Gitmo board refuses to release 'mistaken identity' prisoner after 9 years without lawyer

Reproduced below is a press release from the international human rights organization, Reprieve. It concerns the latest decision of President Obama's instituted Periodic Review Board (PRB) at Guantanamo. The unjust PRB has existed for years, the policies supported by the new Democratic Party presidential presumptive nominee, Hillary Clinton. Obama, who promised to close Guantanamo at the beginning of his term and has reneged on that promise, has after nearly 8 years stepped up the pace of release of prisoners from the torture camp at the U.S. naval base seized from land in Cuba decades ago.

After nine years held at Guantanamo without charges, Haroon Gul, aka Haroon Al-Afghani, who was one of the five last prisoners to arrive at Guantanamo, was finally allowed to meet with an attorney for the first time three days before his PRB hearing! His attorney, Shelby Sullivan-Bennis told medium.com what little he could about his client:

Very little is known to the world about Haroon, and secrecy laws currently ban me from filling in the blanks. What I can say is that he is every bit as heartbroken by the senseless violence in Orlando as I am, and presented for his Monday meeting with tears in his eyes.

According to the Reprieve website:

Haroon Gul is an 33 year-old Afghan citizen who has been held without charge or trial by the US government at Guantanamo Bay since June 2007.

For nine years, Haroon did not have legal representation....

Haroon was raised in a refugee camp in Pakistan, after violence in Afghanistan forced his family to flee their home there. Despite the disadvantages of his upbringing, Haroon was able to educate himself through the college level. He provided for his family by working as a trader in the local marketplace, selling household goods to other refugees.

With an economics degree and fluency in four languages, Haroon had just managed to rise above his difficult circumstances when he was captured by Afghan forces during a business trip to Afghanistan, and passed to the U.S.. He was rendered to Guantanamo Bay in 2007.

According to a January 2016 investigation at Al Jazeera, the U.S. claims "was a senior member of Hezb-e-Islami Gulbuddin, (HIG), an Afghan insurgent group led by Gulbuddin Hekmatyar, a warlord who helped end the Soviet occupation in the country." He was "also said to have been a courier for alleged senior Al-Qaeda operations planner Abd al-Hadi al-Iraqi, who was also transferred to Guantánamo from CIA custody in 2007."

But Al Jazeera investigators Sami Yousafzai and Jenifer Fenton dug deeper and found that the U.S. claim came "from just one source, identified in JTF-GTMO report footnotes as TD-314/08910-07, a CIA report serial number. The information comes from an unidentified human source. The -07 denotes the year 2007."

With a single informant or claim, Haroon was held essentially incommunicado at Guantanamo! Yousafzai and Fenton's reporting makes a strong case that the Afghan detainee was a victim or mistaken identity, or even a victim of some local jealousy. When he was finally allowed after many months to communicate with his family, who had no idea where he was, he wrote to them, "I am in Gitmo. Pray for me... I am OK." Family members had to wait six months before the next communication.

We don't know what was done to Haroon inside Guantanamo, but we do know that the regime inside Guantanamo was tortuous, and that indefinite detention itself is a form of torture. According to the organization Physicians for Human Rights, indefinite detention in prison places individuals at unreasonable risk of serious and long-lasting psychological and physical harm. (See full report here.)

Recently, I've shown, via documents released by The Washington Post, how when the CIA contracted with James Mitchell and Bruce Jessen for their "enhanced interrogation" program, the torture was inflicted on prisoners in part in order to get them to agree to become double agents for the Americans. We do know that when one family member was allowed to see Haroon, according to Yousafzai and Fenton, the Afghan prisoner "looked older than his age, he was complaining of headaches, and he had dark circles around his eyes."

What follows below is the Reprieve press release:

A little-known Afghan prisoner has been refused clearance to leave Guantánamo Bay, despite an apparent case of mistaken identity by the U.S. government.

Guantánamo's Periodic Review Board (PRB) ruled this week that Haroon Gul, 33, must continue to be detained indefinitely without charge or trial because his plan for what he would do post-release was insufficient. The Board also seemed unimpressed by Mr. Gul's insistence that the government's allegations against him are false.

The Board's hearing was the first time in nine years that Mr. Gul has been given the opportunity to defend himself. Yet the process was inadequate and unfair. Neither Mr Gul's attorney nor his military representative were allowed to discuss the allegations with him under attorney-client privilege, nor was he given the chance to rebut the classified allegations against him before the Board.

Mr Gul, who has never been charged nor received a trial since arriving at Guantánamo Bay in 2007, was originally passed to the US military by local Afghan forces, according to a report by Al Jazeera. His wife and young daughter now live in a refugee camp, the report says, but little more is known to the world about him.

Mr. Gul has previously had no defense attorney during his nine years at Guantanamo, despite his desperate and persistent attempts to find one. He was represented at his Periodic Review Board hearing by Reprieve U.S. attorney Shelby Sullivan-Bennis, who met him for the first time only four days before the hearing.

His file will become eligible for review in six months time.

Commenting, Reprieve U.S. attorney Shelby Sullivan-Bennis said:

"We have reason to believe that Haroon is one of the many proven cases of mistaken identity, but without a lawyer, he had no capacity to challenge his detention in federal court, as others did. He was given less than three hours out of the last nine years to prepare with an attorney for this hearing that determined his fate. This is status-quo justice in Guantánamo.

"When I met this bright-eyed, chatty young man I was blown away by his attitude. He was smiling and laughing and making American cultural references that even I didn't get.

"This denial is slap in the face to Haroon's persistent efforts to toe the line the government has drawn for its prisoners. Haroon has learned English from scratch; he learned math and science and computers; he has played soccer with fellow detainees and been kind to the guards that lock his cage at night. To this day, he says he does not understand why he's in there. 'Why me?' But day after day he makes the very best of his situation and treats those who have wronged him charitably.

"Haroon is not a bad man, Haroon is not even an irritable or ill-tempered man. He is a man who was tortured into speaking against himself and held captive by my government for nine years without an attorney.

"The allegations against our clients in Guantánamo, to this day, include information that the government admits is wrong. We are still relying on this torture-evidence to keep men hundreds of miles from their families for years on end.

"I went to law school to be a part of the American justice system, but in Guantánamo, I cannot find it."

Guantanamo Psychologist "Ban" Incomplete, Evidence of FBI Torture Ignored

While it is certainly a victory, or partial victory, to have psychologists removed from national security interrogations at Guantanamo, as James Risen reports in The New York Times, it turns out psychologists are not actually completely removed from that Cuban-based prison facility.

Note the careful wording of Risen's story (bold emphasis added):

The United States military has sharply curtailed the use of psychologists at the prison at Guantánamo Bay, Cuba, in response to strict new professional ethics rules of the American Psychological Association, Pentagon officials said.

Gen. John F. Kelly, the head of the United States Southern Command, which oversees Guantánamo, has ordered that psychologists be withdrawn from a wide range of activities dealing with detainees at the prison because of the new rules of the association, the nation’s largest professional organization for psychologists. The group approved the rules this past summer.

Risen's article relates a statement by SOUTHCOM spokeswoman, Navy Cmdr. Karin Burzynski, which explains that the removal of psychologists was due to APA's new policy about psychologists and national security interrogations, and the military was concerned about possible licensing or ethics board charges for military psychologists.

Those new APA rules state: "in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to 'take care to do no harm,' psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation. This prohibition does not apply to domestic law enforcement interrogations or detention settings that are unrelated to national security interrogations."

Hence, in my reading it seems as if psychologists could be allowed at Guantanamo, in order to advise on conditions of confinement insofar as such advice does not "facilitate" interrogation. Perhaps that is what General Kelly is referring to when Risen quotes him as ordering psychologists withdrawal from "a wide range of activities dealing with detainees," i.e., not from all activities dealing with detainees.

As almost a side note, Risen quotes DoD's Burzynski as saying that all interrogations have now ceased at Guantanamo, except so-called "voluntary interviews" detainees wish with make to officials. No one questions how, at a facility under total control by the military, with detainees kept under conditions of indefinite detention (which themselves constitute torture), such "voluntary interviews" can be offered.

