Gov’t Appeals Stop of Guantanamo Gential Searches

Thursday, in response to the May 22nd emergency motion requesting an end to the newly instituted groin searches, Federal District Chief Judge Royce C. Lamberth ordered the government to stop genital searches of Guantanamo Bay detainees prior to meeting with their lawyers. In his strongly-worded 35 page opinion, Judge Lamberth ordered prison commanders to return to an earlier search method described in a 2009 Defense Department task force review, which limited guards to grasping the waistband of a detainee’s trousers and shaking their pants to dislodge any contraband. The current search method at Guantanamo, referred to as an exaggerated response to unpersuasive security concerns, involves the touching and holding of detainees’ genital and anal areas “flagrant[ly] disregard[ing] the need for a light touch on religious and cultural matters” and dissuades detainees from gaining access to their lawyers.  The order stated in part that:

“… the choice between submitting to a search procedure that is religiously and culturally abhorrent or forgoing counsel effectively presents no choice for devout Muslims like petitioners.”

While the government made justifications for the invasive searches at Guantanamo, i.e.the finding of homemade weapons and prohibited electronic devices in April, Judge Lamberth felt that the record failed to indicate “that the detainees have received any contraband from their attorney or that detainees have attempted to pass contraband to each other during phone calls or meetings with attorneys.”

Responding quickly to the order, the Justice Department filed an appeal late last night. The Justice Department has requested a hold to be placed on the stopping of genital searches, stating that Guantanamo detainees are able to gain access to weaponizable items which may result in suicide, harm to other detainees, or the guards becoming seriously injured. In addition to the appeal, the government submitted a sworn declaration from Marine General John Kelly, commander of United States Southern Command, who spoke strongly of the irreparable harm that would result with the discontinuance of genital searches at Guantanamo. The government claims that the newly implemented search methods have not deterred meetings nor have they impacted access to the prisoners. Furthermore, the government states Judge Lamberth’s order is barred by the Military Commissions Act, which “unequivocally bars conditions-of-confinement claims by Guantanamo detainees.”

“Because the full-frisk-search and visit-location policies with which Petitioners take issue both concern their conditions of confinement, the Court lacked jurisdiction to issue an order enjoining them.”

The appeal has resulted in great tension.  Guantanamo leadership is maintaining protocol, requiring their “standard” genital searches before and after visits with attorneys or phone calls, while lawyers have filed a motion asking Judge Lamberth to issue an order requiring the government to follow his ruling, arguing that the government is acting in contempt of court. In the upcoming weeks, it will be interesting to see whether the appeal moves forward, or if for the first time, a federal court can restrict a military commander from implementing certain security procedures at a detention facility.

Alexandra Kutner, Research Fellow
Center for Policy and Research

 

 

Detainees Turn to Courts to Stop Force-Feeding

Despite prior rulings that federal courts have no jurisdiction over the treatment of detainees at Guantanamo Bay, attorneys for detainees at the detention center have now turned to the court system for help in putting a stop to force-feeding at the GTMO Detention Camp.  Over the weekend, defense attorneys filed a motion with a federal district court in Washington DC requesting an immediate hearing on the legality of tactics used by military personnel at Guantanamo to keep hunger-striking prisoners alive.  In the 30-page motion, defense attorney Jon B. Eisenberg stated, “There cannot be a legitimate penological interest in force-feeding petitioners (detainees) to prolong their indefinite detention.”

The military continues to defend the use of force-feeding as a necessary step to maintain order at Guantanamo, but the defense attorneys and detainees argue that it is a direct violation of human rights.  Detainee Nabil Hadjarab claims that he is taking part in the hunger strikes to protest his detention despite the fact that no formal charges have been lodged against him.  Hadjarab stated, “I am doing this because I want to know my destiny.  I cannot abide not knowing anymore.”  Force-feeding at Guantanamo has been criticized for months now but this is one of the first instances where the detainee’s defense counsel has turned to the courts for relief.

The motion specifically names four detainees, and there might be a reason for its timing.  The Islamic holy month of Ramadan starts next week, and any force-feeding that might occur during daytime hours could violate detainees’ religious beliefs.  Even if the motion is not presented to the court by next week, the detainees are seeking a temporary order that would prohibit guards from force-feeding them from sunup to sundown.  This would probably be granted as guards at Guantanamo have agreed in the past to only force-feed detainees after sundown in observance with Ramadan.

