Rights Groups Release Secret Detention, Rendition And Torture Docs Obtained in FOIA Case

By Big Tent Democrat, Section Civil Liberties
Posted on Thu Feb 12, 2009 at 11:21:02 AM EST
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From the Center For Constitutional Rights:

Documents obtained through a Freedom of Information Act lawsuit confirm Department of Defense involvement in the CIA’s ghost detention program, revealed three prominent human rights groups today. The groups—Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the Center for Human Rights and Global Justice (CHRGJ)—today released documents obtained from the U.S. Department of Defense (DOD) and U.S. Department of State (DOS), resulting from their lawsuit seeking the disclosure of government documents that relate to secret detention, extraordinary rendition, and torture. At a public press conference, the groups revealed that these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the DOD’s cooperation with the CIA’s ghost detention program; and show one case where the DOD sought to delay the release of Guantánamo prisoners who were scheduled to be sent home by a month and a half in order to avoid bad press.

More . .

On a conference call, I asked 3 questions to representatives of the rights groups. First, I asked if the activities described in the documents were now prohibited by President Obama's executive orders on these subjects. The answer was that there was concern regarding "gaps" in the orders regarding the transport and temporary holding of persons who then might be subject to some of these activities, especially in light of the fact that persons formally detained by the military were made available to the CIA in the temporary detention settings.

Second, I asked about any Jeppesen documents. The documents were heavily redacted and it is possible that Jeppesen was a part of that redaction. However, since Jeppesen was most closely tied to the CIA, the view is that Jeppesen would not necessarily figure prominently in these documents, which come from the Defense Department.

Third, I asked for a reaction to the Gallup poll result I blogged about earlier. The rights groups all believe that this is encouraging and a strong signal that the American People will not accept attempts to sweep this history under the rug.

A personal reaction, my thanks to all these groups for their important work on these matters. I personally urge any support you can give to them for their work.

Speaking for me only

< Gallup: Americans Favor Investigations Of Bush Administration | Gregg Withdraws From Commerce Nomination >

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Rights Groups Release Secret Detention, Rendition And Torture Docs Obtained in FOIA Case | 29 comments (29 topical)

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Nice job, BTD. (5.00 / 2) (#14)
by oculus on Thu Feb 12, 2009 at 01:28:53 PM EST

BTD (none / 0) (#1)
by lobary on Thu Feb 12, 2009 at 11:40:05 AM EST

What's your take on the Kagan testimony yesterday?

Different than everyone else's (none / 0) (#2)
by Big Tent Democrat on Thu Feb 12, 2009 at 11:41:58 AM EST

I would love to be able to ask a followup of her but my take is more innocuous than those of toher folks - I think she stated what we know - that if you can detain someone as an enemy combatant, then they are prisoners of war and subject to the protections of the Geneva Conventions.

[ Parent ]

the only problem: (5.00 / 1) (#7)
by blogname on Thu Feb 12, 2009 at 12:00:51 PM EST

the left is still fighting the issue of prolonged detention. the "war" against terror and al qaeda is eternal. this could justify lifetime detention without trial.

furthermore, she did not simply say we can detain enemy combatants indefinitely. she also accepted the hypothetical which defined combatants as people removed from the battlefield (the person who gives money, captured in the phillipines).

besides, indefinite detention was a staple of anti-bush liberal discourse. the virtual silence after holder's and kagan's comments really cheapens the sincerity of the cause.

so if/when obama argues in the upcoming supreme court case that the indefinite detention of a lawful u.s. resident (noncitizen) is permissible, i will await a reaction. the briefs are due on feb. 20 (according to aclu).

the closure of guantanomo bay means absolutely nothing given the existence of other detention facilities, the continuation of rendition, state secrets, the option of using "harsher" interrogation methods "if necessary," and the administration's position that indefinite detention of anyone under the broad "enemy combatant" label is legitimate -- so long as we are fighting al qaeda. add to this, obama's promise to escalate afghanistan, and the little confience i had in this administration almost vanishes.

[ Parent ]

Geneva and Kagan (none / 0) (#10)
by Intrepid One on Thu Feb 12, 2009 at 12:36:22 PM EST

Kagan:

Kagan was quite clear. The article I provided yesterday was quite clear. Coming on the heels of Holder embracing the same views the pattern of the appointees is quite clear. They represent Obama's views. Again I repeat add those two to Panettas embrace of extraordinary extradition in the guise of transfers to other counties and you have a trifecta. The writing is just not on the wall, it is carved in stone.

