Category Archives: Guantanamo

Close Guantanamo Now

Posted on January 11, 2008 by Michael Froomkin

The ACLU has the right answer for the problem of the Guantanamo camp: Close Guantanamo and outlaw indefinite detention.

One way to achieve this would be to pass the “Guantanamo Bay Detention Facility Closure Act of 2007,” S.1469. The bill, introduced by Senator Tom Harkin, would close the facility within 120 days and send charged or sentenced detainees to the military's maximum security prison at Fort Leavenworth. The remaining detainees would be sent to their home countries or other countries that will not torture or abuse them.

I'm told that all the major Presidential candidates have taken a position on Guantanamo. Sen. Obama regularly calls to close Guantanamo and restore habeas corpus, and Sen. Clinton often says something similar. As yet, however, neither Sens. Clinton, Obama nor McCain have not signed on as co-sponsors of S. 1469. (Clinton has signed on to a Feinstein bill that closes Guantanamo. Unsurprisingly, given the author, the billcreates new problems by authorizing indefinite detention without charge.)

The ACLU is making today “Close Guantanamo Day”. Below I reprint their press release on it. There will also be a “Rush Hour Vigil” this afternoon at 5pm near South Com. I won't be able to make it, but Linda has details. And there are other events around the country.

I still hold to what I wrote in October 2003, in Guantanamo: Our Collective Shame:

As citizens we all bear a degree of collective responsibility for what our government does in our name. That responsibility is greater when we are or should be on notice. And thus, we are all responsible for what is happening in Guantanamo detention camps.

We are collectively responsible for what is happening in Camp Delta and Camp Iguana (the latter holds children). It is, or it should be, a matter of shame that our government chose to confine the Camp Delta prisoners in solitary, indefinitely, without news or the prospect of having their cases determined in the foreseeable future and where the policy is “We interrogate seven days a week, 24 hours a day.” (Interrogations, however, are limited [sic] “to no more than 16 straight hours” straight at one go.) There is no right to speedy trial (or other Geneva-convention-style hearing), or even to a trial. If and when trials do begin, there will be no right to to a proper attorney-client relationship even though the trials can end in the death penalty. Nor will there be a right to appeal the initial tribunal’s verdict to a neutral court staffed by judges with the neutrality of perspective that comes from life tenure.

As of a year ago, the BBC was reporting at least 30 suicide attempts out of a prison population of 600. While it’s possible that there is something about the population of detainees that predisposes them to suicide attempts, it’s also quite possible that it’s something about the conditions and, if so, conditions that bad arguably amount to illegal torture under international law. On the other hand, the rate of suicide attempts may be down as a recent CBS report put the total at 32.

This rich nation of ours can afford to give each detainee a first class fair trial, if it wanted to. In so doing it would send a healthy message about our values to the world. The decision not do so is a choice. By making that choice the Administration is sending a terrible message to the world. It’s also a really lousy precedent.

I also believe that it’s constitutionally wrong. Our government is, or should be, an entity subject to the Constitution. I do not read that document to allow our government to act lawlessly and without review. And certainly not indefinitely.

…

A government sure of itself, and confident of the rightness of its actions, would not hide the detainees in legal limbo. To do so suggests a meanness of spirit at best, a tendency to lawlessness and something to hide at worst, and a tin ear to the world’s opinion at all times.

We in the US—indeed all those in the Coalition of the willing —are responsible for this. If the courts will not take jurisdiction over events at Guantanamo, then we must demand that all the prisoners held there be moved to a place where ordinary civilized rules apply.

Cf. Kos, After 2190 Days, This Festering Abomination Persists

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Posted in Guantanamo | 6 Comments

It’s Starting to Hit the Fan

Posted on December 10, 2007 by Michael Froomkin

Like a dam weakening, the little trickle of news about misdeeds at Guantanamo and in CIA torture labs is becoming a bigger trickle.

Can we hope for a flood of revelations now?

Bonus: Emily Bazelon and Dahlia Lithwick, If the CIA hadn't destroyed those tapes, what would be different?

Posted in Guantanamo, Torture | 5 Comments

Romney’s Orwellian View of Freedom

Posted on December 7, 2007 by Michael Froomkin

I used to say that I could see Romney as the least bad of the Republican candidates. Surely no principles was better than bad ones?

I may have to reconsider. On the one matter where one has to assume he is least likely to lie to us, the place of religion in public life, former Gov. Romney has some very strange views, such as: “Freedom requires religion just as religion requires freedom.”

The clearest statement I've seen of the problem may be slacktivist, Mitt vs. atheists, martyrs,

Let's deal with the latter assertion first: “religion requires freedom.” There are far too many counter-examples for this to be true. Think of China, where the government denies religious freedom to millions of Christians and Falun Gong adherents and Tibetan Buddhists. Yet despite this lack of freedom, despite this active oppression — and, in a way, in response to this oppression — these faiths are all thriving. ….

