Author Archive for
Ariel Meyerstein

The Specific Costs of Arbitrary Detention and Torture: A Response to Eugene Kontorovich

by Ariel Meyerstein

[Ariel Meyerstein received his J.D. from Boalt Hall (2006) and is currently a PhD candidate, Jurisprudence and Social Policy Program. His recent scholarship includes, “Between Law and Culture: Rwanda’s Gacaca and Postcolonial Legality,” 32 Law and Social Inquiry 467-508 (2007), “Transitional Justice and Post-Conflict Israel/Palestine: Assessing the Applicability of the Truth Commission Paradigm,” 38 Case Western Reserve Journal of International Law 281 (2007), “The Law (and Lawyers) as Enemy Combatant(s),” University of Florida Journal of Law and Public Policy (forthcoming).]

In this reply, I do not want to take on Kontorovich’s whole argument, but rather nit-pick on the factual foundations, since these largely set the stage for where sympathies align in the debate about Guantánamo and the “war on terrorism.”

I have spent the last few months in London at Reprieve, assisting in the representation of detainees. This has afforded me time to get a really clear view of this process, so I would like to shed some light on some factual inaccuracies related to (a) Kontorovich’s suggestion that the “initial round-up of combatants during the invasion of Afghanistan was not the blind and capricious sweep it is sometimes made out to be,” and about (b) the post-GTMO life choices of some of its former inmates, which Kontorovich also alluded to (“It turns out that he is one of many Gitmo alumni to resume their violent ways”). I take one detour along the way regarding diplomatic assurances, but it’s brief.

I want to emphasize that the parts below analyzing detainee figures are not my own analysis, but synthesize the excellent research of Joshua and Mark Denbeaux (a professor at Seton Hall), who have produced five excellent studies of the detainees. Journalist Andy Worthington also criticizes the West Point report that Konorovich cites, here.

Releasing Detainees to…Torture

First off, to bring some different context to this discussion, we should also keep in mind the very troubling developments relating to individuals released from Guantánamo not discussed by Kontorovich, namely those whom the United States is sending back to countries like Tunisia where they are thrown into detention and tortured despite “diplomatic assurances” to the contrary. This is what the military did to one of my clients, Mr. Abdullah bin Omar al Hajji, who was returned in the middle of the night, without warning to counsel, even though his lawyers (my colleagues) were actually at GTMO the day it happened. The military informed us only two days later, after the deed was irreversible. Among other things, Abdullah, a father of eight has been beaten and threatened that his wife and daughters will be raped, and that they will be arrested and brought to prison to watch him get tortured (For more, see recent news coverage; on the fate of others released under diplomatic assurances see a 2007 Human Rights Watch report, and this 2005 report on diplomatic assurances more generally).

As a side discussion that cannot be done justice to now, I would note that the whole issue of diplomatic assurances really deserves more scholarly attention. Other than as outlined in skeletal form by the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) with respect to deferrals (and terminations of such deferrals) of removal of aliens to countries where they might be tortured (see 8 C.F.R. §§ 1208.17(f) and 1208.18(c)), there are literally no procedures or statutory provisions governing how diplomatic assurances are to be handled. There are definitely no statutory procedures with respect to removals from Guantánamo, though some of the Guantánamo litigation (in particular, Khalifh v. Gates) has produced a sense of this in the form of a declaration from the Ambassador-at-Large for War Crimes Issues, Clint Williamson, who is chiefly responsible for obtaining the assurances.

Arguably, if an individual at GTMO is “cleared” for release/transfer, than they are no longer enemy combatants and were they to apply for asylum to the United States (as some of our clients have), they would be denied and found to be inadmissible aliens – what else would they be? The 3rd Circuit, relying upon St. Cyr has found that federal district courts retain jurisdiction over the Convention Against Torture claims of non-refoulement that FARRA creates causes of action for within habeas proceedings. See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 217-220 (3d Cir. 2003) (noting that “because § 2242(d) of FARRA fails to state explicitly that a district court may not exercise jurisdiction over habeas corpus claims or mention 28 U.S.C. § 2241, the District Court retains that jurisdiction”).

A recent decision by a district court in New Jersey raised this very issue in the removal order context, questioning whether or not diplomatic assurances are compliant with the Convention Against Torture. See Khouzam v. Hogan, 2007 U.S. Dist. LEXIS 43570 (2007) (CV-07-0992).

IF (and that’s a BIG if), the Supreme Court finds the Military Commissions Act unconstitutional this fall, this should clear the way for some interesting habeas-based CAT claims to be made to prevent the transfer of certain individuals to places like Tunisia and Algeria (that is, if they haven’t all been transferred out before the SCOTUS has a chance to rule).

Back to the heart of the matter.

The True Scope of the “Sweep” and the Problems with the West Point Study

Kontorovich cites the West Point study, which concludes that 73% of detainees were a “demonstrated threat” to U.S. forces and no less than 95% were a “potential threat.” Kontorovich also cites Pentagon figures that at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

As the New York Times coverage notes, the West Point authors were tasked with coming up with a response to the Denbeaux studies, and not surprisingly, like many of the administration’s arguments, the desired policy outcome drove the fact-gathering(or production of ‘facts,’ as the case may be). As in other instances, what resulted was a full-blown propaganda:

Lt. Col. Joseph H. Felter, the director of the Combating Terrorism Center and a West Point faculty member, said the new report was an independent evaluation conducted without Pentagon supervision. Colonel Felter acknowledged, however, that military officials had indicated they wanted to contest the Seton Hall report. “They had been getting a lot of inquiries related to this previous study,” he said. “They had a lot of concerns with the conclusions, but they did not have another study.

The West Point Study of course totally ignores the whole point now at issue, namely, the significant issues the courts are dealing with regarding the adequacy of the Combatant Status Review Tribunals as a substitute for habeas corpus. I won’t get into that (but see the links to the Denbeaux studies above for more). I will only address the fact-gathering aspect of the CSRTs, which is what leads to the Denbeaux conclusions and the contorted-West Point version of it.

So Where Do the Numbers Come From, Anyway?

It might also be useful to review the way the “evidence” used in the CSRTs is produced according to the Detainee Treatment Act of 2005, which is where the raw data for both the Denbeaux and West Point studies originates: