From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • June 21, 2010

Supreme Court wonderland

Modifying Miranda ... Torture popping up everywhere … Medicos in the war crime frame … How the government switches the constitution on and off … Ballet dancing detainees could be swapped … Our Man in Washington reports

In an Alice-in-Wonderland decision, the Supreme Court has decided, 5-4, that the right to remain silent is not invoked by remaining silent.

You must speak up to say you won’t speak. Who knew?

FindLaw’s Writ comments on the modified Miranda and the National Law Journal has more.

In another counter-intuitive development, Justice Anthony Kennedy, as supervising justice for the 9th Circuit, has blocked – pending a Supreme Court appeal – the implementation of Arizona’s public election finance law, which previously had been upheld by the Ninth.

Kennedy’s decision assures that those without the generous corporate funding recently unleashed by the Supreme Court in the Citizens United decision will be unable to receive their full public funding during this year’s election cycle. Scotusblog has more.

In a decision the NY Times called disgraceful,
the Supreme Court denied certiorari to the Canadian Maher Arar in his civil damages case against US officials who rendered him to Syria as he transited JFK airport in 2002.

Arar was tortured there for 10 months.

The Canadians exonerated Arar, paid him millions in damages and apologised for their role in his rendition. The US, however, refused to take any action.

The Mounties are now investigating the US

Arar’s lawyer, David Cole (pic), has more to say.

* * *

Many policies of the Bush regime are in the news again, most notably secret detention and torture.

In June, George Bush boasted about torturing Khalid Sheikh Mohammed, and said he’d do it again,

At the same time, the American Civil Liberties Union was offering an incriminating document a day on its Torture Report website.

There’s also a new report by the Physicians for Human Rights on Bush administration experiments in torture.

Such practices violate the US government’s “Common Rule” requiring informed consent in human experiments, and could also be a war crime.

The New York Times called them medical ethics lapses, but others weren’t so kind.

Mother Jones and Scott Horton were also harsh.

Perhaps instead of interrogators or lawyers, the initial war crimes convicts will be medicos: the Justice Department lawyers neglected to invent legal cover for human medical experiments.

Actual ignorance of law may now be added to John Yoo’s impressive record of incompetent legal mischief.

Redefinition of prohibited biological experiments came afterwards, in retrospective amendments to the War Crimes Act, as Jason Leopold notes.

Securing the passage of such legislation could be … a war crime.

* * *

Earlier this year the UN released a report on secret detention, with particular attention to the US and its confederates.

In May, the UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, NYU law prof Philip Alston (seen here), tabled a report on the targeted killing programs of the US, Russia, Israel and other rogue states.

Alston discussed the report in a Scott Horton interview.

The UN reports should provide plenty of work for Rosa Brooks, the well-known human rights lawyer who will head the Pentagon’s new Office for Rule of Law and International Humanitarian Policy.

The DoJ is also taking steps to address the, uh, public relations problem, with a new Human Rights and Special Prosecutions Section that vows it will prosecute (some) war criminals.

* * *

Torture also popped up in the Ahmed Ghailani terrorism case in New York federal court, where Judge Lewis Kaplan (snap) predictably ruled that pre-trial torture was no reason to dismiss the case.

Emptywheel comments. A ruling on the denial of a speedy trial is still pending.

Ghailani’s five years of overseas off-books detention, despite a valid indictment pending in New York, were easily disposed of by the DoJ:

“Neither the manner by which a defendant is brought to court for prosecution nor the conditions of his confinement prior to that prosecution are valid grounds for dismissal of an indictment.”

* * *

On May 21, in Al Maqaleh v Gates, the DC Circuit greenlighted habeas-free detentions at Bagram of “terrorists” captured outside theatres of war.

This circumvented habeas rights thought to have been granted by the Supreme Court in Boumediene.

However, the court said:

“We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able to evade judicial review of executive detention decisions by transferring detainees into active conflict zones, thereby granting the executive the power to switch the Constitution on or off at will.”

While the court doubted the possibility of such bad faith, Obama is now contemplating just such transfers.

Meanwhile, the Guantánamo Task Force Review report – mandated in Mr Obama’s post-inaugural orders – has confirmed that the great majority of those held at Gitmo shouldn’t be there.

The Washington Post and Andy Worthington comment.

In the 50 Guantánamo habeas cases decided so far, the government has lost all but 14.

In most cases, there was no credible evidence that the detainees had done anything qualifying them as “enemy combatants.” The latest is here.

The Bush administration was clearly unaware of – or indifferent to – what is required for a civilian to be treated as a combatant.

Mr Obama has less excuse, thanks to the International Committee of the Red Cross and the recent publication of the ICRC Guidelines on Direct Participation in Hostilities.

