January 29, 2013

Guantanamo commissions: Whatever the CIA wants you to see

Over the past few years, after Obama failed to close Guantanamo, there's been a push to present the military commissions process there as reformed -- nothing like the extra-legal prosecution efforts of the Bush era, when the U.S. Supreme Court ruled the effort unconstitutional because Congress had not set it up. So the Obama administration and Congress came up with an improved regime, one more in keeping with what Americans would recognize as a court.

Today, we learned another way in which military commissions are different from any court the United States has seen before: Turns out the CIA has the ability to cut off the public's view of the proceedings without consulting with the judge, or anyone else.

That's apparently what happened Monday, to the shock of the judge, who apparently was unaware that anyone other than the court's security officer had the authority to censor courtroom exchanges. You can read The Miami Herald's Carol Rosenberg's account on what took place here.

Today, we learn who that someone is: the OCA or the Original Classification Authority -- in this case, the CIA. (You can see Rosenberg's account of today's commission testimony at her Twitter account here.)

Certainly, the Obama administration and Congress never publicly explained that this was how the commissions would work when they mandated in the Military Commission Act that the proceedings must be held in public. Obviously, it had not been explained to Judge Pohl or the defense attorneys, though the prosecution seemed to know.

What to do now? Rosenberg, after consulting with counsel, challenged the refusal to explain who had the authority to cut off the public's access to the courtroom. Here's what she filed with the commissions clerk:

To the Clerk of Military Commissions:

I am writing to you pursuant to Regulation 19-3 governing public access to commission proceedings, to object to the closure yesterday, January 28, 2013, of proceedings in United States v. Mohammad, et al.

Public access was denied to a portion of the proceedings by the termination of the video and audio feed, and this closure of the courtroom was imposed without any findings by the military judge authorizing it, as required by M.C.A. 949d(c) and R.M.C. 806.  As a reporter covering these proceedings, I object to this unauthorized denial of access and request a public explanation of the basis for the closure, a statement of the legal authority for the denial of public access, and an identification of the individual or organization that
closed the proceedings to the public.

I hereby request that you forward this objection to all counsel of record in the proceeding.    


  Will it make a difference? That remains to be seen. The Obama administration likes to say it's made the military commissions process transparent. But hiding the fact that all proceedings are overseen by an unnamed entity that can move outside the authority of the judge to censor the public's view of what's taking place is hardly transparent. It's difficult even to imagine that any entity has that authority in what passes for a quasi-judicial  proceeding, where the judge runs the courtroom.

May 12, 2011

McCain: Claim that torture led to bin Laden "false"

Sen. John McCain, R-Ariz., says in an op-ed in the Washington Post that he asked CIA Director Leon Panetta what happened and Panetta told him:

"The trail to bin Laden did not begin with a disclosure from Khalid Sheik Mohammed, who was waterboarded 183 times. "The first mention of Abu Ahmed al-Kuwaiti — the nickname of the al-Qaeda courier who ultimately led us to bin Laden — as well as a description of him as an important member of al-Qaeda, came from a detainee held in another country, who we believe was not tortured. None of the three detainees who were waterboarded provided Abu Ahmed’s real name, his whereabouts or an accurate description of his role in al-Qaeda. "In fact, the use of 'enhanced interrogation techniques' on Khalid Sheik Mohammed produced false and misleading information."

McCain said former Attorney General Michael Mukasey's recent claim that KSM's interrogations led to bin Laden's courier is "false." "This is a moral debate. It is about who we are," writes McCain, who was a POW in Vietnam.

March 18, 2010

Guantanamo detainees: No dissent on who should be held

That's the message Director of National Intelligence Dennis Blair and Attorney General Eric Holder delivered to Congress this week in response to questions about how decisions were made about who among the Guantanamo detainees should be released, who should be tried and who should be held indfinitely without trial.

Depending on how you feel about the current regime of detentions, including the conclusion that "about 50" should be held indefinitely, the letter is either reassuring or frightening.

The bottom line: if any of the agencies involved in the review disagreed with the others' conclusion that someone should be released, then the individual was not put on the release list. That means the veto power on release was held by the agency that most wanted to keep detainees indefinitely.

"The Review Panel made disposition determinations only by unanimous agreement," Blair and Holder wrote the Senate Armed Services and Intelligence committees in a letter dated March 17. "[N]o determinations were made over the objection of any of the six agencies," who were identified in the letter as the departments of Justice, State, Defense and Homeland Security, plus the Office of the Director of National Intelligence and the Joint Chiefs of Staff.

Those who participated in the deliberations came from the CIA, the National Counter Terrorism Center, the Defense Intelligence Agency, and the FBI. There were federal prosecutors, State Department analysts, military officers and military prosecutors. One hundred federal employees served on the task force over its lifetime. Decisions were made by senior officials and when there was a disagreement, it went to the principals, meaning the secretaries of the departments and the heads of the agencies, for a decison.

