Cairo to Kabul to Guantanamo
A Human Rights Watch Briefing Paper
`Abd al-Salam `Ali al-Hila arrived in Cairo on an EgyptAir flight, Friday, September 19, 2002, checking in the Semiramis Intercontinental, a five-star hotel overlooking the capital’s Tahrir Square.1 Al-Hila disappeared within a week of his arrival in Egypt. According to his brother, `Abd al-Wahab al-Hila, he is believed to have been taken first to Baku, Azerbaijan, and he was then transferred to U.S. custody in Afghanistan. After being held for some sixteen months in Afghanistan, he was sent to Guantanamo Bay, where he is still being held.

When al-Hila arrived in Cairo, according to his brother, he had a busy schedule of meetings with his Egyptian business associates. He managed a pharmaceutical firm in Yemen, and also served as a representative of Arab Contractors Co., Egypt’s biggest construction company, in Sana'a.

Commerce wasn’t al-Hila’s only vocation. The father of three was also a Yemeni intelligence colonel, who was in charge of the “Arab Afghan file.” The Yemeni government had welcomed hundreds and possible a thousand or more “Arab Afghans” (Arabs who had gone to Afghanistan to join the fight against Soviet-backed government in the 1980s) volunteering to fight the “Marxist” secessionist rebels in the South during the country’s 1994 civil war. (In addition to these foreign "Arab Afghans," an estimated 30,000 Yemenis also went to Afghanistan; many of them also assisted the Yemeni government upon their return.)

After the civil war ended, some volunteers settled down, intermarried with Yemenis, and, by and large, refrained from politics. Others continued to be active in militant politics, seeking a safe haven in Yemen’s hard-to-control border areas with Saudi Arabia. Many others left the country for other destinations.

Al-Hila was the intelligence officer in charge of transferring scores of Arab Islamists from Yemen to other countries, including Western Europe, to seek asylum. His position meant that he had a close relationship with Yemeni President `Ali `Abdullah Salih, as well as with a broad array with Arab and Western intelligence services, and members of the militant groups themselves.2

Those familiar with the Islamist scene in Yemen say his knowledge of the Islamists’ exodus routes out of his country made him a valuable source of information for the CIA. Islamists deny his involvement with al-Qaeda, or any terror group, but still say he helped thousands to leave the country. According to press reports, an Egyptian militant in Yemen told Egyptian intelligence agents that al-Hila had ties to al-Qaeda operatives. This information may have then been passed on to U.S. intelligence, and prompted his apprehension on arrival in Egypt.3

Al-Hila’s trip to Cairo, however, was supposed to be strictly business. He was invited by the Arab Contractors’ head office in Cairo to settle some financial disagreements over his construction business commission, according to his 30-year-old brother `Abd al-Wahab.4

Al-Hila was in a regular daily contact with his family, using both his Yemeni and Cairo cellular phones. On September 24, his family became worried as he did not answer their calls for the whole day. 5

“`Abd al-Salam phoned us on the following day to say he had been invited to a meeting with ‘some people,’” his brother recalled. Al-Hila told his brother nervously that, “the atmosphere is cloudy and dark over here,” but did not elaborate further. This was to be his last phone conversation from Cairo with his family. Members of his family kept on calling him on the days following, but he didn’t answer. His two mobile phones were switched off three days later.6

The family subsequently contacted the Egyptian embassy in Sana'a to try to get some information on his whereabouts. They also made requests to the Yemeni president and the foreign ministry to lobby the Egyptian government on their behalf, assuming he was detained in Cairo.

`Abd al-Wahab insisted that his brother was not involved in any armed activities against the Egyptian government. He is not sure why his brother was kidnapped, but says “they talked in the press about his role with the Arab Afghans during [Yemen’s civil] war.”

Yemeni officials called upon their Egyptian counterparts to disclose the whereabouts of al-Hila. The Yemeni ministerial cabinet issued a statement on October 31, 2002, implying he was still detained in Egypt. 7 The statement called upon Egyptian officials to disclose al-Hila’s whereabouts in spirit of the “brotherly” ties between the two countries.

The first Egyptian official response to the allegations came on November 3, 2002, in a report by the state-run Middle East News Agency, which quoted an “Egyptian official source” as stating that al-Hila left Cairo on an American flight to Baku on September 28, 2002. The source also denied any involvement by the Egyptian authorities in his “disappearance.”8

The family received no specific information from the Egyptian or Yemeni governments on his allegedly voluntary flight to Baku. They were told by the Yemeni foreign minister in November 2002 that Egyptian officials showed him the “departure card” each passenger fills out when flying out of Cairo Airport. `Abd al-Wahab asked the ministry for a copy of the departure card, but when Human Rights Watch interviewed him in December 2004 he had yet to receive one.

Al-Hila’s fate was unknown for more than a year and a half. During that time, his family had no information on him whatsoever: his whereabouts, which government was holding him and why, and his conditions of detention were all unknown. Finally, on April 14, 2004, Yemeni foreign minister Abu Bakr al-Qurbi announced that the Yemeni embassy in Islamabad, Pakistan, had received a letter from al-Hila smuggled out of Bagram Airbase in Kabul, Afghanistan. His brief letter, dated January 12, 2004, stated that he had been detained by the CIA in Afghanistan for 16 months, after being kidnapped in Cairo by Egyptian intelligence.9

The full letter was published by the Yemeni state-owned daily 26 September, on April 25, 2004:


His Excellency, the Ambassador of the Yemeni Republic,

My brother, Mr. Ambassador, I—`Abd al-Salam `Ali al-Hila—am writing to you from my solitary confinement cell in Afghanistan. I was imprisoned by the Afghanis, but I am in the CIA custody, together with a Yemeni brother in another cell. He is a merchant, who was arrested in Thailand and brought to Afghanistan. There are also seven other Arabs [detained here].

My brother, Mr. Ambassador, I am writing this letter from a dark prison. I don’t know why I am in jail. I am a businessman with a good reputation, who did a lot for this country. … My brother, Mr. Ambassador, I am writing to you asking for help from God and the president of the [Yemeni] republic… I have been put in jail in Afghanistan by the Americans, after I was arrested in the Arab Republic of Egypt during a brief business trip. The CIA conspired with the Egyptian Mukhabarrat, making false allegations and threats against me, so as to justify their crime of kidnapping me from Egypt and locking me up in this Afghani prison. I did not know I was in Afghanistan except after four months of incarceration. My brother, Mr. President, I am in prison though I am not guilty. You, concerned state officials, and the Americans know well I am not involved in any events related to the Americans or non-Americans; nor do I have any relations with [terrorist] organizations. My only crime is that the Americans wanted information from me, but couldn’t find any, so I was left in Afghani prisons. My last interrogation was a year ago. The Americans cannot imprison me in America because they know I am not a criminal, and imprisoning me will be against their country’s laws, and all other godly as well as ungodly laws. However, they [Americans] are violating these [laws] outside their country, and still claim they protect human rights.

My brother, Mr. President, I don’t know what the Americans and the Egyptians told you about me, [but] I urge you to request my immediate release and my safe transfer home. If they accuse me of anything, then the minimum rights of any accused [include] standing trial in court. Thus, I ask you to lobby the Americans and the Egyptians, who handed me over [to the Americans], to bring me home. And if they accuse me of anything, then they could confront me with it in my country, in a public, fair, civilian court.

My father, the President, I am writing this letter to you, and wait, together with another Yemeni merchant by the name Amin al-Yafi`i. … We hope we will not be unjustly forgotten in prisons! Only God knows how [bad] my situation is! Please take care of my mother, children, brothers, and my trade.

This letter was written on 12 Dhu'l-Qa'dah 1424 Hijri—12/1/2004 AD… I hope from my brother, Mr. Ambassador, to devote attention to the matter and convey my message to the president of the Republic.


In July 2004, al-Hila’s family received a letter from Kabul via the Red Cross dated May 26, 2004. This was the first communication that they had received from him since he had been detained a year-and-a-half earlier. Two months later, they received another letter, dated July 19—this time from Guantanamo. This letter did not mention any details about his arrest or prison conditions. Instead, his letter was full of queries about the family.

In December 2004, the family received another two letters dated October 15 and October 30. Besides the greetings and good health wishes, al-Hila wrote in the October 15 letter, “I was moved to the new prison, from Afghanistan to Cuba, Guantanamo….” The rest of the sentence was blacked out by the U.S. military censor.

As of this writing, there was no evidence that he had been released from Guantanamo.



1Human Rights Watch interview with `Abd al-Wahab al-Hila, December 2004.

2 Human Rights Watch interview with Yasir al-Sirri, London, July 2003; Muhammad al-Shafi`i, “Zawahiri’s Secret Papers, Part Seven,” Asharq al-Awsat, December 19, 2002; `Abd al-Salam`Abd al-Salam Tahir, “Aborted Kidnapping Attempt of an Egyptian Embassy Employee Follows a Chase in Sana'a Streets,” Asharq al-Awsat, September 17, 2003.

3 Human Rights Watch interview with Yasir al-Sirri, London, June 2004; Human Rights Watch phone interview with Yasir al-Sirri, December 2004; Muhammad al-Shafi`i, “Ayman al-Zawahiri’s Secret Papers, Part 7,” Asharq al-Awsat, December 19, 2002; Interview with Nabil al-Hila, Middle East Transparent, July 22, 2004.

4Human Rights Watch interview with `Abd al-Wahab al-Hila, December 2004.

5 Ibid.

6 Human Rights Watch interview with `Abd al-Wahab al-Hila, December 2004.

7 Khalid Mahmud, “The Disappeared Yemeni Left Cairo to Azerbaijan on an American Flight, Egyptian Official Confirms,” Asharq al-Awsat, November 4, 2002.

8 Ibid.

9 HOOD public statement [HOOD is a Yemen-based Islamist human rights organization] statement, “Al-Hila is in Kabul,” April 27, 2004.

http://hrw.org/english/docs/2005/03/28/usint10379_txt.htm

What a timely topic. Below is a letter I wrote one of my Senatorrs and his response. He is touting the party lline that it is "only a few" who have done this and it's "against US policy". Then he goes on to ignore my question aobut our outsorucing torture to other countries.

Here' s my letter:



And here is Senator Robert's reply:

A Prison Beyond the Law
JOSEPH MARGULIES


Introduction

Not long after September 11, 2001, the Bush administration began to develop plans for a prison at the Guantánamo Bay Naval Station, in Cuba. Though modeled physically on maximum-security prisons in the United States, this facility—with a maximum capacity of 1,100 inmates—would not hold convicted criminals. In fact, most of the inmates at this prison would never be charged with a crime, let alone convicted. The prison would house the people seized in ostensible connection with the war on terrorism, most of whom would never be brought before a tribunal of any kind and would never be given an opportunity to secure their release by establishing their innocence. Designated “enemy combatants” by the president, they would be held without legal process, consigned to live out their days in isolation until the administration saw fit to release them.

