thinks U.S. citizens captured at home in terrorism-related investigations can be indefinitely detained.

Must Read

Today's Must Read

Spencer Ackerman | October 12, 2007, 9:18AM

That's one way to placate the National Clandestine Service. CIA Director Michael Hayden is going after the agency's independent watchdog, Inspector General John Helgerson. Hayden wonders if Helgerson -- who is not appointed by the CIA director -- hasn't gone too far in investigating how the agency conducts detentions and interrogations.

Helgerson has for years been perceived as overly aggressive in reviewing CIA techniques in the war on terrorism. In 2004, he produced an internal report that seemed to say that Department of Justice-approved interrogation techniques employed by the CIA amounted to torture. That report was part of a series of internal administration moves contributing to uncertainty among interrogators and senior officials about what was legally permissible. Some in the NCS -- the agency's undercover operatives -- have purchased legal insurance to guard against the possibility that they will one day face criminal charges for putting administration-approved practices into place. In short, many in the CIA think Helgerson is out to get them.

According to the Los Angeles Times, the investigation has grown out of an effort by Hayden months ago to explore a "friction" that had emerged between Helgerson's office and that of the CIA general counsel, which also has lent its legal imprimatur to CIA interrogations and detentions, after the general counsel's office believed Helgerson was improperly second-guessing its advice. But the investigation, headed by Hayden confidante Robert L. Deitz, is now a full-fledged exploration of how Helgerson conducts his work. It comes as Helgerson is "nearing completion" on several reports into interrogations, renditions, and detentions, reports The New York Times.

In investigating Helgerson, Hayden is probably taking steps to assuage what by all accounts is an NCS plagued with legal confusion. Both the LAT and the NYT describe the investigation as "unusual" if not "unprecedented." Hayden's spokesman told both papers that the director is simply out to "help this office, like any office at the agency, do its vital work even better."

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Must Read

Today's Must Read

Spencer Ackerman | August 9, 2007, 10:00AM

Here's a painful Guantanamo Bay irony: What to do with detainees slated for repatriation who fear abuse back home?

That's a serious obstacle confronting the Bush administration as it considers shuttering the facility. The U.S. has legal restrictions barring it from sending people to countries where they're likely to be tortured. As much as human rights groups object to the indefinite detentions and harsh interrogations at Guantanamo, they also don't want to see further abuses occur in the name of closing the camp down, a problem the New York Times spotlights today.

Case in point: Ahmed Belchaba, an Algerian whom the Department of Defense no longer considers a danger to America. He's contesting his repatriation in a case set to be heard by Chief Justice John Roberts.

Lawyers for Mr. Belbacha have said he is at risk of torture or death by Islamist radicals because he once served in the Algerian army, and by the government, which is likely to view him as a terrorist because of his tenure at Guantánamo.

In a filing on Wednesday, the Justice Department opposed any order barring a transfer of Mr. Belbacha, saying that “as the United States has explained, it is in no one’s interest to detain enemy combatants longer than is necessary.”

That case could open courthouse doors to dozens of similar claims by detainees who do not want to be sent home.

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Must Read

Today's Must Read

Spencer Ackerman | August 6, 2007, 10:05AM

Welcome to the black sites, the off-the-books detention facilities where the CIA subjected senior al-Qaeda captives to a methodically harsh regime of interrogation.

In this week's The New Yorker, Jane Mayer gives the first reportorial glimpse into the black sites after the Washington Post exposed their existence in 2005. She relies on new sources, including those with direct knowledge of the interrogations, as well as on the Council of Europe's investigation into European Union complicity with the CIA on terrorism detentions.

Inside the black sites, detainees are subject to psychological and physical abuse -- from simulated drowning to prolonged nudity -- so severe that CIA officials fear prosecution. Yet many CIA veterans describe the interrogations there as "nothing like Abu Ghraib or Guantánamo," in the words of a former chief of the agency's Counterterrorism Center, Robert Grenier. "They were very, very regimented. Very meticulous."

Some of the methods employed in the black sites, however, did appear in both Abu Ghraib and Guantanamo Bay, where the U.S. military, not the CIA, primarily handled detention and interrogation operations. Khalid Shaikh Mohammed, the architect of 9/11, was paraded on a dog leash, much like at Abu Ghraib. Black-site denizens, additionally, are subject to exposure to extremely cold cells, which can induce hypothermia, and extended periods of sleeplessness, both of which have been documented by official inquiries (pdf) into Guantanamo Bay. While Mayer's article does not explore the connection, she reports that psychologists from the Special Forces' program to survive torturous interrogations, known as SERE (Survival, Evasion, Resistance and Escape), helped design the interrogation regime, much as they had at Guantanamo.

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Torture

Sleep Deprivation, Noise Manipulation Still Part of "Enhanced Interrogation Techniques"?