According to Risen, APA officers will meet with administration officials from the Pentagon and the High-Value Detainee Interrogation Group (HIG) later this month. In Risen's article, APA's Senior Policy Adviser Ellen Garrison seems to stand up to the Pentagon, and tell them APA will not change its policy to please them.

But back in 2008, when the APA membership voted on a petition to ban psychologists from sites like Guantanamo, Ms. Garrison worked with now-resigned Ethics chair Stephen Behnke to craft a "con" statement calling for defeat of the petition. It will be interesting to see how the old guard APA bureaucracy, now working with some of its former opponents on the interrogation issue, will address outstanding issues surrounding implementation of the new "ban."

But, no one is arguing for a total "ban" of psychologists from Guantanamo. Furthermore, it remains to be seen how anyone will be able to tell if the Pentagon stands by its word, not to mention how anyone will monitor the CIA for adherence to APA's new policy.

"Banned" psychologists and paper opposition

Risen's NYT article states, "Psychologists will still provide mental health care for American military personnel who work at the prison, which is allowed under the association’s rules."

Such psychologists apparently will continue to serve in a clinical function for troops or other U.S. personnel serving at the base, and presumably, the prison. This is indeed in line with the letter and spirit of "Resolution 23B," which mandated the new association rules (PDF), including a provision that psychologists could remain "at the Guantánamo Bay detention facility, 'black sites,' vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction" if "providing treatment to military personnel."

That particular exception was a weakness with the resolution. Nevertheless, the resolution passed overwhelmingly by the APA's Council of Representatives last August was supported by anti-torture psychologists, such as those at Coalition for an Ethical Psychology and Psychologists for Social Responsibility (PsySR). But the resolution's "ban" still allows for Guantanamo to function, and for psychologists to work there if "providing treatment to military personnel." I believe that aspect was a compromise made to get support for the resolution as a whole, and has been a matter of compromise between pro-participation and anti-participation forces within APA for some years now. But with the new resolution passed changing rules on interrogations, there is no reason not to take up this broader issue now.

It is disturbing to see the responses to this development by press and anti-torture activists and not see any condemnation of the American Psychiatric Association (APsyA) or the American Medical Association (AMA) for their paper opposition to use of their membership in interrogations, as apparently psychiatrists (along with other nurses and technicians) are to replace psychologists in detainee interrogation, detention and/or detainee clinical matters.

Indeed, I've searched high and low to find any mainstream critic of U.S. interrogation policy or torture denounce the hypocrisy of APsyA or AMA in this matter. One partial exception is Stephen Miles, author of Oath Betrayed: America's Torture Doctors. Miles has called out AMA for a lack of leadership on the question of doctors working for the CIA interrogation program, and in general has assailed the field for its silence on medical participation in or planning of torture. But I have not seen a similar criticism by anyone of APsyA's failure to enforce its own policy banning psychiatrists from work at Guantanamo.

The fact remains, to date, no U.S. medical professional has ever been held accountable for their role in the "war on terror" torture scandal.

FBI interrogations and torture

Nor does the new policy stated by DoD have any bearing on interrogations conducted by CIA, foreign intelligence services, or the FBI. Obama's 2009 reforms of the Bush-Cheney era torture interrogations meant shutting down CIA's long-term black sites, and resting interrogation policy on the relevant Army Field Manual and ongoing reliance on rendition of "terror" suspects to interrogation and detention by foreign intelligence services ("extraordinary rendition").

But the Army Field Manual has been condemned by the UN's Committee Against Torture as containing abusive forms of interrogation, even as Congress has enshrined it in U.S. law. And human rights groups and legal groups have assailed the empty "assurances" of foreign governments that renditioned prisoners will not be tortured or abused.

Meanwhile, the role of the FBI in coercive interrogations is something that has been completely passed over. Previously, there were reports of torture of renditioned prisoners in the aftermath of the 2010 World Cup bombing in Kampala, Uganda. The FBI's activity in the latter investigation was said to be the largest between that time and 9/11. A number of prisoners renditioned from Kenya and Tanzania have accused the FBI of torture under interrogation in Uganda, including death threats and physical abuse by FBI agents.

One such affidavit of torture in my possession, by Kenyan national Yahya Suleiman Mbuthia, details such alleged FBI torture. The claims are consistent with charges by other prisoners also interrogated in the Kampala bombing.

"... [FBI] officers said, "Don't lie to us -- we know everything about you. We will finish your family -- first your wife and then your two kids..."

"... one (1) FBI officer, with blue eyes, cocked his gun as if he were going to shoot me, saying that there was a bullet inside with my name on it.... the same officer told me he would kill me or leave me to rot in Luzira."

"... I was severely ill-treated during interrogation, including having an FBI officer standing behind me hitting me on the back of the head with his fist... when the FBI wanted to do their dirty work, they would ask the Ugandans to leave, and by dirty work I mean beating, forcing me to sign papers and threatening me...."

"... during interrogation, if I refused to do something, I would be hooded for 30 minutes to an hour, during which time FBI officers would cock their guns as if they were about to shoot me..."

In a separate affidavit, another Kenyan national, Idris Magondu, who also was renditioned to Uganda and interrogated by both Ugandan police and FBI, wrote, "after the Court appearance at which I was not represented by legal Counsel, I was ordered to be remanded to Luzira Upper Prison where the FBI officers interrogated me several times... during the interrogations, the FBI officers shouted and threatened me, telling me that President Museveni had ordered his army to kill me, and the officers were banging on the table and were very aggressive."

According to Magondu, "one of the FBI officers had a pistol which he kept drawing my attention to."

In November 2012, Open Society Justice Initiative released a report on human rights abuses by the FBI in the wake of the World Cup bombing. In June 2013, the FBI responded to the OSJI report: "The FBI has found these claims to be without merit, because no evidence was identified by the FBI or any other independent entity to support them. The type of abuse alleged is wholly contrary to the FBI’s policy on interrogating suspects in foreign countries. The FBI’s policy is consistent with internationally recognized standards of conduct such as those set forth in Common Article 3 of the Geneva Conventions."

OSJI noted in its own response, "the FBI has not provided sufficient detail regarding its investigation of the allegations of detainee abuse by the FBI in Uganda or its basis for the conclusion that the allegations are without merit."

FBI and Mitchell-Jessen

FBI officials also figured prominently in the APA-initiated "independent" review of APA's activities around the interrogation-torture scandal. The report produced by Chicago attorney David H. Hoffman (large PDF), despite mainstream accolades, was a limited hangout on the torture issue, as it minimized or explained away for top U.S. psychologists collaboration with the CIA. Such minimization included the fact a former APA president had been part of the partnership of Mitchell-Jessen and Associates, contractors to the CIA's torture machine. Hoffman found this fact unworthy of further investigation in relation to APA's ethics.

But Hoffman and his investigators uncovered a wealth of new information which APA subsequently has posted on its website. This material shows what the report only covers tangentially, that is, that top FBI psychologists worked closely with APA, CIA and the military in discussing interrogation matters, including detection of deception that could affected by use of sensory overload or use of drugs in interrogation.

At the close of 2004 report on a July 2003 APA-CIA-RAND workshop, "The Science of Deception: Integration of Theory and Practice," there is a list of participants, and we can see that top FBI psychologists, such as then-FBI Behavioral Science Unit Chief Stephen Band and Anthony Pinizzotto, attended along with other academics and CIA officers, including psychologist Kirk Hubbard and psychiatrist Andy Morgan, and CIA contractors James Mitchell and Bruce Jessen.

The report was marked "Not for distribution."

"Research challenges" discussed at the 2003 meeting included "What pharmacological agents are known to affect apparent truth-telling behavior?" and "How might we overload the system or overwhelm the sense and see how it affects deceptive behaviors?"

Participants also discussed how to manipulate or increase subjects's anxieties. They also proposed research to discover "how interrogators might take advantage of some of the transference and counter-transference strategies used by psychotherapists."

A fuller analysis of this document awaits, but who will attempt it?