No one including you can be so intellectually void as to not see an obvious pattern here on the part of Obama. The only explanation for your denial is that it is just that - denial - based on drinking the kool-aide and the wish to not have your support of him go sour. Well it has. After arguing Ad nauseam that there were no loopholes in Obama's signings the civil right groups today said otherwise and based on your pattern of denial I suspect that their language as to the 'gaps' was likely stronger that that you share in this diary. Face the music. With Obama noting has changed. He signed a statement which was nothing other than World PR with loopholes so huge that you could drive a Boeing jetliner through.

Geneva Conventions:

The Geneva Convention DO NOT protect enemy combatants. This was already hashed over a few years ago when we started to pull people off the streets and toss them in jail with no rights. Wiki below explains that their method of warfare DOES NOT qualify for protections under Geneva. Obama knows this. Kagen knows it. Holder knows it. Panetta knows it. And they have all publicly said they know it. Face up to it. You bubble has burst and Obama is not the guy you would like him to be. For the record I never thought he was. I always saw him very capable of doing exactly what he is doing contrary to his word on many issues. The calculated words and the innocent exterior never fooled me as there are millions of those types out in the world fooling people everyday.

To be entitled to prisoner-of-war status, captured service members must be lawful combatants entitled to combatant's privilege--which gives them immunity from punishment for crimes constituting lawful acts of war, e.g., killing enemy troops. To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a "fixed distinctive marking, visible from a distance" and bear arms openly. Thus, uniforms and/or badges are important in determining prisoner-of-war status; and francs-tireurs, "terrorists", saboteurs, mercenaries and spies do not qualify.

Wiki

[ Parent ]

This is incorrect. (none / 0) (#12)
by lobary on Thu Feb 12, 2009 at 01:01:51 PM EST

See Hamdan v. Rumsfeld

You're confusing enemy combatants for unlawful combatants.

[ Parent ]

Hamdan v. Rumsfeld (none / 0) (#17)
by Intrepid One on Thu Feb 12, 2009 at 01:46:35 PM EST

was in regards to a trial by military commissions under the Uniform Code of Military Justice. None of which has anything to do with the ability to hold these people until the war is over, which as another poster said may be never.

In you short reply you neglected Kagan, Holder, and Panetta, and Obama via appointing these people and their views. Regarding Panetta you obviously have not added up that his and Obama's willingness to send these people to other countries for prosecution circumvents the SCOTUS ruling. So what Obama has up his sleeve is to do an end-around the SCOTUS and contract out prosecution when needed.

In that case Hamdan v. Rumsfeld means nothing in regards to future actions.

In addition many of these people being picked up would qualify even in the SCOTUS as unlawful combatants. Hamden didn't but that was not a blanket ruling.

[ Parent ]

I was responding only to your statement (5.00 / 1) (#18)
by lobary on Thu Feb 12, 2009 at 02:00:01 PM EST

that enemy combatants aren't protected by Geneva Conventions. As I understand it, the Court explicitly stated otherwise in Hamdan.

Is Glenn Greenwald wrong?

[ Parent ]

You are talking about one man's case (none / 0) (#20)
by Intrepid One on Thu Feb 12, 2009 at 03:34:39 PM EST

So is Greenwald. Like I said the decision on Hamdan is not a blanket decision. It does no say who constitutes an enemy combatant and an unlawful enemy combatant across the board. It just rules on Hamdan. The case also decides on military commission tribunals which is the central theme of the case itself.

Aside from that my original post never mentioned trials or tribunals. My main point, which I bolded, was what the Obama administration believes (Kagen, Holder, Panetta, Obama). And Geneva backs them on that as the citation I provided illustrates as far as being able to pick these people up and incarcerate them (that was my point). As long as we are at war we can hold them as POW's until the end of the war, if that end ever occurs.

As for trying them there is the Panetta end-around as I already explained and you willingly ignored. Would Panetta's end-around be a first for us? No. Hamdan was released and sent to Yemen where he was quickly tried and served time. So in the end what SCOUS ruled did not save Hamdan from trial or spending further time in jail. He was tried and convicted in another country just as Panetta is saying we will continue to do.

Now you can cherry pick stuff all day long about things I did not say and it won't prove a thing. Nor will it change what Obama is willing to do to circumvent the SCOTUS or Geneva, or whatever else he wants to. It's no accident that the head of the CIA, the AG, and the Solicitor General all hold the same views.

[ Parent ]

Read Glenn please (none / 0) (#32)
by lobary on Thu Feb 12, 2009 at 07:18:11 PM EST

I think he knows what he's talking about. Look, I share your concerns about this development generally, but my point was a specific one. You said: "The Geneva Conventions DO NOT protect enemy combatants." That is false. They provide some minimum protection under Common Article 3.

