Posts Tagged ‘ACLU’
Tuesday, April 6th, 2010

A provision in the newly passed health care law could give the Justice Department an extra tool in investigations of state-run institutions and prisons — including in its high-profile probe of an obstreperous Arizona sheriff under scrutiny for his law enforcement record.

Sheriff Joe Arpaio

Sheriff Joe Arpaio (photo courtesy of

One of the federal probes targeting Maricopa County Sheriff Joe Arpaio involves his treatment of jail inmates, including those rounded up in illegal immigration sweeps. Last year Arpaio, a vocal opponent of illegal immigration, marched 220 undocumented inmates chain-gang style down a public street in Phoenix in what The Mexican American Legal Defense and Educational Fund called a publicity stunt designed to humiliate them.

The health care law signed by President Barack Obama last month contains a little-noticed provision that allows the Attorney General to expedite subpoenas from any institution that is the subject of a Civil Rights of Institutionalized Persons Act (CRIPA) investigation. That includes the Maricopa County jail run by Arpaio and facilities around the country.

The DOJ’s enhanced subpoena power is aimed at probing conditions at government-run prisons, mental health facilities and nursing homes generally — and not specifically at “Sheriff Joe,” as Arpaio has become known. But Arpaio has charged that the federal investigators have targeted him for his politics, an allegation that has raised the profile of his case. His resistance to federal oversight has also vexed the DOJ.

The sheriff has accused Justice Department lawyers of posing as reporters to gain access to one of his news conferences and been rebuked by the head of the DOJ’s Public Integrity Section for making misleading statements.

Subpoenas Could Speed Up ‘Snail’s Pace’ Investigations

Enacted in 1997, CRIPA allows the Justice Department Civil Rights Division’s Special Litigation Section to investigate whether such public facilities have a pattern of violating rights. The law is aimed at exposing patterns of abuse, such as neglect at nursing homes or inadequate access to mental health care.

CRIPA applies only to public institutions including prisons and jails, juvenile correctional facilities and state- or locally-run nursing homes or facilities for the mentally ill or developmentally disabled.

Under the new health care law, the Civil Rights Division has the power to subpoena documents from institutions under investigation without going through a grand jury or a judge. The new power is designed to allow federal investigators to proceed with cases in which subjects have been uncooperative or refused to turn over documentation voluntarily. The Justice Department already has similar power to investigate health care fraud.

A Justice Department spokesman declined to comment for this article.

While the DOJ hasn’t used the subpoena powers yet, ongoing or recent CRIPA investigations have been reported in states including Indiana, Georgia, and New York.

Amy Fettig, staff counsel of the American Civil Liberties Union’s National Prison Project, said she is hopeful the new powers will help the Justice Department thoroughly investigate the conditions in state prisons, which she called a “national disgrace.”

“It’s an important step because, under CRIPA, state governments do not have to cooperate,” said Fettig. “It’s an extra tool in their toolbox.”

A transition report on the Civil Rights Division found that the Special Litigation Section under the George W. Bush administration had been micromanaged in a way that prevented it from formulating a meaningful agenda. In particular, it found that enforcement of CRIPA had “proceeded at a snail’s pace and resulted in relatively few enforcement actions.”

Assistant Attorney General for Civil Rights Thomas Perez recently named Judy Preston as Acting Chief of Special Litigation Section. The former chief, Shanetta Cutlar, stepped down from her position last month and reportedly told fellow employees she had lost the confidence of Justice Department leadership.

“I’m excited to see new leadership in special litigation,” said Fettig. “The most important thing that DOJ can do is to show more leadership on this issue. It’s a national disgrace and federal leaders should be investigating and calling for reform.”

Monday, March 8th, 2010

In a full page ad in the Sunday New York Times, the American Civil Liberties Union appealed to President Barack Obama to keep the trial of the Sept. 11 plotters, including alleged mastermind Khalid Sheikh Mohammed, in civilian courts.

