Assistant Attorney General Tony West of the Justice Department Civil Division on Friday highlighted an often unpublicized part of his office’s portfolio: its work on national security matters.
The Civil Division typically is noted for its efforts to combat fraud, enforce immigration laws and protect consumers. But the Civil Division deals with almost all parts of the Barack Obama administration’s national security policy priorities, West said. He was speaking at an American Bar Association Standing Committee on Law and National Security breakfast attended by dozens of lawyers, including Civil Division Senior Counsel Mary L. Smith, Obama’s former DOJ Tax Division nominee.
“And probably nothing we do in the Civil Division is as vital to the safety and security of the American people as our work on national security matters,” West said. “Indeed, there’s scarcely a week that goes by where there isn’t some significant, often controversial national security issue that crosses my desk.”
West said habeas corpus cases involving Guantanamo Bay detainees take up most of the time he devotes to national security matters. He said the Civil Division is handling about 140 habeas cases involving Guantanamo Bay detainees who are contesting the legality of their detention.
The Assistant Attorney General said it is important to defend the cases because the detentions have strong legal justifications, the trials have safeguards in place for fairness and evidence used in the trials is not obtained by torture.
“While, in doing our best, we may not always get it right, I can assure you that we always try to do what’s right,” West said. “And I think that is the critical difference.”
Handling terrorism cases was nothing new for West when he became the Civil Division chief in 2009.
West, a former partner at the law firm of Morrison & Foerster LLP in San Francisco, represented the so-called American Taliban, John Walker Lindh, who was sentenced to 20 years in prison in 2002.
Conservative arguments against civilian trials for terrorism suspects appear to be making headway. Sixty-three percent of respondents to a recent Rasmussen Reports poll now say accused terrorists should go before military tribunals, up nine points from two years ago.
The national telephone survey of 1,000 likely voters people was conducted Dec. 9-10. The poll released Tuesday has a margin of sampling error of plus or minus three percentage points.
The survey found that 63 percent of people favor military tribunals, compared with 23 percent who prefer civilian courts, with 13 percent undecided. In July 2008, 54 percent of likely voters favored military trials.
Federal courts routinely handle terrorism suspects. But the issue of trial venue became politicized last year when Attorney General Eric Holder quickly ran into opposition to his plan to try self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators in federal court in Manhattan.
Former Vice President Dick Cheney and other conservatives attacked the decision. Later, bipartisan opposition to the costs and security issues of the trial emerged in New York, and President Barack Obama overruled Holder’s decision. Mohammed remains in limbo in the Guantanamo Bay prison with no military or civilian trial scheduled.
The Rasumussen poll also showed that 46 percent of respondents favor a ban on transferring suspected terrorists to the U.S., while 32 percent oppose such a ban, with 23 percent undecided. The responses come as Congress considers a legislative provision that would ban the transfer of terrorism suspects from the Guantanamo Bay prison camp to the U.S. for any reason. The legislation is attached to a “must-pass” $1 trillion bill to fund the government, according to The Daily Caller.
Holder has urged Congress not to pass the legislation.
United States Marshals Service Director John Clark has spent more than 20 years in the service. He previously served as the Chief Deputy U.S. Marshal and United States Marshal for the Eastern District of Virginia. A George W. Bush appointee, Clark was the first career Deputy U.S. Marshal appointed as director and was sworn in on March 17, 2006. When President Barack Obama took office in 2009, Clark stayed on as director, where he’ll remain unless the Obama decides to nominate someone to fill the position.
Last month, Clark was joined by Attorney General Eric Holder at the U.S. Marshals Service Director’s Awards Ceremony, where they gave out awards to U.S. Marshals employees recognizing them for their work on issues like the Mexican border, upgrading the technology used to track fugitives, and preparing mobile command centers.
Main Justice sat down with Clark to discuss the U.S. Marshals Service’s plans for dealing with the transfer of Guantanamo Bay prisoners, drafting logistics for the trial of Khalid Sheikh Mohammed in New York City and dealt with an influx of activity on the Southwest border. An edited version of the interview appears below.
Main Justice: What type of challenges is the U.S. Marshals Service facing?
John Clark: There are lots of things that stretch and strain us these days, of course, you can just think about everything from Guantanamo Bay to the recent few days with the Times Square bomber. Folks like that end up in our care and custody. There’s the Southwest Border, the prison population. In fact, nationally we’ve had about a 4 percent increase, about 58,000 plus federal detainees in our care and custody. Enforcing the Adam Walsh Act, protecting the federal judiciary, witness security. You put it all in the basket and it’s a tremendous amount of work to handle.
So this year, thanks to a really decent president’s budget for this fiscal year, we have been able to overcome some of the challenges – at least on our funding and human resources base – or as they might be called boots on the ground. We’ll have more deputy marshals, we’re finishing up here our largest recruitment effort ever. This year we’ll have about 14 new basic deputy marshal classes passing through our academy [there are typically 45 or 46 deputy marshals in each graduating class].