This was the prison my colleagues and I challenged in Rasul v. Bush. On behalf of four prisoners—two from Britain and two from Australia—lawyers with the Center for Constitutional Rights and I filed an application in federal court seeking a writ of habeas corpus. Habeas acts as a check on executive detention by forcing the sovereign to justify a prisoner's detention in open court. Sometimes called the Great Writ, habeas has been part of our law for more than 200 years and is one of the only protections of individual liberty enshrined in the Constitution (as opposed to the protections subsequently added in the Bill of Rights). Consistent with this historic purpose, we argued that the United States had to establish the lawfulness of our clients' detention by a fair process.

No small amount of confusion has attended the litigation in Rasul, and it is perhaps important to note what is not at stake. We did not argue—and have never argued—that the administration could not detain people seized in connection with the war on terrorism. We argued only that they could not detain them without some process to determine whether the detention was lawful. Nor did we argue that this process must include all the trappings of a federal criminal trial. We sought only a lawful and fair process that comported with the core understanding of habeas: notice and an opportunity to be heard before an impartial court that made timely decisions based on fixed and transparent standards. Finally, we did not ask that our clients be brought to the federal courthouse while this process unfolded. Instead, we asked that the federal court provide us access to our clients at Guantánamo, so they could be heard through us.

The litigation in Rasul has generated a host of intriguing issues, any one of which is worth considerable attention. There is, for example, the matter of the prisoners themselves. So far, the United States has successfully kept most of the Guantánamo inmates in the dark about the litigation.1 The argument in favor of complete secrecy runs something like this: The administration believes that September 11 represents a failure of the intelligence community. While we may never know whether, with better intelligence, the United States could have prevented the attacks that morning, the administration believes that better intelligence is essential to preventing more attacks in the future. Since we lack reliable informants on the ground, we must get this intelligence by any means available to us, including interrogations of the people seized during the war.

According to the administration, effective interrogations require that the prisoner be separated from all outside influence. Terrorists, they argue, have been trained to resist the conventional blandishments to cooperate and will withhold all useful information so long as they believe help is on the way. A successful interrogation, therefore, requires that prisoners become convinced that their welfare depends entirely on their interrogators. The only link to the outside world is the contact permitted by the captors. No family member, no member of the press, and certainly no attorney, can visit with the inmates, who under all circumstances must not learn of any litigation filed on their behalf, for fear that the knowledge will fortify them in what the administration takes to be their unbending determination to resist interrogation. To implement this vision, the administration needed a place where it could conduct interrogations free from any interference by the outside world—and in particular, by a court and its dreaded accoutrement: lawyers.

The upshot of this logic is that, so far as I am aware, Rasul is the only case in U.S. history in which litigants have been deliberately kept unaware that their fate is being decided by the United States Supreme Court.2

Ironically, the problem with this argument is that it proves too much and too little. It proves too little because it assumes the critical fact in contention—viz., that the person being interrogated belongs in prison. The argument assumes that—operating in an unconventional conflict, where forces are not arrayed in traditional battlefields, where the enemy may be indistinguishable in appearance from any disengaged civilian, where the United States claims it may find its foe anywhere in the world, and where (by hypothesis) the military suffers from a lack of reliable intelligence on the ground—the administration has made the right decision to detain this person in the first place. In reflecting on the relative value of this assumption, we are well to recall the military's own estimate that perhaps 80 percent of the people imprisoned during the insurgency in Iraq are innocent.3 And in Iraq, all the inmates were seized in a single country during a relatively brief period. The prison at Guantánamo, by contrast, houses inmates seized from across the globe, over a period of years.4

In any case, armed with this questionable assumption, the military takes the prisoner's refusal to disclose intelligence information as evidence of his rigorous and disciplined training, and not as evidence that he has no information to disclose. The only solution, therefore, is to conduct both more and better interrogations. In that respect, the reasoning is reminiscent of the logic pressed to support the Japanese internments during World War II: the fact that there had been no fifth column activity or acts of sabotage prior to the internments merely confirmed that such activity had been planned for a later date. In all events, the supporters of internment never took the absence of any untoward activity as evidence that they were mistaken about the risk in the first place.5

Yet the administration's argument also proves too much. Even if we assume the various premises are correct—that the military has seized the right person and that extended isolation and complete dependence is the sine qua non of a successful interrogation—the government's argument posits an interrogation that never ends, since the moment the interrogation ends, so does the justification for the strict isolation. For many of the Guantánamo prisoners, the isolation has now gone on for over two years, with no apparent end in sight. Perhaps as importantly, the argument stakes its claim on the singular importance of intelligence gathering. If that is indeed the test, then conditions which increase the likelihood of what the administration defines as a “successful” interrogation will be viewed sympathetically, while conditions that diminish the likelihood will be viewed with skepticism. This argument, however, leads seamlessly—albeit not inevitably—to the sickening abuses recently uncovered at Abu Ghraib and other military facilities.

A few examples may bring this problem into sharper focus. In the first Gulf War, military lawyers were present at every detention center. These attorneys were carefully trained in the laws governing the proper treatment of detainees and were allowed to monitor any interrogation from behind a one-way mirror. They were also authorized to intervene if any interrogation crossed the line. By design, however, their monitoring was surreptitious, and neither the interrogator nor the detainee knew whether any particular session would be monitored. In the present conflict, however, the administration has curtailed this practice, apparently because it believed lawyers might interfere with aggressive interrogations.6

But even while the administration removed JAG lawyers, whose presence acted as a potential brake on overzealous interrogators, it endorsed an extremely controversial approach to interrogations at Guantánamo. In September 2002, when the administration had grown impatient with the lack of intelligence coming from Guantánamo, it authorized interrogators to become more aggressive. According to press accounts, at least one prisoner was held under water until he believed he would drown. And in March 2003, a team of administration lawyers concluded that the president could authorize the military to torture detainees with impunity and that the domestic and international laws prohibiting torture were subject to a type of crude cost-benefit analysis and could be discarded if it was discovered they interfered with what the administration believed was an effective interrogation technique.7

Another issue worth further exploration is the unprecedented nature of the detentions. Again, so far as I am aware, the detentions at Guantánamo mark the first time in U.S. history that the military has relied on a systematic program of indefinite detention without legal process. Defenders of the current detentions point out that the United States has detained people in every prior conflict, and that is of course correct; during the Second World War, the U.S. military detained over 400,000 German and Italian prisoners in the United States. But these prisoners enjoyed the protections of an extant legal system—the 1929 Geneva Conventions—which the United States observed to the letter.8 As importantly, and unlike the present conflict, the nature of the hostilities during the Second World War substantially minimized the risk that the military would capture an innocent civilian. The military could fairly assume, in other words, that the soldier across the field in the slate gray uniform was in fact a member of a belligerent force who could be lawfully held for the duration of the conflict, without the need for further process. But administration officials acknowledge that no such confidence surrounds the present conflict.9

Defenders of Guantánamo also maintain that wartime detentions are inherently indefinite, if only because one can never predict when a particular conflict will end. This too is undeniably true, but in prior conflicts, the event which marked the end of a particular campaign could be readily ascertained, which made it a relatively simple matter to recognize when a wartime restriction crossed the line from reasonable to abusive. Furthermore, since a nation's defeat marked the end of its ability to maintain an army, it also became reasonably clear when the military should repatriate prisoners. But the war on terrorism pits us against an ideology. How do we know when we have vanquished an idea? What marks the moment when armies doing battle with deeply held convictions may finally set down their arms, secure in the knowledge that the conflict has run its course? I venture the end of such a conflict will not be marked by an armistice signed on the deck of the Missouri. But if this reality makes it difficult to know when the conflict is over, and if it means, as the administration has suggested, that the measure of this conflict will be in decades, and not years, doesn't it also make it more important that people who have been seized by mistake be provided some means by which they may establish their innocence and secure their release?10

There is also the nagging suspicion that much of our current musings about Guantánamo amount to little more than the first draft of history—that despite recent disclosures, almost everything worth knowing about the detentions will not be known for many years. At least, that seems to be one of the important lessons of recent scholarship. We learned only in 1983, when Peter Irons published Justice at War, that many of the justifications given by the military for the Japanese internments had in fact been untrue. His important work led ultimately to the judicial decisions vacating the convictions of Fred Korematsu and Gordon Hirabayashi.11 Likewise, when the military first began transporting prisoners to Guantánamo, Vice President Cheney described them as “the worst of a very bad lot,” a characterization echoed by others in the administration. Yet as of this writing, over one hundred have been released, none has been tried, and in recent published reports, senior administration officials have admitted that the administration greatly overstated the intelligence value of the Guantánamo detainees. Privately, administration officials acknowledge that a substantial number of the prisoners are likely innocent, an acknowledgment they have made publicly about the prisoners in Iraq. I suspect we will one day know considerably more about the detentions at Guantánamo than we do today.12

Finally, there is the opportunity for engaging speculation—but little more than speculation at this early stage—about whether, in the sober light of day, the architects of the post-9/11 detentions will come to regret their role. This is obviously related to the preceding question, since regret may accompany full disclosure. In any case, there is ample precedent for such ex post contrition, the most prominent example of which emerges from the debacle of the Japanese internments. Within weeks of Pearl Harbor, the Republican attorney general of California became an enthusiastic and vocal supporter of internment. In January 1942, he warned ominously that the large number of Japanese Americans living on the West Coast “may be the Achilles Heel of the entire civilian defense effort. Unless something is done it may bring about a repetition of Pearl Harbor.”13

Days later, the attorney general was among the first to suggest the argument mentioned above—that the very absence of sabotage by Japanese Americans proved that sabotage was imminent: “It seems to me that it is quite significant that in this great state of ours we have had no fifth column activities and no sabotage reported. It looks very much to me as though it is a studied effort not to have any until the zero hour arrives.”14 Over the next several months, he proposed a veritable laundry list of anti-Japanese clichés to support internment. It was only many years later that Earl Warren, whose eventual tenure as chief justice became synonymous with an activist, liberal Supreme Court, would admit his error.

“I have since deeply regretted the removal order and my own testimony advocating it,” Warren wrote in his memoirs. “It was wrong to react so impulsively without positive evidence of disloyalty, even though we felt we had a good motive in the security of our state. It demonstrates the cruelty of war when fear, get-tough military psychology, propaganda, and racial antagonism combine with one's responsibility for public security to produce such acts.”15 In an interview shortly before his death, Warren was moved to tears as he recalled the faces of the children separated from their parents during the relocations.16 For now, one can only wonder whether the leading actors in today's tragedy, some of whom presumably look with disgust on the pictures of tortured and humiliated detainees, will likewise come to regret their role in creating the prison at Guantánamo Bay.