Hoffman passed without comment over this material. APA anti-torture activists (including former APA members who quit over the APA's interrogation policy) have not seen fit to comment either on the documented collaboration of the APA with key FBI officials, or on the release of this document. Even when it was revealed that James Mitchell had been invited as an expert to February 2002 FBI conference at its Quantico headquarters, links between FBI and the CIA torture program have been ignored. (Mitchell's invite came almost two months before he went to the CIA black site in Thailand and helped initiate the CIA's "enhanced interrogation" torture program.)

Part of the issue is that the mainstream narrative is that FBI agents, such as Ali Soufan, blew the whistle on CIA torture. While some FBI agents were queasy about torture techniques used by both the Department of Defense and the CIA, it seems there's a lot of house cleaning to do within the agency itself.

Even the story of Soufan's protest at Mitchell and Jessen's intervention in the interrogation of Abu Zubaydah is more nuanced than normally reported. For instance, Soufan told a Senate panel in May 2009 that his interrogation techniques with Zubaydah were not compliant with Geneva Common Article 3. In fact, Soufan said none of the FBI's interrogations were so compliant after 9/11. (See video of back and forth between Soufan and Sen. Lindsey Graham, beginning at 2:17, downloadable at this link.)

Doctors who said "no"

During the Vietnam War, there were doctors who refused to serve a corrupt and evil military regime. Navy doctor, Captain Howard Levy was court-martialed, not because he refused to torture, but to even serve as a trainer for Special Forces personnel. According to a follow-up story from 2002 in the New York Times, Levy survived his court-martial to carve out a career in medicine.

How was Levy's refusal to serve the military fighting an imperialist war in Vietnam any different really from the question of whether or not doctors or psychologists or nurses should refuse to serve in Guantanamo or other black sites? Capt. Levy charged (according to a legal look at his case) "that had he trained the [Special Forces] aidmen he would have been complicitous in war crimes committed by Special Forces."

Nor was Levy alone. An essay from the book Military Medical Ethics documents that more than 300 U.S. medical students and young doctors signed a pledge not to serve in the Armed Forces in Vietnam during that conflict.

Will APA, which is rumored to be assembling a new ethics panel to consider future ethics policy, continue to allow psychologists to still serve military forces at Guantanamo or other interrogation sites? It would seem so, if one considers recent activities around reforming psychological ethics.

[Note on personal connection to this subject: I have at times been a member of PsySR, and remain active on their listserv.]

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.

Sincerely,
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

Abu Zubaydah's Attorneys' Memo to the Military Commissions, and Convening Authority Reply

The following is taken from a PDF (h/t emptywheel) of a letter from the attorneys of Abu Zubaydah to the top military legal figure for the Military Commissions. The surprising substance of the letter, i.e., that Abu Zubaydah is requesting he be charged with crimes "at the earliest possible date," makes sense when you realize he has been held in U.S. custody for over ten years now.

In a pro forma May 17 reply (PDF) to Zubaydah's attorneys from Bruce MacDonald, the Military Commissions Convening Authority said that the decision to prosecute would first be made by the Office of the Chief Prosecutor, and that if charges were ever referred, "I will separately make my own, independent decision on whether to refer any sworn charges to trial by a military commission."

MacDonald also indicated that he knew that Zubaydah's attorneys were also pursuing a habeas case for their client in the U.S. District Court for the District of Columbia. For MacDonald, this "means a process, guaranteed by the United States Constitution to challenge the legality" of their client's incarceration. According to the Military Commissions official, Zubaydah is held "pursuant to the Authorization for the Use of Military Force... as informed by the principles of the law of war."

MacDonald, of course, never alludes to the fact that the habeas process in the D.C. District Court has become basically a joke, a hollow shell of form with no substance, as this May 1, 2012 study by the Seton Hall University Law School's Center for Policy and Reseach makes clear:

It is an open secret that Boumediene v. Bush’s promise of robust review of the legality of the Guantanamo detainees’ detention has been effectively negated by decisions of the United States Court of Appeals for the District of Columbia Circuit, beginning with Al-Adahi v. Obama....

After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government's allegations. Now the government wins every petition. 

Given the fact-intensive nature of district court fact-finding, the shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising questions about whether the D.C. Circuit has in fact correctly applied [the Supreme Court decision in] Boumediene. 

Since his capture, Abu Zubaydah has spent years in secret CIA prisons, and even more years in solitary confinement at Guantanamo Bay. Moreover, Abu Zubaydah has been subjected to repeated torture, and his conditions of confinement currently amount at least to cruel, inhumane and degrading treatment of a prisoner.

The Zubaydah case is important for another reason, as he was the linchpin in a series of circumstances that engaged the CIA torture program in early 2002, and resulted in a series of infamous legal memos by the Bush Administration's Office of Legal Council, written by John Yoo, Jay Bybee, Stephen Bradbury and others. And yet, the actual facts behind the Zubaydah case remain enshrouded in mystery. Even the account of what happened to his missing eye remains classified... unknown.

Jason Leopold revealed in a March 2010 article that the U.S. government, in an unheralded court filing, "quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah."

I've written some on the Zubaydah case, highlighting how "Abu Zubaydah was a primary subject of JPRA/SERE’s reverse-engineering of torture techniques, using the paradigm of psychologist and former American Psychological Association president Martin Seligman’s theory of 'learned helplessness.'"

In September 2009, I examined the so-called psychological profile of Abu Zubaydah, which was presumably used to sell in summer 2002 a certain image of Zubaydah to the OLC, who was then writing the first torture memos. Zubaydah's attorneys in the memorandum below also reference the picture of Zubaydah painted by the OLC, what I called in my article, the portrait of "a superman-terrorist."

Of course, Zubaydah was nothing like that. And above all, he is a man, a human being, held in indefinite detention by the U.S. state. I'm reprinting the full attorney document here for use by the public. Only the footnotes have been left out, and they can be referenced in the original document at this link.

For more on the Zubaydah case, see Andy Worthington's recent article, "Why No Trials for Abu Zubaydah and Seven Other “High-Value Detainees” in Guantánamo?"

10 May 2012

MEMORANDUM FOR The Convening Authority, Military Commissions

Subj: REQUEST FOR IMMEDIATE COMMENCEMENT OF ABU ZUBAYDAH’S MILITARY COMMISSION PROCEEDINGS

1. This letter requests that the Convening Authority immediately commence proceedings against our client, Zayn al-Abidin Muhammad Husayn (abu Zubaydah), ISN # 10016. Failure to act would raise serious questions about the integrity and legitimacy of the Convening Authority and, indeed, of the whole process established to try or release Guantanamo detainees.

2. Abu Zubaydah has been detained without a hearing for ten years. Since his capture on 28 March 2002 until the present day, there have yet to be any charges brought against him. There has been no court finding that he needs to be imprisoned, or that he was associated with al Qaeda, or that he committed any act of terrorism as the U.S. government has alleged in the past. To date, his repeated requests for legitimate evaluation of his case have been met with nothing but deafening silence. He now formally requests that the Convening Authority commence prosecution of him before a military commission at the earliest possible date.

3. The failure to convene abu Zubaydah’s military commission proceeding jeopardizes the legitimacy of the entire military commission structure. In September 2006, President Bush told a nationally televised audience that abu Zubaydah had been transferred from CIA to DoD custody so that he could be prosecuted in a military commission proceeding. Now, five and half years later, he has yet to be charged. No system that detains prisoners for years without charge can be legitimate. No system that only allows hearings in cases where the government can first secure a guilty plea, or guarantee a conviction, can be legitimate. No system that refuses to give a hearing because the truth will reveal enormous governmental over-reaching, illegal conduct, and false claims by our highest ranking officials can be legitimate. For the reasons discussed below, abu Zubaydah is entitled to the immediate commencement of his military commission proceedings.

4. This request for prosecution does not rely upon classified information. If the classified evidence corroborates the statements about abu Zubaydah made by some government officers, then a trial would provide the government with an easy victory. But if the classified evidence does not support their reckless hyperbole, this fact would explain why his long-sought hearing has been continually avoided. He simply requests the opportunity to test the government’s evidence and demonstrate in a legitimate setting why his detention and treatment during detention have been unwarranted, and that he is innocent of any crimes.

Why Has Abu Zubaydah Yet to Be Prosecuted Despite President Bush’s Statements?