In November 2009, Attorney General Eric Holder announced that the Justice Department would try KSM in New York City near the site of the World Trade Center attacks. After initially expressing support for the trial, New York City business leaders and Mayor Michael Bloomberg changed course, complaining in January about the potential cost and disruption of a trial in Manhattan. Last week, The Washington Post reported that President Obama’s advisers are close to recommending that the DOJ return KSM to a military tribunal for prosecution.

In the ad, which features an image of Obama morphing into President George W. Bush, the ACLU calls on the president to support Holder’s original plan to try KSM and other Sept. 11, 2001, conspirators in civilian courts.

The ACLU has been critical of several of Obama’s national security and terrorism policies, saying his administration is beginning to have too many similarities to the Bush administration, such as a reliance on a “state secrets” privilege to keep information on some terrorism suspects out of court.

Anthony Romero, executive director of the ACLU, recently criticized the shift to military commissions, saying if such a change is made Obama would deal “a death blow to his own Justice Department.”

The full page ad the ACLU took out in the Sunday New York Times.

Thursday, March 4th, 2010

Three Democratic House members at an event Wednesday evening read selections from the so-called “torture memos” and accounts by some of the prisoners and witnesses who alleged that torture took place in the Guantanamo Bay prison.

Rep. Bobby Scott (D-Va.) and Rep. Keith Ellison (D-Minn.) read documents related to the alleged torture of prisoners at Guantanamo (photo by Ryan J. Reilly).

Reps. John Conyers (D-Mich.), Robert C. “Bobby” Scott (D-Va.) and Keith Ellison (D.-Minn.)  all took turns in the dramatic reading of government documents related to the alleged torture of detainees.

Wednesday night’s event, “Reckoning with Torture: Memos and Testimonies from the ‘War on Terror’,” took place at Georgetown University Law Center and was sponsored by the American Civil Liberties Union, PEN American Center and Georgetown Law’s Human Rights Institute and the Center on National Security and the Law.

Other participants included The Daily Show correspondent Aasif Mandvi, author Matthew Alexander, former CIA special agent Jack Rice and several ACLU lawyers.

Video shot by Main Justice is embedded below, followed by several photos from the event.


House Judiciary Committee Chairman John Conyers (D-Mich.)

Matthew Alexander

Author Matthew Alexander

Aasif Mandvi

Daily Show Correspondent Aasif Mandvi


Reps. Robert C. Scott (D-Va.) and Keith Ellison (D-Minn.)

Friday, February 12th, 2010

Eric Holder is facing political criticism on both sides of the aisle over his handling of terrorism detainees (file photo by Ryan J. Reilly).

Attorney General Eric Holder, who marked the anniversary of his first year in office last week, is facing a mountain of Republican criticism over his handling of terrorism issues. But at the same time, liberal organizations say they are not satisfied with the Justice Department because it has continued many of the policies of the George W. Bush administration.

On the one-year date of his Feb. 3, 2009, installation as Attorney General, Holder fought back against criticism from GOP senators, penning a letter defending the DOJ’s handling of the Christmas Day airline bomber by comparing his actions to those of the Bush Justice Department.

Meanwhile, he leads a Justice Department that has overshot its original deadline to close the Guantánamo Bay terrorism detainee facility, that has decided to detain a large chunk of the prisoners held there indefinitely and is expected, in an upcoming report, to clear the former Office of Legal Counsel lawyers who authored the so-called “torture memos.”

Late last month, the American Civil Liberties Union issued a report titled “America Unrestored” that highlighted several areas in which it said the Justice Department had not made progress in the goals it set out when President Obama took office. The report said the Obama administration had acted on only a third of the specific goals the ACLU had issued last year, many of which required action from the Justice Department.

The same talking point the Obama administration has used to push back at conservative critics of its terrorism policies — that it is continuing some of the same policies that the Bush administration put in place — points to the biggest concerns liberal organizations have with some of Holder’s decisions.

