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Bagram: Still a Black Hole for Foreign Prisoners

By Andy Worthington | FFF | July 19, 2012

In March 2009, three foreign prisoners seized in other countries and rendered to the main U.S. prison in Afghanistan, at Bagram airbase, where they had been held for up to seven years, secured a legal victory in the District Court in Washington, D.C., when Judge John D. Bates ruled that they had habeas corpus rights. In other words, they had the right to challenge the basis of their imprisonment under the “Great Writ” that prevents arbitrary detention.

The men — among dozens of foreigners held in Afghanistan — secured their legal victory because Judge Bates recognized that their circumstances were essentially the same as the prisoners at Guantánamo, who had been granted habeas corpus rights by the Supreme Court in June 2008.

Unfortunately, the Obama administration appealed Judge Bates’s careful and logical ruling, and the judges of D.C. Circuit Court agreed, overturning the ruling in May 2010, and returned the three men to their legal black hole.

In April 2011, the Associated Press reported that the three men — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, in May 2002; Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, in late 2002; and Fadi al-Maqaleh, a Yemeni seized in 2004 and sent to Abu Ghraib before Bagram — had all been cleared for release by review boards at Bagram, or, as it is now known, the Parwan Detention Facility.

That same month, Daphne Eviatar of Human Rights First visited Parwan and discovered that 41 foreign prisoners were still being held, even though “more than a dozen” had been recommended for release. She added that the foreign prisoners were “from Pakistan, Tunisia, Kuwait, Yemen, and even Germany,” but could not find any explanation for why, even when cleared, they were still being held. She noted that “one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they’ll be going home, or what’s causing the holdup,” and that U.S. officials in Afghanistan had been able to state only that the problem was “somewhere in Washington.”

One story told to Eviatar concerned Hamidullah Khan, a Pakistani who was just 16 years old when he was seized in the summer of 2008. When he was allowed to communicate with his family in 2010, he explained that his case had been reviewed, and he had been recommended for release, but he was still being held. Khan was one of seven Pakistanis who, in 2010, began the process of suing the Pakistani government “either for its alleged role in their capture or for failing to secure their release.” Two others — Yunus Rahmatullah and Amanatullah Ali — had been seized in Iraq by British Special Forces in 2004 and subsequently had been handed over to U.S. forces who rendered them to Bagram.

The case of Yunus Rahmatullah — also cleared for release by a review board at Bagram in 2010, but still held — has been used to exert pressure on the United States by lawyers in the UK, who succeeded in convincing the Court of Appeal to grant him a writ of habeas corpus last December, and to order the British government to take custody of him, even though, in February this year, the court conceded that it had no power to order his release. As the senior judge, Lord Neuberger, the Master of the Rolls, explained, “When the U.K. defense forces handed over [Rahmatullah] to the U.S. authorities in questionable circumstances in 2004 they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future.”

The case is now before Britain’s Supreme Court, and it undoubtedly continues to send ripples of dissatisfaction across the Atlantic, even though, as with all the prisoners mentioned in this article, there appears to be no particular trigger to force the release of any of them.

As for Redha al-Najar, Amin al-Bakri, and Fadi al-Maqaleh, nothing more was heard about them — or the other foreign prisoners still held at Bagram — until January this year At that time the Washington Post noted that, with discussions taking place regarding the transfer of Parwan to Afghan control as part of the planned withdrawal of U.S. forces from Afghanistan, U.S. officials had begun to think about what to do with the foreign prisoners — now numbering “close to 50,” including “up to two dozen Arabs of various nationalities, according to administration and foreign officials.”

U.S. officials told the Post that they believed the Afghan authorities would be “unlikely to have any interest in either continuing to hold the foreigners or in putting them on trial.” They failed to mention that some of them had been cleared for release and that letting them go should not, therefore, pose a problem.