5. Nearly six years ago, President Bush announced that abu Zubaydah and thirteen other socalled high-value detainees were to be tried by a military commission:

So I’m announcing today that Khalid Sheikh Mohammed, abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Cheers, applause)....

With these prosecutions, we will send a clear message to those who kill Americans: No matter how long it takes, we will find you and we will bring you to justice. (Emphasis added).¹

6. Despite the President’s promise to the nation, the Office of Military Commissions has taken no steps to prosecute him.

7. A decision to prosecute abu Zubaydah seems commonsensical if what the government has stated publicly about him is true. Officials at the highest levels of government have repeatedly claimed that he was not only associated with al Qaeda but that he committed numerous specified acts of terrorism against the United States. These officials include the President of the United States, the Vice President, the Secretary of Defense, the Director of the CIA, high-level officials in the State Department, and high-level officials in the Department of Justice.

8. For example, in that same September 2006 speech urging the creation of military commissions, President Bush spoke from the East Room about the existence of secret CIA prisons:

Within months of September the 11th, 2001, we captured a man known as abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country.... (Emphasis added [sic]).

9. The President also claimed that abu Zubaydah provided:

information that helped stop a terrorist attack being planned for inside the United States -— an attack about which we had no previous information [and]  provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained -— one while traveling to the United States.

10. Were even a fraction of such repeated assertions supported by credible evidence, the most straightforward course for the government would be to convene a military commission, produce the appropriate evidence under the relaxed commission standards, obtain what the government seems to think is a foregone conviction, and administer the resulting punishment. And yet this logical course of action has yet to be taken.

11. Abu Zubaydah has not been tried, has not been charged, and has not even had military commission counsel assigned to him. He has requested the appointment of military commission counsel repeatedly but has received no response. This overt failure to prosecute a supposed terrorist leader causes the world to wonder why. One possibility is that the claims, despite their number and decibel level, are simply untrue, so that the government cannot prove all (or any) of them. A second possibility is that the prosecution would be successful but only at the unacceptable cost of exposing the government to worldwide censure for the manner in which Zubaydah was treated and the evidence against him was obtained. The third possibility, worst of all, is both that the claims are not true and that his treatment is too shameful to be revealed to the world.

12. The factual premises for these scenarios, if untrue, could be put to rest by beginning the prosecution. Failure to do so can only further erode the legitimacy of the military commission process. The ultimate test of the legitimacy of any judicial system is the willingness to hold hearings even when the truths that the hearings may reveal could be embarrassing or politically damaging to high-level officials. Abu Zubaydah formally requests that he receive his military commission hearing immediately. Without such a hearing he may be detained forever as an uncharged prisoner—not necessarily for anything that he has done but because so many people have made so many false allegations to justify government policies that are themselves indefensible that no possibility of disclosure or, far worse, exoneration can be borne.

13. The public record already reveals that the government has long had reason to doubt the accuracy of its accusations. At the very time that President Bush was making the above statements, he was aware of serious reservations about their truth. According to Pulitzer Prize winning journalist Ron Suskind, even as Bush was publicly proclaiming abu Zubaydah’s malevolence, he was privately being briefed about misgivings within the intelligence community regarding his significance—and mental stability. President Bush was concerned about the consequences for his own reputation. Suskind quotes the following exchange between Bush and then-CIA Director George Tenet:

I said [abu Zubaydah] was important,” Bush said to Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” (emphasis added). Director Tenet then assured him he would not

The government’s failure to prosecute him continues the protection that Tenet promised.

14. Endless delays of a proceeding promised long ago by the President reflect the government’s implicit recognition that the “abu Zubaydah” who was held out to the American public to justify our nation’s torture, rendition, and detention policies was merely a manufactured distortion of the real person. His false portrayal, once known, will discredit many of the government’s most horrific policies. It was largely by virtue of unwarranted and inaccurate characterizations of abu Zubaydah that the government was able to adopt its torture policies, defend its dark sites and rendition policies, and continue on its course of detaining hundreds of individuals around the world without any process.

Role of the Discredited “Torture Memos” in Abu Zubaydah’s Military Commission

15. If abu Zubaydah’s case might inflict the very public embarrassment that President Bush feared so much, as revealed in his exchange with the then-CIA Director, the “torture memos” provide another source of shame for the government. The already notorious memos would be even more universally condemned were it known that their supposed efficacy in revealing the truth about our enemies was based -- in significant part, at least -- on lies about abu Zubaydah.

16. On August 1, 2002, attorneys with the Office of Legal Counsel completed a memorandum regarding the “Interrogation of al Qaeda Operative” that described the factual basis upon which that torture memo rested. The authors of this memo explained that “[a]s we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization.” The Office of Legal Counsel’s advice was “based upon the following facts, which you have provided to us....”

Zubaydah is currently being held by the United States. The interrogation team is certain he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas....

...Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant. In that capacity, he has managed a network of training camps. He has been instrumental in the training of operatives for al Qaeda, the Egyptian Islamic Jihad, and other terrorist elements inside Pakistan and Afghanistan. He acted as the Deputy Camp Commander for al Qaeda training camp (sic) in Afghanistan, personally approving entry and graduation of all trainees during 1999-2000. From 1996 until 1999, he approved all individuals going in and out of Afghanistan to the training camps. Further, no one went in and out of Peshawar, Pakistan without his knowledge and approval. He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s counter-intelligence officer and has been trusted to find spies within the organization.

Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner of the Millennium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover, he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

17. What an incredible political embarrassment it would be for the world to discover that the torture and mistreatment of abu Zubaydah were pointless exercises in cruelty. Vice President Cheney, CIA Director Michael Hayden, and many others all have claimed that the torture and mistreatment of abu Zubaydah led to the discovery of useful information. Vice President Cheney stated that:

[t]he techniques worked…. Abu Zubaydah gave up information about Ramzi bin al-Shibh who had assisted the 9/11 hijackers, and on the one-year anniversary of the 9/11 attacks was captured after a shoot-out in Pakistan. At he time of his apprehension he was plotting to use commercial airliners in suicide attacks on Heathrow Airport and other structures in London.

18. Director Hayden also stated that abu Zubaydah’s interrogation “led to reliable information,” that he was a “prolific producer” of information, and that roughly 25 percent of the information on al Qaeda that came from human sources that originated from him. Imagine the political and policy implications that would follow the revelation that no such information was obtained from visiting these abuses on him.

Role of Rendition and Indefinite Detention in Abu Zubaydah’s Military Commission Proceedings

19. The torture policies are not the only programs that would be exposed during the military commission hearing. The U.S. government’s justification of its policies of extraordinary rendition, maintaining secret CIA black sites, and indefinite detention would also be shown to have rested on false and exaggerated claims. Obviously, statements about abu Zubaydah were not the only basis for the creation of the Global War on Terror apparatus. There were many other claims. However, he was the symbol constantly deployed to justify the creation of that apparatus. The numerous fabricated statements made about him constituted a key part of the foundation of that structure. For instance, abu Zubaydah’s supposed misdeeds were used to justify the CIA’s use of black sites and extraordinary rendition as critical elements in the War on Terror.

20. John Kiriakou, the highest ranking CIA officer on the ground in Pakistan involved in abu Zubaydah’s capture, reported as follows:

He was one of the financiers of the September 11th attacks. He was a logistics chief of al Qaeda. We knew that he was close to bin Laden, although not co-located obviously.... [W]e knew at the time that he had a line to bin Laden.

[We knew] that he knew everybody who was worth knowing in al Qaeda. He knew cell leaders. He knew logistics people. He knew finance people. We knew that he was really one of the intellectual leaders of the group.

21. John Rizzo was the CIA’s acting general counsel during the Enhanced Interrogation Techniques (EIT) program. He was interviewed on September 13, 2011, about abu Zubaydah:

He wasn’t necessarily a shooter or a guy who would climb into an airplane, fly into a building. But he basically was moralistically chief operating officer, made sure and facilitated the plan, the travel of various al Qaeda officials. So there was a lot of information derived from him on that score that I recall.... And it’s not just me saying it. Subsequent investigations by the CIA inspector general and other independent bodies confirmed that there was valuable, actionable intelligence derived first from Abu Zubaydah and later (from) other high-value detainees that were subject to the enhanced techniques....