Main Justice contacted representatives and people affiliated with liberal-leaning human rights and civil liberties organizations to get their take on the biggest unresolved issues during Holder’s first year in office and to highlight a few of the biggest disagreements they have with his decisions so far:

Closing ‘Gitmo,’ but ‘Enshrining’ Indefinite Detention

While the brick-and-mortar issue of closing Guantánamo has dominated the political debate over the handling of terrorism suspects, civil liberties organizations are more upset that the Obama administration has decided to continue holding suspects without charging them in court.

Shortly after the Sept. 11, 2001, attacks, Holder told CNN that the government could hold detainees indefinitely. “It seems to me you can think of these people as combatants and we are in the middle of a war,” Holder said in a CNN interview in January 2002. “And it seems to me that you could probably say, looking at precedent, that you are going to detain these people until war is over, if that is ultimately what we wanted to do.”

His view evolved by the time Obama took office. “A great nation should not detain people, military or civilian, in dark places beyond the reach of law,” Holder said of Guantánamo in 2008 while advising the Obama transition, reported The New Yorker.

In his Senate confirmation hearing last year, Holder made clear he knew of the stakes for holding people indefinitely. “How we resolve that issue,” he said, “will say more about us as a nation than almost anything.”

But once he took office, it became clear that the government decided it could not pursue cases against some of the suspects for a variety of reasons.

President Obama, in a speech at the National Archives in May, acknowledged for the first time the need for indefinite detention. While Obama said he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution,” his administration began claiming in September that Congress authorized such powers when it approved the 2001 authorization to use force against Al Qaeda and the Taliban

Holder tried to assure people he still opposed indefinite detention. During a November meeting with retired generals who advocate the closure of the prison facility in Cuba, Holder said he shared their goal — he, too, wanted to bring the number of prisoners being held indefinitely as enemy combatants down to zero.

“He didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” retired Gen. David Maddox told Main Justice. “He came back and said very clearly and said that was their goal, too.”

Retired Gen. David M. Maddox (photo by Ryan J. Reilly).

But a government task force studying the matter of the detainees recently finished its work and concluded, according to a Justice Department official, that 47 detainees will be held as enemy combatants, seemingly contradicting Holder’s assurance. In addition, a larger group of prisoners fall into a classification that amounts to indefinite detention, in which the government has said they can be repatriated but lacks the diplomatic ability to do so, say human rights groups.

Asked whether that reflected a change of thinking, a Justice Department spokesman said he wasn’t familiar with the Attorney General’s comments to the group of retired generals, and said that the plan to detain individuals had been laid out by the president in his May speech at the National Archives.

The indefinite detention issue has been one of the biggest disappointments to human rights organizations, but the conclusion reached by the task force, created by President Obama on his second day in office, should not come as a shock, according to Brooking Institution scholar Benjamin Wittes.

“I don’t start with the point of view that this was a surprising event or that this was something that wasn’t knowable to people who looked at the problem prospectively,” Wittes told Main Justice.

But in the political back-and-forth about Guantánamo, Witte says much of the media coverage has missed the forest for the trees — focusing on the physical facility rather than the policy of indefinite detention that it served as a symbol of.

“It’s sort of the tail wagging the dog, because if you closed it, you’d just have to rebuild it somewhere else,” said Wittes. “The issue is detention, the issue is not the choice of facility at which you do the detention.”

James P. Cullen (photo by Ryan J. Reilly)

A retired military officer just said that holding suspects without trial is generally a bad idea, and could serve as a recruitment tool for terrorists. He said there were several preferable solutions to holding detainees indefinitely, including sending them through rehabilitation programs such as the program run by Saudi Arabia.

“If we continue indefinite detention and we cannot articulate to the world why we’re doing it, then we’re simply going to move Guantánamo to Illinois or someplace else, and we’ll have a new Guantánamo North, in effect,” said retired Brigadier Gen. James P. Cullen, who advocates the closure of Guantánamo Bay through the organization Human Rights First. “We really need to be able to explain in a credible way, in a way that comports with international law and with common sense, why we’re doing it and for how long.”

Asked if he believed the president had set up the expectation that he would get rid of indefinite detention during the campaign and moved away from that position due to political pressure, an ACLU lawyer said that was really beside the point.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (photo by Ryan J. Reilly).