All of these are important topics, and I hope one day to have the opportunity to give them the careful attention they deserve. But as pressing as these questions may be, I would suggest they are merely the consequences of an earlier decision. The more important task, and my interest in this essay, is to consider causes rather than effects, and to reflect on the determination by the United States to create a prison beyond the law.



Ruminations on the Fear of Flying

Let me introduce the topic this way: Flying can be extremely dangerous. During certain maneuvers, pilots may become so disoriented that they cannot trust their senses. Every instinct in their body will tell them that their life depends on taking a certain action. But tragically, their instincts during these periods cannot be trusted, and what they believe to be the only safe option may be precisely what kills them. By some estimates, this phenomenon, called spatial disorientation, or SD, accounts for 10 percent of all general aviation accidents, and 90 percent of the accidents attributable to SD are fatal. It is the most likely explanation for the crash that killed John F. Kennedy, Jr. In these moments, pilots must learn to disregard their instincts and to trust their instruments instead.17

As I reflect on the tension between civil liberty and national security, and on the particular example of this tension in the present conflict, I have found spatial disorientation a useful metaphor. It suggests the essence of the hysteria that periodically grips the nation, without casting it in pejoratives. As Chief Justice Warren's experience demonstrates, it is the sad fact that honorable, well-intended public servants, who in normal circumstances are steadfast in their commitment to the Constitution and the rule of law, nonetheless find themselves capable of simply reprehensible conduct during times of crisis.

Every significant military conflict has had its singular example: During the Civil War, Lincoln suspended the writ of habeas corpus nationwide and resorted to military trials for civilians. During the First World War, thousands of people were tried, convicted, and sentenced to lengthy terms of imprisonment for the crime of speaking against the war, even when their supposedly seditious remarks had no remote capacity to affect the war effort. After the war, the Palmer Raids became synonymous with government hysteria. The Japanese internments represent one of the darkest chapters in our nation's history. The excesses of McCarthyism are still fresh, and the abuses uncovered by the Church Committee are a matter of recent history. A number of scholars have elaborated on this phenomenon, and the ground is by now well traveled.18 On these occasions, otherwise thoughtful officials lost their moral compass and held to their misguided judgments to the bitter end.

In the calm light of day, we look back at these periods with a deep and abiding regret and berate ourselves in public displays of contrition. In the main, however, I believe we do a disservice when we cast these episodes in moralistic terms, as though the actors, faced with a clear choice between good and evil, calmly chose the latter. With notable exceptions, I no more believe this captures reality than the suggestion that a pilot who suffers from spatial disorientation chooses to crash. Political actors trapped in a tightening spiral of wartime hysteria simply cannot trust their instincts. They make their choices not because they fail to appreciate what they are doing, but because they believe they are doing precisely what must be done to preserve the nation. And typically they cling to their choices with a confidence that may be perceived as arrogance—even when they are terribly mistaken.

But the fact that actors may not have made a moral choice does not mean that circumstances present no moral obligations. Every pilot owes an obligation to himself and his passengers to be familiar with the phenomenon of spatial disorientation and must learn to recognize the conditions most apt to produce it. And he must agree to abide by certain rules, including the obligation to maintain his instruments in good working order and to trust them throughout his flight, even when his senses tell him to do otherwise. In short, while the pilot who misapprehends reality may be relieved of his moral obligation to make rational choices, he can certainly be faulted if he deliberately fails to prepare for the day when his judgment may become impaired. And we would be deeply dismayed if a pilot were to disable his instruments precisely when he is most likely to become disoriented. In short, and if I may be allowed to mix my metaphors, we do not blame Ulysses for his madness at the Sirens' call, but we would certainly have taken a dim view of his actions had he not ordered his men to tie him to the mast.



The Creation of a Prison Beyond the Law

With this metaphor in mind, consider the administration's rather unusual specifications: On the one hand, they believed they needed a secure facility where prisoners could be held in isolation from any outside influence, perhaps for decades to come. On the other hand, the inmates had to be readily accessible to the intelligence officials involved in the global campaign against al Qaeda, which could at various times include the FBI, the CIA, the National Security Agency, and military intelligence. Ideally, the prison would not be in one of the fifty states, since its presence there would place it within the potential supervision of a federal court. At the same time, however, it would be best if the prison were not within any foreign country, so the administration could plausibly argue that events at the prison did not fall within the jurisdiction of any foreign or international court. Isolated, but accessible; controlled by the United States, but beyond the reach of its courts; part of the United States, but not in the United States.

In the days after September 11, administration attorneys set to work devising a legal response to these unusual demands. In a remarkable development, we learned of their handiwork when two memos were leaked to the press and disclosed to the public. The first memo, written by Deputy Assistant Attorney Generals Patrick Philbin and John Yoo and dated December 28, 2001, addressed “whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantanamo Bay, Cuba.” The second memo, written by Yoo and Special Counsel Robert Delahunty and dated two weeks after the first, discussed whether prisoners captured in connection with the war in Afghanistan were protected by the laws of armed conflict, including the Geneva Convention.19

Taken together, these memos set out a veritable blueprint for the creation of a prison beyond the law. Both of them deserve careful scrutiny, as do the several memos that followed in their wake; for our purposes, however, the jurisdiction memo is the most important.20 As an initial matter, it is apparent from the jurisdiction memo that the “preferred” result—that is, the outcome viewed as most desirable by the administration—was a conclusion that the detainees were beyond the jurisdiction of a federal court. Indeed, the memo explicitly cautions that a contrary result could “interfere with . . . the system that has been developed” by the administration by allowing a federal court to review, among other things, “whether and what international law norms may or may not apply to the conduct of the war in Afghanistan.” In other words, from the earliest days of the war on terror, the administration wanted to place these prisoners, and the lawfulness of executive conduct, beyond the reach of a civil court.

To reach the desired result, Yoo and Philbin relied almost entirely on Johnson v. Eisentrager, a case involving German soldiers captured in China during the closing weeks of World War II. Their analysis of the decision, however, is dangerously simplistic. After Germany surrendered but while Japan fought on, the United States captured 27 Germans in China and charged them with assisting the Japanese army, in violation of the laws of war. At trial, the prisoners were represented by counsel and had the right to discover and introduce evidence, to call and confront witnesses, and to make opening and closing statements. After a trial that lasted months, 6 of the prisoners were acquitted and released, while 21 were sentenced to prison. Later they sought habeas relief in Washington, claiming their trial had been unlawful. In Johnson, the Supreme Court disagreed, holding that their trial had been fair and that they had no right to habeas.

At first blush, it is hard to see how Johnson could help the government, since the prisoners at Guantánamo, unlike the prisoners in Johnson, have been detained for more than two years with no process. It is one thing to hold that war criminals tried, convicted, and sentenced by a lawful commission, who had a full and fair opportunity to demonstrate their innocence and secure their release, could not seek further review in a civilian court. It is quite another to extend that holding to people who have never been charged.

But Yoo and Philbin relied on other language in Johnson to support their conclusion. In its opinion, the Supreme Court described postwar China (where the crime and trial took place) as an area subject to martial law; it described Germany (where the prisoners were eventually incarcerated) as enemy occupied territory. Collectively, the Court variously described the two areas as outside our “territorial jurisdiction,” or beyond our “sovereignty.” Without elaborating on which of these appellations was controlling, the Court suggested that the circumstances in Johnson placed the prisoners beyond the jurisdiction of a federal court.

Seizing on some of this language, Yoo and Philbin point to our lease with Cuba for the base at Guantánamo. Under the lease, the United States has “complete jurisdiction and control” over Guantánamo, but Cuba retains “ultimate sovereignty.” These terms are not defined. Still, Yoo and Philbin rely on this language to argue that Guantánamo is no different than postwar Germany and China, since all could be described as beyond our “sovereignty.” Neither the history nor the present reality of Guantánamo Bay is relevant to this argument, nor is the undeniable difference between Guantánamo and an active theater of military operations: under the lease, Cuba retains some undefined and indiscernible quantum of “sovereignty” over the base, and that—at least for Philbin and Yoo—was conclusive. It is worth examining this contention in more detail.

In 1901, after the Spanish-American War, the United States occupied Cuba. We offered to end the occupation, but only if Cuba included in its constitution a number of clauses drafted by the United States.21 Known as the Platt Amendment, these provisions forced Cuba to agree “that the United States may exercise the right to intervene” in Cuba and its affairs, and that Cuba would “embody the foregoing provisions in a permanent treaty with the United States.” Cuba reluctantly added the provisions, verbatim, as an appendix to its constitution on June 12, 1901.22

One provision of the Platt Amendment (and therefore of the Cuban constitution) required that Cuba “sell or lease to the United States the lands necessary for coaling or naval stations.” Two years later, in 1903, Cuba leased Guantánamo Bay to the United States. The lease included the curious provisions identified by Professors Yoo and Philbin: the United States would exercise “complete jurisdiction and control,” while Cuba retained “ultimate sovereignty.”23 The lease is indefinite and cannot be terminated without the consent of the United States, which has repeatedly declared its intention to remain as long as it sees fit. Guantánamo is apparently the only U.S. military base in the world where the United States exercises complete and exclusive jurisdiction and control in perpetuity.

In light of this history, it is not surprising that the United States has long considered Guantánamo “practically . . . a part of the Government of the United States.” Solicitor General Olson, who represented the United States before the Supreme Court in Rasul, once described the base as part of our “territorial jurisdiction” and “under exclusive United States jurisdiction.”24 The executive determines who may enter and leave the base and enjoys the power under the lease “to acquire . . . any land or other property therein by purchase or by exercise of eminent domain.” The United States is required under the lease to maintain “permanent fences” around the perimeter of the base. Inside these fences, however, the base enjoys all the trappings of a small American city; it is larger than Manhattan and more than half the size of the District of Columbia.

Congress has often extended federal statutes to Guantánamo, and federal courts routinely take jurisdiction over disputes that arise from the base.25 U.S. law governs the conduct of all who are present on the base, and violations of criminal statutes are prosecuted in the government's name.26 Equally important, Cuba's laws are wholly ineffectual in Guantánamo. The Castro government has long characterized the U.S. presence as illegal and refuses to cash the annual rent payment of $4,085 the United States has tendered pursuant to the lease.27 “Ultimate sovereignty,” however, apparently does not imply any actual authority, as the United States has ignored Cuba's complaints.

