Guantanamo Interrogations Reportedly Led to Bin Laden

by Greg McNeal

Over at Lawfare Ben Wittes aks Will Bin Laden’s Death Reignite the Interrogation Debate? I think there is little doubt that it will.

Consider this recent post by Marc Thiessen over at The American Enterprise blog.  Thiessen writes:

“So Guantanamo detainees provided the key intelligence that allowed the CIA to track down bin Laden. But not just any Guantanamo detainees. It turns out the detainees in question were KSM and Abu Faraj al-Libi…Before coming to Gitmo, both were held by the CIA as part of the agency’s enhanced interrogation program, and provided the information that led to bin Laden’s death after undergoing interrogation by the CIA. In other words, the crowning achievement of Obama’s presidency came as a direct result of the CIA interrogation program he has denigrated and shut down.”

His source?  A New York Times report that notes:

As Obama administration officials described it, the real breakthrough came when they finally figured out the name and location of Bin Laden’s most trusted courier, whom the Qaeda chief appeared to rely on to maintain contacts with the outside world.

Detainees at the prison at Guantánamo Bay, Cuba, had given the courier’s pseudonym to American interrogators and said that the man was a protégé o Khalid Shaikh Mohammed, the confessed mastermind of the Sept. 11 attacks.

American intelligence officials said Sunday night that they finally learned the courier’s real name four years ago, but that it took another two years for them to learn the general region where he operated.

Cross posted at LawandTerrorism

 

The Gitmo Task Force Report

by Deborah Pearlstein

Cross-posted at Balkinization

Nothing like summertime to catch up on a little light reading I spent too little time with during the semester. So especially after being re-energized at this year’s American Constitution Society Convention (where I did a panel with Gene Fidell and others far more interesting than I on military commissions vs. federal courts, and got treated to a Cory Booker barn-burner of a “do something” speech), herewith my first catching-up blog.

If you read any new document this summer in the ongoing detention-interrogation-trial saga that is Guantanamo Bay, make it the (relatively) recently released final report of the Guantanamo Review Task Force. This was the inter-agency body established by Executive Order a few days after President Obama took office and charged with reviewing (which required first collecting) all of the government’s existing information about the then-current residents of Guantanamo Bay and making recommendations for their disposition. The report is available here and was the subject of a few articles (in the Times and Wash Post),though my sense is that it was largely overlooked when it was released. The report itself is a concise 32 pages, and contains (among other instructive passages), the most detailed official public description (beginning p. 22) I’ve seen explaining why the executive branch has determined that 48 detainees at Gitmo should still be detained but cannot be prosecuted in either an Article III or military commission court.

Before I get to the reasons why 48 detainees have been deemed unprosecutable-but-unreleaseable, I must start out by pausing on the number, which seems pretty striking in the eight years I’ve spent following U.S. counterterrorism detention operations post-9/11. Out of the 800-some originally shipped to Guantanamo, out of the tens of thousands detained by the United States since 2001(in operations from Afghanistan to Iraq and beyond), out of the millions of people on the planet who undoubtedly wish to do us harm – the whole debate, and the future of U.S. detention policy, has now evidently come to down to the apparent intractability of these 4 dozen cases.

Indeed, as the Task Force report indicates, the real fraction of the post-9/11 detainee population who might fit into the ‘intractable’ category if seized today is almost certainly smaller than that. For example, some of the final 48 aren’t prosecutable because the federal criminal material support law that existed in 2001, when these detainees were seized, did not extend to offenses committed outside the territory of the United States. That territorial gap has long since been filled by an amendment to the material support statute. So if the U.S. picked up one of those men today, prosecution would be an option. Others of the 48 (unclear from the report how many, but at least a handful) have been rendered ‘unprosecutable’ because of decisions the last administration made – which decisions cannot now be undone. Like what? Some of these men have been detained so long, the statute of limitations on the offense for which they might have been prosecuted has run. For some of them, the only/best evidence we have of any wrongdoing were statements gleaned from witnesses subject to torture or cruel treatment. And there are others (like a Taliban military commander) who – had we treated them in accordance with international law in the first place – it appears would have been far less controversially detainable by the U.S. and/or the Afghans under existing detention authorities (like the statutory Authorization for Use of Military Force (AUMF), the international laws of armed conflict, and/or specific U.S.-Afghan and/or UN authority).