“For me and all of us at the ACLU, the important question isn’t what was said in the campaign, it’s what was said in the Constitution,” said Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union.

“There’s no question that the Obama administration inherited a legal and moral mess in Guantánamo,” said Wizner. But, he said, “it’s not accomplishing much to close the prison but enshrine the principle.”

Habeas Corpus Trials

Asked about Holder’s views on holding terrorism suspects without charges, a Justice Department spokesman objected to the use of the term “indefinite detention.”

The spokesman said that Guantánamo detainees who were too dangerous, or whose trial would require the government to use evidence that was too sensitive, would continue to be able to challenge their detention in court.

“The Task Force consulted closely with the Department of Justice in conducting a legal evaluation for every detainee approved for continued detention, addressing both the legal basis for holding the detainee under the AUMF [authorized use of military force] and the government’s case for defending the detention in any habeas litigation,” said the spokesperson. “We’re confident in our ability to demonstrate to the courts that these individuals are being lawfully held under the AUMF.”

But critics say that the results of those habeas corpus trials have been scattered, chiefly because Congress has never put firm rules in place to govern prolonged detention.

In July, the chairman of the Senate Judiciary Committee called for the administration to offer details about how a prolonged detention system would operate.

Sen. Patrick Leahy (photo by Ryan J. Reilly).

“I want to understand the scope of the judicial review contemplated under this proposal before determining for myself whether it meets our standards of fair treatment under law,” said Sen. Patrick Leahy (D-Vt.) “I want to ensure that a system established by this administration is grounded in constitutional protections so that it cannot be exploited by future administrations.”

“As Justice Kennedy said in a Supreme Court decision restoring the great writ of habeas corpus, the Constitution is not something an administration is able ‘to switch on and off at will.’ I believe strongly that we can ensure our safety and security, and bring terrorists to justice, in ways that are consistent with our laws and values. I am committed to working with the president to ensure we accomplish that goal,” said Leahy.

But the Justice Department and the administration have yet to develop such a system. Given the decision of the task force last month, representatives are hopeful that such a system can be developed.

“Maybe now that the Obama administration has confessed this fact, that everybody has really known for a long time, it’s not really been a secret that there was going to be a residual population, but maybe now that they’ve said it out loud, they’ll be able to have that conversation about what the rules should be,” said Wittes, one of the authors, along with Robert M. Chesney and Rabea Benhalim, of a new report (PDF) from the Brookings Institute on indefinite detention.  They write that “for good or for ill, judges must write the rules governing military detention of terrorist suspects.”

“You have this remarkable delegation of rule-making power to the lower federal courts in the first instance to kind of say who we’re going to be detaining, under what circumstances and using what procedures,” Wittes told Main Justice.

The government is arguing to keep terrorism suspects imprisoned under a legal classification that liberals, including Leahy had previously called a “legal black hole.”

“The basic outlines are still very much in flux and very much in play,” said Wittes. “There’s an enormous range of disagreement among the judges as to a large number of different issues that would be the basic building blocks of any detention system.”

Torture Memos

Critics of Bush-era detention and interrogation policies say they are disturbed by media reports that the Justice Department has watered down an ethics report about the lawyers who wrote the legal memorandums justifying enhanced interrogation methods.

Newsweek reported that the long-awaited report from the Justice Department’s Office of Professional Responsibility on the authors of the so-called “torture memos” have been cleared of professional wrongdoing.

The report, currently undergoing the process of declassification, is critical of the legal reasoning used to justify waterboarding and other enhanced interrogation techniques. But unlike a previous draft of the report, the finalized version does not conclude that the lawyers violated their professional obligations as lawyers. The reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” sources told Newsweek.

Justice Department spokeswoman Tracy Schmaler said a redacted version of the report would be released “soon.” She declined to comment on the Newsweek article. Department policy prevents spokesman from discussing reports before they are released.