The Marshals Service, because of our unique role in the judicial system, really has a touch on so many different things that go on. I like to describe it as we’re the neck of the federal judicial funnel. Everything that comes though in terms of prisoners, fugitive warrants, asset forfeiture, witness protection, protecting judges, all that kind of stuff some through that funnel, and the Marshals Service has some role to play with that.
Putting the deputy marshals in the field where the work is, and using our federal funding base to meet and help us offset a lot of these challenges – things that are going on around the world that impact us. We are overcoming some of those challenges this year thanks to great support from the Department of Justice and the president on the budget, so this year and through next year will be better for us.
MJ: On the issue of Guantanamo, I guess you’re sort of in a holding pattern right now until they decide what’s next. How detailed are the plans for transferring prisoners to the United States from Guantanamo?
Clark: I will say the plans are very detailed. We try to think of everything. I wouldn’t discuss those plans obviously openly, but we are organizationally ready and able to meet the wishes or the direction of the president and the Attorney General to provide for safe and secure location wherever the trials might be decided to be held.
You’re correct that right now the Attorney General and the president have decided to explore other locations and actions they might want to take about where they might want to try them eventually. But our role is to provide for the very best security possible wherever those trials may be held.
MJ: So there are a number of different options you’ve explored for where the trials would be held?
Clark: Sure. At the request of the Attorney General. If he directs certain places where he feels the trials might be held as a venue, we would go out and do a security survey, look at the venue itself and try to make preliminary assessments on what vulnerabilities might exist at that particular location, as well as describing what strengths their might be or what might lend itself to being a better venue for the trials.
That’s all done on what I would call our professional opinion. It’s not an exact science when you’re trying to figure out security circumstances. But you can rely on a lot of past experience and things that you can do nowadays to make a very good assessment of a particular location to see if if would be good for a trial.
MJ: How quickly could you set up a location if a certain spot was designated?
Clark: We could respond very quickly. In terms of assessing a spot that had not yet been looked at, that would probably take some time. But that would only take about 72 hour or a week to get the basic survey done. Obviously, the more time we have, the better it is.
It would be doubtful that the Attorney General or the president would ask us to do something like that on a moments notice – although in the Marshals Service we are known for being able to do something overnight and get it done. We have plenty of history and a track-record of being asked to do something on very short notice and getting it done. So that does happen.
We have the mechanism in place to very quickly take care of assessments and do those kind of things. But if it’s a decision, for example, of where to bring Guantanamo Bay detainees, the more time we have to assess the place the better.
MJ: With the KSM trial, what are the additional challenges that the U.S. Marshals see that make it different from a normal trial?
Clark: As individuals are watched on the world stage, everybody has an interest on how that plays out. But when you think about the individuals themselves and their connection to terrorism, their open statements that they’ve already made in terms of their hatred for Americans, the security apparatus has the be the very best it can be, as visible as it can be, as robust as it can be.
The challenge for us comes when you’re having a public trial in a building that is open to the public, that is often in places where there’s all the other considerations you need to make, in terms of the community, in terms of the building itself and the structure itself. There’s lots of factors that go into trying to assess all that. It’s just safe to say when you have high-visibility-type detainees such as those held at Guantanamo Bay that we need to really be on top of our game when handling security not only surrounding those individuals but all the individuals that they might come in contact with – from judges, the public, U.S. attorneys and others who are there.
MJ: I noticed recently in Philadelphia you assigned new deputy U.S. Marshals to that area. How do you decide which areas need additional Marshals?
Clark: We have a resource allocation model. One of the things we’ve really focused on in the past few years is a methods and means to be able to place deputy marshals and resources where they’re most needed. Of course there was congressional intent over the past few years to place some of our new positions on the Southwest border because of the increased workload down there. But offices like Philadelphia and a number of other places. In fact now a new graduating class will see recruits going to all points across the country. This last graduating class, I remember talking to deputy marshals going to small places like Vermont to large district offices like Houston, so we’re filling the gaps.
MJ: You’ve been heading the U.S. Marshals for awhile now, what trends have you noticed over that course of time?
Clark: Well I’m approaching my fifth year as director, and I’ve noticed in that time what I call an increased tempo – a pace – of national security issues, violent crime issues, on the Southwest border, of course taking primary responsibility for the Guantanamo detainee issues. When you think about that as a bunch of moving parts, there’s a lot of things that are going on there. One thing that’s really been noticeable to me is the pace is always on the increase. Just comparing where things are now to certainly five years ago. When you think to a pre-9/11 scenario, there was not so much of the process going on that we have today. It’s a very fast paced sort of process.
MJ: What are the accomplishments you’re most proud of?
Clark: We’ve been able to increase our efforts on violent crime. We’ve been able to increase the size and scope of our regional fugitive task force and our district fugitive task forces. I’ve also been here to sort of shepherd in the Adam Walsh Act law. When I first came in as director that was not yet signed into law, and there was a lot of debate about who would be responsible and if we were the right agency to tackle that.
I’m also pleased with the overall accomplishment of being able to get a more robust budget and resources for our agency which was desperately needed to see increases in staffing and financial ability to be able to handle the tasks that we’ve been given.