For apparently a large subset of the 48, the United States simply made no attempt to collect (or save) any information about them at the time of their capture that might subsequently be used in a prosecution, for war crimes or otherwise. In some cases, such a decision might well make sense. A Taliban commander caught by U.S. forces in Afghanistan in 2002 was picked up in a classic international armed conflict, and, particularly had he been afforded the protections of the Geneva Conventions, could be lawfully detained for the duration of that conflict without need for trial. But it’s not at all clear that the set of men detained-without-effort-at-evidence-collection is the same as the set of men lawfully detainable under the international law of armed conflict. On the contrary, much in the detention practice of the last administration suggested that people were detained (in CIA facilities and elsewhere) without any concept of an end-game – whether the plan was to prosecute them for war crimes some day, or to detain them until the end of the Afghan conflict, or simply to detain them forever without much worrying about the law of why or how. In short, it seems likely that for some of these remaining 48, there was simply no plan at all. Presumably, for the wouldbe terrorist detainee we pick up tomorrow, we have a plan now.

In all events, if we subtract all of those but-for cases from the Gitmo 48, how many remain who would pose an intractable detention dilemma, seemingly fall into a gap in existing legal authority, if we picked them up today? A dozen? A handful? For the sake of this group, some still argue, we should pursue new statutory authorization for the (indefinite?) detention of (which?) terrorist suspects for the (indefinite?) future of the United States. When Holmes wrote that hard cases make bad law, he wasn’t kidding.

Ok, so what it is about these 48 men such that, as the report put it, “the totality of available information – including credible information that might not be admissible in a criminal prosecution – indicated that the detainee poses a high level of threat that cannot be mitigated sufficiently except through continued detention.” The report says these detainees “were characterized by one or more of the following factors…”: (1) “Significant organizational role within al-Qaida, the Taliban, or associated forces.” (2) “Advanced [jihadist] training or [combat] experience.” (3) “Expressed recidivist intent;” or, (4) “History of associations with extremist activity.”

While there remain questions about what it means “forces…associated” with the Taliban or al-Qaida, category (1) above seems to fall pretty squarely into the interpretation of the AUMF the Administration has now successfully advanced before the D.C. federal courts. It is at least in part consistent with the kind of detention contemplated by the international law of armed conflict. And beyond that – as the habeas cases are making clear – the legality of such detentions depends a lot on the particular facts of the case. Category (2), while also leaving some ambiguities, sounds a fair bit like conduct that is now – but was not necessarily in 2001 – covered by the federal criminal laws of the United States. Receiving military training from a terrorist organization is its own independent federal crime and/or is almost certainly prosecutable under the extraterritorial material support offense. Category (4) – “History of associations with extremist activity” – seems to me simply too vague to make heads or tails of. It is not – and the report does not suggest that it is – a legal category of some kind. But even as a descriptive tag, it seems to me broad enough to include almost anything. Or not. So for now I leave it to one side.

Which brings us to Category (3) – those with “[e]xpressed recidivist intent.” Assuming such men do not also fall into any of the other descriptive categories, I take it that such an individual is one for whom the circumstances of his seizure are either unknown or not plausibly in the context of armed conflict, for whom there is no available information as to his past activities, but who, at some point during the past 8 years of detention in/around Guantanamo Bay, has indicated that if released, he’d like to, for example, kill Americans. If I were President Obama, this is the guy whose case would keep me up nights. But here’s a question, and it is a genuine one: By what law may the United States detain someone who, without more (i.e. no evidence of Al Qaeda membership, of engagement in armed conflict, etc.), expresses an intention to do harm?

Welcome to the U.N.’s “Bantanamo”

by Julian Ku

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The UN’s new temporary quarters, during renovations, are not too popular with the staff.

For the next four years, the United Nations’ nerve center, including Secretary-General Ban Ki-moon‘s office, will be situated in a squat, three-story, corrugated steel building on the U.N.’s north lawn that looks like a cross between a suburban big-box store and a high-security lockup facility.

Bantánamo, a nickname embraced by U.N. staffers, has taken much of the grandeur out of diplomacy at the United Nations. It’s a serious comedown for U.N. civil servants and delegates who have been grinding away in the cause of peace in one of New York City’s architectural landmarks, the glass and marble U.N. headquarters tower and the U.N. General Assembly hall — now undergoing a $1.87 billion renovation.