Critics of the Bush administration’s policies on the handling of terrorism suspects are now speaking out. While he hasn’t seen the investigation or the conclusion, Gen. Cullen said he was “mystified because the law and the history of the law on waterboarding is fairly clear. We have condemned that practice and we have characterized it as torture.”

Former Deputy Assistant Attorney General John Yoo helped provide the legal justification for some of the Bush administration's most controversial national security policies. (photo by Ryan J. Reilly).

“The people in the Justice Department — Jay Bybee and John Yoo and a bunch of others at the Office of Legal Counsel — were willing implementers of these policies,” Cullen told Main Justice. “They knew what the law was, they had tremendous resources and research capability. We know that ignorance of the law is no excuse, but these guys knew what the law was, they chose the violate it, and they chose to put our soldiers at significant increased risk because of what they had implemented.”

Yoo and a lawyer for Bybee did not respond to requests for comment.

Mark Filip, former Deputy Attorney General in the Bush administration, also declined to comment on the report because it had not yet been officially released.

Meanwhile, Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, when told about the conclusion of the report by a blogger for FireDogLake, said, “It’s very upsetting to hear that. I should hold hearings on that. I’m interested in why a career employee would think his judgment would be better or worse” than the lawyers in the OPR who administered the initial report, he said.

Thursday, February 11th, 2010

The Justice Department on Friday will publicly defend a little-known law-enforcement practice that allows federal prosecutors to obtain the collection of cell-phone “tracking” records that identify the physical locations where the phones have been, reports Newsweek’s Michael Isikoff:

It may come as a surprise to most of the owners of the country’s 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phone’s location to within areas as small as a few hundred feet.

“Most people don’t understand they are carrying a tracking device in their pockets,” says Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a privacy group that has been trying to monitor the Justice Department’s practice.

According to the Newsweek article:

A panel of three federal judges in Philadelphia on Friday is due to hear oral arguments in a landmark case in which Bankston’s group and the ACLU are contending that the Justice Department’s cell-phone tracking practice raises profound “privacy” issues under the Fourth Amendment to the Constitution. The groups contend the Justice Department should be required to first obtain the equivalent of search warrants from federal judges in which they would have to establish “probable cause” that the records will actually yield evidence of a federal crime.

Read more from Newsweek: Can the FBI Secretly Track Your Cell Phone? - Declassified Blog.

Friday, January 22nd, 2010

John Yoo, formerly an official in the Bush Justice Department's Office of Legal Counsel (photo Ryan J. Reilly / Main Justice).

The American Civil Liberties Union today filed suit against the Justice Department, seeking a copy of the department’s Office of Professional Responsibility report on the authors of the so-called “torture memos.”

The OPR ethics probe is looking into the work of three DOJ attorneys — Steven Bradbury, John Yoo and Jay Bybee.

In June, Attorney General Eric Holder said the OPR report would be available within a matter of weeks, and in November he said it would be available by the end of the month. No further predictions about the timing of the release have been forthcoming from DOJ.

Because the report had not been released, the ACLU filed a Freedom of Information Act Request for the report in December.

“It’s now been another six weeks about since we filed the request, and we’ve seen no progress from the Justice Department on the release of that report, so we’re filing suit,” Alex Abdo of the ACLU told Main Justice.

Abdo said the ACLU hasn’t heard anything from the Justice Department about the status of the release of the report.

“It seems at this point that the most likely explanation is that typical politics are holding up the report, but that’s just speculation,” said Abdo.

From the ACLU press release:

“Under the Bush administration, the Office of Legal Counsel issued a series of memos intended to permit interrogators to use methods that the United States had previously described as war crimes,” said Jameel Jaffer, Director of the ACLU National Security Project. “As a result of those memos, hundreds of prisoners were abused and tortured, and some were even killed during the course of interrogations. The public has a legitimate interest in knowing whether the authors of the memos violated ethical rules as well as the criminal laws, and in ensuring that those who wrote the memos, as well as those who authorized torture, are held accountable. The release of the ethics report is long overdue.”