In sum, the arguments advanced by Yoo and Philbin reduce to the claim that the unexplained use of the term “ultimate sovereignty” in the lease with Cuba means that Guantánamo—despite all appearances to the contrary—is in fact no different than enemy occupied territory or an area subject to martial law. During the litigation in Rasul, this argument came to be known as “the Guantánamo fiction.”

If the jurisdiction memo placed the prisoners beyond the protection of the federal courts, it was the Geneva Convention memo that literally placed them beyond the law. In this memo, Yoo and Delahunty constructed an elaborate argument that the prisoners at Guantánamo were not entitled to the protections of either the Geneva Convention or customary international law. (Customary international law refers to those principles that have achieved such universal acceptance among the nations of the world—like the prohibition on torture—as to have the force of law.) Yet at the same time, Yoo and Delahunty concluded that while the prisoners did not enjoy any protections under the laws of war, they could be subjected to its disabilities, including both punishment as war criminals and indefinite detention. Yoo and Delahunty acknowledged that this result could seem “counter-intuitive” but defended it as “a product of the President's Commander in Chief and Chief Executive powers to prosecute the war effectively.”

A comprehensive critique of the Geneva Convention memo is beyond the scope of this essay. But it is also unnecessary for our purposes, since certain deficiencies are apparent. First, the memo suffers from an obvious logical lacuna. Yoo and Delahunty argue that prisoners at Guantánamo have no rights because Taliban and al Qaeda fighters, for a variety of reasons, do not enjoy the protections of either the Geneva Convention or customary international law. But this argument collapses if the prisoners are not associated with these groups. In other words, the argument suffers from the same myopia that clouds the administration's entire approach to the Guantánamo detentions—viz., it assumes the military has seized the right people.

The Geneva Convention explicitly accounts for the possibility that the military may capture a person whose status is not immediately clear and who may in fact be innocent. In that event, the convention requires that “any doubt” regarding the person's status must be resolved by a “competent tribunal,” and that all detainees enjoy POW status until such a tribunal determines otherwise. Furthermore, and perhaps more importantly, the U.S. military has adopted a comprehensive set of regulations that implement this requirement. These regulations trace their origin to the Vietnam War, the first major conflict during which the military regularly captured people whose status under the Geneva Convention was in doubt. Rather than allow innocent detainees to languish in custody, the military created “Article 5” tribunals to resolve all doubtful cases. At these tribunals, detainees enjoyed the “fundamental rights considered to be essential to a fair hearing,” including the right to notice and an opportunity to be heard through counsel. Today, these regulations are binding on all branches of the armed forces, and Article 5 hearings have become a settled part of military practice; if an Article 5 tribunal determines the detainee is innocent, he must be immediately released.28

In their memo, Yoo and Delahunty did not discuss this portion of the Geneva Convention, nor did they mention the relevant military regulations.

Second, and far more ominously, the Geneva Convention memo seriously misperceives the nature of the commander in chief power. Yoo and Delahunty advance the notion of an imperial presidency to its absolute limit. They suggest not only that the commander in chief has unconstrained power over the detainees, but that any attempt by Congress to rein in this power would likely be unconstitutional. If this is correct, then the courts as well must bow to executive power in this arena.

If such an argument were accepted, it would reverse a line of decisions that date from virtually the dawn of the Republic. It was 1804 when the Supreme Court first struck down unilateral executive action taken by the president in his capacity as commander in chief. Since that time, the law has developed with unmistakable clarity: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Or, as Chief Justice Stone put it somewhat more recently, executive action is not “proof of its own necessity.” The notion that the president, simply by assuming the mantle of commander in chief, may disregard Congress, the federal courts, and the binding obligations of international treaties is simply breathtaking.29

It is important to understand the combined effect of these memos. The Geneva Convention memo removed the detainees from the protections of the laws of war. But the jurisdictional memo ensured that no other legal regime could be put in its place. The detainees would not enjoy the benefit of an extant legal system specifically designed to protect people seized during armed conflict, but neither would they be able to secure the benefit of whatever protections might derive from a federal court. Et voilà—a prison beyond the law.

In the years to come, much will be written about these memos, and the others that followed in their wake. There is, for instance, an undeniable Alice-in-Wonderland quality to some of the reasoning: in the first memo, Yoo and Philbin argued that Guantánamo was beyond the jurisdiction of a U.S. court because it is outside our sovereignty. Yet in a later memo, administration lawyers argued that because Guantánamo is within the United States, executive officials are not constrained by federal laws against torture, since they operate only in a foreign country. Reasoning like this is apparently the price of a dance with the devil.

And what do we distill from the fact that the memos themselves are so simplistic? If nothing else, it is unfortunate the administration had to rely on such ill-considered recommendations. We can only wonder whether a more thoughtful treatment of the issues—one that paid greater heed to the lessons of prior wartime excesses, for instance—would have led to a different result. Still, in keeping with the view expressed earlier, we should probably not be overly critical of the authors; it must be allowed that they were working under the same pressure that bedeviled so many before them. In that light, their work illustrates yet again “how war can upset a first-class thinker.”30

But there is a more fundamental objection to these memos. In the middle of a conflict—precisely when history cautions us that we are least apt to be thinking clearly—the administration set about disabling the very instruments that mark our commitment to the rule of law: that the military must always be subject to civilian rule; that the proper limits of military discretion are ultimately, and always, judicial questions; that armed conflict—and particularly the treatment of prisoners—is not a descent into lawless anarchy but is governed by carefully negotiated and reciprocal obligations; and that restraints on individual liberty must be subject to review by some impartial tribunal. Now was no time for flying blind.



Rasul v. Bush: The Supreme Court Weighs In

Every year, the Supreme Court agrees to review only a tiny fraction of the cases clamoring for its attention. For that reason, some lawyers believe, not without reason, that the most important document in a case is the one that petitions the Court to accept review, called the Petition for Writ of Certiorari. The Petition in Rasul went through perhaps a dozen drafts, and in the final product, we tried to capture not simply the legal reasons for review, but the moral consequences if the Court remained silent. In other words, we tried to convey what it would mean to the prisoners if the Court allowed the administration to create and maintain a prison beyond judicial scrutiny.

Certainly it would mean that prisoners could be tortured with impunity. But I was writing before the disclosures about Abu Ghraib, and we had no evidence that the prisoners at Guantánamo had been mistreated in the same manner. It would also mean that scores of innocent people could be left to languish. But this was before we learned that other military facilities were filled beyond capacity with innocent people. And because we had not been given access to our clients, we knew only what we could piece together from the fragmented accounts of families and friends, most of whom did not know how or why their relatives had been arrested.

But in the end, I realized my greatest concern was that the administration would simply forget about them, “in the vain hope the world will as well.”31 The administration may have expected that the country would eventually turn its attention elsewhere. In time, the prisoners would settle into the mind-numbing routine that characterizes prison life across the country. Nameless and faceless, lost to a world that would gradually grow indifferent, they would be left to “drift through life rather than live, the prey of aimless days and sterile memories.”32

On November 10, 2003, the Supreme Court agreed to review the case. Later in the term, the Court also agreed to review cases involving the detention of two U.S. citizens, José Padilla and Yaser Hamdi. Padilla had been seized at O'Hare Airport in Chicago; Hamdi was allegedly seized in Afghanistan. Both were imprisoned at a brig in Charleston, South Carolina. The president had dubbed them, like the prisoners at Guantánamo, “enemy combatants” and, by nothing more than his ipse dixit, claimed they could be held without charges or access to counsel, and without an opportunity to be heard by an impartial tribunal, for as long as he saw fit. Formally, the three cases—Rasul, Padilla, and Hamdi—asked whether, and to what extent, the judiciary could police the bounds of the commander in chief power to detain people seized in apparent connection with the war on terrorism. But on the level of more immediate concern to the prisoners, they would determine whether the administration could detain people beyond the law.33

On the next-to-last day of the term, the Court issued its decisions in all three cases. The holdings can only be described as a stinging rebuke to the administration. Eight members of the Court rejected the administration's position in Hamdi. Writing for a plurality of four, Justice O'Connor tersely reminded the administration that “[a] state of war is not a blank check for the President.” The commander in chief power, she noted, is not a license to “turn our system of checks and balances on its head.” In the words of Justice Souter, the president seems to have forgotten that he “is not Commander in Chief of the country, only of the military.” And the most passionate rebuke to the administration's position in Hamdi may have come from its most conservative member. Joined by Justice Stevens, Justice Scalia reminded the administration that democracy dies behind closed doors: “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion.” To prosecute his habeas action, Hamdi must be given prompt notice of the allegations against him and an opportunity to be heard. And if the administration cannot prove its claims, Yaser Hamdi must be released.

The administration fared no better in Rasul, where the Court held, by a 6–3 margin, that our clients could invoke the protection of the federal courts to determine whether their detention was lawful. The Court quickly dispatched the “Guantánamo fiction” that had prevailed in the lower courts, concluding that the federal court in the District of Columbia had jurisdiction, notwithstanding the fact that Cuba retained “ultimate sovereignty” over Guantánamo Bay. For more than two years, we had argued that the courts should look to the reality of events at Guantánamo, rather than some mythical notion of Cuban sovereignty. The Supreme Court agreed. “What matters,” Justice Kennedy explained, “is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States.” At the same time, the Court also rejected the outrageous suggestion that the president, in his capacity as commander in chief, could detain foreign nationals at Guantánamo indefinitely, “without access to counsel and without being charged with any wrongdoing.” Lest anyone misunderstand, the Court made plain that such detention was “unquestionably” illegal.34

Students and scholars will study these decisions for years to come. Within months, the trickle of law review articles will begin to appear; in time, the trickle will increase to a flood. These articles will parse the decisions with meticulous care, debating every aspect of the various decisions—whether they vindicate the rule of law or dangerously limit the president's war power; what they resolve, what they leave for another day; whether they were litigated well or poorly. I suppose I will join in this debate. For now, however, I would close this essay with the penultimate sentence of the majority opinion in Rasul:


What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.
As the Court well knew when it “answer[ed] this question in the affirmative,” much more was at stake in this case. By its decision, the Court reaffirmed—for all time, one fervently hopes—that at least so long as we would call ourselves a democracy, we can never tolerate a prison beyond the law.35



NOTES

1 As of this writing, approximately 600 people are imprisoned at Guantánamo. Two of my clients—British nationals Shafiq Rasul and Asif Iqbal—were released during the litigation.

2 I am frequently asked how we could represent clients who have been held incommunicado. Federal law allows a petitioner to seek habeas relief through a “next friend.” The next friend, who is usually a relative or other person with a close relationship to the inmate, can maintain an action when the inmate is incompetent or unable to act on his own behalf. In our case, the detainees obviously could not file the litigation themselves, nor could they seek counsel. They were, however, occasionally allowed to write censored letters to their families, which were delivered by the International Red Cross. When the families heard from their loved ones, they contacted lawyers overseas, who eventually got in touch with us. By this device, though I have represented my clients since February 2002, I have never met them.