From VI(D)(ii) of the Hamdan opinion:

The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being " `international in scope,' " does not qualify as a " `conflict not of an international character.' " 415 F. 3d, at 41. That reasoning is erroneous...Common Article 3 affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory "Power" who are involved in a conflict "in the territory of" a signatory.

[ Parent ]

You are stuck in a loop (none / 0) (#33)
by Intrepid One on Fri Feb 13, 2009 at 10:36:43 AM EST

FYI I read Greenwald on this in 2006. He reported on what SCOTUS said. SCOTUS spoke and then Hamdan was sent to Yemen for trial and spent time in prison to circumvent what SCOTUS ruled - just as the Obama administration has said they will do now.

You want to ignore that and keep cherry picking. You want to ignore that I already told you I was not speaking to trials in my post. You want to ignore that the decision only involves military tribunals and not any other form. You want to stick to your talking point over and over and over. If you want to think you are right about a totally irrelevant point that I was not addressing in my post go ahead. It means nothing to me because that is not what I was talking about.

I'm done because arguing about something I didn't not address is a wastes of time.

[ Parent ]

: Cherry picking? (none / 0) (#34)
by lobary on Fri Feb 13, 2009 at 11:41:37 AM EST

You brought it up! You typed an entire fracking paragraph asserting that enemy combatants aren't protected by the Geneva Conventions when, in fact, they are. It's right there in the Hamdan decision. They are afforded some due process to contest their status as enemy combatants. You can accuse me of cherry picking if you wish, but as I said repeatedly, I was only responding to your incorrect statement. Stop being a jackass. Don't blame me for your imprecise phrasing.
Fwiw I completely agree with your general point about the direction the Obama administration has taken in this regard and I share your concern about their statements mirroring the Bush administration.

[ Parent ]

I am interested (none / 0) (#21)
by Steve M on Thu Feb 12, 2009 at 03:38:12 PM EST

in whether you thought this answer was noncontroversial:

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
"Do you agree with that?" the senator said.
"I do," Kagan replied.

This seems sketchy to me, but maybe I'm missing something. The major reason that the "battlefield" is relevant is that if you pick someone up on the literal battlefield, there's every reason to apply a strong presumption that they're an enemy. But if our non-military personnel arrest someone in the Philippines, there's no reason to assume anything about them; the only thing that makes them special is that the U.S. Government claims they're an al-Qaeda member. But isn't that an allegation we should have to prove in less-than-summary fashion?

[ Parent ]

The part that is controversial (none / 0) (#22)
by Big Tent Democrat on Thu Feb 12, 2009 at 03:46:54 PM EST

is what of the sovereignty of the Phillipines.

Other than that, not seeing the controversy myself.

[ Parent ]

Well (none / 0) (#23)
by Steve M on Thu Feb 12, 2009 at 04:30:19 PM EST

It seems to me that the United States has more rights - or conversely, the defendant has less rights - if we capture an "enemy combatant" as opposed to, say, someone who is suspected of tax fraud. Among other things, we can indefinitely detain the enemy combatant until "the end of hostilities," based not upon an adjudication of guilt but merely an adjudication that he is, in fact, an enemy combatant. And that adjudication doesn't even have to come from a federal court.

So it seems to me, given the lesser degree of protection afforded to alleged enemy combatants, that we ought to at least require that such people be captured under circumstances that create an inference that they are, in fact, enemy combatants. Or to put it another way, if this theory is valid, why are we even talking about a "battlefield" in the first place?

But I don't think Kagan and Holder are secret neocons, so if they and you are telling me that this is a noncontroversial position, I guess I'm mistaken. It still seems to render the battlefield question totally meaningless though.

[ Parent ]

I focused on this (none / 0) (#24)
by Big Tent Democrat on Thu Feb 12, 2009 at 04:33:46 PM EST

"that is suspected of financing Al Qaeda worldwide."

Suppose it was someone suspected of running arms to Al Qaida. How would that change your thinking?

[ Parent ]

I'm not sure it would (5.00 / 1) (#26)
by Steve M on Thu Feb 12, 2009 at 04:42:00 PM EST

My point is that, if a "battlefield" capture means anything at all, it must be that the circumstances of a capture itself can give rise to indicia that the person being captured is an enemy combatant.

I assume we would agree that if someone is proven to be an al-Qaeda financier, or an al-Qaeda arms smuggler, that would qualify them as an enemy combatant and they could be held for the duration of the conflict (whatever that means). I'm focused on what status they occupy, and what rights they retain, before the substantive allegations against them have in fact been proven.