The OPR is responsible for investigating allegations of misconduct by DOJ attorneys. The long-awaited report relates to an OPR ethics probe that considers the work of three DOJ attorneys — Steven Bradbury, John Yoo and Jay Bybee — who authorized the torture and abusive interrogation of detainees in U.S. custody through legal memoranda the three authored while at the DOJ’s Office of Legal Counsel (OLC). All served senior positions in the OLC. Yoo is now a professor of law; Bradbury is in private practice; and Bybee is a federal judge.

The Bush torture program has severely damaged America’s standing in the world,” said Alex Abdo, a legal fellow with the ACLU National Security Project. “We cannot move forward from that lawless era until we investigate and account for violations committed by those responsible for this illegal program. The results of the OPR’s ethics probe are a crucial part of that process. The report must be released now.”

The ACLU requested the ethics report under the FOIA in December 2009. The request was filed with the Justice Department and its Office of Professional Responsibility.

In the years since 9/11, ACLU lawsuits brought to enforce the Freedom of Information Act have played an invaluable role in informing the American people of outrageous conduct by their government in the name of the war on terror,” said Arthur Spitzer, Legal Director of the ACLU of the Nation’s Capital. “This case is the latest in that series.”

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Friday, January 22nd, 2010

Updated 9:56 a.m.

A task force charged with determining the fate of Guantanamo Bay prisoners has completed it work, heralding a new phase in efforts to resolve the status of prisoners in indefinite detention.

Created by President Barack Obama on his second day of office, the task force recommended that 50 of the 196 detainees at the military facility in Cuba be held indefinitely without trial, The Washington Post reports.

The task force deemed the detainees were too dangerous to release but could not be tried in federal court or military commissions because doing so could compromise intelligence-gathering methods and because detainees could challenge evidence obtained through coercion.

Their fate will now be decided by Obama’s National Security Council, an administration official said. Obama has said his authority to hold inmates indefinitely derives from Congress’ Authorization for Use of Military Force, passed in response to the Sept. 11, 2001 attacks.

The possibility that scores of detainees could be held on U.S. soil, indefinitely, is almost certain stoke tensions between the Obama administration and Congress over the closure of the military-run prison.

Obama has already drawn criticism from human-rights and civil liberties groups for even suggesting there are prisoners who cannot be tried for lack of evidence but who pose too great a threat to release. These groups are likely to bear down harder on the president as the NSC attempts to solve a problem the task force, which comprised officials from law enforcement and intelligence agencies, could not.

Though the Justice Department has not released an official tally, task force officials said in early January that of the 242 detainees imprisoned at Guantanamo at the start of the Obama administration, about 40 were referred for prosecution — among them, Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks — and roughly 130 were recommended for transfer.

Of the latter group, more than 40 have been repatriated or resettled in other countries. (In a BBC interview that aired last week, the director of the task force, Matthew Olsen, said more than 100 detainees had been approved for transfer and 40 had been set aside for possible prosecution.)

According to the Post, the task force has recommended that Guantanamo Bay detainees be divided into three groups:

about 35 who should be prosecuted in federal or military courts; at least 110 who can be released, either immediately or eventually; and the nearly 50 who must be detained without trial.

In the meantime, the men are challenging their confinement in federal district court.

There is also the separate problem of the roughly 40 Yemenis who are estimated to be already approved for transfer. The administration has halted transfers to their country in the wake of the Christmas Day bombing attempt.

Taken together, the men recommended for indefinite detention and the 40 Yemenis account for nearly half the detainees still at Guantanamo.

David Remes, a human rights lawyer in Washington who represents 15 Yemeni detainees at Guantanamo, called the figures “eye-popping.”

“You’re left with a scenario in which a majority of the men still at Guantanamo will remain there for the foreseeable future.Yet none of them have been accused of any crime, and many have been approved for transfer,” Remes said, adding, ”The irony is that President Bush was on target to close Guantanamo. Now that may never happen.”

President Obama and his aides have been able to address prolonged detention largely in the abstract, but with the task force’s work done and its recommendations made, the administration will have to confront more questions about the issue — and more criticism.

