In which detention schemes do the 172 remaining Guantanamo Bay detainees fit?

After President Obama signed his Executive Order on Periodic Review, I didn’t find immediately a handy breakdown of the number of detainees which fitted into the new detention schemes introduced by this order. These numbers are derived from a public presentation of the US Department of State I recently attended:

• 59 detainees are currently approved for transfer (including 27 Yemeni’s)
• 30 Yemeni detainees currently fit into the ‘conditional detention’ scheme. These detainees are eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available
• 36 detainees will be prosecuted in either article III (civilian) courts or the military commissions. At least 6out of 36 are currently scheduled to be tried at the Military Commissions, including Khalid Sheikh Mohammed, Walid Bin Attash, Ramzi Bin Al-Shibh, Ali Abdul Aziz Ali, Mustafa Al-Hawsaw and Abd al-Rahim al-Nashiri.
• 47 detainees currently fit into the ‘continued law of war detention’ scheme. This essentialy is what usually is referred to in the press as the ‘indefinite detention scheme’. According to the executive order these are detentions which are authorized by Congress under the AUMF “as informed by the laws of war”.

Since Obama entered the White House 67 detainees were transferred to 24 different countries.

Guantanamo Detainee Transfer Policy and Recidivism

Hearing at the House Armed Services Committee

• Mr. Robert Wittman
  
  Chairman
  
  Oversight and Investigations Subcommittee

• Mr. William K. Lietzau
  
  Deputy Assistant Secretary of Defense for Detainee Policy
  
  U.S. Department of Defense

• Ambassador Daniel Fried
  
  Special Envoy for the Closure of the Guantanamo Bay Detention Facility
  
  U.S. Department of State

• Mr. Ed Mornston
  
  Director, Joint Intelligence Task Force
  
  Defense Intelligence Agency

• Ms. Corin Stone
  
  Deputy Assistant Director of National Intelligence for Policy and Strategy
  
  Office of the Director of National Intelligence

• Mr. Brad Wiegmann
  
  Principal Deputy Assistant Attorney General
  
  U.S. Department of Justice

Rumsfeld complained of ‘low level’ Guantanamo prisoners, memo reveals

Georgetown’s Security Law Brief notes that a newly found 2003 memo by former Defense Secretary Donald Rumsfeld appears to directly contradict claims that Guantanamo held only the “worst of the worst” suspected terrorists. “We need to stop populating Guantanamo Bay with low-level enemy combatants,” Rumsfeld says in the memo, addressed to the chairman of the Joint Chiefs of Staff. Rumsfeld’s memo “explicitly contradicts his continued public statements that Guantanamo Bay was reserved for the ‘worst of the worst,’” Seton Hall Law School’s Center for Policy and Research said in a statement.

CCR sues ‘Guantanamo North’ detention facilities in Aref et al v. Holder

NPR has a story about the “Communications Management Units” in Terre Haute, Ind., and Marion, Ill. The special detention unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the “country’s biggest security threats”, including John Walker Lindh. The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996. The Bureau of Prisons says a total of 71 men now live in the units.

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities.

According to CCR:

“Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as “ecoterrorists.”

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. AAlexis Agathocleous, a lawyer at the Center for Constitutional Rights:

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says. They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

Civil rights groups have filed lawsuits however that accuse the two U.S. facilities of some of the same due process complaints raised by people at Gitmo.Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out. Also, as word got out that the special units were disproportionately Muslim,
civil rights lawyers say, the Bureau of Prisons started moving in
non-Muslims. According to CCR:

“Five CMU prisoners and two of their spouses (who, along with their children, have been subjected to draconian rules governing visitation and phone calls) have joined the lawsuit as plaintiffs. All five men confined in the CMU have been classified as low or medium security, but were designated to the CMU despite their relatively, and in two cases perfectly, clean disciplinary history. Not a single one has received discipline for any communications-related infraction within the last decade, nor any significant disciplinary offense.

Like all CMU prisoners, the men received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. They are also being held indefinitely at the CMU without any meaningful review process. They expect to serve their entire sentences in these isolated and punitive units.

Predictably, the lack of procedural protections has allowed for an unchecked pattern of discriminatory and retaliatory designations to the CMU. Rather than being related to a legitimate penological purpose or based on substantiated information, our clients’ designations were instead based on their religious and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.