* * *

One of the recent DC habeas decisions was that of the only European still held at Gitmo, the Russian Ravil Mingazov.

The district court ordered his release.

Mr Mingazov (pic) doesn’t want to go back to Russia in light of the bad things that happened to other Russians who were returned, stigmatised as “terrorists”.

Happily, Amherst, Massachusetts, offered him a home.

Unfortunately, the president, like his predecessor, regards court orders as only advisory, and has made no move to resettle the Russian, who Congress claims can’t be brought to the US.

A solution is possible, however.

Mingazov, a former Russian soldier and accomplished ballet dancer, is held in violation of the law of war by Americans at Guantánamo.

As it happens, Bowe Bergdahl, a US soldier and also a trained ballet dancer, is held – equally illegally – by the Taliban in Afghanistan.

Why not an exchange, for the sake of art?

ACLU FOIA documents

Bush Era

· February 2004 “Global Screening Criteria for Detainees” (starting at OSD 46 and starting at CENTCOM 281)

o Suggests that pre-2004 there had been a screening policy only for “those enemy combatants detained in Operation Enduring Freedom in Afghanistan” but not for all “individuals detained in the war on terrorism” and that this guidance was meant to “broaden[ ] extant policy to cover enemy combatants regardless of where they were captured.” Also discusses criteria for who could be transferred to Guantánamo (OSD 46)

o This criteria would apply to “all terrorists whom the President has so designated because they pose a threats to the United States or US interests, or are of strategic intelligence or law enforcement value to the United States” (OSD 46)

o Explains view of the global battlefield: “The United States is engaged in an armed conflict with al Qaeda, its supporters, and other designated terrorists organizations that have targeted the United States and its interest. This is an armed conflict against terrorist organizations of global reach and is not confined to one geographic area or one theater of operations.” (OSD 48)

o Individuals captured anywhere could be detained in DOD facilities as enemy combatants if they were international terrorists or members of terrorist organizations, posed a threat to the United States or US interests, and were of high operational or strategic intelligence or law enforcement valued to the United States. (OSD 48)

o Of those designated enemy combatants as outlined above, commanders could “only transfer to Guantanamo those whose exploitation require[d] the specialized capabilities available at Guantánamo.” (OSD 48). “Low-level” enemy combatants who represent only a tactical force protection threat were not eligible for transfer to Guantánamo. (OSD 46). Guantánamo was meant to “function as a strategic intelligence gathering center” and should be used to house only those who were “of high operational or strategic intelligence or law enforcement value.” (OSD 49)

o Combatant commanders and “Mobile Detainee Review and Screening Teams” made initial enemy combatant determinations and determinations whether individuals should be sent to Guantánamo. (OSD 49, 52).

o Internment Serial Numbers had to be assigned within 5 days. (OSD 52). Unclear why they were not required immediately.

o Notification to the Secretary of Defense and Joint Chiefs of Staff required whenever transfer to Guantánamo “or other designated detention facility” (NOTE: unclear whether DOD facilities only or also CIA facilities) recommended. (OSD 53)

o Notification also required when DOD obtained control of any individual 15 years-old or younger. (OSD 53).

o Definitions of “enemy combatants” (including mere membership); “intelligence value”; “law enforcement value” (assessment that “the individual possesses information relevant to a criminal investigation or is a possible target for prosecution for alleged criminal activity”); and “threat to the United States or US interests” (OSD 55-56)

· August 2003 Detainee Screening Policy in Afghanistan (OSD 58-59)

o Criteria for who could be detained redacted but suggests potentially big catch-all for “any other whom screeners suspect may pose a threat to US interests, may have strategic intelligence value, or may be of law enforcement interest” (OSD 58)

· December 2002 Implementing Guidance for Release of Transfer of Detainees under DOD Control to Foreign Government Control (OSD 11- 27)

o Some discussion of how some individuals detained as enemy combatants may have been the subject of criminal investigation, considered useful in criminal investigations or prosecutions, and even potentially prosecutable themselves – seems to recognize people could be of criminal interest.

§ Notes Secretary of Army can recommend transfer or release of “enemy combatant” detainee after criminal investigation (OSD 14-15); that among the documents the Detainee Policy Group would consider when reviewing release and transfer recommendations was “record of criminal investigation interviews, reports and summaries on the detainee, and a statement assessing the sufficiency of the law enforcement investigation” (OSD 19); and “whether continued detention of [the] individual is required for a US criminal investigation or prosecution” (OSD 25)

§ Notes when they released people they could keep their effects and property if they had continued “intelligence or law enforcement value” (OSD 23)

o Discusses very early version of detainee “status review” procedures (pre-Supreme Court rulings) and determinations for who could be detained, transferred to Guantánamo, or released. This appears to have applied to any person in DoD custody anywhere in the world. This process appears to have been even less meaningful than the old Bagram process – which Judge Bates noted was worse than the CSRT process the Supreme Court had found inadequate at Guantánamo, and less meaningful than the CSRT process implemented at Guantánamo in post-Hamdi.