Spencer Ackerman | July 23, 2007, 12:00PM

President Bush's executive order on CIA interrogations in the war on terrorism contains a classified annex listing precisely what techniques are acceptable. In other words, if not for some well-placed leakers, it'll be decades before anyone learns precisely what CIA interrogators are permitted to do to so-called "High-Value Targets" of al-Qaeda. But there are some clues.

Take this one. Generically, the standard set for banning procedures is listed as those acts "so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency." (Italics added.) That's a big loophole -- much like the one in President Bush's February 2, 2002 executive order (pdf) stipulating that detainees in military custody should be treated according to the "principles" of the Geneva Conventions "to the extent appropriate and consistent with military necessity." Here, the crucial caveat is that an already-subjective judgment call on violating "human decency" take into account the likelihood of a detainee being a terrorist or possessing critical intelligence -- both of which would likely relax someone's definition of "decency."

And that may be, in part, what gets interrogators to some of the "enhanced interrogation techniques" listed in the annex. The order explicitly bans interrogators from murdering, raping or sexually humiliating detainees. Beyond that, there's this assurance:

detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.

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Indefinite Detentions

Today's Must Read

Spencer Ackerman | July 23, 2007, 9:24AM

Last month, TPMmuckraker reported on an Army reserve intelligence officer who filed a sworn declaration in D.C. Circuit court alleging systemic problems with the way the Pentagon certifies that detainees at Guantanamo Bay are enemy combatants. The officer, Stephen Abraham, claims that the process, known as a Combatant Status Review Tribunal, is weighted -- by design and in execution -- to declare practically everyone at Gitmo an enemy combatant, no matter how dubious the evidence is.

Today Abraham, a lawyer in civilian life, gets treated to a long New York Times profile. A life-long conservative who says he cried when President Nixon resigned, Abraham became, in the eyes of several legal observers, the whistleblower whose account to the D.C. Circuit Court of Appeals convinced the Supreme Court to take up the question of enemy combatants' habeas corpus rights.

“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.

Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.

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Indefinite Detentions

Admin Floats Gitmo Fix

Spencer Ackerman | July 3, 2007, 10:11AM

The clock is ticking down for Guantanamo Bay. Last week, the Supreme Court agreed to hear a case challenging the constitutionality of the 2006 Military Commissions Act, the legislation passed to bless the Bush administration's military tribunals for enemy combatants charged with war crimes. The act itself was a fallback: the GOP Congress passed it only after the Court struck down the tribunals in Hamdan v. Rumsfeld, leaving Bush with no claims to the lawfulness of his preferred remedy for trying al-Qaeda detainees.

Now, facing the prospect of the Court again striking down the tribunals, the administration is looking to preempt the legal challenges to Guantanamo. A faction led by National Security Adviser Steve Hadley and Defense Secretary Bob Gates is exploring a legislative remedy to close the facility and, perhaps, create a new legal framework for trying its inmates:

Essentially, the administration would propose legislation that would result in dividing the estimated 375 Guantánamo detainees into three legal categories. The one that would call for legislative action would include detainees like Khalid Shaikh Mohammed, the mastermind of the September 2001 attacks, and others whose trials would risk exposing intelligence operations. This group, estimated at two dozen to 50, would be placed indefinitely in military brigs on American soil.

A second group would also be moved to the United States, most likely to face trial in military courts, but perhaps with more legal guarantees than in the current military tribunal system.

The third, and largest, group would consist of detainees to be released to their home countries.

Strange as it sounds, such a fix would mean the administration is, at different turns, expanding and abandoning its long-held stance that enemy combatants aren't entitled to due process.

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Indefinite Detentions

GTMO Hearings Severely Flawed, Army Intelligence Officer Says

Spencer Ackerman | June 22, 2007, 7:33PM

It's been a banner week for Guantanamo Bay. First the Bush administration nixes reports that it plans to close the facility. Then the Defense Department announces a new detainee is on his way there. If that wasn't enough, according to a declaration filed in D.C. Circuit Court by a U.S. Army Reserve intelligence officer, the hearings that determine whether a detainee is properly classified as an "enemy combatant" are riddled with flaws.

Lieutenant Colonel Stephen Abraham was assigned to the Defense Department's Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) for six months in 2004 and 2005. In that capacity, Abraham worked closely with the administrative process known as a Combatant Status Review Tribunal (CSRT) -- the one-time, non-legal hearing for Guantanamo detainees that establishes whether or not a detainee should be considered an enemy combatant fit for prolonged detention. Specifically, Abraham's role was to coordinate with intelligence agencies in and outside of the Defense Department to "gather or validate information" suitable to the CSRTs. And there, Abraham found that the CSRT process is skewed toward keeping detainees at Guantanamo.

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