Documents:

• Complaint – Aref, et al. v. Holder, et al. (PDF)
• Defendants’ Motion to Dismiss (PDF)
• Memo in Opposition to Motion to Dismiss (PDF)
• Supplemental Motion to Dismiss.pdf
• Memo in opposition to supplemental motion to dismiss.pdf

George Bush calls off trip to Switzerland amid fear of violence at demonstration… or an arrest warrant

The Guardian reports that George W Bush has had to call off a trip to Switzerland next weekend amid planned protests by human rights groups over the treatment of detainees at Guantánamo Bay and the threat of a warrant for his arrest. The visit would have been Bush’s first to Europe since he admitted in his autobiography, Decision Points, in November that he had authorised the use of waterboarding on detainees at Guantánamo accused of links with al-Qaida.

The Guardian:

“Whether out of concern over the protests or the arrest warrant, it is an extraordinary development for a former US president to have his travel plans curtailed in this way, and amounts to a victory for human rights campaigners.”

Amnesty International has published its memorandum to the Swiss authorities here.

1. Acts of torture (and, it may be noted, other cruel, inhuman or degrading treatment and enforced disappearance) were committed against detainees held in a secret detention and interrogation program operated by the USA’s Central Intelligence Agency (CIA) between 2002 and 2009.

2. The CIA established this secret program under the authorization of then-President George W. Bush.

3. Since leaving office, former President George W. Bush has said that he authorized the use of a number of “enhanced interrogation techniques” against detainees held in the secret CIA program. The former President specifically admitted to authorizing the “water-boarding” of identified individuals, whose subjection to this torture technique has been confirmed.

4. Additionally, torture and other ill-treatment, and secret detention, by US forces occurred outside the confines of the CIA-run secret detention program, including against detainees held in military custody at the US Naval Base at Guantánamo Bay in Cuba, and in the context of armed conflicts in Iraq and Afghanistan.

5. George W. Bush was Commander in Chief of all US armed forces at the relevant times.

6. The Administration of George W. Bush acted on the basis that he was essentially unrestrained by international or US law in determining the USA’s response to the attacks in the USA on 11 September 2001. Among other things, President Bush decided that the protections of the Geneva Conventions of 1949, including their common article 3, would not be applied to Taleban or al-Qa’ida detainees.

7. George W. Bush, as Commander in Chief at the relevant times, if he did not directly order or authorize such crimes, at least knew, or had reason to know, that US forces were about to commit or were committing such crimes and did not take all necessary and reasonable measures in his power as Commander in Chief and President to prevent their commission or, if the crimes had already been committed, ensure that all those who were alleged to be responsible for these crimes were brought to justice.

8. The USA has failed to conduct investigations capable of reaching former President George W. Bush, and all indications are that it will not do so, at least in the near future.

9. The facts summarized above, matters of public record, are sufficient to give rise to mandatory obligations on Switzerland under international law (including but not limited to the UN Convention against Torture), should former US President George W. Bush enter Swiss territory to:
· launch a criminal investigation;
· arrest former President Bush or otherwise secure his presence during that investigation; and
· submit the case to competent authorities in Switzerland for the purposes of prosecution if it does not extradite him to another state able and willing to do so.

EJIL Talk analyzes whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts.

DC Circuit: No need to release full info on high value detainees (ACLU v. U.S. Dep’t of Def)

(ASIL) The U.S. Court of Appeals for the District of Columbia has upheld a lower court ruling in favor of the U.S. government regarding the release of documents related to fourteen “high value” detainees held at the U.S. Naval Base in Guantanamo Bay. The request for the release of the documents was filed by the American Civil Liberties Union (ACLU) under the Freedom of Information Act (FOIA).

The U.S. government had released redacted versions of the documents requested by the ACLU; however, information regarding the capture, detention, and interrogation of the detainees was not released. The government defended its actions on the basis that the information in question was properly withheld under FOIA exemptions, which allow the withholding of government information related to “intelligence sources and methods.” The district court granted the government’s motion for summary judgment, finding the government in compliance with FOIA. The ACLU appealed.

During the appeal, President Obama issued three Executive Orders on detention and interrogation and declassified and released four Department of Justice memoranda on the legality of enhanced interrogation techniques. In addition, information regarding treatment of “high value” detainees was leaked, and a CIA report on the CIA’s interrogation techniques was released. These changes prompted the Court of Appeals to remand the case back to district court to “provide the CIA with the opportunity to ‘reprocess’ the requested documents.” The result was the release of a complete combatant status review tribunal transcript and revision of redactions of five other transcripts. The government again filed a motion for summary judgment, which the district court granted, and again, the ACLU appealed.