22. Abu Zubaydah has also been frequently used to justify the continued operation of Guantanamo. For example, consider the statement of the State Department’s John Bellinger:

I will just say up front that the issue of Guantanamo...is a source of great frustration for this administration. On the one hand, it serves a very important purpose, to hold and detain individuals who are extremely dangerous, people like Khalid Sheikh Mohammed, Abu Zubaydah, people who have been planners of 9/11, others who were captured on the battlefield in Afghanistan and who personally killed U.S. soldiers.

Conclusion

23. The government fears that a military commission hearing for abu Zubaydah will reveal that the facts upon which the American torture policy substantially rests were false and known to be false at the time. The military commission hearing will also reveal that many statements made by the highest officials about him were false and known to be false when made. The government has attempted to conceal the fabrication of the factual basis for his torture, the same basis detailed in the “torture memo” that focused exclusively on him.

24. The government has also gone to great lengths to destroy all evidence that one of its most trusted attorneys had written a dissenting memo arguing that the treatment approved by the “torture memos” was torture that should have been known to be torture. The legal memo revealing the robust dissent to the very practices inflicted upon abu Zubaydah was not only concealed but extraordinary efforts were made to destroy all copies of the memo. Although use of the word “concealment” may seem harsh, this characterization is, if anything, an understatement. The more accurate description of this conduct would be spoliation of evidence revealing the false factual and legal basis upon which abu Zubaydah was tortured. The spoliation efforts were revealed by Phillip Zelikow, a high ranking State Department lawyer and confidant of Secretary Condoleeza Rice, in an appearance before the Senate Judiciary Committee in 2009. His memo titled “The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture,” dated February 15, 2006, concluded that several of the enhanced interrogation techniques, “singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment’ within” the meaning of the Convention Against Torture. Zelikow explained that the memo caused senior figures in the Bush White House to become enraged, and that they actually sought to collect and destroy all the copies.

25. The government that has engaged in the spoliation of evidence, including authoritative legal dissent about abu Zubaydah’s treatment, is the same government that holds him in indefinite pretrial detention, too afraid to prosecute him—because such a hearing would reveal even more disturbing truths.

26. The refusal to bring charges and seek judicial review of abu Zubaydah’s case, to provide a forum that will reveal the truth about him and the demonstrably false factual basis for the torture memos and his torture is but another way to conceal the truth. That a government concealed and destroyed documents evidencing dissent to its justification for torture speaks volumes about why that government would refuse to provide abu Zubaydah judicial process that would disclose an even more damning truth: that the factual basis for his torture was false and known to be false at the time.

27. The failure of the Office of Military Commissions to charge and try abu Zubaydah inevitably will be viewed as part of the lamentable pattern of conduct that began with the assertion of false facts to justify his torture in 2002, and produced distorted, inaccurate and incomplete legal opinions as the government labored in vain to contrive the legality of his torture. And that perception undermines the legitimacy of the entire military commission program.

28. Abu Zubaydah asks only for what he was promised by the president of this nation: a military commission hearing. The reformed military commissions have been trumpeted as wholly consistent with basic American precepts of justice. So we say: charge abu Zubaydah and let the chips fall where they may.

29. If the military commissions are to be viewed as legitimate, they should not appear to be complicit in disguising the truth. Instead, military commissions should serve as a vehicle that reveals the truth. The failure to prosecute abu Zubaydah discredits not only American political practices but also the military commissions themselves. Abu Zubaydah asks simply that he be allowed to have a legitimate hearing at which he may challenge the allegations and evidence leveled against him. But as time lingers on, what legitimacy will be found in a system that continues to delay the trial of a man the government once described as a high-ranking al Qaeda operative? Abu Zubaydah is ready for the process to begin, and after ten years of detention and evidence gathering, the government ought to be too.

30. After more than ten years of waiting, your prompt consideration of this request is appreciated.

Very truly yours,

__/s_________________________
Joseph Margulies
Clinical Professor of Law
Roderick MacArthur Justice Center
Northwestern University School of Law
375 East Chicago Avenue
Chicago, IL 60611....

__/s_________________________
George Brent Mickum IV
5800 Wiltshire Drive
Bethesda, MD 20816

__/s_________________________
Mark Denbeaux, Esq.
DENBEAUX & DENBEAUX
366 Kinderkamack Road
Westwood, NJ 07675....

__/s_________________________
Amanda Jacobsen
University of Copenhagen
Faculty of Law
Studiestraede 6
Copenhagen Denmark 1455-K

Senate Hears Testimony on Banning Indefinite Detention of Americans

The following is a transcript (PDF) of testimony given by Dr. Scott Allen, MD at a February 29, 2012 hearing by the Senate Judiciary Committee. Dr. Allen is Associate Professor of Medicine, University of California, Riverside, and a Medical Advisor for Physicians for Human Rights.

The title of the hearing was “Due Process Guarantee Act: Banning Indefinite Detention of Americans.” Indefinite Detention is a form of torture, as Dr. Allen makes clear. The current policy of the Obama administration is to keep certain supposed "war on terror" detainees in indefinite detention, and there are hundreds of such prisoners held at Guantanamo, Bagram, and likely other US military prisons. (H/T to Ulana Odezynsky for sending me this material.)

I am a Clinical Associate Professor of Medicine at the University of California, Riverside and a medical advisor to Physicians for Human Rights. PHR is an independent, non-profit organization that uses medical and scientific expertise to investigate human rights violations and advocate for justice, accountability, and the health and dignity of all people. We are supported by the expertise and passion of health professionals and concerned citizens alike.

I am very grateful for the opportunity to submit my written testimony to the Senate Judiciary Committee in a hearing regarding the “Due Process Guarantee Act of 2011” and I would like to thank Chairman Senator Leahy and Senator Feinstein as well as the other Members of this Committee for holding this important and timely hearing.
I have worked in the field of correctional health for over fourteen years including full-time work in a state prison facility as both a primary care doctor and a medical director. In addition, I have also worked with refugee and immigrant populations in indefinite detention situations. Finally, I worked on and oversaw the report, Punishment Before Justice: Indefinite Detention, which was issued by Physicians for Human Rights in June 2011. This report, as well as my recent letter to the editor of the New York Times regarding the medical effects of indefinite detention, are attached as exhibits to my testimony.1

Indefinite detention refers to a situation in which the government places individuals in custody without informing them when—if ever—the detainee will be released. Indefinite detention is vastly different from imprisonment because the detainee does not know whether he will be charged with crimes, if he will receive a trial or hearing, when he will see his family again (if ever), or if he will ever be released. Yet, a person indefinitely detained is not serving a jail sentence. Naturally, these many attributes of indefinite detention create a heightened degree of uncertainty, unpredictability and uncontrollability over the elemental aspects of one’s life, causing severe harms in healthy individuals, independent of other aspects or conditions of detention.

The harmful psychological and physical effects of indefinite detention have been documented (varying by individual) to include:

-- Severe and chronic anxiety, acute fear, and dread;
-- Pathological levels of stress that damage the core psychological functions of the immune, cardiovascular, and central nervous system;
-- Hypertension;
-- Depression and suicide;
-- Post-traumatic stress disorder;
-- Dissociation, schizophrenia, and psychosis; and
-- Enduring personality changes.

Some individuals even manifest physical symptoms of the psychological trauma they are suffering such as breathing difficulties, physical pain and skin disorders. In cases where the individual who is subject to indefinite detention has also previously experienced trauma, such as war, torture, or abuse, the physical and psychological effects of indefinite detention are exacerbated.

Moreover, indefinite detention affects individuals beyond the detainee himself. When a loved one is indefinitely detained, families are separated. Consequently, parents, spouses and children can and have suffered similar feelings of uncertainty, unpredictability and uncontrollability leading to the physical and psychological effects described above.

As a health care professional, having seen first-hand the physical and psychological effects of indefinite detention, I can attest to the devastating harms an individual suffers. These are medical, documented harms that in some cases may rise to the level of severe abuse of individuals, or torture in extreme cases. As a health care professional, I would conclude that the medical effects of indefinite detention are both physical and psychological and they result in lasting severe harms to individuals. Therefore, as a physician with first-hand knowledge of the real harms caused by indefinite detention, I must recommend that indefinite detention not be utilized as a long-term solution for detaining individuals.