“Freedom requires religion,” Romney said. Had he said, “Freedom requires religious freedom,” then I would agree, absolutely. Try to imagine if you can a society in which people were denied this most intimate of freedoms, the freedom of conscience, yet remained in all other respects free. Such a thing is impossible. This is part of the genius of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Take away any one of those freedoms and you take away the others as well. Each of those freedoms requires the others.

But Romney did not say that freedom requires religious freedom. He said, “Freedom requires religion.” And that's a contradictory statement — a very different, and very frightening, thing.

If freedom requires religion, then the a-religious and irreligious, the non-religious and un-religious are the enemies of freedom. Romney believes, in other words, that atheism is incompatible with freedom. Whatever it is he means by “religious liberty,” he does not believe it can safely be applied to atheists.

Don't get me wrong: I have no problem at all with devout candidates. I respect people who want to actualize their faith — just as long as in their public life they put the First Amendment first, and don't try any back-door establishment of religion. Thus, I respect, but disagree with, people who say abortion is murder and wish to change the law to protect what they see as unborn people. I also disagree pretty strongly with people who want use state power to enforce their versions of morality, but I often do understand where they are coming from — even though I think that many of these efforts have serious constitutional difficulties and wish they were much more sensitive to these issues.

I don't respect people who want to create special programs whose real purpose is to funnel money to churches (although I don't mind at all having churches compete on a level playing field for federal funds so long as they observe the rules that apply to all recipients of federal money).

But I also respect (and would rather vote for) people whose faith — be it religious or secular — leaves more scope for individual choice and autonomy on most questions of morality.

Mitt Romney's position that atheists are or should be second-class citizens hearkens back to an old American idea, mostly abandoned in the Enlightenment period, that the irreligious were fundamentally untrustworthy because without a fear of Hell they could not be trusted to keep their oaths.

It's deeply depressing to consider that a major GOP candidate who is 200 years behind the times may still seem modern when part of a field that seems anxious to compete on who is more for torture of more detainees, and who has the cruelest plan for deporting and deterring undocumented workers.

Oh, wait. He's campaigning as just as much a troglodyte as most of the others. Romney thinks we should double the size of the Guantanamo prison camp. I suppose that since Romney thinks Muslims are unfit for top government jobs this shouldn't be totally surprising.

Race to the bottom. Dragging us down with it.

Posted in Civil Liberties, Guantanamo, Politics: US: 2008 Elections | 2 Comments

Oral Argument in Boumediene v. Bush

Posted on December 6, 2007 by Michael Froomkin

Thanks to Oyez, you can hear (and read along with) the Boumediene v. Bush, U.S. Supreme Court Oral Argument.

It does not increase my respect for the Chief Justice. But it reflects well on both advocates, especially Seth Waxman.

Posted in Guantanamo | 1 Comment

Grand Jury Brooklyn: Due Process, from NYC to CIA

Posted on December 4, 2007 by Michael Froomkin

A Brooklyn grand jury has something to teach us about the rule of law — and about the CIA's secret prisons and Guantanamo too.

The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn't been published anywhere. John has graciously allowed me to publish it here for the first time.

Grand Jury Brooklyn: Due Process, from NYC to CIA

By John Sifton

A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.

For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.

My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.

How I came to sit on this jury was a matter of controversy to my friends and employers.

“You couldn't get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn't lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I'm a Quaker, etc.” “I'm a vociferous racist; I just can't be impartial,” and “I typically have to urinate every five to ten minutes.”)

The truth is, it isn't easy to get out of grand jury service. Grand juries aren't like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren't as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.

After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it's not. A single Henry Fonda character, or even a vacillating Hamlet, can't screw up an indictment.

So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you're snagged in a net from which extrication is impossible. If you're a citizen, have a pulse, and live in Brooklyn, you're going to be chosen. (And if you're not chosen-say, because the juries that day are filled-they'll call you back a few weeks later when they do need you.)

* * * * *


What happens on a Grand Jury? I am forbidden by law to write about the details, as jurors are sworn to secrecy about the cases presented. But to generalize permissibly, the process goes like this on any given day:

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Posted in Guantanamo, Law: Criminal Law | 6 Comments

Banned on Fox

Posted on December 3, 2007 by Michael Froomkin

Here's a commercial that the Fox News network refused to air.

Click here if you cannot see the clip.

Given it's only a so-so commercial, it's hard to see what they were so scared of. Could it be the figure at the end? Or is it the source, the Center for Constitutional Rights?

Posted in Guantanamo | 1 Comment