3 See, e.g., Jess Bravin, The Fight for Iraq: Army Report Omitted Prison Details (Wall Street Journal, June 4, 2004, at A6). The Journal quotes a report prepared by Lt. Col. Robert Chamberlain, intelligence chief for the army's Joint Readiness Training Center, who found that prisons in Iraq were severely overcrowded but that approximately 80 percent of the prisoners were innocent. According to Colonel Chamberlain, “It's like the Roach Motel, 'They can check in but they never check out!'” Colonel Chamberlain's assessment was omitted from the portion of the report originally made public by the Department of Defense. Id.; see also Maj. Gen. Antonio M. Taguba (Coalition Forces Land Component Command), Article 15-6 Investigation of the 800th Military Police Brigade (March 9, 2004), available at http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html (last visited July 1, 2004) (Taguba report).

4 The domestic experience after September 11 should likewise give us pause. In June 2003, the inspector general of the Justice Department issued a report on the post—September 11 detentions of foreign nationals in this country. Between September 11 and August 2002, the administration detained 738 foreign nationals in connection with ongoing investigations into the terrorist attacks. None of these people was charged with an offense related to September 11, and the overwhelming majority were cleared of any connection to terrorism. U.S. Department of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April, 2003) (released June 2, 2003); see also David Cole, Enemy Aliens 30 (New Press 2003).

5 See, e.g., Final Report, Japanese Evacuation from the West Coast at 34 (1942) (“The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”). The report was prepared by Lt. Gen. J. L. DeWitt, the military official in charge of the relocations.

6 See Report of the Association of the Bar of the City of New York, Human Rights Standards Applicable to the United States' Interrogation of Detainees at 12 n. 22 (June 4, 2004) (“senior JAG officers [report] that the prior practice of having JAG officers monitor interrogations in the field for compliance with law and regulations had been curtailed at the direction of senior officials.”).

7 Neil Lewis & Eric Schmitt, Lawyers Decided Bans on Torture Didn't Bind Bush, New York Times, June 8, 2004, at A1; James Risen, David Johnston & Neil A. Lewis, The Struggle for Iraq: Detainees; Harsh C.I.A. Methods Cited in Top Qaeda Interrogations, New York Times, May 13, 2004; Tim Golden & Don Van Natta, Jr., U.S. Said to Overstate Value of Guantanamo Detainees, New York Times, June 21, 2004, at A1; The New York Times, A Guide to the Memos on Torture (June 27, 2004) (available at www.nytimes.com/ref/international/24MEMO-GUIDE.html) (last visited July 6, 2004) (providing links to the various memos released to date).

8 See Arnold Krammer, Nazi Prisoners of War in America (Stein & Day 1979).

9 See Tim Golden & Don Van Natta, Jr., U.S. Said to Overstate Value of Guantanamo Detainees, New York Times, June 21, 2004, at A1 (former secretary of the army was told “by a senior military official at the base that only a third to a half of the detainees appeared to be of some value”). Other programs of wartime imprisonment are likewise distinguishable from the imprisonments at Guantánamo. During the Civil War, for instance, Lincoln unilaterally suspended the writ of habeas corpus and the Union Army seized and detained thousands of citizens without process. See, e.g., Mark Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (Oxford 1991); William Rehnquist, All the Laws But One: Civil Liberties in Wartime (Vintage 1998). Scholars continue to debate whether Lincoln's actions were lawful, but setting the constitutional issues to one side for the moment, it remains the case that most of these prisoners were detained for relatively short periods and released. In addition, the prisoners were not held incommunicado; they were allowed to interact both with other prisoners and with their families. And finally, Congress substantially circumscribed the effect of Lincoln's suspension with the Habeas Corpus Act of 1863, which prevented indefinite detentions without legal process. Ex Parte Milligan, 4 Wall. 2, 132–33 (1866) (Taney, C.J., concurring); Rehnquist, All the Laws But One at 129–31; Neely, The Fate of Liberty at 202–3. Even the discredited Japanese internments offer no precedent for the Guantánamo detentions; on the same day the Supreme Court approved the detentions, they also held that detainees who could establish their loyalty were entitled to their release. Korematsu v. United States, 323 U.S. 214 (1944); Ex Parte Endo, 323 U.S. 283 (1944).

10 The secretary of the army recently suggested that the war on terrorism “is a little bit like having cancer. You may get it in remission, but it's never going to go away in our lifetime.” Army Chief Likens Terror Threat to Cancer, Associated Press (June 15, 2004).

11 Peter Irons, Justice at War (Oxford 1983). For the court decisions, see Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (vacating conviction); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987) (vacating conviction for violating curfew); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986) (vacating conviction for violating exclusion order). More recently, Jane and Harry Scheiber have performed much the same service with their painstaking and eminently readable account of martial law in Hawaii during the Second World War—a five-year period of unprecedented restriction on the civil liberties of citizens and foreign nationals alike, restrictions that the military insisted to the end were critical to our success in the Pacific. Harry N. Scheiber and Jane L. Scheiber, Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawaii, 1941–1946, 19 Haw. L. Rev. 1 (Fall 1997).

12 The cover sheet of one recently leaked memorandum, which argued that President Bush was not bound by the legal prohibitions on torture, indicated the document was to remain classified for ten years. See also Golden & Van Natta, U.S. Said to Overstate Value of Guantanamo Detainees, supra n. 7.

13 Jacobus ten Broek, Edward N. Barnhart, Floyd W. Matson, Japanese American Evacuation and Resettlement: Prejudice, War and the Constitution 83 (Berkeley 1958) (quoting Monterey Press Herald, Jan. 30, 1942). For a discussion of the same quote, see G. Edward White, Earl Warren: A Public Life 69 (Oxford 1982) (quoting Associated Press news release, Jan. 30, 1942).

14 Prejudice, War and the Constitution at 84 (quoting Hearings, 77th Congress, 2d sess., House, Select Committee Investigating National Defense Migration (Washington: G.P.O. 1942)).

15 Earl Warren, The Memoirs of Earl Warren 149 (Doubleday 1977).

16 Earl Warren: A Public Life at 77.

17 Spatial disorientation is a well-recognized phenomenon. Among others, the United States Air Force Research Lab maintains an elaborate website dedicated to providing information about SD. See http://www.spatiald.wpafb.af.mil/index.aspx (last visited May 22, 2004). Michael Baker, technical editor of Flying Safety, authored a useful primer available at this site which dispels certain common myths about SD: “Contrary to some popularly held notions, it isn't just the operator of high-performance aircraft, or the inexperienced flier, who is susceptible to the deadly effects of SD. SD is a phenomenon that transcends aircraft flight characteristics (high-performance or not), experience levels, affiliation (military or civil aviation), and aircraft type (large or small aircraft, fixed- or rotary-wing). . . . In one of the most common—and dangerous—varieties of SD, the pilot doesn't know that he doesn't know which way is up. It is said there are two types of pilots: Those who have experienced SD and those who don't know they've experienced SD.” Michael Baker, A Primer on Spatial Disorientation, available at http://www.spatiald.wpafb.af.mil/There_Was.aspx?NID=1 (last visited May 22, 2004). The National Traffic Safety Board concluded that the “probable cause” of Kennedy's fatal accident was “[t]he pilot's failure to maintain control of the airplane during a descent over water at night, which was a result of spatial disorientation.” See http://www.ntsb.gov/pressrel/2000/000706.htm (last visited May 22, 2004).

18 As with all things Lincoln, a number of scholars have pondered the lawfulness of his various wartime actions. See, e.g., Rehnquist, All the Laws But One, supra n. 9; Daniel Farber, Lincoln's Constitution (University of Chicago 2003); J.G. Randall, Constitutional Problems under Lincoln, rev. ed. (Urbana: University of Illinois 1951, originally published 1926). For a discussion of the Espionage and Sedition Act prosecutions during and immediately after World War I, see Zachariah Chaffee, Free Speech in the United States (Lawbook Exchange 2001, originally published Harvard University 1941). A good primer on the Palmer Raids and the hysteria of the Red Scare can be found in Robert K. Murray, Red Scare: A Study in National Hysteria: 1919–1920 (University of Minnesota 1955). The literature on the Japanese internments is simply voluminous. Some of the most important work is Japanese American Evacuation and Resettlement: Prejudice, War and the Constitution, supra n. 13; Justice at War, supra n. 11; Eugene Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945). The literature on McCarthy and the House Un-American Activities Committee (HUAC) is similarly rich, but one author that discusses them in the context of the present conflict is David Cole, Enemy Aliens (New Press 2003). For a chilling account of four decades of domestic surveillance, see Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, 94th Congress, 2nd Session (1976) (the “Church Committee”).

19 Yoo and Delahunty are no longer with the administration; Yoo has returned to his position on the faculty of Berkeley Law School, and Delahunty has joined the faculty of the University of St. Thomas Law School in St. Paul, Minnesota. As of this writing, Philbin remains with the Department of Justice.

20 As we now know, these memos were the intellectual foundation for several subsequent memos that purported, among other things, to release the president and officers acting at his direction from domestic and international prohibitions against the use of torture. I hope to complete a more thorough discussion of these various memos in a subsequent essay. Links to the memos are available on a number of websites. See, e.g., The New York Times, A Guide to the Memos on Torture (June 27, 2004) (available at www.nytimes.com/ref/international/24MEMO-GUIDE.html) (last visited July 6, 2004).

21 Leland H. Jenks, Our Cuban Colony at 77–79 (Vanguard Press 1928). The president signed the Platt Amendment March 2, 1901, and it was presented to the Cuban Government the following day. Their relations to the United States had been settled forever. They had only to vote the articles into their constitution. Until they did so, Cuba was clearly to be regarded as unpacified. The American Army of occupation would remain. The Cubans were entirely free to agree or disagree. They were entirely free to secure such independence as was possible under the Platt Amendment or to continue under the military administration. After several vain attempts to find a more palatable alternative, they added the provisions, word for word, as an 'appendix' to their constitution, June 12, 1901. Id. at 77–78.

22 Id. at 80–82.

23 Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, 23 Feb. 1903, art. III, T.S. No. 418 (Agreement).

24 First quote see 25 Op. Att'y Gen. 157 (1904); Olson quote see 6 Op. O.L.C. 236, 242 (1982) (opinion of Asst. Attorney General Olson).

25 See, e.g., Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1583 (Fed. Cir. 1993) (finding violation of Takings Clause by Navy at Guantánamo); Burtt v. Schick, 23 M.J. 140 (U.S.C.M.A. 1986) (granting writ of habeas corpus and holding that impending court-martial proceeding on Guantánamo would constitute double jeopardy, in violation of 10 U.S.C. § 844(a)).