The Director of National Intelligence agreed with the recommended disposition of each of the 240 detainees subject to the review, including the more than half of the detainees the group concluded ought to be released or transferred to other countries.

Sounds like a very thorough process. Until you remember that the Justice Department and the Defense Department, relying on evidence gathered in part by the Intelligence Community, have fought to keep at least 33 detainees at Guantanamo in instances where federal court judges later found there was no evidence to hold them. The case of Fouad al Rabia, the 50-year-old fat Kuwaiti Airlines employee who was held for years even though his own interrogators didn't believe his tortured confession, should give pause to anyone willing to rely on evidence gleaned from intelligence sources. It's worth reading District Judge Collen Kollar Kotelly's opinion in the case to see one arbiter's opinion of the quality of the evidence in one case.

For a look at Holder and Blair's letter, click here.

February 10, 2010

Here's what the U.S. wanted the British to keep secret

Back last year, as you may recall, there was a dustup between the British and the United States over the release of classified documents on the treatment of former Guantanamo detainee Binyam Mohamed, a 31-year-old Ethiopian, who grew up in Britain and ended up in Guantanamo.

British Foreign Secretary David Miliband, told Parliament at the time that the U.S. had threatened to break off intelligence sharing with Great Britain if the British revealed details about how Mohamed had been treated. The British promised to keep the secrets, in the face of court rulings that ordered their release.

That ended Wednesday, when, bowing to a ruling from Britain's Court of Appeal, he Foreign Office posted on its Web site the seven paragraphs on how Mohamed had been treated during his time in U.S. custody.

If you've followed the rulings of U.S. federal judges in the Guantanamo habeas cases, the description won't come as any surprise. There's a growing body of court rulings that pretty much find that U.S. authorities at Guantanamo and elsewhere brutalized more than just high value detainees. But the U.S., even under the Obama administration, would just as soon keep that quiet.

The Office of the Director of National Intelligence issued this disapproving statement:

The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies. The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.

The United States and the United Kingdom have a long history of close cooperation that relies on mutual respect for the handling of classified information. This court decision creates additional challenges, but our two countries will remain united in our efforts to fight against violent extremist groups.

Here's what the British found about Mohamed:

[It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2001 as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]"

An Associated Press version of the story can be found here.

The British Foreign Office statement can be found here.

December 16, 2009

The Pentagon won a Gitmo habeas case -- or did it?

On Monday, U.S. District Judge Thomas Hogan ruled that the Pentagon had acted legally when it took custody of Musaab al Madhwani from Pakistani authorities and sent him to Guantanamo in 2002. It was a rare victory for the U.S. government, which has won only nine of the 41 Guantanamo habeas cases that have been decided.

But then you read the transcript of Hogan's remarks, obtained by Carol Rosenberg of The Miami Herald, (see her work here), and you have to wonder -- did the Pentagon really win?

Yes, Hogan concludes, Madhwani was without doubt a member of al Qaida. By his own testimony, Hogan said, Madhwani acknowledged that he trained and lived with al Qaida for a year. So since the government was authorized by Congress to seize al Qaida prisoners and hold them until the conflict was over, then Madhwani's detention was legal. But is it just? Hogan doesn't think so. "I do not accept the rationale that find(ing) the government had shown a basis for (Madhwani's) detention (that) that means he should not be released," Hogan said.

Hogan ruled that there was no evidence that Madhwani ever took part in an al Qaida operation, ever plotted to launch an attack, or ever fought with al Qaida or the Taliban. "I see nothing in the record that (Madhwani) poses any greater threat than the dozens of detainees similarly situated who have been transferred or cleared for transfer," Hogan said.

And there's much in the government's handling of the case Hogan didn't like. The government produced documents in the case just days before the trial. "If that had happened in any other kind of case, they would have automatically been disallowed. You cannot have discovery where the principal litigant's own words are hidden from him until shortly before trial," he said.

He didn't think much of the government's evidence, either. He said he rejected 23 documents the government submitted as admissible "because the interrogations occurred 6 months after petitioner alleged he was tortured . . . I find those claims to be without merit."

As for Madhwani's treatment while being held by U.S. forces, Hogan also had nothing good to say. Madhwani was hung from his cell's ceiling by his left arm, so he could neither sit nor stand for "many, many days." He was blasted with deafening music 24 hours a day. "His sole respite from the deafening noise," Hogan said, "was the screams from the other prisoners when it was quiet." There was no evidence from the government, Hogan said, that Madhwani's "description of what he experienced in his confinement is inaccurate. To the contrary, his testiomny is corroborated."