I guess the final thing, just in terms of things that have happened in recent years, is the increase in the judicial protection. Being able to get the home intrusion alarms in judges’ homes [and] opening up a threat management center here at our headquarters in order to be able to handle judicial threats. So those things have been able to make us a stronger, better agency.
MJ: To what do you attribute that rise in threats against judges and federal law enforcement officials?
Clark: There’s a few things I think that are going on there. For one there’s increased awareness with all the judges and the U.S. Attorneys and all those we’re responsible for protecting. And when you increase the awareness, that is to make people aware of the threat environment and their responsibility to report it, there’s usually, and in this case there was, an uptick in the number of incidents reported to us.
Every time there’s a conference with groups of attorneys meeting, we have someone from the Marshals going to those conferences to speak to them about their security and the importance of it. We’ve also strengthened our relationship with the judiciary. Whenever I travel, I meet with chief judges and district judges and U.S. attorneys to make sure that they have my number, they know how to get a hold of me, and that we are available to them on short notice. We’ve done a lot of education and awareness, so they see the need to report.
The cause of it, I might say though, in today’s world there are more individuals who are more prone to threatening judges. I think a lot of it has to do with the availability of information with the use of technology and the Internet. Individuals can find out more about particular cases and judges decisions. They can use Internet sources to find out more about the judge. So if someone is prone to want to threaten someone, there are a number of ways they can find material about a judge. We have to think about that as well. The number of individuals who are just prone to violence against judges or U.S. Attorneys has also increased.
MJ: But technology has also been a help to the Marshals as well. You have the mobile command units, increased ability to track fugitives. Could you talk a little bit about how things have changed in that respect, how technology has helped you track prisoners and fugitives?
Clark: Things like the mobile command units were all purchased with the purpose of helping us increase our response time, help us be fast on our feet. If there’s an incident anywhere in America, be it a natural disaster, like a Hurricane Katrina, or some type of a significant event – a major case that’s going on or a judicial protection detail, or a number of things where we might want to have a good mobile base of operations, command and control of communications – those vehicles help us do that. It’s designed to help us increase our response and be fluid and fast in getting there.
MJ: On the Southwest border, what are some particular challenges that the Marshals are facing?
Clark: We have a very high volume of detainees around there, may of whom are apprehended along the border for either immigration violations or some other type of crime connected to the Southwest border. In Houston, Texas, alone, there’s about 6,500 detainees just in our South Texas district. So prisoner population generated from that is a great challenge. Cross border issues, violence, as you probably know from the news on a regular basis, there’s always something it seems like back and forth across the border.
The Marshals Service through our fugitive task forces are very involved in the various police and sheriff’s departments along the border and our federal partners in trying to apprehend fugitives or wanted people who are going back and forth from the U.S. to Mexico. We have an office in Mexico City and we have a number of what we call Mexican Investigative Liaisons – MIL positions – the deputy marshals who spend most of their day working with their counterparts in Mexico to help accomplish everything from international extraditions to finding people, wanted subjects.
So it’s a combination of just the huge Department of Homeland Security effort down there – the violence, the cartels, the drug trafficking – that drives a lot of the prisoner population and makes for a very busy area.
MJ: Internationally, how do you maintain relationships with other countries in terms of extraditing prisoners to and from the U.S.?
Clark: The Marshals Service is responsible for finding international and foreign fugitives, fugitives who have fled from another country to the United States and those who have fled from the United States to another country, so we have very good relationships with our foreign counterparts. In fact in a couple weeks, we’re co-hosting with the Toronto Police Service an international fugitive conference in Toronto which will have about 22 countries attending. We work very regularly with INTERPOL, of course the State Department, the Department of Justice of course with their international affairs.
Annually, now we conduct, it’s approaching a 1,000 now, international extraditions a year from points all over the world. In addition to that with the fugitive apprehension program, we assist foreign governments with finding individuals who are wanted here. If it has a terrorism nexis or national security nexis, the FBI will handle it. But the vast majority of those international cases for individuals, the U.S. Marshals Service will handle it. So we work very closely with the embassies here in Washington.
MJ: What are some of the countries you see the most interaction with?
Clark: Well on the Northern border with Canada, we have a lot of activity in that part of the country, and actually we have a very similar process there with our district offices along the northern border who interact very closely with our Canadian counterparts. In the European corridor, a lot of the countries which produce the most activity are Great Britain, Germany. We do have some activity in the Far East as well. A lot of the sex offender cases seem to migrate to or have some connectivity to the Far East.
MJ: In working with local and state law enforcement, have you noticed any recent needs because of budget constraints in different states?
Clark: We pride ourselves in working very closely with our state and local counterparts, and they too are struggling with budget restrictions or cutbacks in personnel. Many of the state and local departments that we’ve dealt with have actually had to reduce the number of police officers on the street.
We are able to help in locating wanted people that a lot of the departments are looking for, but also through our task forces we’re able to help supplement their police operations with some of our funding and personnel. So we’re able to help them with things like getting radios, or vehicles, or maybe paying out some overtime, so it helps them continue their basic crime fighting strategy. So it has been a noticeable thing.
MJ: Any particular areas where there has been a lot of help from the Marshals?