26 See, e.g., United States v. Lee, 906 F.2d 117 (4th Cir. 1990).

27 Bird v. United States, 923 F. Supp. 338, 341 n.6 (D. Conn. 1996); Anita Snow, Cuba Attacks Guantanamo Use for Prisoners, Wash. Post, Dec. 27, 2003, at 14.

28 The relevant provision of the Convention can be found at Geneva Convention III, art. 5, 6 U.S.T. at 3324, 75 U.N.T.S. at 142; the military regulation is codified at Enemy Prisoners of War, Detained Personnel, Civilian Internees, and Other Detainees, U.S. Army Regulation 190-8 (applicable to the Departments of the Army and Navy, the Air Force, and the Marine Corps (Oct. 1, 1997)). For a discussion of the history and current use of these provisions, see Frederic L. Borch, Judge Advocates in Combat (Office of the Judge Advocate General 2001); Howard S. Levie, Prisoners of War (Naval War College Press 1978).

29 First quote: Sterling v. Constantin, 287 U.S. 378, 401 (1932); second quote: Duncan v. Kahanamoku, 327 U.S. 304, 336 (1946) (Stone, C.J., concurring).

30 Chafee, Free Speech in the United States, infra n. 18, at 108 n. 3 (referring to contemporary attempts to defend the now-discredited Supreme Court decision in Abrams v. United States, 250 U.S. 616 (1919)). And of course, it is worth recalling that, at least with respect to the jurisdictional argument, the view of Guantánamo expressed by Yoo and Philbin had prevailed in the lower courts.

31 Rasul v. Bush, No. 03-334, Petition for Writ of Certiorari at 13.

32 Albert Camus, The Plague at 66 (Modern Library ed. 1948).

33 There were important differences between the cases. Relying on Johnson v. Eisentrager, the administration in Rasul claimed the prisoners were entirely beyond the jurisdiction of the federal courts. In Padilla and Hamdi, the administration agreed that the federal courts had jurisdiction over the cases but argued that the administration's explanation of why the two were being held—offered in the form of hearsay affidavits from an official with the Department of Defense—proved conclusively that the detentions were lawful. The prisoners could not contest the allegations made in these affidavits, and the court had to accept them as true. Jennifer Martinez, one of Padilla's lawyers, discusses his case elsewhere in this volume.

34 In a 5–4 decision, the Court in Padilla held that the case should have been filed in South Carolina instead of New York. But the decision in Hamdi leaves no doubt that Padilla will be entitled to relief once he files in the proper venue.

35 One of the pleasures of an essay like this is the opportunity it provides to recognize some of the people whose effort contributed to the result. For nearly three years, I have had the pleasure to work with brilliant lawyers at the Center for Constitutional Rights: Michael Ratner, Barbara Olshansky, and Steven Watt. Shortly after we filed in Rasul, a team of lawyers at Shearman & Sterling brought a similar action on behalf of twelve Kuwaitis. Their case, Al Odah v. United States, was consolidated with ours. It was an honor collaborating with the Shearman team, led by Tom Wilner and Neil Koslowe. Clive Stafford Smith has been a friend and colleague for many years, and I learned long ago to trust his judgment—a lesson often reaffirmed in this litigation. Eric Freedman, at Hofstra University Law School, is an expert on habeas and provided invaluable counsel. Douglas Cassel, at Northwestern University Law School, served as our guide through the bewildering complexities of international humanitarian law. Tony Amsterdam, at New York University Law School, added his incomparable skills when we reached the Supreme Court, and the litigation was greatly improved by his work. In the Court itself, we enlisted Judge John Gibbons, former chief judge of the Third Circuit Court of Appeals, to present the oral argument. Gitanjali Gutierrez, a friend and promising young lawyer at Judge Gibbons' firm, worked tirelessly on every part of the Supreme Court case. I owe these people, and many others, a debt I can never repay.



http://www.vqronline.org/viewmedia.php/prmMID/8958

jdsheldon, Great letter from you. I can't say as much for Senator Roberts letter. I hope that you will write a follow up letter to him. We all need to be inundating our Senators with letters. Pretty soon they will start to get nervous that people are not buying their story. Someone also encouraged us to write letters to the editor. I think you should send your letter and Senator Roberts letter to the media. Maybe that will help light a fire under him.

jdsheldon,

I am going to write another letter to my Senators about this issue. I was going to then start a thread in the action forum on this website to encourage others to post their letters and responses. As you already have a letter & response why don't you start a thread in the action forum?

If you decide not to do that, do you mind if I post your letter in the thread once I start it?

José Padilla and the War on Rights
JENNY S. MARTINEZ

On June 9, 2002, an American citizen named José Padilla disappeared into a legal black hole. The government says he is a dangerous terrorist, but they have never charged him with a crime. For the nearly two years since he was arrested at Chicago O'Hare Airport, Mr. Padilla has been held without trial in solitary confinement in a military brig. Now the Supreme Court's decisions restricting the government's power to detain “enemy combatants” in the “war on terror” may finally have brought him back into the light. Mr. Padilla will get his day in court. But Mr. Padilla's saga remains a cautionary tale for all Americans concerned about preserving the liberty for which our ancestors fought and died, and which our troops overseas defend today.

I am one of Mr. Padilla's lawyers, but I have never met him. All I have seen of him is the same menacing picture that you have, the one that appears in every newspaper article about his case. I remember the first time I saw that picture, which was accompanied by a headline announcing that by arresting Mr. Padilla, the government had foiled a plot to set off a “dirty” radiological bomb, possibly in Washington, D.C. I was relieved to hear that this alleged plot had been thwarted. The Washington suburb of Arlington, Virginia, is my hometown, and I watched the smoking Pentagon from my office rooftop on the morning of September 11 and worried that my best friend's younger brother, a volunteer firefighter in Northern Virginia, might be in danger there. My mother was on an airplane to New York that morning, and until I got her cell phone call telling me she was safe, I was sick with fear. Even six months later, the threat of terrorism felt very personal to me.

I assumed that Mr. Padilla would be charged with a crime, that in the time-honored way he would be given his day in court, and that if the jury found him guilty, he would be locked up for a very, very long time. But that was not what happened.

Instead of charging Mr. Padilla with a crime, the president declared him an “enemy combatant.” Some people think that Congress gave the president the power to imprison people as “enemy combatants” in the PATRIOT Act, but that law says nothing at all about such detentions. In fact, the term “enemy combatant” does not appear in any statute passed by Congress, nor in any regulation, nor in any international treaty. Searching for additional powers following September 11, the government plucked the term from Ex parte Quirin, a World War II–era Supreme Court decision upholding the government's right to put Nazi soldiers (whom the Court described as “enemy combatants”) on trial in military commissions rather than in civilian courts. From this narrow decision, the government extrapolated that the president could hold anyone he decided was an “enemy combatant,” without any real review by the courts, until the end of the “war on terror.” This theory was novel, to say the least. While the government has captured and detained prisoners of war on the field of battle in many past wars, never before has it claimed the power to designate American citizens, arrested in civilian settings, as “enemies of the state” who can be held forever at the whim of the president.

It was only once the government took away all of Mr. Padilla's constitutional rights that I became involved in his case. For it seemed to me that if they could take away his rights, they could take away the rights of anyone. And that scared me more than the threat of another terrorist attack.

I am an international human rights lawyer. I do work in places like Bosnia and Rwanda, where tens or hundreds of thousands of people were killed because they were in the wrong ethnic group. I study countries like Chile, where thousands of people disappeared off the streets, never to be seen again, because they disagreed with the government. The reason I decided after law school to focus on international human rights rather than problems closer to home was that it seemed from where I stood that America was doing all right. We had some very ugly incidents in our past—slavery and segregation, the Japanese internment camps, and the displacement and slaughter of Native Americans for starters. Even today, not everyone in America is getting a fair shake. But we were founded on a set of ideals—liberty, equality and democracy—that ignited a fire of freedom worldwide. America was learning from its mistakes, and our current human rights problems seemed to pale in comparison to those in other countries.

I was shocked by the Padilla case. A system in which the government is allowed to lock up anyone it decides is an “enemy” without any trial or even the pretense of legal process seemed to me, frankly, like the kind of thing that happens in the messed-up third-world countries I spend most of my time thinking about, not what I expected out of America. And so, after following the case in the newspapers for a few months, I eventually volunteered to write an amicus, or “friend of the court,” brief for the retired federal judges supporting Mr. Padilla's right to have his day in court. Amicus briefs are often filed by nonprofit activist groups like the ACLU, but it was highly unusual to have a distinguished group of retired judges (both Democrats and Republicans) weighing in with such a brief. As it turned out, they were not alone. By the time we got to the Supreme Court, there were dozens of briefs filed in Mr. Padilla's case and the cases of the other enemy combatants, by everyone from retired judges and law enforcement officials to former prisoners of war to Fred Korematsu, a Japanese American who was interned in World War II and whose name has become synonymous with the case he lost in the Supreme Court in 1944, one of the most disgraceful moments in the Supreme Court's history.

By the time I became involved in the case, Mr. Padilla had already been in jail for almost a year. He was initially arrested returning to the U.S. at Chicago O'Hare Airport on May 8, 2002, by civilian law enforcement agents. He was arrested pursuant to something called a material witness warrant, which allows an individual to be held so that he or she can give testimony in court or, in Mr. Padilla's case, before a grand jury. The warrant had been issued by a judge in the Southern District of New York, the federal court that sits in Lower Manhattan. Mr. Padilla was transported by the government from Chicago to New York. Upon his arrival, the court there appointed a lawyer to represent him in the material witness proceedings, Donna Newman. Ms. Newman is a criminal defense attorney in private practice, and it happened to be one of the few days a year she takes court-appointed indigent clients. Little did she know what she was getting into.

Ms. Newman met with Mr. Padilla several times at the Metropolitan Correctional Center, where he was being held, and filed papers with the court seeking his release. A hearing was scheduled for Tuesday, June 11, 2002. Two days before that hearing, Ms. Newman got a call from a young lawyer in the U.S. Attorney's office who was working on the case. He told her that the hearing was off. The president had declared her client an “enemy combatant” and the military had taken him away. At first, Ms. Newman thought the lawyer was joking with her. As the truth dawned on her, she was shocked.

At the time scheduled for the hearing, Ms. Newman appeared in court and filed a petition for a writ of habeas corpus, seeking Mr. Padilla's release. Ms. Newman sat alone at her table in the courtroom, without even a client next to her. She had heard on television that her client had been taken to a military brig in South Carolina. As she looked at the swarm of high-ranking government lawyers across the room, she realized she needed help. The judge quickly appointed as cocounsel Andrew Patel, another local defense attorney who had worked on some high-profile terrorism cases.