He slammed the government's medical records, which found that the prisoner appeared well six days before his transfer to Guantanamo in October 2002, even though his weight was only 104 and his diastolic blood pressure was just 36, "a sign of severe dehydration which would require hospitalization normally in the United States".

Hogan also wasn't having any of the government's arguments that Madhwani's better treatment at Guantanamo made his statements there any more admissible. "Although the names in Afghanistan and Guantanamo changed, the use of threats, that is coercion, did not," Hogan said. Hogan noted that the government declined to put one of Madhwani's interrogators on the stand to refute allegations of abuse, even though the interrogator was in the Washington area and available. There's an inference the court can make from the refusal, and it's not in the government's favor, Hogan said.

In the end though, Hogan said he had no doubt Madhwani was an al Qaida member and therefore legally detained. He said Madhwani himself had said as much in testimony that was not influenced by interrogators. And based on that, he will remain at Guantanamo, "though," Hogan concluded, "I fail to see . . . that he poses any greater threat than most of the detainees who have already been released."


November 30, 2009

Rumsfeld and Gitmo: Another NYT correction?

Last week, an item I posted here so intrigued Ron Brynaert, the executive editor at The Raw Story, that he spent the better part of a day tracking down references to the "worst of the worst" quote in an effort to find out who originally said it about detainees at Guantanamo.

As you may recall, my post was triggered by a phone inquiry from Donald Rumsfeld's office to Carol Rosenberg, who's covered Guantanamo from the beginning. Rumsfeld's office wanted to know when the then Secretary of Defense, who's widely credited with coining the phrase, had spoken those words; Rumsfeld's staff had yet to find it in any transcript. Rosenberg told the caller that she didn't think Rumsfeld had ever said it; she credits the phrase to Marine Brig. Gen. Michael Lehnert, who was the Guantanamo detention center commander when the first prisoners arrived on Jan. 11, 2002.

In an e-mail message to me, Brynaert said that the first published reference he could find to the words was in fact a Rosenberg story attributing them to "the Marine commander." That story ran on Jan. 20, 2002. (The back story here: Rosenberg recorded the phrase and Lehnert attribution in her notes on the arrival of the first prisoners, but didn't use them in her first story because, she said, it didn't seem like a particularly insightful comment and she had much to say in limited space.)

The next reference Brynaert found was a Jan. 23, 2002, transcript of a White House press briefing in which spokesman Ari Fleischer, in response to a question about the prisoners, said, "These are not mere innocents, these are among the worst of the worst." That story was followed five days later by an American Forces Press Service story, published on the Pentagon's Web site Jan. 28, 2002. That story has the words coming from Rear Adm. John D. Stufflebeem, who at the time was the Pentagon's primary briefer on operations in Afghanistan. "They are bad guys," the story quoted Stufflebeem as saying, referring to prisoners in both Afghanistan and Guantanamo. "They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others."

So when does Rumsfeld come into the picture? According to Brynaert's research, not until Oct. 23, 2002, in a New York Times story that claims Rumsfeld used the phrase "earlier this year." When precisely isn't said. Brynaert suggests that Rumsfeld "most probably used it off the record at some point." Maybe, but I'm betting not. As his staff apparently has discovered, Rumsfeld never actually uttered the phrase.

Does it matter? As Brynaert noted in his e-mail to me, "since Cheney used it the other month and other Bush officials and Pentagon officials have used it since, it appears to be a talking point." Clearly. But it's such a touchstone quote, wouldn't it be good for history to know its origin?

And it wasn't a very accurate observation. As Rosenberg pointed out in a story she did Jan. 17, 2008, of the 20 prisoners who arrived aboard the first flight to Guantanamo, prompting Lehnert's description, only one has been charged with a war crime -- the Australian David Hicks, who's served his time and is at home in Australia. Six others were released or transferred out of the prison; 12 others, as far as is known, remain at Guantanamo, but uncharged. As for No. 20, Rosenberg's never been able to figure out who he was, amid suggestions that he might have been an informant, aboard the flight to spy on the other 19.

June 16, 2009

Hoyer suggests Obama could move fast on detainee photo ban

Could President Barack Obama soon issue an executive order barring release of the controversial detainee photos?

House Majority Leader Steny Hoyer, D-Md., strongly suggested that could be coming, though the White House would not discuss its conversations with him.

At his weekly news conference, Hoyer said, “I think the President has made his position pretty clear in terms of those photos.”

In the Senate, South Carolina Republican Lindsey Graham has said that unless Obama signals he’ll issue that order, or the Senate doesn’t’ vote for a ban, he’ll block as much Senate business as he can.

“I think that we will have to see specifically what the executive order says, assuming there is going to be an executive order on those,” Hoyer said. “But the administration hasn't changed its position. It made it very clear that they believe the release of these pictures is not appropriate.”