To that end, I would recommend that the United States government reject solutions to national security problems that permit or rely on indefinite detention and, until the time that indefinite detention is abolished as a matter of policy, the United States government should provide measures that mitigate the social, psychological, and physical harms such detention causes among detainees. Further, if indefinite detention of individuals is allowed to continue, I would recommend permitting non-governmental, independent medical and psychological experts to evaluate the mental and physical health of detainees.

Again, I thank you for this opportunity to provide my testimony on this issue of extreme importance to the American people and Congress and am available to answer any questions or further discuss these issues.

1 The full report is also available at https://s3.amazonaws.com/PHR_Reports/indefinite-detention-june2011.pdf.

Colbert analyzes new NDAA indefinite detention provisions

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
The Word - Catch 2012
www.colbertnation.com
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H/T Stephen Soldz

Veto, Protest Nazi-like Bill Which Allows Indefinite Detention of American Citizens at Home, Others Abroad

YouTube user poiqweruadjfkewrijo (why such a long incomprehensible name?) has posted an important video demonstrating that provisions of the new Defense Authorization Bill that would allow the indefinite detention of U.S. citizens without evidence or trial were demanded by the Obama administration. (H/T Glenn Greenwald via Twitter) Now a game is being played over whether or not Obama will veto certain aspects of the bill. But the President has not spoken against this provision, and now we know why.

I heartily recommend signing the petition via the link below. But I have little faith it will actually do the trick. We need a great deal more social struggle before things will begin to change.

PETITION: http://wh.gov/D0B We have only a few days to speak up before the President signs NDAA 1031, permitting citizen imprisonment without evidence or trial. The bill passed by Congress absolutely DOES NOT exempt citizens. Section 1031 reads, "A covered person under this section" includes "any person who has committed a belligerent act".

- Confusingly, Obama previously threatened a veto for 1032, but NOT 1031. 1032 is UNRELATED to imprisoning citizens without a trial. He has never suggested using a veto to stop Section 1031 citizen imprisonment. In fact, it was requested by the Obama administration. Watch the video for proof.

- The Feinstein Amendment 1031(e) is dangerously misleading. Don't be fooled: In the text of 1031(e), "Nothing in this section shall be construed...", the only word that matters is "construed" because the Supreme Court are the only ones with the power to construe the law. The Feinstein Amendment 1031(e) permits citizens to be imprisoned without evidence or a trial forever, if the Supreme Court does not EXPLICITLY repeal 1031.

Congress planned to give it to him to sign on Dec. 8, but delayed at the last minute. If we act urgently to tell our friends, family, and colleagues, we can still prevent this. Here is what we can do:

1) Americans must know about this to stop it. Urgently pass this petition as widely as possible: http://whitehouse.gov/D0B Contact the media to clear up confusion about the facts mentioned above.

2) Congress can still block the law before December 13. Write and call your Representative and Senator telling them to stop NDAA Section 1031 and the dangerously misleading Feinstein Amendment 1031(e).
Contact your Representative: http://writerep.house.gov/writerep/
Contact your Senator: http://www.senate.gov/general/contact_information/senators_cfm.cfm

3) Write and call the White House to tell the President you won't sit by and watch NDAA Section 1031 and the misleading Feinstein Amendment 1031(e) become law: http://www.whitehouse.gov/contact/submit-questions-and-comments

Excerpt property of C-SPAN.
Fair Use: http://legacy.c-span.org/about/press/release.asp?code=video

More on Obama's Pernicious Executive Order on Indefinite Detention

Marcy Wheeler's analysis of the latest Obama Executive Order, bringing back the military commissions, and setting up an extrajudicial apparatus within the Executive Branch for review of indefinite detention cases, hits the nail on the head. She takes apart the contentions of Ken Gude at the UK Guardian that the new EO represents "a clearly articulated standard for continued detention."

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States. [Emphasis added]

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

Amen.

In addition, Gude’s claim that “A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding,” doesn’t jibe with my reading. The EO states that “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention....”

As I read it, the latter is a pro forma statement, because it appears the Obama administration believes it can indefinitely hold someone despite a habeas decision. Moreover, they have been quite active in appealing successful habeas petitions, and is doing so with, as Andy Worthington puts it, "a political bent."

Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

The U.S. government is seeking to eviscerate habeas (as has already been done, really) not by formally taking away habeas petitions, but ignoring or contesting their outcome, and claiming a new entity, their Periodic Review Board, will determine who is actually released, not some (cough) court.

And who is on the Periodic Review Board?

“Periodic Review Board” means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

This puts the national IC community and military in charge of indefinite detention review. DOJ and State are mere rumps, at this point, of a militarist state seeking to put in place new institutions that will better represent their interests and rule.

Human Rights Watch, alone among human rights groups, while condemning the resumption of the military commissions, calls the latest position on indefinite detention "authorized but restricted," noting it "provides an additional layer of review not previously available."

While these new provisions are an improvement over the current system, which does not have such a review, the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law, Human Rights Watch said. Importantly however, the order only applies to detainees currently held at Guantanamo and not to anyone who might be captured in the future, a significant limitation given calls for sweeping detention authority by critics of the administration.

"Is added review an improvement? Yes. Does it make US detention policies lawful? No,"

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime."

It's strange, this search for something positive to say by HRW, as if the EO represented any kind of moral victory by providing a "significant limitation" of its abrogration of rights, and usurpation by the executive branch of unchecked review. It's quite clear that Obama is setting up a new version of the Combatant Status Review Boards set up during the Bush years, with bogus oversight by high defense department and intelligence officials, with fig leaf cover by State and DoJ.

Sabin Willett, an attorney at Bingham McCutchen in Boston, representing the Chinese Uighurs at Guantanamo since 2005, had an apt question for the leaders of this country, or perhaps really for those unconvinced the U.S. government is out of control here (H/T powwow at Emptywheel/FDL).

The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why aren’t there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

America is Winston Smith. You remember how Orwell’s 1984 ends.

Powwow adds:

It is all the more important that the Supreme Court act to rein in the D.C. Circuit, because evidently no branch of our federal government is the least bit inclined to forcibly remind the President that he too has “a solemn duty to follow” the law of war in wartime, including “competent tribunal” review of the default POW status of any (actual belligerent) wartime detainees captured or held by the United States military during a Congressionally-authorized armed conflict.

For aspects of the latest EO has they pertain to issues of indefinite detention at Bagram and elsewhere in Afghanistan, see also this article by Marcy Wheeler.

ACLU & Large Coalition Send Letter to Rep. King re Offensive Muslim "Radicalization" Hearing

The following is a press release from the ACLU regarding the deeply racist and divisive House of Representative Homeland Security Committee hearings scheduled for this coming Thursday. Purportedly called by Rep. Peter King to examine supposed Muslim "extremism," the hearings are a thinly veiled call for discrimination and political demagogy, whipping up fear of a domestic menace, which doesn't really exist. It's racist and offensive, but also dangerous, and a sign of the insanity of our times.

Unfortunately, the Obama administration feeds this kind of fear-mongering with its own recent policies, via Executive Order, calling for indefinite detention of "terrorists" at Guantanamo. Rep. King was thrilled by this latest travesty by the Obama administration, and certainly, it fits right in with his campaign of fear.

For more on this issue, see the release by the Leadership Conference of their report, "Restoring a National Consensus: The Need to End Racial Profiling in America." The website Faith in Public Life also has a interesting round-up of commentary by religious leaders speaking out against the King hearings.

On the issue of Obama's lifting of the stay on military commissions trials, and the setting up of an apparatus for indefinite detention of uncharged and/or unconvicted "terrorists" at Guantanamo, see the analysis by Center for Constitutional Rights, and article out today by Marcy Wheeler and Glenn Greenwald.