Ms. Newman and Mr. Patel quickly plunged into a world of arcane legal precedents. It seemed obvious to them from grade school civics class that in America, the government was not allowed to lock someone up forever without giving him a lawyer and a trial, but the government's case had a perverse, airtight logic to it: Mr. Padilla had no constitutional right to challenge his designation as a prisoner-of-war-like “enemy combatant” because enemy combatants have no constitutional rights. The government's argument was circular but maddeningly slippery. Newman and Patel found themselves reading cases about the writ of habeas corpus from England in the 1600s, cases from the 1800s involving swashbuckling seizures of ships as prizes of war on the high seas, and obscure treatises on the Geneva Conventions and other laws of war.

Throughout this time, the government refused to let Ms. Newman and Mr. Patel communicate with their client in any way. The government chillingly explained that allowing Mr. Padilla to learn that a court was hearing his case might give him hope that he would some day be released: “Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla. . . . Providing him access to counsel now . . . would break—probably irreparably—the sense of dependency and trust that the interrogators are attempting to create.” In court, the government claimed that they had the power to imprison Mr. Padilla until the “war on terror” was over, and the court had no power to intervene other than to make sure that there was “some evidence” to support the government's decision. The “some evidence” the government pointed to was a written affidavit from a midlevel Pentagon official, who recounted information reportedly given to the government by unnamed confidential sources. The affidavit alleged that Padilla was part of a plot to build and detonate a dirty bomb in the United States but acknowledged that the plot was “still in the initial planning stages” and “there was no specific time set for the operation to occur.” (Deputy Secretary of Defense Paul Wolfowitz later stated publicly that “I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”)1 The government admitted that the information provided by its confidential sources “may be part of an effort to mislead or confuse U.S. officials” and that one of the sources “recanted some of the information that he had provided.” (Later press reports indicated that one of the confidential sources had given up Padilla's name while being subjected to “water-boarding,” a form of torture in which the suspect is held down in a tub and made to think he will drown.) The government argued that the district court had no power to question the information in the affidavit and no authority to allow Mr. Padilla to come into the court to tell his side of the story. In effect, the government argued, the court's power was limited to rubber-stamping the government's decision to detain Padilla.

Rejecting the government's Orwellian logic, in December 2002, the district court held that even under the lax “some evidence” standard, Padilla was entitled to present his side of the case in court, and ordered that Padilla be allowed to meet with his lawyers. The district court agreed, however, that the government had the power to hold an American citizen arrested on American soil as an “enemy combatant.” Seeking to avoid even the minimal challenge to its authority posed by the district court's ruling, the government took an immediate appeal to the federal circuit court in New York.

It was at this point that I became involved in the case, filing my brief on behalf of the retired federal judges. Although I started out as an amicus, as the case progressed, I began working more and more closely with Ms. Newman and Mr. Patel. Not only had I read all the same obscure cases and treatises they had, I had actually read even more because of my background working on war crimes issues for the United Nations International Criminal Tribunal for the Former Yugoslavia in the Hague. I had the distinction of actually having owned a copy of the Geneva Conventions prior to September 11, 2001, a rare thing among U.S. lawyers. By the time the U.S. Court of Appeals for the Second Circuit heard the case in November 2003, Ms. Newman and Mr. Patel decided to let me share some of the argument time as an amicus.

A month after the argument, the court issued a ruling in our favor. Going even further than the district court, the court of appeals held that the government lacked authority to hold a U.S. citizen seized in the U.S. as an “enemy combatant.” Congress had not given the president such extraordinary power, and the president had no inherent power to deprive citizens of liberty in this way, the court held. The court rejected the government's reading of Ex parte Quirin, the lynchpin of its case, noting that it had involved the congressionally authorized trial by military commission (with lawyers and full opportunity for the defense to be heard) of admitted soldiers in the German army. The case provided no support for the unilateral presidential detention without trial of an individual who denied that he was a soldier at all. Mr. Padilla had to be charged with a crime or released in thirty days, the court ordered.

Again, the government quickly appealed. Once the case reached the Supreme Court, Ms. Newman and Mr. Patel (casting a wary eye at the ever-growing crowd of government lawyers across the courtroom) decided to ask me to stop being a mere friend of the court and join the core legal team for Mr. Padilla. I accepted. Jonathan Freiman, an appellate lawyer from Connecticut and part-time instructor at Yale who had written an amicus brief in the court of appeals for a broad spectrum of groups (including the conservative CATO and Rutherford Institutes), also came on board, as did David DeBruin, a top partner at Jenner & Block, a leading Supreme Court litigation firm in Washington, D.C.

Shortly before the first round of briefs were due in the Supreme Court, the government finally decided, out of the goodness of its heart and without acknowledging that he had any right to counsel, that Mr. Padilla could finally speak to his lawyers. Ms. Newman and Mr. Patel had put in for the necessary security clearances back in December 2002, when the district judge had ordered access. They were finally allowed to go visit him in March 2004, but under the strict rules imposed by the military, they were not allowed to say or ask much—and they were not allowed to tell the court or the rest of the legal team, let alone the rest of the world, what Mr. Padilla had said. All they could really tell us was that after two years of incommunicado interrogation, Mr. Padilla was apparently very glad to see them.

The case was argued before the Supreme Court on April 28, 2004, on the same day as the case of Yaser Hamdi, an American citizen seized in Afghanistan and also held as an “enemy combatant,” and one week after the case concerning the Guantánamo detainees. Although any member of the team could have done the honors, in the end, I ended up making the oral presentation for Mr. Padilla to the high court.

The night after the case was argued in the Supreme Court, CBS broadcast the first photos of Abu Ghraib prison. That very morning, the government's lawyer had responded to questions from the justices about torture by explaining that our government didn't do that sort of thing. In the days that followed, more photos leaked, followed by memos justifying the potential abuse of detainees that were full of legal reasoning as contorted as the bodies in the photos.

After several weeks of this bad news, the government finally won more favorable headlines when the Justice Department held a press conference at which they finally revealed the “evidence” against Mr. Padilla—evidence that they had claimed for months would endanger national security if shared with a federal judge. Mr. Padilla, the government now claimed, had not really planned to set off a dirty bomb, but rather to blow up apartment buildings with natural gas. The government had his confession to this scheme now after months of interrogation,2 and it was a good thing he had not been given his constitutional rights or he might have gotten off. The government was not trying to influence the Supreme Court, the government lawyers explained, but rather the court of public opinion. Mr. Padilla, still locked away in solitary, had no chance to hear about or respond to the only trial the government had seen fit to give him so far, this trial in the court of public opinion. A good friend of mine who lives in a high-rise in New York City told me at a picnic that she had supported my work on the case until she learned my client might have plotted to blow up apartment buildings like hers; that had hit a little too close to home, and she was no longer sure he ought to have constitutional rights. She was only partly joking.

Two months later, on June 28, 2002, the Supreme Court issued decisions in the three cases—the Guantánamo case (Rasul v. Bush), Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. The Court ruled in favor of the detainees in Rasul and Hamdi but bounced Padilla on a technicality. In Rasul, the Court held by a vote of six to three that the U.S. federal courts have jurisdiction to entertain habeas petitions from prisoners at Guantánamo, sending the case back to the lower courts to determine what precisely the rights of the prisoners were.

The Court's decision in Hamdi was equally a defeat for the government but more confusing in the details. Only one member of the Court, Justice Thomas, agreed with the government's position. Four justices thought the government had no authority at all to hold a U.S. citizen, even one seized on an overseas battlefield, as an “enemy combatant.” Leading the charge for this group was Justice Scalia, the Court's most conservative justice, who explained that the government's actions ran contrary to several hundred years of Anglo-American legal tradition beginning with the Magna Carta. Unless Congress suspended the writ of habeas corpus (a grave action the Constitution allows to be taken only in cases of “Rebellion” or “Invasion”), the government's only constitutional option was to charge Mr. Hamdi with a crime or release him. Justice Stevens, the Court's most liberal member, joined Justice Scalia. Justices Souter and Ginsburg reached the same conclusion about the government's lack of authority but relied mainly on a statute (passed in the 1970s to prevent recurrence of the Japanese internment camps) that provided that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Since no act of Congress expressly allowed the detention of U.S. citizens as enemy combatants, these justices reasoned, Mr. Hamdi could not be imprisoned without criminal charges.

The other four justices, in an opinion written by Justice O'Connor, found that the government had authority to hold people who were “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan and “who engaged in an armed conflict against the United States there.” But they also held that an individual like Mr. Hamdi—who, although he was apprehended in Afghanistan, claimed that he was not engaged in armed conflict against the U.S.—was entitled to access to counsel and a meaningful hearing at which he could present his side of the story and challenge the government's evidence.

Although the Hamdi decision set the floor in terms of the rights of U.S. citizens to have access to counsel and a fair hearing on their status, it left open the question whether the government had any authority at all to detain as “enemy combatants” citizens who were not captured on the battlefields of Afghanistan. Did the government have the authority to detain U.S. citizens arrested in the U.S. as “enemy combatants”? Justice O'Connor's opinion in Hamdi was careful not to say, noting that the Court's finding of authority to detain fighters in Afghanistan was premised on a reading of the law based on traditional warfare. “If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” Detainees nabbed in the broader “war on terror”—a conflict that takes place everywhere, all the time, in which anyone walking down the street may be a combatant and which may last forever (in short, a conflict whose practical circumstances are entirely unlike traditional warfare)—were implicitly left for another day.

The Supreme Court dismissed the case presenting that very question—Mr. Padilla's case—on a technical issue of court procedure. The lower courts had all found that the case had been properly filed in New York—which was hardly surprising, given that the government had initially brought Mr. Padilla to New York and then whisked him away in the middle of the night just before his court hearing there. But the Supreme Court disagreed. The Court held that the only proper defendant for the suit was the commander of the brig where Mr. Padilla was currently imprisoned in South Carolina, rather than Secretary of Defense Donald Rumsfeld, to whose custody the presidential order had entrusted Padilla. Thus, the Court found, the suit could be brought only in South Carolina, and not in New York. After two years, Mr. Padilla must wait a little longer for his day in court. Four justices dissented, arguing that the Court should reach the merits as soon as possible, for “[a]t stake in this case is nothing less than the essence of a free society.”

Within days, Mr. Padilla's petition was refiled in South Carolina. At a minimum, he will receive the hearing that the Supreme Court's decision in Hamdi guarantees. It is still possible—indeed probable—that the Supreme Court will rule that there is no authority to detain persons arrested in the U.S. as “enemy combatants.” But the litigation will take several months more to reach the Supreme Court again, probably not until after this fall's election.