Clark: The most recent example is in Florida, where we had a number of locations were departments were asking for some federal help. We were ale to work with some of the congressional leaders, the Department of Justice and others to get funding to establish a task force there. Over the last year and a half or so we’ve been building up task force operations there in Florida. A number of places that wouldn’t have been able to do much at all on the fugitive apprehension side now have a very good, robust fugitive squad that’s part of the larger state of Florida.
MJ: The Marshals recently sent out a unit to protect the trial of the man convicted of killing abortion doctor George Tiller. How many of those type of special protection cases do the Marshals handle?
Clark: There are occasionally situations like that where we’ll have to provide extra protection for individuals who are part of a case. In some ways, that was an unusual circumstance because of the nature of what happened there with that particular situation. But from time to time we do have to go out and provide protection for individuals. In this case – the abortion provider Dr. Tiller’s extended family – you don’t know if there’s a larger plot of intent by others to want to kill others who are part of that group, so you just don’t know.
We have quite regularly had protection details on judges, and it usually requires a lot of investigative work and effort to determine the nature of the threat and we have to put in place protective measures to provide security for that individual and his or her family.
MJ: One of the things that is currently being considered is having cameras in the courtroom. Do you think that could pose new challenges for the Marshals Service?
Clark: It could. We organizationally, because of security issues, would want to make sure that the cameras don’t show the faces of witnesses or judges or people that might otherwise be harmed in a case. In other words, there are some legal issues that are certainly beyond any involvement that we have. We essentially follow the law whatever that is. But we have some concerns from a security standpoint.
MJ: The public serves a large role in your effort to capture fugitives by bringing them to your attention, how are you getting your message out there?
Clark: One of the things that I’m pleased to say is that we have a close relationship with America’s Most Wanted. They’ve done about 1,000 shows now, and the Marshals Service has been instrumental in 60 percent of the individuals captured on that show – either directly arresting them or helping another agency arrest them. The National Center for Missing and Exploited Children, we have a great connectivity to with the enforcement of the Adam Walsh Act. Basically any organization that has anything to do with our law enforcement functions, we have a strong partnership, a strong connectivity to them.
MJ: The Adam Walsh Act was mentioned on the 1,000th episode of America’s Most Wanted, I guess the president mentioned it as a priority for the next fiscal year?
Clark: John Walsh was interviewing the president, and the president had good research and he knew about the Marshals’ enforcement of the law and knew that we were not yet fully funded to do that, so he did pledge on national TV his support. We’re hoping as that unfolds down the line in that new fiscal year, we’ll see an appropriate number of resources being dedicated to fix that.
That’s another sort of huge undertaking for us, because there are by very conservative estimates 150,000 unregistered, or we call them non-compliant sex offenders out there, meaning there are individuals who their whereabouts are unknown in the local where they should be registered, so the local authorities don’t know where they are. If you turn on the TV or open the newspaper any given day, you’ll see evidence oftentimes of non-compliant sex offenders picking up young children or other teenagers and the results are often tragic, so we of course take that very seriously.
MJ: Could you talk a little about your work providing witness security and how that plays into successful prosecutions?
Clark: That’s an often hidden part of our work, but we are providing witness protection, and that’s been ongoing for a couple dozen years now. We have about 8,000 individuals for which we provide protective measures for, and with family members, the total is about 18,000.
So it’s a large protective operation that provides a great deal of support for the Department of Justice and others because it provides support for and helps to solidify the prosecutions. When you have witnesses who feel capable of testifying without any fear of retaliation or threats or any death threats they’re more willing to testify and more willing to participate in the case.
No one has ever been killed who have followed the rules. We have people who have left the program voluntarily on their own or haven’t been able to follow our instructions, but nobody under our direct responsibility has been killed so we’re very pleased with that record and we hope it stands.
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The Pentagon on Monday announced that former U.S. Attorney David Iglesias, who was removed from office during the U.S. Attorney firings, will be the Defense Department’s new advocate for military commissions, the Miami Herald reported. Iglesias will be part of the prosecution team for hearings on whether American forces tortured confessions out of a Canadian teenager accused of killing a U.S. soldier in Afghanistan.
Iglesias served as the New Mexico U.S. Attorney from 2001 until he was forced out in the 2006 U.S. Attorney firings. Last year, he was mobilized to the war court as a U.S. Navy Reserves captain.
He now will be part of a Pentagon prosecution team headed to Guantanamo for up to two weeks of hearings about Omar Khadr. In July 2002, Khadr was captured during a firefight in which Delta Forces Sgt. 1st Class Christopher Speer was fatally wounded by a grenade allegedly thrown by Khadr. The hearings will determine if any of Khadr’s confessions can be presented during his trial this summer.
Khadr faces charges as an al-Qaeda foot soldier and murderer. Prosecutors are seeking life in prison instead of the death penalty because he was 15 at the time of the incident. Khadr is currently the youngest “enemy combatant” at Guantanamo Bay.
The prosecution team is being headed by Navy Capt. John F. Murphy. Iglesias on Monday briefed 35 reporters who left from Andrews Air Force Base for Guantanamo.