The ACLU press release and letter to Rep. King:

ACLU And Broad Coalition Tell Rep. King Of Concerns About Muslim “Radicalization” Hearing

FOR IMMEDIATE RELEASE
March 8, 2011

CONTACT:(202) 675-2312 or media@dcaclu.org

WASHINGTON – The American Civil Liberties Union, along with several other human rights and civil liberties organizations, sent a letter today to House Homeland Security Committee Chairman Rep. Peter King (R-NY) expressing deep concern about his committee’s upcoming hearing on the so-called “radicalization of the American Muslim community.” The hearing is scheduled for Thursday, March 10.

The letter, sent by over 40 groups, urges Rep. King and his committee not to conflate First Amendment-protected practices with involvement in terrorism. The letter also criticizes the hearing’s false premise that the Muslim community and its leaders are uncooperative with law enforcement.

The letter states, “Treating an entire community as suspect because of the bad acts or intolerant statements of a few is imprudent and unfair, and in the past has only led to greater misunderstanding, injustice and discrimination. Erroneous theories of eugenics supported racist immigration policies and Jim Crow anti-miscegenation laws for decades. Misguided ‘red’ scares and racism drove abominable policies like blacklists, McCarthyism and Japanese internment, betrayed American values and did not improve security. To avoid the same mistakes, the Committee should rely on facts and scientifically rigorous analysis, not biased opinions or unsupported theories positing a discernable ‘radicalization’ process that are belied by available evidence.”

According to the letter, “A fact-based approach enhanced with scientifically rigorous analysis will likely be more successful at providing a clear picture of the threats we face and the appropriate methods we need to employ to address them without violating the constitutional rights of innocent persons. Fear and misunderstanding should not drive our government policies.”

The full text of the letter can be found below:

March 8, 2011
Representative Peter King
U.S.House Committee on Homeland Security
Washington, DC 20515

Dear Chairman King:

As organizations dedicated to protecting rights guaranteed under the U.S. Constitution, we write to express our concern that your Committee’s planned hearings on the “radicalization of the American Muslim community” risk chilling fundamental First Amendment freedoms of religion, speech, and association.  These freedoms occupy a special place in our history and in the Constitution.  They define who we are as a country, and may not be set aside.

Our concerns are driven by your public statements justifying the basis for, and goals of, the Committee’s proposed hearings, which raise significant and troubling issues.[i]  Holding hearings based on a deeply flawed theory of “radicalization” that falsely conflates religious practices with preparation for terrorism and focuses exclusively on Muslim-Americans will burden the free exercise of religion, give the appearance of official endorsement of one set of religious beliefs over another and chill free association and free speech.  We are also deeply troubled by your plan to use the hearing to air the unsubstantiated allegation that Muslim-American leaders are uncooperative with U.S. counterterrorism efforts, both because the allegation is demonstrably incorrect and because it will only sow discord when national unity is most needed.

At the outset, and as organizations devoted to the protection of free speech, we want to emphasize that it is entirely appropriate for a member of Congress to express his or her views regarding issues of national interest, as you have done, including when such views are controversial.  While we, in turn, challenge the factual basis supporting some of your arguments, your views and your speech are protected by the First Amendment.[ii]  Indeed, as free speech organizations, we have and would defend the First Amendment rights of all individuals to express any, even hateful, views on matters of public debate, including whether particular religious or political beliefs are used to justify violence.

But when conducting official inquiries under the auspices of a standing committee of Congress, members have a higher duty to ensure that constitutional rights are not diminished under the weight of government scrutiny.  While Congress has broad and necessary powers of oversight and inquiry, they are not unlimited.  As the Supreme Court held in 1957 in one of the cases arising out of the House Un-American Activities Committee hearings, congressional inquiries, like legislation, may not entrench on First Amendment freedoms of religion, speech and association.[iii]

In order to accomplish its goals in accordance with the Constitution, therefore, the Committee, like law enforcement, must distinguish between First Amendment-protected ideological beliefs – whether radical or not – and criminal terrorist activity or plots.  Only the latter may properly be the subject of official inquiry.  Congress simply has no business examining Americans’ religious or political beliefs in official hearings – even if these beliefs are considered “radical” by some.  Congress must also avoid giving the appearance of an official endorsement of one set of religious beliefs over another.  It would be inappropriate and unwise for Congress to conduct an inquiry into the nature of Islam, the different interpretations of the faith among Muslims, whether there exists an “ideology” of “political Islam,” or whether some Muslims are more loyal Americans than others, just as it would be inappropriate for Congress to examine different interpretations of Christianity or debate whether Baptists or Catholics are more trustworthy.

Treating an entire community as suspect because of the bad acts or intolerant statements of a few is imprudent and unfair, and in the past has only led to greater misunderstanding, injustice and discrimination.  Erroneous theories of eugenics supported racist immigration policies and Jim Crow anti-miscegenation laws for decades.  Misguided “red” scares and racism drove abominable policies like blacklists, McCarthyism and Japanese internment, betrayed American values and did not improve security.  To avoid the same mistakes, the Committee should rely on facts and scientifically rigorous analysis, not biased opinions or unsupported theories positing a discernable “radicalization” process that are belied by available evidence.[iv]  “Radicalization” is simply a euphemism for religious and ideological profiling, which can only lead to further discrimination.

Targeting a minority religious community for official scrutiny also poses a great risk of promoting divisiveness, rather than national unity, which can only impair the government’s national security efforts on behalf of us all.  Avoiding religious divisiveness was a main objective of the Founders in drafting both the Establishment and Free Exercise clauses of the First Amendment.[v]  Official congressional inquiry only adds to divisiveness by putting enormous pressure on private groups and individuals who are singled out for scrutiny.  Many American Muslim community and faith groups have objected that the Committee’s hearings will present a false or misleading picture both of Islam and of the various and diverse Muslim communities in our country.[vi]  Negative repercussions may be especially likely in the case of the American Muslim community, which has already been the target of both hate speech and actual violence.  Recent media reports about the Committee’s proposed hearings demonstrate that they already have contributed to an atmosphere of increased religious animosity.[vii]

Your Committee can carry out its important function in a wide variety of ways without trampling on the constitutional rights of American Muslims.  The Committee may quite properly examine the continuing serious threat of domestic terrorism, and pursue broad areas of inquiry related to efforts by al Qaeda and others to commit acts of violence in the United States.  Terrorist methodologies, including efforts to recruit individuals to carry out terrorist acts, are properly the subject of government scrutiny.  Indeed, Congress has addressed these issues many times over the past several years, and many of the undersigned groups have long advocated that the proper focus of congressional hearings is on better understanding the nature and scope of the threat, vigorously exercising Congress’s authorities to oversee the government’s response, holding our military, law enforcement and intelligence agencies accountable, and crafting sensible legislation to enhance security while protecting the rights of innocent persons.  We will continue to work with Congress to ensure our government’s counterterrorism efforts are productive, effective, and legal.  The Committee’s hearing this month on “Threats to the Homeland” with Department of Homeland Security Secretary Janet Napolitano and National Counterterrorism Center Director Michael Leiter is an example of appropriate congressional inquiry, as are the hearings focusing on the domestic threat posed by Al Qaeda in the Arabian Peninsula, and the threat to air commerce.

Secondly, we are deeply concerned that a focus of your Committee’s hearing is based on the mischaracterization of leaders in the American Muslim community as uncooperative with U.S. counterterrorism efforts.  This allegation is demonstrably false.  Numerous law enforcement officials have gone on the record to dispute this allegation,[viii]academic studies have catalogued the assistance Muslims have provided to anti-terrorism efforts,[ix]and the undersigned organizations work closely with many Muslim civil rights and advocacy groups that are deeply involved in efforts to improve security policies.  Indeed, your Committee has heard testimony from several law enforcement witnesses regarding their engagement with Muslim-American communities on a host of issues.[x]
Our concern is heightened by your statements implying that American Muslims’ “cooperation” in national security efforts must be measured by their willingness to provide information voluntarily to counterterrorism enforcement agencies.  Although warning law enforcement officials of threats is indeed a shared civic and social responsibility, it would be illegal, unfair and impractical for Congress or law enforcement officials to require any religious or belief community to prove its loyalty to this country by “informing” on its members.  To the contrary, American Muslims, like the rest of this country’s citizens, have the right to protest illegal, over-zealous or abusive government security measures and to vigorously exercise, and encourage others to exercise rights guaranteed in the Constitution.  There are also legitimate concerns about whether individuals who volunteer information to law enforcement will find themselves threatened with legal jeopardy.  Advising individuals to speak to lawyers before talking to law enforcement or even to refrain from talking to law enforcement is both prudent and completely legal speech protected by the Bill of Rights.  We expect that many corporations, businesses and even congressional offices would advise their employees to consult a lawyer before speaking with law enforcement as well.