The only mention of any specific obstruction came in an analysis of the particular problems facing Yemeni prisoners and “complicating their possible repatriation.” That “complication” stems from a moratorium on releasing any Yemenis from U.S. custody, “because of concerns about the security situation in Yemen,” which Barack Obama issued in response to the failed airline bomb plot in December 2009 by Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen. That moratorium stands to this day.

In March, a memorandum of understanding between the United States and Afghanistan formally agreed on the transfer of prisoners at Bagram to Afghan control by September, although foreign prisoners were not included.

Four months later, it appears that all of the foreign prisoners at Bagram are still being held. This past Monday lawyers for Redha al-Najar, Amin al-Bakri, and Fadi al-Maqaleh returned to the U.S. courts to try to secure their release, arguing that “they were brought to Bagram for the purpose of keeping them out of the courts,” as Tina Foster, the executive director of the International Justice Network, and one of the lawyers for the men, explained to Aram Roston of Newsweek .

Ramzi Kassem, an associate law professor at City University of New York, who also represents the Bagram prisoners, made a similar claim to the Miami Herald, telling Carol Rosenberg, “Our clients are being kept at Bagram to circumvent [a court’s] jurisdiction.”

In court, the government maintained its position, with Justice Department attorney Jean Lin arguing that, although “the United States does not intend to hold anyone longer than necessary,” the administration also wants to “prevent enemy fighters from returning to the battlefield.” Lin also said that “nothing has changed to alter” the D.C. Circuit Court’s ruling in May 2010.

Judge Bates clearly struggled with this, asking, during the two-hour hearing, “How can I possibly make a decision that goes in a different direction from the D.C. Circuit?” However, as the Miami Herald noted, he also took on board the defense attorneys’ complaints, suggesting that “there might be evidence that U.S. officials had shipped prisoners to Bagram specifically to avoid judicial oversight,” and he “pressed the Justice Department hard on whether changing circumstances, including a slowdown in fighting and the coming withdrawal of most U.S. forces from Afghanistan, might warrant a second look.”

In seeking further information, Roston spoke by phone to Amin al-Bakri’s brother Khaled, who runs a furniture shop in Medina, Saudi Arabia. “We don’t know why he is being held,” Khaled al-Bakri said, noting that his brother, who has three children, “wasn’t a religious fanatic pursuing jihad but a businessman.” He acknowledged that in the 1980s, his brother had traveled to Afghanistan to fight the Soviet Union, but he also stated that “his Islam is very moderate.” He added, “My brother is multilingual, he’s open-minded to others, and he’s tolerant. We just don’t think he was involved” in any wrongdoing.

That, of course, makes sense, given that al-Bakri has been cleared for release, so the question that remains is whether continuing to hold foreigners in Bagram who have been cleared for release has to do solely with overwrought security concerns, or is a sign of something more sinister. Lt. Col. Todd Breasseale, a Pentagon spokesman, told Roston that “Bagram happens to be a legitimate and established military detention facility. That’s what works for now.” He added that America’s “short-term goal” was “to maintain custody of third-country nationals,” even while the Afghan government takes over control of the Afghan prisoners.

Responding to a question about what Roston described as “one of the central conundrums of the ongoing fight against Al-Qaeda — where to put potential detainees,” Colonel Breasseale acknowledged that “[sending] a detainee to Guantánamo Bay is not an option” being considered by the Obama administration. The result, as Andrea Prasow of Human Rights Watch explained, is, “As the U.S. prepares to withdraw its troops and wind down the war in Afghanistan, what possible rationale is there for continuing to detain these people there unless its purpose is that it is supposed to be the U.S. global jail?”

That is a very good question, and one that, despite years of bluster in and out of courtrooms, the Obama administration seems unwilling to answer.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website at www.andyworthington.co.uk.

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July 20, 2012 Posted by | Civil Liberties, Progressive Hypocrite, Timeless or most popular | , , , , , , , | Leave a comment

Hope Dies at Guantanamo

The Disturbing Case of Adnan Latif

By MARJORIE COHN | The Jurist | June 20, 2012

The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since January 2002, after being detained while traveling to seek medical treatment.