§ Defines enemy combatants as including any member of al-Qaeda, the Taliban, or other group (regardless of actions) (OSD 12)

§ Within 90 days of being brought into DOD custody, the detainee combatant commander would decide based on “all available and relevant information” whether the detainee was an enemy combatant. (OSD 12). This determination appears to have been made unilaterally by the commander (OSD 12-13).

§ Thereafter, the commander would review an enemy combatant’s status annually. (OSD 13)

§ The documents suggest that the Secretary of the Army and Criminal Investigation Task Force, following a criminal investigation, could made release or transfer determinations as well (OSD 14-15)

§ The Assistant Secretary of Defense for Special Operation and Low Intensity Conflict (Detainee Policy Group) and the General Counsel of the DOD would review whether a detainee should be released or transferred (OSD 14-15)

§ The documents discuss the existence of a “Interagency Experts Group” that is involved in release or transfer decisions but other than DOD, the participants in that group are redacted. (OSD 16)

§ This guidance lays out the specific responsibilities of each play including the Under Secretary of Defense for Policy; the Assistant Secretary of Defense for Special Operation and Low Intensity Conflict (“SOLIC”) (which seems to have had the most control/power); Detainee Policy Group within SOLIC; Assistant Secretary of Defense for Public Affairs; General Counsel of DOD; Director of Joint Staff; Combatant Commanders; Secretary of the Army; Interagency Experts Group; national Detainee Reporting Center

· Documents concerning the transfer of a “Third Party National Held at Bagram” to Pakistan (OSD 94-95)

· Documents concerning the transfer of Bagram detainees to the Afghan government/Afghan custody for prosecution in the Afghan National Detention Facility or participation in the Afghan reconciliation program (2007-2008)

o A 2004 and 2008 documents discussing delegation of authority from Pentagon to CENTCOM’s to release low-level enemy combatants to the Afghan government when “consistent with U.S. national security interests” (OSD 6, 8, 9-10)

o Primarily transfer of “Low-Level Enemy Combatants” (OSD 1) who were “low-risk” and “potentially prosecutable,” under Afghan law (OSD 2)

o Several documents suggest that DOD had decided or agreed to transfer detainees to the Afghan government at a certain, perhaps arbitrary, rate (OSD 6, 38, 60-61, 96-97)

o Some documents discuss the number of transferred detainees the Afghan government has prosecuted and, for those convicted, whether they received time-served for their time at Bagram or received additional prison sentences. However, the specific numbers of prosecuted detainees and the length of their criminal sentences are redacted. (OSD 6-7, 60, 96-97).

· A 2007 document (OSD 44) discusses the recommendation that the Afghan government be allowed to participate in the (old) status review board process at Bagram for Afghan detainees and the recommendation was approved. It is unclear what kind of participation/role the Afghan government had or whether it ever came to fruition.

· Documents discussing the transfer of on Afghan national detained at Bagram to DOJ custody in the United States for criminal prosecution for drug-related crimes (OSD 62-64)

· Documents concerning granting the Afghanistan Independent Human Rights Commission Access to the Bagram facility in 2005 (OSD 77-78) and 2010 (OSD 75-76)

· 2006-2007 documents concerning policy for granting foreign government access to detainees at Bagram (OSD 82-87). One document notes that foreign government visits are “for intelligence or law enforcement purposes” only “not for consular purposes” (OSD 86). DoD would be provided with “copies of all records of conversations and other information gathered by the foreign government officials.” (OSD 87)

· 2007 documents concerning whether to permit family members and village elders to visit Bagram detainees (OSD 88-90)

· 2007 document regarding need for continued enemy combatant status review determinations (CENTCOM 300-302)

· 2005 documents regarding policy for body cavity exams for detainees in DOD custody (CENTCOM 304-308)

· Memo re Counter-Resistance Techniques in the War on Terrorism (OSD 68-74) (Previously released to us in Torture FOIA)

Obama Era

· February 2010 revised policy guidance regarding access to detainees and detention facilities in Afghanistan (CENTCOM 309-318) (covers access by non-DOD U.S. government agencies, foreign governments, media, and NGOs)

o Note: confirms non-DOD agencies still permitted at Bagram to conduct interrogations, debriefings and other questioning of DOD detainees (although they must adhere to DOD interrogation policy) (CENTCOM 314-315)

· Policy regarding waiver of autopsy requirements for detainee deaths (CENTCOM 329-332)