As for me, I still haven't met my client. Perhaps this delay will allow me time to get a security clearance so I can finally see him. As I have worked on this case, I have often thought of Attorney General John Ashcroft's menacing warning to civil libertarians: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends.”3 I take that more or less personally.

To those like Mr. Ashcroft who would scare liberty-loving people with phantoms of lost security, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. No one who watched the attacks on September 11 can deny that terrorism represents a grave threat to American security, but winning the war on terror also requires that we remain true to our ideals. Guantánamo, the photos of Abu Ghraib, the image of America as a nation above the law—none of these things has helped us in the fight against terror. Moreover, the government's argument—that we must sacrifice human rights for security—presents a false choice. There is a balance to be struck, but it is far more nuanced than the current government recognizes.

Take the issue of detention. Many other democratic nations confronted with terrorist threats have enacted special measures for some kind of administrative detention of terrorists.4 These nations include the U.K.,5 Israel,6 and Spain.7 The administrative detention practices of many of these countries have been criticized by human rights activists, and many of these criticisms are legitimate, but it is notable that they all provide greater protection for human rights than does current U.S. practice with respect to so-called “enemy combatants.” First, these other nations have passed actual legislation authorizing detention of suspected terrorists. By contrast, the U.S. has relied on presidential fiat. Second, the laws of our democratic allies provide for access to counsel and judicial review of detention within a matter of hours or days—not months or years. In the U.K., for example, terrorism detainees are entitled to counsel and judicial review as soon as “reasonably practicable,” and in any event no later than 48 hours.8 Detainees in Israel are entitled to see a judge within 48 hours.9 In Spain, they are entitled to counsel and to be brought before a judge within 120 hours.10 And so on. Third, most of these laws provide for time limits on detention. The U.K.'s 2000 and 2001 antiterrorism laws allow the government to hold citizen detainees in administrative detention for only 48 hours, with extension to seven days possible only with a judge's approval.11 Spanish detainees must be charged within 72 hours, which can be extended by another 48 hours only by a judge.12 Even where detention is indefinite, regular judicial review is required. Israel's 2002 Incarceration of Unlawful Combatants Law, for example, requires that a district court judge review the status of each detainee every six months to determine if the captive is still a threat to state security or if there are other circumstances that justify release.13

Moreover, overseas courts have stepped in to guarantee detainees' rights above and beyond those provided by legislation. In Marab v. IDF Commander in the West Bank, for example, the Israeli Supreme Court invalidated a military order that allowed investigative detention of Palestinians in the West Bank for 12 days without a judicial hearing. Rejecting the government's claim that security necessitated the delay, the Court held that “this approach is in conflict with the fundamentals of both international and Israeli law,” which view “judicial review of detention proceedings essential for the protection of individual liberty.”14 Instead, the Court held, the detainee must be brought before a judge as promptly as possible.15 Similarly, in invalidating Turkey's detention of suspected terrorists for more than 14 days without access to counsel or court, the European Court of Human Rights explained that although “the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention.”16

These examples show that detention of individuals for more than two years without access to counsel or a hearing before a neutral judge is well beyond the bounds of what civilized countries allow nowadays, even when fighting terrorism. Moreover, it is fundamentally contrary to American values. As the U.S. Supreme Court wrote in a case involving First Amendment rights during the Cold War,


Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.17
The Israeli Supreme Court expressed a similar view in its decision banning torture and other cruel, inhuman, or degrading treatment in interrogation:


This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.18
The U.S. Supreme Court has come to the rescue of liberty for now, upholding the rule of law in the first round of “war on terror” cases, but in the end it is the American people that must defend our Constitution by making our views known. As Judge Learned Hand said, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”19 That perhaps is what democracy is all about. We alone can ensure that the “war on terror” does not become a “war on rights.”



NOTES

1 Http://usinfo.state.gov/topical/pol/terror/02061103.htm.

2 The government acknowledged in a footnote to its press release that Mr. Padilla continued to deny that he had actually planned to engage in any terrorist acts.

3 Testimony of Attorney General John Ashcroft before the Senate Judiciary Committee (Dec. 6, 2001).

4 Two excellent sources on comparative detention practices are Stephen J. Schulhofer, Checks and Balances in Wartime, 102 Mich. L. Rev. 1501 (forthcoming 2004), and Brief Amicus Curiae of Comparative Law Scholars and Experts on the Laws of the United Kingdom and Israel in Support of Respondent, Rumsfeld v. Padilla, No. 03-1027 (2004). This section draws particularly on the latter.

5 Terrorism Act, 2000, c.11, para. 41, sched. 8 (Eng.) and Anti-Terrorism, Crime and Security Act, 2001, c. 24, pt. 4 (Eng.) [hereinafter U.K. Act].

6 Emergency Powers (Detention) Law, 1979, 33 L.S. I. 89 (1978–79) (Isr.), and Incarceration of Unlawful Combatants Law, 2002 (Isr.), at www.Justice.gov.il/NR/rdonlyres/8459847C-84FD-956D-0F2CB10C948A/0/IncarcerationLaw L.438/01 [hereinafter Israeli Detention Law and Israeli Unlawful Combatants Law].

7 Spanish Constitution art. 17(2); L.E. Crim. Art. 496.

8 U.K. Act ¶ 7.

9 Israeli Detention Law § 4(a). Separate measures apply in the occupied territories.

10 Spain art. 17.

11 U.K. Act ¶ 436. U.K. law allows for indefinite detention of some aliens, however.

12 Spanish Constitution art. 17(2); L.E. Crim. Art. 496.

13 Israeli Unlawful Combatants Law § 5.

14 Marab v. IDF Commander in the West Bank.

15 ¶ 36.

16 Askoy v. Turkey, 23 Eur. H.R. Rep. 553 ¶ 78 (1996). See also Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations (arts. 27(2) and 7(6) of the American Convention on Human Rights), Inter-Am Ct. H.R. (Ser. A) No. 8 ¶ 12 (Jan. 30, 1987) (“[E]ven in emergency situations, the writ of habeas corpus may not be suspended or rendered ineffective. . . . To hold the contrary view—that is, that the executive branch is under no obligation to give reasons for a detention and may prolong such a detention indefinitely during states of emergency, without bringing the detainee before a judge . . . would . . . be equivalent to attributing uniquely judicial functions to the executive branch, which would violate the principle of separation of powers, a basic characteristic of the rule of law and of democratic systems.”).

17 United States v. Robel, 389 U.S. at 264.

18 Supreme Court of Israel: Judgment Concerning the Legality of the General Security Service's Interrogation Methods, 38 I.L.M. 1471, 1488 (1999).

19 Learned Hand, The Spirit of Liberty 190 (1960).



http://www.vqronline.org/viewmedia.php/prmMID/8959

Here is a 131 page PDF file where 3 prisoners give their accounts of their detention and interrogation by the U.S. & Brittish.

http://www.ccr-ny.org/v2/legal/september_1...ement_FINAL.pdf

Here is another group working on this issue -- Physicians for Human Rights.

March 14, 2005

Church Report Falls Short of Establishing Accountability; PHR Calls for Independent Commission to Investigate Torture by US Forces in Iraq, Afghanistan, Guantánamo


Physicians for Human Rights (PHR) said today that the investigation led by Vice Admiral Albert Church II into allegations of torture by US personnel is woefully inadequate. The publicly released executive summary falls far short of examining accountability among senior officials and fully investigating the link between the policy developed by the Administration and the abuses that took place in Afghanistan, Guantánamo Bay, and Iraq. PHR reiterates its call for an independent, bipartisan 9/11 style commission to investigate the practice of torture and cruel, inhuman and degrading treatment by US forces in Iraq, Afghanistan, Guantánamo Bay and elsewhere. No investigation initiated by the executive branch has thus far assessed accountability at the highest levels.

"It’s shocking that the Church report says that there is no link between approved interrogation techniques and detainee abuse,” said Leonard S. Rubenstein, Executive Director of Physicians for Human Rights.

The Church report mentions a new interrogation policy for Iraq, developed in January 2005. However, this new policy has not been made public and even Vice Admiral Church admitted that he only read it once quickly. Physicians for Human Rights calls upon the Department of Defense to release the policy.

As stated in the executive summary, the report claims that the Department of Defense did not promulgate interrogation policies or guidance that directed, sanctioned, or encouraged the abuse of detainees. In so finding, the Church report ignores the clear evidence of such policy and guidance: memorandums that denied Geneva Convention protections to detainees, justified the use of torture, and contained narrow definitions of torture that permitted the use of a wide range of previously prohibited interrogation tactics.

The Church report makes the insupportable claim that "it is clear that none of the pictured abuses at Abu Ghraib bear any resemblance to approved policies at any level, in any theater.” This is simply untrue. The abuses evident in the photos included the use of military working dogs, hooding, and forced nudity. All of these techniques were approved interrogation policy at some point by various US government officials. Additionally, based on PHR’s review of documents released pursuant to a Freedom of Information Act case against the government, these techniques were used in combination with others, including isolation, sleep deprivation, death threats, and sexual humiliation. The use of these coercive techniques occurred systematically, beginning in Afghanistan and Guantánamo Bay in 2002, migrating to Iraq in 2003, and continuing in all three theaters of operation in 2004, even after the exposure of the Abu Ghraib scandal.

PHR welcomes the Church report’s call for investigation of the medical role related to interrogation and its recommendations for focused training on detainee screening and medical treatment and DoD policy-level reviews of the role of behavioral science personnel in interrogations for and the use of medical records by interrogators. But, its discussion of medical issues is based on a false premise. The report implies that there is no ethical concern when a health professional assists in crafting interrogation strategies. The UN Principles of Medical Ethics make clear that it is a contravention of medical ethics for a health professional to apply their knowledge and skills in order to assist in the interrogation of detainees in a manner that may adversely affect the physical or mental health of the detainee. In addition, the report misrepresent the facts, it says that "access to medical information was carefully controlled at GTMO.” In fact, according to a report by the International Committee for the Red Cross, medical records at Guantántamo Bay were literally shared with interrogators.

The Church report notes that it was unable to undertake a comprehensive inquiry into whether medical personnel witnessed, reported, or prevented detainee abuse. Physicians for Human Rights repeats its call for a comprehensive investigation into this question.

"Any investigation of medical personnel involvement in torture must include a robust examination of guidance provided to health professionals who work in settings where interrogations occur and the demands made of them by interrogators and commanders,” said Rubenstein.

http://www.phrusa.org/research/torture/news_2005-03-14.html

Interesting perspective, from another country with a long history of human rights abuses.

http://context.themoscowtimes.com/stories/.../04/01/120.html