Latif had suffered serious head injuries as the result of a car accident in 1994, and the Yemeni government paid for him to receive treatment in Jordan at that time. But his medical problems persisted, and in 1999 Yemen’s Ministry of Public Health recommended that Latif undergo tests, therapy and surgical procedures at his own expense. Unable to afford it, Latif said he left Yemen in 2001 with the help of a charitable worker to seek free medical treatment in Pakistan. When he was picked up in Afghanistan — on his way to Pakistan — and transferred to US custody in December 2001, Latif had his medical records with him.

After a kangaroo court proceeding, a Combatant Status Review Tribunal at Guantanamo declared Latif to be an “enemy combatant.” He was not allowed to attend the hearing, nor was he permitted to see the evidence against him. Instead of a lawyer, he was given a “Personal Representative” — a military officer who did not represent Latif’s interests.

Four years ago, the Supreme Court rejected the Bush administration’s argument that the detainees at Guantanamo had no right to contest the legality of their confinement in US courts. In Boumediene v. Bush, the Court upheld the habeas corpus rights of the detainees, saying they must be given “a meaningful opportunity” to challenge their detention.

Latif petitioned a federal district court for a writ of habeas corpus. The Obama administration opposed the petition, relying on information from an interrogation report. Large sections of the report were blacked out, so it is difficult to know exactly what the report says. But we do know that, according to the report, Latif admitted to being recruited for jihad, receiving weapons training from the Taliban and serving on the front line with other Taliban troops. Latif said his interrogators garbled his words so that their summary bears no relation to what he actually said.

In the US District Court for the District of Columbia, Judge Henry Kennedy granted Latif’s habeas petition, concluding that it could not “credit the information [in the Report] because there is serious question as to whether the [Report] accurately reflects Latif’s words, the incriminating facts in the [Report] are not corroborated, and Latif has presented a plausible alternative story to explain his travel.” It troubled Judge Kennedy that, “[n]o other detainee saw Latif at a training camp or in battle. No other detainee told interrogators that he fled from Afghanistan to Pakistan, from Tora Bora or any other location, with Latif. No other type of evidence links Latif to Al Qaeda, the Taliban, a guest house, or a training camp.”

Particularly significant to Judge Kennedy was that the “fundamentals [of Latif’s story] have remained the same.” More than a dozen interrogation summaries and statements contained “[Latif’s] adamant denials of any involvement with al Qaida [sic] or the Taliban; his serious head injury from a car accident in Yemen; his inability to pay for the necessary medical treatment; and his expectation and hope that [the charitable worker] would get him free medical care.”

Judge Kennedy also reasoned that errors in the report support “an inference that poor translation, sloppy note taking . . . [blacked out] . . . or some combination of those factors resulted in an incorrect summary of Latif’s words.” The fact that Latif was found in possession of his medical papers when seized, according to the judge, “corroborat[ed]” Latif’s “plausible” story.

The government appealed the district court ruling to the conservative US Court of Appeals for the District of Columbia Circuit, which reversed the grant of habeas corpus. The appellate court admitted that the interrogation report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted [parts blacked out] for national security purposes.” But for the first time, the DC Circuit held that government reports must be accorded a “presumption of regularity.” That means they will be presumed to be true unless the detainee can rebut that presumption.

Judge Janice Rogers Brown, who wrote the opinion for the two judges in the majority on the three-judge appellate panel, twisted Boumediene‘s statement that “innovation” could be used in habeas corpus proceedings into a “presumption of regularity” in government reports. Judge Brown criticized “Boumediene‘s airy suppositions.”

The dissenting appellate judge, David S. Tatel, noted that, in practice, the presumption of regularity will compel courts to rubber-stamp government detentions because “it suggest[s] that whatever the government says must be true.” He concluded that the report in Latif’s case was inherently unreliable because “it contain[s] multiple layers of hearsay.” Judge Tatel accused the majority of denying Latif the “meaningful opportunity” to contest the lawfulness of his detention that Boumediene guarantees.