One question, he said, involved freedom of information laws. ““I think the Congress made it very clear, certainly over here,” Hoyer said. Congress does not include a ban in its emergency war spending legislation.

“We don't think that FOIA ought to be simply struck in this instance. If the President makes an exception to FOIA, that is one thing, but precluding FOIA in this instance was not acceptable to the House,” Hoyer said.

So, a reporter asked, “The White House told you that they plan to do that soon?”

“I think,”: he said, “I have reason to believe that they are looking to that as an option so that they can resolve this issue.”

June 11, 2009

Bermuda in hot water with Mom over Uighurs

As in Mother England. Thursday morning, Bermuda's premier, Ewart Brown, made the surprising announcement that four Uighur detainees from the American prison camp at Guantanamo had been resettled in the tourist mecca in the middle of the Atlantic Ocean.

The problem, reports Bermuda's only newspaper, the Royal Gazette, is that Brown forgot to tell the island's governor, the royally appointed official who is London's authority on the island. Bermuda isn't really an independent state, but a self-governoring overseas territory of the United Kingdom. And while Bermudans are at pains to point out that they approve their own laws and UK laws don't apply, the UK is supposed to decide Bermuda's foreign policy.

Which is why the island's governor, Sir Richard Gozney, thinks he should have been told before Bermuda agreed to take in the Uighurs, who'd been ordered freed last year by a U.S. district court judge and had grown tired of Guantanamo.

"The Government of Bermuda should have consulted with us because it carries with it foreign policy ground areas and security issues," Gozney is quoted as saying in the Gazette.

Brown disagrees, telling CNN Thursday afternoon that the matter is strictly an immigration one, which falls within local Bermuda officials' authority. He called the decision a "humanitarian one."

Brown acknowledged that he let Gozney know what was going on "rather late" -- apparently after the four Uighurs were already aboard a chartered flight from Guantanamo.

Why exactly wasn't clear. Brown told the Gazette the Uighur asylum had been in the works for a month.

As for the Obama administration, it expressed gratitude for the Bermudan hospitality and didn't address the issue of whether maybe some kind of headsup was owed to London.

And the Uighurs, who've been in Guantanamo for seven years? Their mental health appears fine, reports the Gazette, and they could barely contain their enthusiasm for moving to Bermuda during the flight from Guantanamo.

Still awaited is word that the 13 remaining Guantanamo Uighurs have made it to the Pacific island of Palau, which announced Wednesday it was taking all 17.

Apparently, no headsup for Palau, either.

May 19, 2009

Hoyer: I believe Speaker Pelosi

The war of words between the Democratic House leadership and the CIA escalated Tuesday with House Majority Leader Steny Hoyer giving his unequivocal support to embattled House Speaker Nancy Pelosi, who said the spy agency misled her on torture tactics used on terrorism suspects.

"There's been a lot of debate about the speaker and the CIA over the past week," Hoyer told reporters Tuesday. "I'm going to be very clear ... I believe the speaker. I believe the speaker when says that she was not specifically briefed on types of ... interrogation techniques that were being employed."

Hoyer called Republican outrage over the Pelosi-CIA briefing controversy a diversionary tactic to "distract the public from focusing what was done, what the justification for doing it was, and for President Bush's comments that we don't torture, we're not using torture ..."

CIA Director Leon Panetta has disputed Pelosi's claim last week. In a message to agency employees, Panetta wrote: "It is not our policy or practice to mislead Congress ... Our contemporaneaous records from September 2002 indicate CIA officers briefed truthfully on the interrogation of (terrorism suspect) Abu Zubaida, describing the 'enhanced techniques that had been employed.'"

May 01, 2009

Condi Rice channels Richard Nixon

This video by a Stanford student has been around for a couple of days, but if you haven't watched it's well worth the trouble.

Hear Rice's pitch rise as she defends the harsh interrogation authorized under Bush. Hear her assert that, "with all due respect," Nazi Germany was less of a threat than al Qaida (start at 3 minutes 30 seconds).

Her student interrogator does pretty well pointing out the irrelevancy of some of what she says (4'10"). And she does a great job of treating us to a topsy-turvy view of who deprived the Guantanamo detainees of their due process rights (from about 4'50" to 5'26"). OK, no suspense, it was the Supreme Court. No wonder the student can't answer.

But the best line is her assertion that whatever happened at Guantanamo couldn't have been torture because President Bush authorized it: "By definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture" (5'36" to 6'26").

Maybe she should see the movie Frost/Nixon: "When the president does it, it's not illegal."

Here're some related links:

Red Cross Report

Document: Cheney, Rice signed off on interrogation techniques

Report: Abusive tactics used to seek Iraq-al Qaida link

CIA official: No proof harsh techniques stopped terror attacks on America


"Planet Washington" covers politics and government. It is written by journalists in McClatchy's Washington Bureau.

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