Wednesday, October 9, 2013

Human Rights Groups Criticize Obama Administration Delays on Guantanamo Closure

The following is the text of a letter to President Obama decrying the long delay in the implementation of the Administration's promises to act on closing Guantanamo. In fact, since writing the letter, the Obama administration announced that Paul Lewis would be the Department of Defense Special Envoy for the closure of Guantánamo's prison.

I'd like to know more about Lewis's role as Counsel for the House Armed Services Committee, particularly during the time legislation was being drawn up for the Military Commissions Act of 2006. But I doubt we'll see much investigation by the press into these kinds of appointments.

New Rules

Meanwhile, just today, DoD released a new set of rules concerning the Administration's "Periodic Review Board" (PRB) for Guantanamo. (H/T Jonathan Horowitz) A full analysis of this document awaits, but preliminary assessments by human rights legal experts on Twitter see this new set of rules -- released 30 months after promised by President Obama, and over a year after the mandatory date for action on it -- as akin to the PRB that was established for prisoners at Parwan, Afghanistan. My own reading saw them as not too different from the CSRTs from Bush Administration days.

Back in April, 2012, Human Rights Watch made some recommendations for the new PRBs at Guantananmo. Let's see how Obama and the DoD did:
Access to counsel/personal representative.... We urge you to implement procedures guaranteeing all persons held in US military detention access to a lawyer and a judge. Should you choose not to apply this standard universally such that some persons are assigned only a personal representative (a decision we would oppose), we urge you to make clear that communications between a detainee and the personal representative assigned to his case would be kept confidential in a manner similar to the rules governing attorney-client privilege. We further urge you to make clear that private counsel selected by the detainee in accordance with the Executive Order have access to all relevant inculpatory, exculpatory, and mitigating evidence, including classified evidence, provided they have the appropriate clearances.
From my reading of the new PRB process, only a "uniformed military officer (referred to as a personal representative)" will be assigned to assist detainees. Detainees can obtain their own private attorney "at no expense to the government, to assist the detainee in the review process." Nothing is said about confidentiality, but this is not surprising, as the government has gone out of its way to contaminate the military commissions process with intrusive theft, surveillance, and/or outrageous incompetence that amounts to obstruction of a detainee's right to counsel.
Access to evidence. The Executive Order provides that a detainee will receive an unclassified summary of the evidence against him, but that his personal representative and private counsel may be provided with other evidence; while not explicit, it appears that classified information may not be available to the detainee. In addition, the representative and counsel may, at the discretion of the PRB, be provided with substitutes or summaries of certain information on national security grounds. The ability of the detainee’s representative and/or counsel (but not the detainee himself) to access classified information does not alleviate the inherent unfairness of a system in which a person may be detained on the basis of information to which he cannot meaningfully respond. Should protection of national security truly require the use of some classified information, the implementing guidelines should make clear that the detainee be provided with as much information as possible and that the information be sufficient to allow him to contest the factual allegations against him.

Moreover, the Executive Order does not provide for a mechanism by which the detainee or his representative can challenge the adequacy of the production of the evidence. We urge you to include in the implementing guidelines a mechanism by which such challenges may be raised to an independent, preferably judicial, authority.
The new PRB rules go to some length to explain how classified information can be withheld for "national security" reasons from "personal representatives" and attorneys for the detainee. Yes, though substitutes or summaries of such information will be provided, DoD states,"The PRB will ensure that any such substitutes or summaries of information are sufficient to provide the personal representative or private counsel with a meaningful opportunity to assist the detainee during the review process."

So in the end, a prisoner held for years in indefinite detention, often with "evidence" that comes from "national security," secret sources that cannot be reviewed directly, will have to rely on the "cross-section of the national security community: that is the PRB to determine whether substitute summaries are adequate for defense. The need for "an independent, preferably judicial, authority" to vet such government claims is nowhere to be found in these new set of rules.

There's much more that could likely be said about these new PRB rules. (For instance, the Parwan PRBs allowed for public hearings, but there's nothing in the Guantanamo PRB process that allows for that.) I'll try and post more later here, or check my twitter feed to see links (@jeff_kaye).

Letter to President Obama

The text below is taken from Josh Gerstein's posting at Politico, where he also supplied his own analysis. However, the link there is for the reader's own use, as a copy of the letter was also sent privately to me.
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

RE: More than Four-Month Delay in Meeting Two of Your Key Commitments on Closing Guantanamo and Ending Indefinite Detention

Dear President Obama:

The undersigned human rights, religious, and civil liberties organizations strongly urge your administration to promptly and fully carry out two key commitments you made as steps toward closing the Guantanamo Bay prison and ending indefinite detention. Specifically, we urge you to 1) appoint an envoy in the Defense Department to lead the effort to close Guantanamo, and 2) direct Secretary of Defense Chuck Hagel to use his existing statutory authority, including any applicable certifications or national security waivers specified by the National Defense Authorization Act for Fiscal Year 2013 (“NDAA-FY13”), to transfer cleared detainees from Guantanamo to foreign countries that will respect their human rights. These actions would help to fulfill your renewed promise to end indefinite detention and close the Guantanamo prison.

More than four months have passed since you delivered your May 23, 2013 speech at the National Defense University, in which you recommitted the United States to the goal of closing the Guantanamo prison. Shortly before that speech, at your April 30, 2013 White House press conference, you committed the United States to ending indefinite detention at Guantanamo, stating: “the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.” You reiterated your commitment to closing the Guantanamo prison last month, in your speech at the United Nations. We greatly appreciate these important statements of a renewed commitment.