I think they are overreacting. Or they don’t think Guantanamo is really that bad.

Trying to Remember Why We’re Closing Gitmo?

by Deborah Pearlstein

Cross-Posted at Balkinization

Following my testimony last month to the Senate Judiciary Committee’s Subcommittee on Terrorism and Homeland Security on military commissions and the like, Senator Kyl (R-AZ) was kind enough to send along some follow-up questions to answer. His first follow-up question was one of the same as one he’d posed in the hearing itself: What if any empirical evidence is there to support President Obama’s statement that “the existence of Guantanamo likely created more terrorists around the world than it ever detained.”

It’s a fair and important question – one it’s likely the President is in a better position to answer than I. Nonetheless, it gave me occasion recently to start compiling some of the reports I’ve found most persuasive over the years that led me to conclude the President’s view had merit. For your summer reading entertainment (and before Congress comes back and starts back-pedaling the otherwise sweeping bipartisan consensus in favor of closure again), I thought I’d start a list here. If folks have other sources they’d like to recommend, or of course comments either way, feel free.

• Matthew Alexander’s statements are pretty powerful. A veteran Air Force counterintelligence agent who served as a senior interrogator for the United States in Iraq, Alexander wrote: “I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse.”

• Alexander wasn’t the first to say as much. On June 17, 2008, former Navy General Counsel Alberto Mora testified to the U.S. Senate Committee on Armed Services as follows: “[T]here are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

• In 2008, McClatchy news service published a detailed series of reports on the Guantanamo Bay detention program that it based on interviews with U.S. officials, foreign intelligence services, and former detainees. The reports concluded, among other things, that “instead of confining terrorists, Guantánamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists.”

Military Commissions Moving Ahead

by Deborah Pearlstein

Cross-posted at Balkinization

I really hate to interrupt this great discussion about Kal’s even greater book, and hope to get into it myself before week’s out.  In the meantime, I thought it worth noting that while most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). As the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless.

Delayed Detention Policy and the Big “Ifs”

by Deborah Pearlstein

Recall that President Obama issued a related set of executive orders just after taking office: one ordering the closure of Guantanamo in January 2010, another creating a task force to review all the cases of Guantanamo detainees to determine what should happen to them (prosecution, release, some other option), and two others creating separate additional task forces to figure out what to do about detention policy and interrogation policy more broadly.  The detention and interrogation policy task forces had been due to issue their recommendations today.  Last night, the administration announced it was extending the detention review by 6 months, and the interrogation review by 2 months. Is the delay of itself cause for concern? I tend to think not much.

UPDATE: The task force’s interim report and associated appendix are now up at Scotusblog. Link after jump.

Post-Acquittal Detention

by Deborah Pearlstein

[Cross-posted at Balkinization]

While Congress has held two lengthy hearings this week ostensibly on the use of military commissions to try detainees for war crimes, the only item that seems to be getting any significant play is this statement by Pentagon General Counsel Jeh Johnson regarding the administration’s view on its authority to hold detainees even if they are ultimately acquitted at a commission trial. The Senate witness statements are here. The House testimony is here. (Full disclosure, I was a witness at the House hearing.)

The Washington Post story quotes Johnson as saying:

“The question of what happens if there’s an acquittal is an interesting question — we talk about that often within the administration…. If, for some reason, he’s not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it’s our view that we would have the ability to detain that person.”

I think there’s actually less news here than perhaps meets the eye, but I fully understand the reaction that many, including a number in Congress, seem to be having. If you can hold them forever anyway, why even bother with a trial? And what could possibly be such a court’s claim to legitimacy if its rulings have such negligible significance?

So there’s a technical answer in international law, and a practical answer about where we find ourselves today. The technical answer is clear if one imagines for a moment we’re in the midst of a modern World War II – a classic international armed conflict, in which it is entirely possible that war crimes will be committed; in which the United States’ authority to hold, say, prisoners of war, is undisputed; and in which the United States has in all instances scrupulously carried out its obligations under the Geneva Conventions and other relevant law. The U.S. Army takes into its custody a Nazi soldier implicated in the murder and rape of civilians. Under current law, we could detain the soldier until the end of the armed conflict without trial (provided we continued to treat him in compliance with Geneva and any other relevant laws). But it’s looking increasingly like the armed conflict may end before next year. And if this guy is really guilty of war crimes, he deserves to be in custody (under a criminal sentence) for far longer than that. So we try prosecuting him. Unfortunately, some key witnesses end up refusing to testify at trial, and the soldier is acquitted. Also unfortunately, the war continues to drag on. Could we go back to holding him as a POW? I’d welcome correction, but I’m not aware of any international law bar to continued POW detention under those circumstances.