When seven detainees whose petitions had been denied by the DC Circuit, including Latif, took their cases to the Supreme Court, they hoped the high court would do justice. During the Bush administration, the Court had struck down illegal and unjust executive policies. These included the denial of habeas corpus rights to Guantanamo detainees, the refusal to afford due process to US citizens caught in the “war on terror” and the holding of military commissions because they violated the Uniform Code of Military Justice and the Geneva Conventions.

But hope for justice died last week when the Court refused to even consider the propriety of the appellate court’s denial of habeas corpus to those seven detainees. Henceforth, detainees who lose in the DC Circuit cannot expect the Supreme Court to give them relief. Their last stop will be at one of the most right-wing circuits in the country, which overturns or delays all release orders by federal judges if the government objects.

The Supreme Court’s refusal to review the appellate court decisions in these cases has rendered Boumediene a dead letter. Since 2008, two-thirds of detainees who have filed habeas corpus petitions have won at the district court level, yet not one of them has been released by judicial order. Judge Tatel wrote that “it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.’”

Like many men at Guantanamo, Latif went on a hunger strike to assert the only power he had in the face of utter hopelessness — the power to refuse food. He was force-fed for three months, which, he says, “is like having a dagger shoved down your throat.” As attorney Marc D. Falkoff writes in his chapter about Latif in The United States and Torture: Interrogation, Incarceration, and Abuse, “[t]he United Nations Commission on Human Rights calls this torture.”

Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of those prisoners, 87 have had their release approved by military review boards established during the Bush administration, and later by the Guantanamo Review Task Force established by President Obama in 2009. Yet they continue to languish in the prison camp.

In her opinion, Judge Brown wrote, “Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished.” Indeed, Obama has sent only one new prisoner to Guantanamo. His strategy is to assassinate “suspected militants” or people present in “suspicious areas” with drones, obviating the necessity of incarcerating them and dealing with their detention in court. As Judge Brown ominously observed, “Boumediene‘s logic is compelling: take no prisoners. Point taken.”

Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her most recent book is The United States and Torture: Interrogation, Incarceration, and Abuse.

June 21, 2012 Posted by | Civil Liberties | , , , , , | Leave a comment

Time to Make Warrantless Home Video Surveillance Extinct

By Hanni Fakhoury | EFF | May 2, 2012

It seems that the government’s thirst for high tech surveillance can’t be quenched. First, came the NSA’s warrantless wiretap program. Then it was CISPA. Now, its warrantless video surveillance in the home. And just like we stood up against the NSA and CISPA, yesterday we told the Ninth Circuit Court of Appeals that invasive warrantless home video surveillance violates the Fourth Amendment.

Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, an undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwah’s house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwah’s home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded.

Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under the Fourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him.

As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesn’t forget. After all, if an officer’s observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Court’s landmark decision in United States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a person’s car on public roads for 28 days, we make two main arguments.

First, the initial appellate opinion in Jones issued by the D.C. Circuit (at the time called United States v. Maynard) explained that although a person may reveal discrete parts of his movements when driving in public, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.” While the Supreme Court affirmed the D.C. Circuit under a trespass theory instead, the D.C. Circuit’s astute point applies equally to video surveillance. Even if Wahchumwah permitted the undercover agent into his home, it would be extremely unlikely that Wahchumwah, or anyone else, would expect that his house guest was secretly video recording every little detail. And that meant even if Wahchumwah consented to the agent entering his house, he certainly did not consent to secret video surveillance.

Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to “alter the relationship between citizen and government in a way that is inimical to democratic society.” While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human mind’s tendency to forget. It can rewind again and again to examine every minute detail of the house.

In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the government’s need to investigate crime, and the public’s right to privacy — particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all.

Attached Documents

EFF Wahchumwah Amicus Brief

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May 2, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Wars for Israel | , , , | Leave a comment