Last week Attorney-General Eric Holder wrote to Senate minority leader Mitch McConnell about the circumstances surrounding the arrest of underwear bomber Umar Farouk Abdulmutallab on Christmas Day 2009.

A plainly exasperated Holder sought to counter the hysterical reaction that greeted the decision to handle Abdulmutallab’s case within the criminal justice system with a few pertinent facts and a solid dose of common sense.

His letter is well worth reading for the insights it offers into the choices facing Americans as they seek to respond to future terrorist attacks.

The debate is not about whether or not the Obama administration has somehow applied a less robust approach to the underwear bomber than the Bush administration did to similar incidents.

It has not, despite Rudy Giuliani’s selective memory loss. Shoe bomber Richard Reid was treated precisely the same way in 2001. Both administrations allowed the law to take its course.

The more important debate is whether or not the law enforcement paradigm is the best method for handling such events. It is.

Much has been made in some quarters about the need to extract actionable intelligence without delay. This – much like that old chestnut, the ticking bomb scenario – is a meaningless rhetorical device routed in TV drama, not reality.

The idea that an apprehended suicide bomber like Abdulmutallab is likely to possess much actionable intelligence – that is, intelligence requiring an immediate operational response – is patently absurd.

Terrorist groups know that there is a fair chance any operation will fail and that their operative could be detained alive. Indeed, Al Qaeda has seen as many plots fail as it has succeed. (more…)

More disappointing news emerged on Monday for those who believe that US law and professional ethics should actually mean something.

The long awaited Justice Department Office of Professional Responsibility report into the quality and probity of the work produced on coercive interrogation by John Yoo and Jay Bybee while working in the Office of General Counsel has reportedly undergone internal revisions neutering its findings.

David Margolis, a career civil servant who served in the Justice Department throughout the Bush administration, has reportedly downgraded criticism that Yoo and Bybee violated their professional obligations concluding rather that they merely exercised poor judgment.

This is no semantic distinction – it means the difference between potential disciplinary action before state bar associations, and in Bybee’s case potential impeachment as federal judge, and little more than a minor flurry of professional embarrassment.

Once again, we see key players in one of the darker chapters in America’s recent history squirm their way out of trouble scot-free, not a stain in their character. What a contrast to a spectacle unfolding across the Atlantic in the United Kingdom.

On January 29^th the former British Prime Minister, Tony Blair, was summoned to appear before the Chilcot commission established to investigate Britain’s decision to participate in the invasion of Iraq.

Blair spent a whole day being cross-examined by a blue ribbon panel of independent experts about his decision to take the country to war.

The committee conducting this inquiry consists of two of Britain’s most prominent academics, Churchill biographer Sir Martin Gilbert and military historian Sir Lawrence Freedman, two former career civil servants, Sir John Chilcot and former Ambassador to Russia Sir Roderic Lyne, and Baroness Prashar, a prominent humanitarian.

(more…)

On the evening of June 9, 2006, three inmates of the Guantanamo detention facility known as Camp Delta, Salah Ahmed al-Salami, Mani Shaman al-Utaybi and Yasser Tala al-Zahrani, were found dead in their cells.

All three men had died in a very similar and somewhat bizarre circumstances hung alone in their individual cells, with bound hands and feet, and with a rag stuffed down their throats.

Their bodies were not discovered for two hours despite supposedly being under surveillance from both circulating guards and static cameras.

Senior military commanders at Guantanamo described the deaths as “an act of asymmetrical warfare” perpetrated by the dead men. A military investigation pronounced the deaths suicides.

No disciplinary action was taken against any member of the guard force despite manifest breaches in the standard operating procedures in effect at the facility on the night in question.

In December 2009 Seton Hall University School of Law published a detailed review of the military investigation based on redacted documents disclosed as the result of a Freedom of Information Act request.

The report, Death in Camp Delta, found that the Naval Criminal Investigative Service (NCIS) investigation suffered from major shortcomings and raised “more questions than answers”.

Earlier this month an article written by Scott Horton for Harper’s Magazine appeared which went one step further. (more…)

An attorney with Kramer Levin Naftalis & Frankel contacted me two months ago to ask for my assistance on behalf of one of her firm’s Uighur clients who had recently been released from Guantanamo to Palau.

Ahmad Abdulahad in Palau after almost eight years in Guantanamo. (Photo courtesy of Kramer Levin)

Kramer Levin’s client, a 38-year-old Uighur named Ahmad Abdulahad, was captured in Afghanistan soon after the American invasion in October 2001. His left leg was severely injured during an air strike at Qalai Janghi Prison near Mazar-E-Sharif, where he was being held prior to his transfer to Guantanamo.