Even so, guards at Guantanamo are unlikely to change their ways without a specific court order.  Army Colonel Greg Julian stated, “Until we are told to do differently the practice will not change.”  I can understand that guards at Guantanamo are simply following orders.  They aren’t exactly in the best position.  They don’t get to make the call on whether or not the detainees are charged or released.  As for the overarching policy, I agree that it isn’t a good look to have detainees dying from malnutrition at Guantanamo.  But it isn’t much better to shove tubes into detainees’ stomachs in response to a protest that has a perfectly legitimate aim.

We aren’t talking about detainees with high intelligence value or detainees that have been charged with crimes.  I can see a better argument for force-feeding detainees in that category, even if it might still be a human rights violation.  We could at least justify it since keeping them alive might save more lives if they have information on any impending attacks.  Instead, we’re talking about men who have been told by the government that there are no charges against them due to lack of evidence, but they are still not allowed to leave Guantanamo Bay.  These are men who have made a conscious decision to protest a policy that many Americans don’t even like.  And if the courts put a stop to force-feeding it might force the government’s hand into making a decision as to their fate.

Either way, this has turned into an issue that the courts will now have to address.  And with the total number of hunger-strikers at 106 and the number of detainees being force-fed at 45, it will be interesting to see how this plays out in the next week or so.

Chris Whitten
Center for Policy and Research

Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

NSA Phone Surveillance Scandal Sparks Different Reactions

On Wednesday, The Guardian released a story detailing how the National Security Agency obtained a secret court order compelling telephone giant Verizon Wireless to hand over phone records detailing all domestic calls made by its customers.  Specifically, the order, signed by a federal judge on April 25th, gave the NSA unlimited authority to collect phone numbers, location data, time and duration of calls, and other unique identifying data until July 19th.  As the article points out, the court order was unusual in that it targeted such a wide range of people.  Normally, this type of court order would be limited to an individual or a small group of people.

Now, I would venture to say that when most Americans first heard about this story, they envisioned a government agent sitting in a van with headphones on, listening to their individual phone calls.  However, as a follow-up article by The Washington Post explains, this is probably not the case.  Information obtained regarding the court order made no actual mention of audio recordings.  Although it is not out of the question that the NSA may have other programs aimed at obtaining audio files, they would not be able to acquire them under this order.  It appears that the NSA is only seeking paper and electronic records at this point.

But why would the NSA want these phone records?  Although the reasoning behind the court order is largely unknown at this point, the White House responded quickly by claiming that this was an anti-terrorism move.  Particularly, the NSA is probably seeking out patterns in the records that could reveal possible terrorist plots against the United States.  Even if this is the case, the methods the NSA uses to find these patterns have not been proven and have actually been questioned by experts in recent years.

The story has already sparked a great deal of outrage among the American public.  We have a high expectation of privacy and tend to think that we are immune to this type of surveillance, especially when it has not been proven to be effective.  But since specific details are still being withheld, we can’t be sure whether the NSA’s program is actually constitutional.  Putting that aside, there are a few different ways to look at the situation.  Like I said before, we tend to place a high value on privacy in the U.S.  The idea that the government can monitor our phone calls without notice of permission is unsettling to most, and understandably so.  Even if the government is not actively listening to our phone calls, it’s hard to say what else they ARE monitoring.  Prior to the enactment of the Patriot Act, this kind of surveillance would have been unthinkable.

On the other hand, some Americans are ok with the idea of the government monitoring private phone calls.  The program even received some support in Congress.  Senator Lindsey Graham defended the NSA’s program on Fox News, stating that it was a necessary step toward thwarting “homegrown terrorism.”  There are undoubtedly some Americans who agree and are ok with trading some amount of privacy for increased national security.  In the post-9/11 era, this is also understandable.  After all, what does the average American have to worry about if they have nothing to hide?  It’s not like the government has released the actual records to the public.  This might be true, and that argument might hold water, but the fact is that we don’t know where it stops.  Just to reiterate, specifics regarding the program are still unknown, and the NSA may have place self-imposed limitations on their surveillance, but we just won’t know until more details are released.  That’s the part that makes so many Americans uneasy.

Until then, we again have to ask ourselves a question that been asked over and over for the past decade:  What amount of privacy and liberty are we willing to give up in the name of national security?

Chris Whitten, Research Fellow
Center for Policy and Research