The George W. Bush Presidential Library  and Museum opened to the public this week, a great unveiling that has  reignited the debate about the Bush-era “enhanced interrogation techniques” (read: torture).  One of the most controversial elements of the new museum is a video narrated by former Secretary of State, Condoleezza Rice.  The video explains that President Bush asked two “very important” questions in his decision to use torture in the post-9/11 “War on Terror”: was it legal?  And was it necessary?  When allegedly answered “yes” to both of these questions, President Bush proceeded in making detention and torture an instrumental part of his administration’s work.

The real surprise of the video, though, is in Rice’s suggestion that the United States was spared further terrorist attacks because of Bush’s detention and torture policies.  Rice argues that, “The fact that we have not had a successful attack on our territory traces directly to those difficult decisions in a new kind of war after September 11th.”  This is a dangerous allegation to make, and it underscores the need for our government to reconsider the effectiveness of detention and torture, a fight of which Senator Mark Udall (D-CO) has been at the forefront.

Udall correctly commented that the video in the George W. Bush Presidential Library and Museum “could potentially leave thousands of visitors to the library with the false impression that this wrongheaded program prevented terrorist attacks here in the United States.”  Udall seeks to correct the record on the Bush administration’s detention and interrogation program and to declassify the Senate Select Committee on Intelligence more than 6,000 page report on that program.

Understanding the effectiveness of Bush’s detention and interrogation programs is particularly crucial as the U.S. now faces a new moral dilemma posed by the Obama administration’s drone programs and the new executive power to legally authorize the targeted killing of American citizens.  To move forward without rectifying past misuses of executive power would likely make any hope of future executive accountability unattainable.  In order to hold the Obama administration to a higher humanitarian standard and reject the executive power to assassinate American citizens, we must demand truth and accountability from past administrations as well.  It is for this reason that Udall’s push to correct the record on the post-9/11 detention and interrogation programs and declassify the 6,000 plus page report is so crucial.  You can support Senator Udall’s fight by signing BORDC’s petition to declassify the Senate Select Committee on Intelligence report.

Now entering its third month, the hunger strike among prisoners at Guantánamo Bay continues, as the men there continue to risk their lives to protest their indefinite detention. According to defense lawyers, almost all of the men in Camp 6, a communal living area for more “cooperative” prisoners, are participating in the hunger strike.

Prisoners who have stopped eating have lost more than 30 pounds. Medical experts confirm that the consequences of extended fasting can be extreme:

irreversible cognitive impairment and physiological damage such as loss of hearing, blindness, and hemorrhage may begin to occur by the 40th day of a hunger strike, and death follows thereafter.

The hunger strike presents in stark terms the criminal nature of our government’s detention policy.  The government has cleared over half of the men at the prison for release, but still keeps then locked away from their families and contact with the outside world, with no end in sight.  That these men are willing to risk their lives to protest their confinement, despite the fact that they have been cleared for release highlights the emptiness of President Obama’s promise to close the prison.

Even the military has recognized that the administration’s failure to close the prison has triggered this desperate protest.

Gen. John Kelly, the head of U.S. Southern Command, explained to the House Armed Services Committee last week, detainees “had great optimism that Guantanamo would be closed. They were devastated . . . when the president backed off. . . . He said nothing about it in his inauguration speech. . . . He said nothing about it in his State of the Union speech. . . . He’s not restaffing the office that . . . looks at closing the facility.”

In solidarity with the hunger strikers, organizations, including Witness Against Torture, the Center for Constitutional Rights, Amnesty International and World Can’t Wait are calling for an emergency National Day of Action on April 11 to demand the closure of Guantánamo and an end to indefinite detention.The United Nations High Commissioner for Human Rights recently echoed these calls, noting that the imprisonment of many of the prisoners without charge or trial is a violation of international law.  A number of groups, including BORDC, sent a letter to President Obama to ask that he begin to transfer prisoners from Guantanamo and appoint a high level official to take responsibility for closing the prison.

People of conscience can take action to call for the forever prison’s closure:

Raise your voice! Join the Day of Action!  You can:

Organize a local demonstration demanding the closure of Guantánamo. Ideal locations are Federal buildings, congressional offices, and U.S. military sites like recruitment centers. We can help you plan a rally.  Write to witnesstorture@gmail.com.