Several left-leaning organizations on Thursday told members of the House and Senate that Congress should not allow the Justice Department to purchase a prison in Thomson, Ill., unless indefinite detention of former Guantanamo Bay detainees at the facility is banned.
The DOJ is requesting $237 million in its fiscal year 2011 budget request to purchase, set up and run the Thomson Correctional Center, which could be used for Guantanamo Bay detainees. In a letter to Congress (below), the American Civil Liberties Union and other human and civil rights groups expressed fear that the Illinois facility would be used to hold terrorism suspects indefinitely without charges unless Congress prohibits the practice.
“All of our organizations strongly support the responsible closing of the Guantanamo Bay detention facility, and we would support using the Thomson facility for holding any detainees now at Guantanamo who may be charged, tried, or sentenced in federal criminal court,” the letter said. “However, we strongly oppose transporting the worst of Guantanamo policies — indefinite detention without charge or trial and military commissions — to a prison within the United States itself.”
The Obama administration has also received GOP pushback on the facility. Republicans have opposed using the prison for Guantanamo Bay detainees. But Rep. Donald Manzullo (R-Ill.), whose district includes Thomson, has supported the DOJ’s purchase of the facility if the prison is used to house more prisoners in the federal prison system. The budget request doesn’t say that the prison will hold Guantanamo Bay detainees, though President Barack Obama has pledged to move them from the detention facility in order to close the U.S. military prison in Cuba.
The House Appropriations Commerce, Justice and science subcommittee held its first hearing on the DOJ Bureau of Prisons budget last month. It may take several more months before funding is allocated; the DOJ budget for fiscal year 2010 was not enacted until mid-December.
The full letter from the liberal organizations on indefinite detention at Thomson is below.
Members of the U.S. Senate
Members of the U.S. House of Representatives
Alliance for Justice
American Civil Liberties Union
Amnesty International USA
Center for Constitutional Rights
Government Accountability Project
Japanese American Citizens League
National Association of Criminal Defense Lawyers
Physicians for Human Rights
United Methodist Church, General Board of Church and Society
April 8, 2010
RE: Opposition to the Purchase of the Thomson Correctional Center in Thomson, Illinois—Unless Congress Also Enacts a Permanent, Statutory Ban on Using the Thomson Prison for Indefinitely Detaining Persons Without Charge or Trial, or for Holding Persons During Military Commission Trials or for Serving Sentences Imposed by Military Commissions
We urge you to oppose legislation authorizing, or appropriating federal funds for, the purchase of the Thomson Correctional Center in Thomson, Illinois, unless Congress, at the same time, also enacts a permanent, statutory ban on using the Thomson prison for indefinitely detaining persons without charge or trial, or for holding persons during military commission trials or for serving sentences imposed by military commissions. All of our organizations strongly support the responsible closing of the Guantánamo Bay detention facility, and we would support using the Thomson facility for holding any detainees now at Guantánamo who may be charged, tried, or sentenced in federal criminal court. However, we strongly oppose transporting the worst of Guantánamo policies—indefinite detention without charge or trial and military commissions—to a prison within the United States itself. If used for one or both of these purposes, the purchase of the Thomson prison could result in institutionalizing and perpetuating policies that should instead end.
On December 15, 2009, President Obama signed a memorandum directing the Attorney General and Secretary of Defense to acquire and activate the Thomson prison for use by the Department of Defense in holding detainees currently at the Guantánamo Bay Naval Base and by the Department of Justice’s Bureau of Prisons as a federal penitentiary for holding prisoners in high security, maximum security conditions. According to a study by the Council of Economic Advisers last year, the Defense Department would control 400 of the 1600 cells at the Thomson prison. The Bureau of Prisons would control the remaining cells.
On December 15, a number of government officials provided further details on who would be, and who would not be, held in the portion of the Thomson prison designated for use by the Defense Department. In a letter and accompanying questions and answers from the Deputy Secretary of Defense to Congressman Mark Kirk, the Defense Department stated that the Thomson prison would be used to imprison Guantánamo detainees whom the government is indefinitely detaining without charge or trial under a claim of detention authority based on the 2001 Authorization for Use of Military Force, and also Guantánamo detainees tried before military commissions or serving sentences imposed by military commissions. However, the Deputy Secretary’s answer to Congressman Kirk’s questions stated that Guantánamo detainees charged and tried before federal criminal courts would not be housed at the Thomson prison. Further, in a briefing by a “senior administration official” on December 15, the official stated that Guantánamo detainees cleared for release would remain at Guantánamo until transferred to other countries, and would not go to Thomson.
There is a right way and a wrong way to close Guantánamo. To date, many of the steps the Obama Administration has taken—with the support of many members of Congress, including prominent congressional supporters of the Thomson purchase–have been in the direction of closing Guantánamothe right way. The Obama Administration has worked hard to make charging decisions for detainees whom the government believes should be prosecuted in federal criminal courts in the United States, has closely collaborated with important allies of the United States in repatriating and resettling detainees cleared for release, and has continued the process of clearing detainees for release or transfer. The Obama Administration should continue all of these steps until the population at Guantánamo reaches zero.