[ Parent ]

Geneva Conventions (5.00 / 1) (#28)
by Big Tent Democrat on Thu Feb 12, 2009 at 04:53:14 PM EST

require that a competent tribunal rule on whether the designation as an enemy combatant is accurate.

[ Parent ]

Okay (none / 0) (#29)
by Steve M on Thu Feb 12, 2009 at 04:57:01 PM EST

but that can be a military commission, right, as long as it's a regularly constituted tribunal and not some ad hoc body created for the purpose of trying this suspect?

I guess I see where your logic is going, though. A military commission consistent with the Geneva Convention is by definition not a kangaroo court, so therefore if we process suspected enemy combatants that way, we're not denying them anything tangible. Maybe I'm still hung up on how the military commission system was run under Bush.

[ Parent ]

: Not in the US or Gitmo (none / 0) (#30)
by Big Tent Democrat on Thu Feb 12, 2009 at 05:01:23 PM EST

[ Parent ]

I thought that probably meant a (none / 0) (#25)
by oculus on Thu Feb 12, 2009 at 04:36:26 PM EST

contributor to Islamic charities.

[ Parent ]

Well (none / 0) (#27)
by Big Tent Democrat on Thu Feb 12, 2009 at 04:52:20 PM EST

That is changing the words.

[ Parent ]

: Oh, I think the words could encompass (none / 0) (#31)
by oculus on Thu Feb 12, 2009 at 05:42:51 PM EST

such behavior; but maybe John Le Carre is influencing my opinion.

[ Parent ]

This is a reference to what? Any links? T/U (none / 0) (#4)
by jawbone on Thu Feb 12, 2009 at 11:43:17 AM EST

[ Parent ]

: Sorry (none / 0) (#6)
by lobary on Thu Feb 12, 2009 at 11:48:38 AM EST

Linkage

[ Parent ]

Wow. T/U for getting this info out. (none / 0) (#3)
by jawbone on Thu Feb 12, 2009 at 11:42:18 AM EST

Think the new administration will find a way to block these FOIA requests? Or, will Obama decide sunlight is the best disinfectant?

Like this? (none / 0) (#8)
by SOS on Thu Feb 12, 2009 at 12:25:45 PM EST

Obama urges Americans to follow Lincoln's example

Go back home and return to work on your farms and in your shops.

[ Parent ]

Already Made A Move (none / 0) (#11)
by squeaky on Thu Feb 12, 2009 at 12:37:23 PM EST

On that front. New Obama Orders on Transparency, FOIA Requests

[ Parent ]

Good. Although FOIA (none / 0) (#13)
by oculus on Thu Feb 12, 2009 at 01:28:19 PM EST

already provides for presumption in favor of disclosure w/government bearing the burden of justifying failure to disclose.


[ Parent ]

Sure (none / 0) (#15)
by squeaky on Thu Feb 12, 2009 at 01:38:20 PM EST

That is what BushCo said before they blocked everything that they could with an Justice Dept meme in 2001. Obama's EO reverses that order.

Are you making an argument here that Obama is the same as Bush? And that Obama's executive order as promised in his campaign is an empty gesture?

The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.
For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.
The ACLU's request, however, comes after President Barack Obama last week rescinded a 2001 Justice Department memo that gave agencies broad legal cover to reject public disclosure requests. Obama also urged agencies to be more transparent when deciding what documents to release under the Freedom of Information Act.
The ACLU now sees a new opening.

McClatchy

We'll see.

[ Parent ]

: We'll See (none / 0) (#16)
by squeaky on Thu Feb 12, 2009 at 01:45:46 PM EST

On Friday [tomorrow], the Obama Justice Department must file its response to the ACLU's request for three critical memos written by the Bush administration's Office of Legal Counsel, or OLC.

Hard to imagine that Dawn Johnsen will reverse her position, but who knows. They balked on the state secrets case in Mohamed et al. v. Jeppesen.

[ Parent ]

Let me guess Haliburton (none / 0) (#5)
by SOS on Thu Feb 12, 2009 at 11:45:14 AM EST

got the contract to build these joints.

Obama like Bush. (none / 0) (#9)
by Radix on Thu Feb 12, 2009 at 12:34:47 PM EST

We can only hope that Obama takes after Bush with regard to Bush public stance versus his private one. Simply put, say what ever works best in public and political circles and do what you want behind closed doors. Let's hope that Obama's public stance here his simply to get the chickenhawks to shut up and that in private he has taken the opposite stance to his public one.