Call the White House comment line at 202.456.1111 or switchboard at 202.456.1414 and say, “President Obama, there is a humanitarian crisis at Guantánamo. I urge you to swiftly close the prison by releasing the men you will not charge and by giving fair trials to those you will.” You can also e-mail the White House from www.whitehouse.gov/contact

Twitter Storm President @BarackObama @WhiteHouse Keep your promise: #closegitmo #GitmoHungerStrike

• 4/8, Nadia Kayyali, People’s Blog for the Constitution, BORDC releases model legislation to address domestic surveillance drones
• 4/7, Scott Shane, New York Times, Targeted Killing Comes to Define War on Terror
• 4/7, Benjamin Wittes, Lawfare, Memo to the New York Times Editorial Page on Detention and Lawlessness
• 4/6, Alan Rozenshtein, Lawfare, Motions on Clapper‘s Implications for Standing in the Hedges Second Circuit Appeal
• 4/5, Editor, RT, Ohio town wants to implement massive aerial surveillance program
• 4/5, Editorial Board, New York Times, Hunger Strike at Guantánamo
• 4/5, Shibani Joshi, Fox News, Google Suits Up for FBI Privacy Battle

President Obama’s 2009 promise to close down the detention center at Guantanamo Bay, infamous for its flagrant denial of human rights, was met with much support throughout the United States and the world.  Human rights advocates throughout the world felt justice would finally be served by transferring and releasing detainees from the Guantanamo detention facility.  Individuals within the U.S. hoped that Obama’s promise to close the facility would re-solidify the country’s position as the self-proclaimed exemplar of moral and ethical leadership.

Unfortunately, four years later, Guantanamo remains open, still imprisoning detainees who are held without charge, and without access to judge or lawyer.  In January of 2012, several retired generals and admirals drafted a letter to President Obama urging the transfer of Guantanamo detainees cleared by the Task Force, under the National Defense Authorization Act (NDAA) Security Waver.  They write:

We recognize the political opposition you have faced in attempting to honor your commitment. Congress has repeatedly restricted your ability to transfer detainees held there who have been cleared for release. Congress has also restricted your authority to bring criminal suspects held at Guantanamo to justice in our time-honored federal criminal courts. However, despite these restrictions, we are asking you to act within the discretion available to you to move our nation forward in closing Guantanamo once and for all.

Political opposition (particularly in the House of Representatives) has been one of the defining challenges of Obama’s presidency, and while it is a legitimate hurdle, it does not excuse Obama’s unfulfilled promise to close Guantanamo.  The President must be held accountable as well.

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Opposition to the domestic detention provisions of the National Defense Authorization Act (NDAA) continues to grow around the country. On March 20, the Las Vegas City Council passed a resolution aiming to restore Due Process in the face of the NDAA by a 5-2 vote.

Under the terms of the 2012 NDAA, the US military could arrest and imprison indefinitely any person accused of “belligerent acts” or assciational crimes without trial or proof of crime.

The Las Vegas resolution, based largely on the model developed by BORDC that  was also recently adopted by a unanimous vote in San Francisco, expressed widespread concerns that the NDAA could be used — whether by the current administration or another — to deprive Americans of our rights under the Fifth, Sixth, and Eighth Amendments. The resolution also obliges Las Vegas officials to refuse requests by federal agencies operating under the NDAA and also asks that federal employees defer to the local law when working in the city.

The Nevada chapter of People Against the NDAA (PANDA) has been active in its resistance to the federal law. On their website, they write, ”In short, the 2012 NDAA enables the government to make any person on US soil a prisoner of war.”

PANDA praised the passage of the bill and hoped it will inspire more resistance to the federal law in other areas. Daphne Lee, the head of PANDA’s Clark County Chapter, thanked Council members and the mayor for their support of the resolution. She said, “This action will support other cities, counties and states all over the country who seek to take a stand to protect constitutional rights.”

The resolution has passed the City Council and now faces approval from the Board of Country Commissioners. If it passes at the county level, it will become the nation’s first joint city/council resolution condemning the NDAA. PANDA is also pressing for similar legislation to be adopted in northern Nevada.

Further, Nevada Senator Don Gustavson has submitted a bill to the state legislature, the Nevada Liberty Preservation Act, that would invalidate NDAA on the statewide level. Similar bills are pending in a dozen other states, including California, New Hampshire, and Michigan.

Groups opposing the NDAA can be found on Facebook; state groups have been formed in California, Arizona, Colorado, Indiana, Kansas, Michigan,  Missouri, Nevada,  New York, Ohio, South Carolina, Texas, Washington, and Wyoming.

Hopefully this happening in Vegas will not just stay in Vegas, but instead continue growing around the country.