Does that technical answer apply in today’s rather different circumstances? The answer turns not on anything new Mr. Johnson just said, but on an argument the Administration has been asserting in Gitmo habeas litigation for months already. The Administration’s litigating position is that there is an ongoing, non-international armed conflict (i.e. a conflict not between two states, but between the United States and the organization Al Qaeda); and that the 2001 AUMF passed by Congress gives it ongoing authority to subject certain individuals (just who is the central subject of litigation) to military detention until the end of the U.S.-v.-A.Q. conflict. There is nothing in the Geneva Conventions that would affirmatively authorize such detention. But neither is there anything in the Geneva Conventions that would squarely prohibit it (provided, as always, it’s subject to adequate procedures, humane treatment, etc.). If the Administration is right about the scope of the AUMF – an interpretation that I believe is overbroad but that has so far been largely winning in the district courts – then presumably the same logic about post-acquittal detention applies as in the Nazi case.

So what’s the problem? I’d say several. First, the Administration’s litigating position on the scope of detention authority under the AUMF is hardly as clear cut as the detention authority the United States asserted over the hypothetical Nazi soldier. Its interpretation of the AUMF is, as I noted, pretty generous for a statute that doesn’t mention the word “detention” and that of itself sets forth no procedures under which such detention is to be carried out. Indeed, it’s still not clear to me the Administration has taken that position with respect to the scope of the AUMF anywhere beyond the so-called legacy cases (those detainee cases pending when Obama took office). Second, the military commission process to date has been anything but a paragon of legality or legitimacy. (Former commission prosecutor Lt. Col. Darrel Vandeveld’s testimony in the House yesterday on where the commissions have been was particularly powerful on this point.) It is possible in theory to conduct lawful trials for war crimes. But there is a great deal of appropriate skepticism (not least among House Democrats) about whether the third try at such a trial system will, particularly at this late date, fix the gross deficits of the past.

Here, the past eight years worth of behavior has left both the legitimacy of the detention authority, and the legitimacy of the trial authority, in substantial question. It is hard to imagine that combining the two will bolster the credibility of either. On the contrary, it seems very likely to make the strategic costs to U.S. counterterrorism policy – costs in weakened relations with our allies, and with the moderate Muslim world – substantially higher.

More from the Detention Front

by Deborah Pearlstein

Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement.  Then on to rumors of a contemplated executive order on detention issues.

Rashomon at Gitmo

by Deborah Pearlstein

To read the accounts of detention conditions at Guantanamo this week coming from the latest DOD review on the one hand, and detainee lawyers on the other, you’d think the reporters had visited not just different prisons, but prisons on different planets.

Constitutional Right, No Gitmo Remedy

by Deborah Pearlstein

It’s not as though this is a new problem in American rights law. The expansion of defenses like qualified immunity for federal officials, the statutory restrictions on collateral federal review of state criminal convictions with constitutional infirmities, the stark limitations on common law constitutional remedies in the courts – all of these areas of doctrine accept the idea that there may simply be no legal redress available for the victims of some rights violations – no matter how fundamental the right is.

We can now add to this disappointing catalog today’s decision by the D.C. Circuit Court of Appeals in Kiyemba v. Obama, holding that the U.S. federal courts do not have the power to order the government to release the 17 Gitmo-held Uighur detainees into the United States – even though the federal courts have concluded there is no lawful basis for their continued detention. Recall the particular problem of the Uighur detainees (among others) is that they can’t simply be sent home to China. The likelihood that they’ll face persecution (putting it mildly) there is sky-high, and the United States (among others) has treaty obligations that prohibit sending them home to such a fate. So what’s the remedy for their unlawful detention? What flows from winning their habeas case? Evidently, nothing in particular.

“Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms…. As a result, it ‘is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.’”

Gitmo may be enough like the United States to allow constitutional habeas corpus rights to extend there (so said the Supreme Court), but it’s not quite enough like the United States to consider the detainees to have “entered” the country according to the chronically rights-defying definitions of U.S. immigration law. And because ever since the ignominious Chinese Exclusion Case the Supreme Court has held that the political branches have essentially plenary control over who crosses U.S. borders, it’s not for the courts to decide otherwise absent some very clear authorization.