However, despite your personal commitment and engagement, the population at Guantanamo over the past four months has been reduced by only two detainees, moving only from 166 to 164. Of the detainees who remain, 84 were cleared for transfer by national security officials more than four years ago.

We are particularly concerned that two of your specific commitments have not yet been met:

Lengthy Delay in Appointment of a Senior Envoy at the Department of Defense: In your National Defense University speech, you stated, “I’m appointing a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries.” The White House clarified later that same day that there would be separate envoys for State and Defense. While Secretary of State John Kerry appointed Clifford Sloan as the envoy for State in June, Secretary Hagel has yet to appoint an envoy at the Defense Department. The problems caused by the lack of an envoy at the Defense Department have been compounded by the recent departure of the Pentagon head of Detainee Affairs and the absence of a permanent General Counsel. Vacancies in these critical positions have resulted in a leadership void within the Defense Department, which has delayed decisions and actions needed to reduce the population at Guantanamo by transferring cleared detainees to foreign countries that will respect their human rights.

Delays in Transferring Detainees out of Guantanamo Due to Internal Administration Disagreements on Scope of Existing Statutory Authority: In the National Defense University speech, you also stated, “To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.” Many of our groups wrote to you on April 11, 2013 to urge you to use your existing statutory authority to “transfer the remaining detained men to their home countries or other countries for resettlement, or to charge them in a court that comports with fair trial standards.” Your press conference and speech more than four months ago expressed your determination to do so.

Despite your order to fully use existing authority to transfer cleared detainees, some administration officials have an exceedingly cramped view of that authority. As a result, after more than four months only two detainees have been transferred out of the 166 men who were held at Guantanamo on the day of your speech.

While we recognize that transfer restrictions in the NDAA-FY13 had needlessly complicated some transfers, the NDAA-FY13, if it again becomes applicable, includes a waiver that provides that the Secretary of Defense can waive the most onerous certification requirements if the government has taken steps to substantially mitigate risk. Particularly for the 84 men who have long been cleared for transfer, there is no reason why the Departments of Defense and State cannot work swiftly towards transferring all of them to foreign countries that will respect their human rights.

The Chairmen of the Senate and House Armed Services Committees have expressed their frustration with the overly narrow view of the NDAA-FY13 transfer provisions taken by some administration officials. Senate Armed Services Committee Chairman Carl Levin wrote to the White House Counsel, on May 6, 2013, explaining that “more than a year ago, I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.” Similarly, House Armed Services Committee Chairman Buck McKeon wrote in the Washington Post on May 2, 2013 that the certification requirements were not a prohibition. The Senate Armed Services Committee itself, in its committee report for the NDAA for Fiscal Year 2014, wrote, “the committee emphasizes that the certification requirements [in the NDAA-FY13] were never intended to constitute an absolute prohibition on the transfer of Guantanamo detainees to countries other than the United States.” Other senior members of the Senate and House Armed Services Committees have made similar comments.

The statutory waiver authority created enough flexibility in the certification requirements that there should have been far more than two detainees transferred during the more than four months since your speech. Your order to fully use your existing authority to transfer cleared detainees “to the greatest extent possible” appears to have been largely thwarted by some administration officials applying exceedingly narrow interpretations of that authority, and of the certification requirements. Their interpretations defy a plain reading of the statute and cut against the stated intent of both its authors and the Senate committee of jurisdiction.

While we join your administration in strongly supporting statutory changes to the transfer provisions, which are included in the National Defense Authorization Act for Fiscal Year 2014, as reported by the Senate Armed Services Committee, there is no reason to wait for a change in the law. Enactment of the transfer provisions in the Senate bill is important because it will restore much more of your authority to transfer detainees out of Guantanamo, but you already have significant transfer authority under the NDAA-FY13, if the provision again becomes applicable.

A number of countries are clearly interested in receiving transferred detainees, and have the ability to reintegrate detainees back into society. Unless a detainee objects to a transfer based on a fear of denial of human rights, including a fear of treatment that would violate the Convention Against Torture, the United States should transfer detainees to these countries. In fact, the list of governments seeking the return of their citizens is long, and includes important allies of the United States. Leaders of these countries - including British Prime Minister David Cameron - have made public statements to that effect. In addition to these calls, your lifting of the moratorium on transfers of Yemeni detainees should allow for transfer of the majority of already cleared detainees. There is no reason for further delay in the transfer overseas of many of the detainees.

In both your press conference and speech more than four months ago, you eloquently and forcefully argued why the United States must prioritize the work to close the Guantanamo prison and end indefinite detention, and you set out some concrete steps toward that end, including the two steps discussed in this letter. We strongly support you in your commitment to close the Guantanamo prison and end indefinite detention. It is in this effort to support you that we want to make clear our concern that the more than four-month delay in your administration carrying out two key steps could jeopardize your ability to close the Guantanamo prison and end indefinite detention during your presidency.

Thank you for attention to these concerns.

American Civil Liberties Union
Amnesty International USA
Appeal for Justice
Bill of Rights Defense Committee
Center for Constitutional Rights
Center for the Victims of Torture
Constitution Project
Council on American-Islamic Relations
Defending Dissent Foundation
Friends Committee on National Legislation
Human Rights Watch
International Justice Network
Japanese American Citizens League
National Association of Criminal Defense Lawyers
National Religious Campaign Against Torture
Presbyterian Church (USA)
Physicians for Human Rights
Win Without War

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