As we wrote about recently, the Supreme Court’s decision in Clapper vs Amnesty Int’l  has now made it nearly impossibly to review through civil lawsuits many of the government’s most egregious tactics in the war on terror. While the decision in Clapper is new, it reflects a continuing saga of a war not on terror, but on the rule of law. Another part of that saga has involved our government’s treatment of, and denial of due process to, those accused of terrorism.

The prison at Guantánamo Bay has been plagued both by the continued specter of mistreatment of prisoners and the major deficiencies in the legal process afforded prisoners, namely military commission proceedings. Only months after the prison’s November 13, 2001 creation, the government faced a habeas corpus legal challenge for failure to provide access to attorneys, or even charge detainees, in Rasul vs Bush.

Since then, legal justifications for torture have surfaced, public outrage has waxed and waned, and President Obama has failed to fulfill his campaign promise to close Guantánamo. In fact, he has made it clear that there will be no prosecution for those who justified and committed torture at the camp.

At the same time, prisoners have been subjected to military commissions rather than civilian trials, and many of the procedures related to those commissions have faced challenges.

Most recently, in filings submitted to the Court of Military Commissions Review, Army Brig. Gen. Mark Martins agreed that the US Court of Appeals for the DC Circuit had the right to hear the challenge to the military court’s practices. Yet Martins defended a security regime in military commission hearings at Guantánamo challenged by fourteen media organizations and the ACLU, who argue that military restrictions amount to censorship.

This comes after a major struggle among military lawyers last year over an order issued by the commanding officer at Guantánamo, Rear Admiral D. B. Woods, which created a regime for screening of confidential attorney-client communications.

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News broke on March 7 that a man held in solitary confinement for 22 months won a settlement of $15.5 million.  In August 2005, Stephen Slevin had been pulled over in New Mexico and accused of drunk driving a stolen vehicle  (though Slevin explained that a friend had lent him the car for a cross-country road trip). Slevin claims he never saw a judge after being arrested, and when he refused to post a $40,000 bond, he was transferred to a cell in total isolation ”in [a] jail near the Mexican border without explanation.”

Slevin was allegedly severely depressed when he was arrested. Once put into a padded cell without any natural light and in total isolation for 23 hours a day, he was deemed suicidal.  He faced total neglect as his psychological and physical condition deteriorated, developing a facial fungus and an infected tooth that he was forced to remove himself when denied access to a dentist.  His toenails grew so long that they curled under his feet.   He developed bedsores on his legs.

His lawyer, Matt Coyte, explained:

As your insanity builds, some people holler or throw feces out their cell doors…Others rock back and forth under a blanket for a year or more, which is what my client did….

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For the month of February, sequestration held the focus of the political arena, but in March, that focus has shifted to issues of government surveillance and Americans’ constitutional rights.  Senator Ron Wyden (D-OR) has been spearheading the political debate over surveillance and privacy, spurred by the warrantless wiretapping activities of the National Security Agency (NSA), but also by the nomination of John Brennan to head the CIA, and the release of the white paper explaining the process behind Obama’s “kill list.”

The white paper is not a legal document, but rather a summary of a classified memo prepared by the Justice Department’s Office of Legal Counsel.  Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU), says the publication of the memo affirms:

The power that the government has to carry out the targeted killing of American citizens who are located far away from any battlefield, even when they have not been charged with a crime, even when they do not present any imminent threat in any ordinary meaning of that word. So it’s a pretty sweeping power that’s been set out.

The memo argues that, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

According to the memo, then, the government does not need any evidence to justify the targeted killing of American citizens. (more…)

Why Holder’s letter carries little water

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers

Brennan spoke to the committee of the “great care” taken to ensure that drone strikes kill only their intended targets. What little we know about them suggests otherwise.

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President Obama has had a complex (and somewhat contradictory) stance on immigration for as long as he has been in office.  His administration has proudly touted its aim to deport record numbers of  undocumented immigrants, while simultaneously pushing for the passage of the DREAM act, which would grant citizenship to undocumented immigrants who fall into one of two socially acceptable categories: those willing to risk their lives for the United States military, and those who are interested in pursuing a college degree.

Immigrants not interested in either of the two straight-and-narrow paths offered by the DREAM act can say goodbye to a life in the U.S.

The exact number of undocumented immigrants deported under Obama is somewhat unclear. Some sources report over 400,000 in the 2012 fiscal year alone and a continuous increase in removals since President Bush left office, while other sources suggest these numbers have been inflated, and that there has actually been a steady decrease in deportation since Obama first came to office in 2008.

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