So “what law authorized the district court to order the government to bring petitioners to the United States and release them here?” Not the Due Process Clause, says the D.C. Circuit. Immigration cases have always held that the Constitution doesn’t extend to non-citizens held beyond the “sovereign territory” of the United States. (Never mind, I suppose, that Justice Kennedy’s Boumediene majority no longer thinks sovereignty is the touchstone for the extraterritorial extension of constitutional rights). It also, evidently, “cannot be that because the court had habeas jurisdiction it could fashion the sort of remedy petitioners desired.” (Never mind, too, that the Boumediene majority also considered it “uncontroversial” that “the [constitutional] habeas court must have the power to order the conditional release of an individual unlawfully detained” or otherwise provide some meaningful remedy.) The appeals court simply said no, and remanded the case to the district court for “further proceedings consistent with the opinion.” (Good luck to all with that.)

So now what? Well, a caveat about the foregoing and then some options. First, I should be clear, it’s not as though I think the appeals court’s ruling is at the level of Yoo-like error. The arguments it makes about the limits existing immigration law should be read to place on the remedies available under the constitutional writ of habeas are not nonsensical. They are, however, not nearly as compelled by precedent as the court’s opinion pretends. And the court is, I believe, wrong not to recognize in this case the availability of conditional release or some other meaningful remedy – particularly in light of Rasul and Boumediene.

Second, while this case was briefed and argued before Obama took office, the matter is now (along with most else on the planet) in the new administration’s court. It would be ideal to get this D.C. Circuit opinion off the precedential books. But it would be fastest – and therefore do more justice – to put the Uighurs at the top of the list of detainees to be sent to one of those European nations now making more generous noises about sharing the burden of the post-Gitmo clean-up. The Uighurs actually seem to make as attractive candidates as any for release into the United States. And it seems hard for the U.S. Government to avoid entirely taking in at least some of the detainees it authorizes for release (even if only for purposes of subjecting them to our own immigration and deportation laws). But it’s also hard to imagine that option not requiring a doozy of a domestic political fight. And it’s a fight that, while in principle well worth having, could well take as long or longer to reach its conclusion than negotiations with an ally not quite so squeamish about meaningfully recognizing the rights they have promised. We don’t want or need to put the Uighurs in post-Gitmo immigration detention. These guys in particular have waited long enough.

Talk About Travel Perks

by Deborah Pearlstein

Here’s a new job posting a colleague just sent along that even Ken might find of interest:

The DoD Office of General Counsel is soliciting resumes for multiple attorney term positions. Successful applicants will be part of an interagency team representing the government in over 200 habeas corpus petitions filed in D.C. District Court by individuals detained by DoD at Guantanamo Bay. These positions start immediately and are for a term of not to exceed 3 years. The positions are within National Security Personnel System (NSPS) Pay Band YA-2/3 (Salary: $39,407.00 – $130,211.00 depending on experience and qualifications). The ideal candidate should have a background in civil or criminal litigation, experience with intelligence matters, and an active security clearance. However, attorneys with any litigation experience are encouraged to apply. These positions are located in the Washington, D.C. area, with the potential for some travel to Guantanamo Bay. Selectees will be required to provide evidence that they are active members, in good standing, of the bar of the highest court of a State, US Territory or Commonwealth, or the District of Columbia.

Gitmo Policy Under the New Administration, Cont.

by Kenneth Anderson

You can follow the earlier blog posts for my views on closing Guantanamo and the evolution of policy around it … but anyway, here is the latest, from the ABC Stephanapoulos interview with President-elect Obama.

President-elect Barack Obama said this weekend that he does not expect to close Guantanamo Bay in his first 100 days in office.

“I think it’s going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do,” Obama said in anexclusive “This Week” interview with George Stephanopoulos, his first since arriving in Washington.

“It is more difficult than I think a lot of people realize,” the president-elect explained. “Part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up.”

But Obama said unequivocally that it will close. “I don’t want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution. That is not only the right thing to do but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values.”

Obama said that he is not ruling out prosecution for crimes committed by the Bush administration and left open the possibility of appointing a special prosecutor or commission to independently investigate abuses of power and illegal activity.