In a detailed discussion of FOIA and the relevant exemptions, the Court of Appeals rejected all of the ACLU’s claims, including that the information requested has already been declassified and is publically available; that the interrogation techniques and confinement methods were “prohibited” by the President; that the government could not classify information “derived from the detainee’s personal observations and experiences;” and that the release would not endanger national security.

Comment on Lawfare blog here.

Rights Groups Urge Spanish Judge to Subpoena Former Guantánamo Commander for Role in Detainee Torture

Today, the U.S.-based Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR) asked a Spanish Judge to subpoena the former commanding officer at Guantánamo Bay to explain his role in the torture of four former detainees.  CCR and ECCHR filed a 12-page dossier detailing the key role of Major General Geoffrey Miller, who ran the island prison camp from November 2002 until April 2004, in the torture and other serious abuse of detainees held there. In the dossier, the rights groups detail acts of torture and other war crimes committed against detainees, including the torture of CCR client Mohammed al Qahtani.

Cable describes US view on Council of Europe

The March 2009 cable 09STRASBOURG6 summarizes the Council of Europe as follows:

The Council of Europe (COE) likes to portray itself as a bastion of democracy, a promoter of human rights, and the last best hope for defending the rule of law in Europe – and beyond. It is an organization with an inferiority complex and, simultaneously, an overambitious agenda. In effect, it is at its best in providing technical assistance to member-states and at its worst in tackling geo-political crises.

Finally, we turn to one issue where the COE has been both an irritant and, more recently, somewhat of a champion – Guantanamo. Dick Marty, a member of the Swiss delegation to the PACE, conducted an investigation into renditions and “secret prisons” in Europe connected to the U.S. war on terrorism. His work created a great deal of controversy and anti-U.S. sentiment in the COE. More recently, however, SecGen Davis and COE Human Rights Commissioner Hammarberg have called on COE member-states to work with the U.S. and consider accepting detainees from Guantanamo to help the U.S. shut down the detention facility there.

2009 cable 09STRASBOURG21 from 24 September 2009 describes how Council of Europe Commissioner Thomas Hammarberg was criticized by a few ambassadors for having written in June to all COE member states calling on them to consider accepting detainees from Guantanamo.

The Maltese Ambassador (one of those criticizing Hammarberg) told us privately that Hammarberg thinks he is “God’s gift to the world.” The ambassador added that, if Washington wanted assistance with the detainees, it had plenty of direct channels to European countries and did not need Hammarberg to carry its messages. Comment: A few ambassadors, including the Maltese, have a history of bad relations with Hammarberg. Most member states respect and even relish Hammarberg’s independence. We do not expect this recent criticism to stifle Hammarberg from raising the detainee issue with European officials.

Obama May Bypass Guantánamo Rules

The NYTimes reports that President Obama’s legal advisers, confronting the prospect of new restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials. One option on the table, according to officials familiar with the deliberations, is for Mr. Obama to sign the bill into law but declare his opposition to the detainee transfer restrictions — which expire Sept. 30, at the end of the current fiscal year — by simply arguing that they are bad policy.

But the administration is also considering whether he should go further by issuing a signing statement — a formal document recording a president’s interpretation of a new law for the rest of the executive branch to follow — asserting that he has the constitutional power to disregard the restrictions. Under the latter approach, the president would assert that as the head of the executive branch and commander in chief, his prosecutorial discretion and wartime powers would allow him to lawfully bring detainees into the United States for trial or to transfer them to other countries as he sees fit.

In 2002, under President George W. Bush, the Justice Department’s Office of Legal Counsel wrote
that Congress has no power to limit the transfer of detainees because
“the president has plenary constitutional authority, as the commander in
chief, to transfer such individuals who are captured and held outside
the United States to the control of another country.” The Bush
administration rescinded that memorandum five days before leaving
office.

In 2006, the American Bar Association declared
that presidents should veto legislation they view as flawed rather than
issue signing statements, which the group portrayed as “contrary to the
rule of law and our constitutional separation of powers.” One member of
the Obama legal team, Harold Koh, the State Department legal adviser,
was a member of a task force that developed that declaration.

Congress Bars Gitmo Transfers

The WSJ reports that Congress on Wednesday passed the 2011 Defense Authorization Bill that would effectively bar the transfer of Guantanamo detainees to the U.S. for trial, rejecting pleas from Obama administration officials who called the move unwise. The measure for fiscal year 2011 blocks the Department of Defense from using any money to move Guantanamo prisoners to the U.S. for any reason. It also says the Pentagon can’t spend money on any U.S. facility aimed at housing detainees moved from Guantanamo, in a slap at the administration’s study of building such a facility in Illinois.