Ahmad’s leg was amputated soon after his arrival in Guantanamo, and a prosthetic device was supplied by the U.S. military. The prosthesis was never fitted properly. As a result, Ahmad’s mobility has been very limited and he experiences chronic pain. Whether he is walking, sitting, or standing, the prosthesis rubs against his residual limb. This causes blistering, which is aggravated in the hot, humid climate of Palau.

Ahmad’s story

Ahmad was born in the Xinjiang Uighur Autonomous region, a western province of the People’s Republic of China.  As an ethnic Uighur (a Turkic Muslim minority), he suffered severe repression under China’s rule. Ahmad is an educated man with a wife and three children. He left his home to escape persecution in 2000. He traveled to Kyrgyzstan and later to Pakistan. Like many Uighur refugees, he finally settled in Afghanistan, the only Central Asian country where he was unlikely to face extradition to China.

Ahmad was living in Kabul at the time of the U.S. invasion. When the fighting moved closer to the city, he joined the crowds of civilians fleeing north. Although unarmed and unaffiliated with any of the warring factions, he was captured by the forces of the notorious warlord General Abdul Rashid Dostum and turned over to the Americans for a bounty of $5,000.

Now, eight years later, Ahmad is finally a free man. Despite the terrible adversities that he has faced, he is extraordinarily motivated to begin a new life, to find employment, and to become self-sufficient. But he needs extensive medical care.

(more…)

Speaking during a Senate Armed Services Committee hearing on the Fort Hood shootings last Thursday Senator James Inhofe (R-Oklahoma) announced,  “I for one, I know it’s not politically correct to say it, but I believe in racial and ethnic profiling.”

Sen. Inhofe went on to explain his reasoning:

“When you hear that not all middle easterners and Muslims between the ages of 20 and 35 are terrorists but that all terrorists are Muslims or middle easterners between 20 and 35 that is by and large true.”

In his statement, which you can view in full below, Sen. Inhofe did acknowledge that America had experienced acts of terrorism originating from other sources, referencing the Oklahoma City bombing carried out by the right-wing extremist Timothy McVeigh which killed 168 people. However, he dismissed this threat as a marginal one apparently requiring no governmental response.

Inhofe: I believe in racial profiling

According to the Southern Poverty Law Center US law enforcement officials foiled over 60 domestic terrorism plots between 1995 and 2005. These include plans to bomb or burn government buildings, banks, refineries, clinics, places of worship, memorials, bridges, and to assassinate government officials and civil rights activists. Fatal attacks include the 1995 derailing of an Amtrak passenger train and the 2009 shooting rampage at the Holocaust Memorial Museum.

(more…)

Another January 11th  Guantanamo  anniversary has come and gone, and still 198 men are detained at the facility (and hundreds more at Bagram). Over the last year there has been some progress, but not with the kind of momentum that we had hoped for last January.  Tomorrow marks the first anniversary of the Executive Order that President Obama drafted to have the Guantanamo Detention Facility closed within a year, but unfortunately, the detention facility is still open.  The military commissions process continues. And some in the Obama Administration seem to be flirting with the idea of indefinite detention (just in a US-based facility vs. Gitmo). The failed Bush-era policies on torture and indefinite and illegal detention sadly continue to linger on.  And thus the need for our important human rights work continues!

Last week on January 11th, we launched 10,000 Against Torture, a project to demonstrate to the White House and Congress, that Americans want both security AND respect for the rule of law. Over the next weeks, we’ll be doing weekly actions calling for the closure of Gitmo (in a way that respects human rights!) and accountability for these failed policies on torture and indefinite detention.

To mark the missed deadline tomorrow, we’ll be joining MoveOn, ACLU, Human Rights Watch and artists like Coldplay, Tom Morello, and others, by using Twitter and Facebook to get everyone online talking about closing Guantánamo.

Join us by taking action online today, January 21 and tomorrow, January 22:

• Tweet messages with the “#closegitmo” hashtag (if you follow the  Amnesty USA, you can re-tweet messages that we will be posting)
• Spread the word! Our goal is to make #closegitmo a top trending topic, and our success depends on reaching many people in a short amount of time to jump-start the conversation. Help us deliver this important message by asking others to join us (especially those with large followings online!)

Written by Njambi Good, Director of Counter Terror with Justice (CTWJ) campaign for Amnesty International USA

“I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it.”

Writing in last Sunday’s New York Times, former CIA officer Robert Grenier channeled Jack Nicholson’s Colonel Jessup as he slammed the Obama administration for releasing the Justice Department ‘torture memos’ last year.