However, there are two developments over the past year that constitute closing Guantánamo the wrong way. First, the government has reinstituted the discredited military commissions. The military commissions have now gone through eight years, two statutes, four sets of rules, but have only resulted in three convictions, with two of those convicted detainees now released. By contrast, more than 400 defendants have been convicted of terrorism-related offense in federal criminal courts. The military commissions still do not have any rules based on the new statute, continue to have fundamental problems that could result in their proceedings being held illegal under the Constitution and international law, and deservedly lack credibility both at home and abroad. Second, the government continues to claim authority to indefinitely detain without charge or trial some of the Guantánamo detainees. Even if there is legal authority to continue to indefinitely detain these men, which many of our groups dispute, the government should make the policy decision that the interests of the United States are better served by either charging a detainee in federal criminal court or repatriating or resettling the detainee.
Based on the government’s own statements, it appears that the Defense Department-run portion of the Thomson prison would house only those Guantánamo detainees being held pursuant to Guantánamo policies that should end—namely, military commissions and indefinite detention without charge or trial. Congress should not authorize, or appropriate money for the acquisition of the Thomson prison unless it also enacts a permanent statutory provision that would ensure that the Thomson prison will not become a U.S.-based prison dedicated to perpetuating Guantánamo policies that should end.
Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution. Shortly after President Obama took office, the government prosecuted and convicted, in federal criminal court, the only person then-held on U.S. soil indefinitely without charge or trial. At present, the number of people held within the U.S. itself indefinitely without charge or trial is zero. However, if the Thomson prison is acquired and the current statutory prohibition on transferring Guantánamo detainees for purposes other than prosecution is allowed to expire, the number of persons held on U.S. soil without charge or trial could reportedly rise to 50 or more.
Moreover, Thomson could eventually become the place to send other persons held indefinitely without charge or trial—with the prospect of detainees being transferred there from Bagram, Afghanistan or new captures brought from other locations around the globe. The unfortunate reality that we would face if Thomson opens is that it is easier to go from 50 to 100 indefinite detention prisoners than it is to go from 0 to 1. Once the indefinite detention policy is institutionalized at Thomson, it will be difficult to hold the line at former Guantánamo detainees.
We urge that you oppose the purchase of the Thomson prison unless Congress, at the same time that it authorizes or funds the purchase, also enacts a permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention. The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.
We would be very interested in meeting with you or your staff to discuss this issue further.
Soon after taking office, President Barack Obama articulated a more limited position than his predecessor on the power to detain suspected members of al Qaeda without trial. Rather than assuming inherent authority to hold people suspected of ties to the terrorist group or its affiliates, Obama, through the Justice Department, described his power as emanating from the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks and defined by the laws of war. The president, the department told a federal judge in March 2009, could detain only people who were part of al Qaeda, its affiliates or their “substantial” supporters.
In Monday’s New York Times, Charlie Savage notes how lawyers in the administration have debated counterterrorism policies against this backdrop. A deep division has emerged, unsurprisingly, between the State and Defense departments, which squared off regularly during the Bush administration (with the Defense Department claiming victory more often than not).
On the one hand, the State Department’s top lawyer, Harold Koh, has argued behind-the-scenes that there is no basis in the laws of war to detain as wartime prisoners supporters of al Qaeda captured far away from the battlefield. The contours of this position emerged in a secret memo by Koh, focusing on the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia and placed in the U.S. detention camp at Guantanamo Bay, Cuba. He was accused of facilitating the travel of those who wanted to go to Afghanistan to join al Qaeda.
A federal judge ruled that Bensayah’s support justified holding him prisoner. The Justice Department asked an appeals court to uphold the ruling.
Defense Department General Counsel Jeh Johnson produced his own secret memo, arguing for “a more flexible interpretation of who could be detained under the laws of war — now or in the future,” Savage writes in Monday’s Times.
According to Savage, David Barron, the head of the Office of Legal Counsel, was called in to referee the debate, but ultimately did not:
In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.
But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion.
In the end, the Justice Department decided to avoid the question by changing the subject. They asked to appeals court to adopt the position that actions taken by people like Bensayah effectively made them part of the terrorist organization, rather than mere supporters, and thus detainable under both the State and Defense departments’ interpretations. The appeals court has not ruled in the case.
Defense and State are aligned on other matters, Savage writes, as when two judges on the U.S. Court of Appeals for the D.C. Circuit ruled in January that the laws of armed conflict did not limit the president’s war powers. Career lawyers in the Justice Department’s Civil Division, who are defending the Guantanamo cases in federal court, wanted to use the ruling to their advantage.
But Barron, Koh and Johnson felt the administration should continue abiding by the laws of war and thought the decision was susceptible to reversal, according to Savage. The Justice Department has since cited the ruling in classified briefs as precedent while maintaining its argument that the president is bound by laws of war.
As Savage writes, “The debate would go on.”
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Rep. Lamar Smith (R-Texas), the ranking Republican on the House Judiciary Committee, called on the Justice Department Wednesday to appeal a federal judge’s ruling to release a Guantanamo Bay detainee who allegedly had ties to a few of the Sept. 11 hijackers.