“Whatever the number is, it’s too high,” said Ben Wizner, a national security lawyer with the American Civil Liberties Union. “If anyone can’t be prosecuted under our over-broad material support law” that bars assisting terrorist groups in any way,  ”then we don’t have enough evidence to hold them,” Wizner said.

David Maddox, a retired U.S. Army general who has advocated for civilian trials, said whittling down the remaining prisoners to zero would be a difficult task, particularly in cases where the government extracted evidence of guilt through harsh techniques or torture. (See: Retired Generals Hit Back At Critics of ‘Gitmo’ Closure.)

“At some point there has got to be a reasonable trade. Keeping that individual without any charges — no legal action taken against them — generates how many more terrorists versus how much can that individual do if he or she were released?” Maddox said. “But that’s the dilemma.”

But he said he was encouraged by remarks Holder made during a November meeting with Maddox and others.

“Not that we had any problem with the Attorney General at all, but he didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” Maddox said. “He came back and said very clearly and said that was their goal too.”

Diplomatic and political problems forced Obama to abandon his Jan. 22 deadline for closing the prison. Foreign governments have been reluctant to accept Guantanamo Bay detainees, and many members of Congress oppose bringing them to the United States, citing security concerns.

The White House last month announced plans to retrofit a maximum-security prison in Northwest Illinois to receive “a limited number” of Guantanamo detainees.

Administration officials said the Thompson Correctional Center would be used to house detainees charged in military commissions, as well as detainees whom the NSC determined could not prosecuted in federal court or transferred into foreign custody.

But the plan has already encountered obstacles.

The Bureau of Prisons does not have enough money to pay for the center, and Congress declined to finance the project in the military spending bill for the 2010 fiscal year, likely delaying completion until 2011, at the earliest.

Moreover, administration officials acknowledged that the plan would require changes to a law forbidding the transfer detainees to the United States, except to face prosecution. Republicans have introduced legislation that would put further restrictions on detainee transfers.

The task force’s yearlong review was conducted by officials from agencies including the Defense Department, the Joint Chiefs of Staff, and Office of the Director of National Intelligence, as well as the Departments of State, Justice and Homeland Security.

More than 60 career prosecutors, agents, analysts and attorneys picked through detainee files. Detainee transfers required a unanimous decision by all agencies on the task force.

Newsweek reported in July that the task force had agreed the Obama administration should claim the right to hold on to Guantanamo Bay prisoners indefinitely, but there were divisions over the legal basis for holding detainees who are not charged with any crimes.

Below is an except from Obama’s May speech at the National Archives, addressing the issue of indefinite detention:

But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.  Our goal is not to avoid a legitimate legal framework.  In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.  And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

For these reasons, any detainees at Guantanamo who continue to be held, and for whom no prosecution is planned, will be held only under authority granted by Congress in 2001 under the Authorization for Use of Military Force, as informed by the law of war. In addition, the Supreme Court ruled in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that all detainees currently held at Guantanamo have the right to file petitions for habeas corpus to challenge their detention in Federal court. Detainees will continue to have that right when they are transferred to the United States.

Ryan Reilly contributed to this report.

Friday, September 25th, 2009

The Justice Department in a Monday court filing said it can’t find 10 documents that are supposed to be released as part of a Freedom of Information Act request filed by the American Civil Liberties Union, Al Kamen reported in The Washington Post.

The ACLU’s five-year FOIA battle seeks to illuminate the process that led to a policy of harsh interrogations of terrorism suspects during the Bush administration. One of the 10 missing documents is a 59-page exchange in 2002 between the  Office of Legal Counsel and the Pentagon on the eve of a decision to increase the intensity of the interrogations, Kamen reported.

The Justice Department was able to find an additional 224 documents relevant to the ACLU’s 2005 request, Kamen said. They were found in three safes and in “the back of a third drawer” inside OLC’s room for highly classified documents. The documents were located by two visiting Assistant U.S. Attorneys from New York and one DOJ attorney.