Recognizing and respecting the line between protected beliefs and illegal activity does not undermine our security, but rather strengthens it.  Basing security policy on factually flawed “radicalization” theories will only waste precious security resources.  Law enforcement has been successful in preventing terrorist plots many times over the past few years by focusing on facts and evidence.  Inquiring into how many Muslims hold “radical” beliefs, however those are defined, will not aid those efforts.  To the contrary, it will undermine the crucial bonds between communities and the government and law enforcement.  Most dangerously, it is likely to undermine our efforts to demonstrate to Muslims at home and abroad that the United States seeks to live up to its ideals in its treatment of all Americans, including Muslims, and is not engaged in a “war against Islam.”  

As civil liberties and free speech organizations, we have fought for many years against government proposals to investigate the religious or political beliefs of any group of Americans.  We subscribe to the views of the Attorney General that “law enforcement has an obligation to ensure that members of every religious community enjoy the ability to worship and to practice their faith in peace, free from intimidation, violence or suspicion. That is the right of all Americans. And it must be a reality for every citizen.  In this nation, our many faiths, origins, and appearances must bind us together, not break us apart.”  We hope that you will agree that this is also the obligation of the Congress. 

We respectfully urge that your Committee treat unsubstantiated theories about “radicalization” with skepticism and focus its efforts on actual terrorist acts and those who commit them rather than on the adoption of beliefs or the expression of dissent.  A fact-based approach enhanced with scientifically rigorous analysis will likely be more successful at providing a clear picture of the threats we face and the appropriate methods we need to employ to address them without violating the constitutional rights of innocent persons. Fear and misunderstanding should not drive our government policies.

We would be happy to supply any additional information and would welcome the opportunity to discuss this with you further. Thank you for considering our views.

Sincerely,

American Civil Liberties Union
American Association of University Professors
American Booksellers Foundation for Free Expression
American Friends Service Committee
American Library Association
American-Arab Anti-Discrimination Committee
Americans United for Separation of Church and State
Arab American Institute
Bill of Rights Defense Committee
Casa Esperanza
Center for Media and Democracy
Council on American-Islamic Relations
Defending Dissent Foundation
DownsizeDC.org, Inc.
DRUM- Desis Rising Up & Moving
Friends Committee on National Legislation
Friends of the Earth
Greater NYC for Change
Humanitarian Law Project
Kinder USA
Liberty Coalition
Muslim Advocates
Muslim Bar Association of New York
Muslim Bar Association of Southern California
Muslim Public Affairs Council
National Coalition Against Censorship
New Security Action
NYC Coalition to Stop Islamophobia
Pakistan American Public Affairs Committee
Peace Action
People For the American Way
Pipe Organs/Golden Ponds Farm
Queens Federation of Churches
Rutherford Institute
Secular Coalition for America
Sikh Council on Religion and Education
South Asian Americans Leading Together
South Asian Network
The Sikh Coalition
UNITED SIKHS
www.JusticeThroughMusic.org
www.StopDomesticTerror.com

Cc:  Ranking Member Bennie Thompson
        Members of the House Committee on Homeland Security
        Speaker John Boehner
        Democratic Leader Nancy Pelosi

[i]Peter King, “What’s Radicalizing Muslim Americans?,” Newsday (Dec. 17, 2010) available at http://www.house.gov/apps/list/speech/ny03_king/radicalizingmuslimamericans.html(hereinafter “Newsday op-ed”); Frank Gaffney Interview with Peter King, Secure Freedom Radio with Frank Gaffney (Jan. 6, 2011) available at http://www.securefreedomradio.org/2011/01/06/january-6-2011-faith-mcdonnell-rep-pete-king-sara-carter/.
[ii]We are disturbed, for example, by your unsubstantiated and divisive assertion that 85 percent of American mosques are run by extremists, especially given that experts on the subject have found that American Muslims’ attendance at mosques helps to prevent violent extremism.  See David Schanzer, Charles Kurzman, and Ebrahim Mooza, Anti-terror Lessons of Muslim-Americans, National Institute of Justice, Bureau of Justice Assistance, U.S. Department of Justice, p. 1, (Jan. 6, 2010) available at http://fds.duke.edu/db?attachment-34--4912-view-1255.
[iii]Watkins v. United States, 354 U.S. 178, 188 (1957). 
[iv]Recent “radicalization” theories are not supported by empirical evidence.  For example, the 2007 New York Police Department (“NYPD’) report, Radicalization in the West: The Homegrown Threat, drew quick condemnation from the civil liberties and Muslim communities for its serious factual and methodological flaws.  New York City Muslim and Arab community leaders formed a coalition in response to the NYPD report and issued a detailed analysis criticizing NYPD for wrongfully “positing a direct causal relation between Islam and terrorism such that expressions of faith are equated with signs of danger,” potentially putting millions of Muslims at risk.  Muslim American Civil Liberties Coalition, CountertERRORism Policy: MACLC’s Critique of the NYPD’s Report on Homegrown Terrorism (2008) available at http://maclcnypdcritique.files.wordpress.com/2008/11/counterterrorism-policy-final-paper3.pdf.  See also  Aziz Huq, Concerns with Mitchell D. Silber and Arvin Bhatt, N.Y. Police Dep’t, Radicalization in the West: The Homegrown Threat, New York University School of Law, Brennan Center for Justice (Aug. 30, 2007) available at http://brennan.3cdn.net/436ea44aae969ab3c5_sbm6vtxgi.pdf; American Civil Liberties Union et al., Coalition Memo to the Senate Committee on Homeland Security and Governmental Affairs Regarding “Homegrown Terrorism”(May 7, 2008) available at http://www.aclu.org/safefree/general/35209leg20080507.html.  NYPD added a “clarification” in 2009.  See http://maclc1.wordpress.com/2009/09/08/maclc-90809-letter-response-to-nypd-statement-of-clarification/.
[v]Annals of Congress (Sat., Aug. 15, 1789) pp. 730–31; McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 876 (2005) (“The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists)”); Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) (“political division along religious lines was one of the principal evils against which the First Amendment was intended to protect”).
[vi]“51 Organizations Tell Congress that Hearings Targeting American Muslims are Divisive,” Muslim Advocates (Feb. 1, 2011) available at http://www.muslimadvocates.org/latest/51_organizations_tell_congress.html
[vii]Arun Venugopal, King’s Hearings on Radical Islam Draw Rival Protest Groups, WNYC Newsblog (Feb. 23, 2011) available at  http://www.wnyc.org/blogs/wnyc-news-blog/2011/feb/22/rival-protests-rep-kings-office-over-islam-hearings/
[viii]See Counterterrorism Experts Reject Peter King’s Targeting of Muslims, National Security Network (Jan. 28, 2011) available at http://www.nsnetwork.org/node/1847; “Baca: No Evidence Muslims Not Cooperating with Police,” CBS Los Angeles (Feb. 11, 2011) available at http://losangeles.cbslocal.com/2011/02/07/baca-no-evidence-us-muslims-not-cooperating-with-police/
[ix]See Charles Kurzman, “Muslim-American Terrorism Since 9/11: An Accounting,” Triangle Center on Terrorism and Homeland Security (Feb. 2, 2011) available at http://sanford.duke.edu/centers/tcths/about/documents/Kurzman_Muslim-American_Terrorism_Since_911_An_Accounting.pdf
[x]See, e.g., Hearing of the House Homeland Security Committee Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, “Working with Communities  to Disrupt Terror Plots” (Mar. 17, 2010); Hearing of the House Homeland Security Committee Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, “Radicalization, Information Sharing and Community Outreach: Protecting the Homeland from Homegrown Terror” (Apr. 5, 2007).