Grenier described the publication of the memos as “a blatantly partisan act” designed to pour “opprobrium and scorn” on intelligence officers whose only offense had been to follow “lawful orders”.

When you start invoking the Nuremberg defense it is time to take a long hard look in the mirror. The instruction to torture prisoners in US custody was not lawful. It broke established and well-publicized domestic and international criminal laws.

Furthermore, senior military leaders, like General David Petraeus and Admiral Dennis Blair, have testified that these abuses cost American lives and greatly undermined military operations in Iraq and Afghanistan.

Those who serve on the frontlines protecting the public from terrorist violence – in many ways the ultimate human rights abuse – deserve our gratitude and respect.

However, as Supreme Court Justice Sandra Day O’Connor observed in Hamdi v. Rumsfeld a state of war is not a blank check for a president. It is still less so for an intelligence officer.

In a democracy how you go about defending freedom matters. We don’t just have the right to know what has been done in our names, in a democracy, we have the obligation to find out.

Just like the police officers we ask to daily risk their lives to protect our communities, CIA officers are not above the law and they must expect to be held accountable for their actions. 

(Originally posted on Jurist)

The Obama administration’s announcement that it intends to move “War on Terror” detainees not cleared for release to the Thomson Correctional Facility changes very little beyond enabling President Obama to honor the letter, if not the spirit, of his pledge to close the Guantanamo Bay detention facility.

What this decision in fact demonstrates is a lasting commitment to two ideas that President Obama rejected as a candidate: Military Commissions and indefinite detention without charge.

Military Commissions amount to little more than a cynical attempt to create a trial format with a sufficiently low burden of proof that it will admit evidence that could not be used in a real court. The concept of indefinite detention violates one of the most fundamental tenets of American – and international – justice that every defendant has a right to challenge his accusers in court. Both set disastrous precedents.

The decision to move the detainees will also have little positive impact on the position of the detainees themselves – indeed it will most likely further retard cases already unconscionably delayed. Nor will their day-to-day lives be improved, it is likely to be quite a while before the recreational facilities at Thomson match those now on offer at Guantanamo.

The bottom line is that the Obama administration is not fooling anyone either at home or abroad. Changing Guanatanmo’s zip code does not make indefinite detention any less palatable or military commissions any more legitimate.

Sadly, the good citizens of Thomson, Illinois, should get used to the idea that the name of their hometown will soon join Guantanamo and Abu Garaib as a shorthand term for American double standards and that it will likely become as effective a recruitment tool for Al-Qaeda as its predecessors.

The New York Times reported this morning that in the past two years the US military has killed more than 400 militants in 80 drone strikes for the loss of only 20 civilian casualties.

Pentagon sources credit the increased sophistication of modern weapons systems and intelligence collection platforms for this record of success. This is a bold claim and one that Amnesty International has been trying to investigate on the ground in a very hostile operational environment.

At present, reliable facts are hard to come by. However, we can say with the confidence derived from hard-earned experience that these numbers are unlikely to stand up to scrutiny. A similar conflict in which airborne platforms have been used by a sophisticated modern military to target insurgent and other armed groups is the second Intifada which engulfed the Gaza Strip in September 2000.

Between September 2000 and September 2002 Israel’s intelligence-led policy of targeted killing claimed the lives of approximately eighty Palestinian militants and fifty innocent bystanders.

In one well-documented incident in July 2002 the Israelis dropped a laser-guided bomb on a house occupied by Hamas official Salah Shahada. Shahada was killed along with thirteen others, ten of whom were children.

(more…)

Maajid Nawaz is a British citizen of Pakistani descent who became involved in his youth with the radical Islamic Liberation Party (Hizb al-Tahrir al-Islami), undertaking missions for the party in Pakistan and Egypt. Hizb al-Tahrir is an international movement that campaigns for the reestablishment of the caliphate in Muslim lands.

In April 2002 Nawaz was detained by the Egyptian authorities along with three other British members of the party. He was interrogated for twelve weeks in Cairo’s State Security Intelligence building, and then sent for pre-trial detention. He was written off by Hizb al-Tahrir as “a fallen solder.”

Hizb at-Tahrir is banned from participating in political activity in Egypt and Amnesty International took up Nawaz’s case as a freedom of speech issue. In the fall of 2002 an Amnesty delegation visited Egypt and sought access to him in prison.  Abandoned by his former colleagues, Nawaz was stunned to learn that an international human rights group had been taken up his case:

“I was just amazed, we’d always seen Amnesty as the soft power tools of colonialism. So, when Amnesty, despite knowing that we hated them, adopted us, I felt – maybe these democratic values aren’t always hypocritical. Maybe some people take them seriously … it was the beginning of my serious doubts.”

(more…)