In a classified ruling, U.S. District Court Judge James Robertson on Monday ordered the release of Mohamedou Ould Slahi, who was once called the “highest value detainee” by a Defense Department official. Smith and Sen. Christopher Bond (R-Mo.), have expressed outrage over the judge’s decision.
“It is certainly possible, if not likely, that Mr. Slahi will reengage in efforts to commit terrorist attacks against innocent Americans, if allowed to go free,” Smith wrote in a letter to Attorney General Eric Holder. “This ruling clearly puts the American people in danger and should not be allowed to stand.”
The Obama administration could appeal the ruling or continue to hold Slahi under Authorization of Use of Military Force, according to Reuters.
A DOJ spokesman told Reuters that the agency is “reviewing the decision.”
Smith also requested a briefing from the DOJ on the matter and a copy of the Judge Robertson’s classified ruling for his review. A declassified copy of the order is supposed to be released at a later date, according to Reuters.
In a piece for The New Republic published online Wednesday, Brookings Institution fellow Benjamin Wittes again defended current Justice Department lawyers who have faced questions about their loyalty to the United States because they previously represented alleged terrorist detainees. But Wittes, a former legal affairs reporter, took his defense one step further, criticizing Harper’s Magazine and the New York Times, in particular, for engaging in similar smears against lawyers in the George W. Bush administration.
Earlier this month, a nonprofit organization headed by Liz Cheney released an ad that attacked the lawyers for their prior representation, dubbing them the “al-Qaeda Seven.”
In response, Wittes organized a joint statement decrying the attacks on DOJ attorneys. The March 8 statement was signed by more than a dozen conservative legal figures, including former Assistant Attorney General for the Civil Division Peter Keisler, former U.S. Attorney for Eastern District of Virginia Chuck Rosenberg and former Associate White House Counsel Bradford Berenson.
Former Solicitor General Kenneth Starr and David Rivkin, the Deputy Director, Office of Policy Development, during the Reagan and George H.W. Bush administrations, also signed on.
In the article Wednesday titled “Presumed Innocent?” Wittes expands on the initial statement, personally defending both Neal Katyal, Principal Deputy Solicitor General, and Jennifer Daskal, an attorney in the National Security Division. Katyal formerly represented Osama bin Laden’s driver, and Daskal worked as a lawyer for Human Rights Watch, an international human rights organization that works against torture.
Wittes spends the last half of his piece exploring an issue that he said arose time and again when he asked former administration officials to sign on to the statement: Where was the outrage before? He writes:
In talking to people about the statement, however, I heard a recurring complaint from members of the prior administration, one that has in my opinion considerable merit: Our political and philosophical opponents never did this for us when the shoe was on the other foot, people said. Why did nobody stand up for the much-maligned lawyers of the Bush administration?
…The attacks then too were often exceedingly ugly and much less different than many people imagine. What links them is the unwillingness to defend the professionalism of people with whom one disagrees about the law — or with clients to whose policies or activities one objects. Vociferous criticism of some Bush-era Justice Department lawyers was altogether appropriate, but that criticism was often wildly over the top, deploying the language of war crimes and conspiracy to describe what was really just flawed, results-driven lawyering under circumstances of extraordinary pressure.
…The people who made often reckless allegations about Bush administration officials — Harper’s writer Scott Horton, for example, has called Haynes a “Torture Lawyer”; The New York Times all but called for his indictment — have never been forced to wrestle with their smears. Very few people ever stood up publicly for the professionalism — even in disagreement and criticism — of members of the last administration who were trying with varying degrees of success to get the right answers to questions that were no easier then than they are now. That fact is worth a moment’s pause.
Wittes recounts how William J. Haynes II, former Pentagon general counsel, and Jack Goldsmith, the former head of the DOJ’s Office of Legal Counsel, were pilloried in the media as “torture lawyers,” when in fact they had opposed the use of highly coercive interrogations techniques, including waterboarding.
He concludes: “Perhaps now that the dust has settled on the Bush administration, we might ask ourselves a question that warranted consideration long ago: Why didn’t the bar stand up and defend professionals on the other side as well when those people were under assault?”
Read his full piece here.
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Several conservative attorneys, former Justice Department officials and policy specialists released a joint statement Monday decrying the recent attacks on DOJ attorneys who represented Guantánamo Bay terrorism detainees.
“To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit,” the statement said.
The statement is signed by a number of Bush administration officials, including former Assistant Attorney General for the Civil Division Peter Keisler, former U.S. Attorney for Eastern District of Virginia Chuck Rosenberg and former Associate White House Counsel Bradford Berenson.
Former Solicitor General Kenneth Starr and David Rivkin, the Deputy Director, Office of Policy Development during the Reagan and George H.W. Bush administrations, also signed on.
The statement notes that, “People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths.”
The statement, authored by Benjamin Wittes, a senior fellow at The Brookings Institution, also argues that detainees should have access to counsel and be afforded the right of habeas corpus.
“Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record.”
One of the signatories was Charles “Cully” Stimson, a former Pentagon official who is now with The Heritage Foundation. Interestingly, Stimson in January 2007 commented in a radio interview that he found it “shocking” that a number of U.S. law firms had represented Guantánamo detainees, according to American Constitution Society blog. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter.