Acting Assistant Attorney General for the OLC David J. Barron had to explain the loss to a federal judge in New York. He wrote: “Due to their extreme sensitivity at the time,” the relevant document set was not copied and its contents were “intermingled” with other files in the room. The documents then took the scenic tour of Washington, D.C., first going to another special room at DOJ, then to the CIA in 2007 and stopping at the Office of Professional Responsibility until March.

Kamen reported there is no word on if or when the documents might be made public.

Wednesday, June 17th, 2009

The Nevada U.S. Attorney office has scaled back Assistant U.S. Attorney Greg Damm’s subpoena to the Las Vegas Review-Journal seeking identifying information about people who commented on a May 26 article about an ongoing tax evasion trial, including one commenter who called Damm “evil incarnate.” Click here for our earlier report on the flap.

Now, the office is only requesting information about two comments that may be considered threatening to jurors or prosecutors.

Review-Journal Editor Thomas Mitchell has indicated he will comply with the new, much narrower, request. ”I’d hate to be the guy who refused to tell the feds Timothy McVeigh was buying fertilizer,” Mitchell said in the R-J article.  But the ACLU is not satisfied.  The civil liberties organization has filed a motion to quash the new subpoena.

U.S. District Judge David Ezra will have to decide whether the two comments constitute a threat to the safety of jurors or prosecutors. One of the comments refers to the jurors as “12 dummies” who should be hung if they return a conviction.  The other comment came from someone who wanted to wager ”quatloos” (Star Trek currency) that one of the federal prosecutors would not reach his next birthday.

Both comments have been removed from the site because they violate the paper’s policies, the R-J reported. After the newspaper publicized the subpoena, the number of comments on the story almost doubled, from 100 to around 200, the paper said.

The scaled back subpoena bore the name of Assistant U.S. Attorney Eric Johnson, not the author of the original subpoena, Damm.  This isn’t the first time Damm has been the subject of public scrutinty.  Last year, Damm was blasted by the 9th Circuit Court of Appeals for witholding 650 pages of evidence from the defense.

Gregory A. Brower

Gregory A. Brower

Judge Kim Wardlaw wrote: “This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.”  Wardlaw dismissed the charges and refused to allow a retrial.  Nevada U.S. Attorney Greg Brower’s spokesman Natalie Collins told that ”OPR’s investigation concluded that the U.S. Attorney’s Office did not engage in any intentional misconduct.”

Thursday, April 16th, 2009

The Justice Department withheld few details in the four Bush-era memos released today that outline and authorize harsh interrogation methods used against terrorism suspects.

Jay Bybee and Steven Bradbury of the Office of Legal Counsel advised the Central Intelligence Agency in a series of memos written in 2002 and 2005 that interrogation methods including waterboarding, sleep deprivation, slapping, box confinement with bugs and pushing detainees into a wall were acceptable under international law.

The New York Times reported:

Together, the four memos give an extraordinarily detailed account of the C.I.A.’s methods and the Justice Department’s long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law. Passages describing forced nudity, the slamming of detainees into walls, prolonged sleep deprivation and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture.

The Justice Department previously released nine other Bush-era memos that were obtained by the American Civil Liberties Union. The CIA and the DOJ fought bitterly over how much information to make public from the memos released today.

President Obama said there were “exceptional circumstances” surrounding these memos.

“Withholding these memos would only serve to deny facts that have been in the public domain for some time,” he said in a statement. “This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.”

The president reaffirmed that his administration does not support the interrogation methods outlined in the memos. Obama and Attorney General Eric Holder pledged, however, that they would support CIA officials in U.S. and international investigations, despite the CIA’s involvement in harsh interrogation methods during the Bush administration.

“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said in a statement.

The memos are here:

Memo 1 - “Interrogation of al Qaeda Operative” from Jay Bybee on Aug. 1, 2002

Memo 2 - “Re: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee” from Steven Brabdury on May 10, 2022

Memo 3 - “Re: Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees” from Steven Bradbury on May 10, 2022

Memo 4 - “Re: Application of United States Obligations Under Article 16 of the Convention Against Torture of Certaian Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees” from Steven Bradbury on May 30, 2022