“Some will maintain they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that,” Stimson said.
Below is the full statement written by Brookings Senior Fellow Benjamin Wittes and the names of people who signed the statement:
“The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
“The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.
“Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”
· Senior Fellow and Research Director in Public Law, The Brookings Institution
· Member, Hoover Task Force on National Security and Law
· Charles I. Francis Professor in Law, University of Texas School of Law
· Nonresident, Senior Fellow, Governance Studies, The Brookings Institution
· Associate Professor, Columbia Law School
· Former Deputy Assistant Secretary of Defense for Detainee Affairs
· Member, Hoover Task Force on National Security and Law
· Partner, Washington, D.C. Office, Baker & Hostetler L.L.P.
· Former Deputy Director, Office of Policy Development, Department of Justice, Ronald Reagan and George H.W. Bush Administrations
· Former Associate General Counsel, Department of Energy
· Partner, Baker & Hostetler L.L.P.
· Former Attorney-Adviser Office of Legal Counsel & Office of Legal Policy, U.S. Department of Justice
· Herbert Wechsler Professor of Jurisprudence and Director of the Center for National Security, Columbia Law School
· Member, Hoover Task Force on National Security and Law
· Former Assistant Attorney General, Civil Division
· Former Acting Attorney General, Department of Justice
· Partner, Sidley Austin, L.L.P.
· Adjunct Fellow, American Enterprise Institute
· Professor of Law, American University School of Law
· Research Fellow, The Hoover Institution on War, Revolution, and Peace, Stanford University
· Member, Hoover Task Force on National Security and Law
John Bellinger III
· Partner, Arnold & Porter LLP
· Adjunct Senior Fellow in International and National Security Law, Council on Foreign Relations
· Former Legal Adviser to the Department of State and former Legal Adviser to the National Security Council
Kenneth W. Starr
· Duane and Kelley Roberts Dean, Pepperdine University School of Law
· Former U.S. Deputy Attorney General
Charles “Cully” D. Stimson
· Senior Legal Fellow, The Heritage Foundation
· Former Deputy Assistant Secretary of Defense for Detainee Affairs
· United States Attorney, Eastern District of Virginia (2006-2008), Southern District of Texas (2005-2006)
· Professor of Law, National Defense University, National War College
· Professor, George Washington University Law School
· Former Principal Deputy General Counsel, U.S. Department of Defense
· Former Acting General Counsel, U.S. Department of Defense
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Lawyers at some of the biggest firms in Washington, D.C., weighed in on the recent disclosure of the nine Justice Department lawyers who represented alleged terrorist detainees while working in private practice, The Blog of Legal Times reported Friday. The names of two of the nine were previously known and Fox News identified the remaining seven on Wednesday.
On Monday, Keep America Safe, a conservative non-profit founded by Elizabeth Cheney and Bill Kristol, released a video that sharply criticized and questioned the loyalty of the lawyers for their previous work. The video referred to the seven then-unidentified lawyers as the “al Qaeda Seven.”
One of the seven is Karl Thompson, who previously worked for O’Melveny & Myers LLP and was part of the team that defended Omar Khadr. Thompson is now at the DOJ Office of Legal Counsel. In an op-ed for the Washington Post Friday, former Acting Solicitor General Walter Dellinger defended the DOJ lawyer and said he asked Thompson to help with Khadr’s case. (See our story on Dellinger’s piece here.)
Brian Brooks, managing partner of O’Melveny’s Washington, D.C., office, also spoke up for Thompson, according to the BLT.
“From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm’s commitment to that cause,” Brooks said. “If the private bar doesn’t step up and show that kind of courage, then I think our whole system of justice is in question.”
Brooks, a self-proclaimed conservative, added, “There’s a consensus from left to right that law and justice need to be insulated from politics.”
Carter Phillips, now the managing partner of Sidley Austin LLP’s Washington, D.C. office, told The BLT he feels “horrible” that a former partner, Joseph Guerra, now Principal Deputy Associate Attorney General, is taking heat for his participation in a U.S. Supreme Court brief in a detainee case.
Phillips, who also was on the brief, said, “I always think it is an outrage when people attack the lawyers for whom they represent. To me it’s unfortunate that we’re talking about wonderful talent, relatively young lawyers who … are now being pilloried for something that they ought to have been cheered for.”
Thomas Milch, chair of Arnold & Porter LLP, said he is proud to have colleagues who advocated on behalf of detainees. “I really do salute the private lawyers who stepped up to represent the Guantanamo detainees,” Milch said. “It’s an act in the best traditions of the profession, and I salute even more the lawyers who then went in to the government.”
In an email to The BLT, Miguel Estrada, a partner at Gibson, Dunn & Crutcher LLP and a Bush administration judicial nominee, said that the video would probably not deter lawyers from future pro bono work. But he added that the public should know who the attorneys are.
Estrada wrote, “It is also fair to conclude that those lawyers personally favor giving greater procedural protections to people who may want to do us harm. But at the same time it is not necessarily fair to conclude that they cannot put their personal preferences aside in working for the government. That depends on the individual involved. I suspect some do and others don’t.”