Senate Panel Votes to Reveal CIA Report

On Thursday, the Senate Intelligence Committee voted to declassify the executive summary and conclusions from its report on the CIA’s Detention and Interrogation Program. Senator Dianne Feinstein (D-CA), charwoman of the committee, released a written statement, stating that “[t]he report exposes a brutality that stands in stark contrast to our values as a nation…. This is not what Americans do.” Continue reading

NSA Surveillance Program Overhaul on the Way

Earlier this week, the Senate Intelligence Committee announced plans to make changes to PRISM, the NSA surveillance program outed by Edward Snowden a few months back.  Senators Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA) are reportedly drafting the bill to present to Congress as early as next week.  Senator Feinstein did make it clear that they expected a fair amount of amendments to be proposed once it is presented.  Senator Feinstein also stated that the bill’s aim is to increase public confidence in the NSA program that she already believes to be lawful.

Continue reading

Inside the SJC’s Guantanamo Debate

Last week, we wrote about the Senate Judiciary Committee’s hearing on Guantanamo Bay.  The debate, entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” brought together members of Congress from both sides of the aisle, including Chairman Dick Durbin (D, IL); Chairman of the Full Committee Patrick Leahy (D, VT); Ranking-Member Ted Cruz (R, TX); and Rep. Mike Pompeio (R, KS-4), among others.  Testifying were top-ranking members of our armed forces and members of international human rights organizations, including Major General Paul Eaton, U.S. Army (Ret.); Brigadier General Stephen Xenakis, M.D., U.S. Army (Ret.); Lieutenant Joshua Fryday, Judge Advocate General’s Corps., U.S. Navy; Frank Gaffney, Founder and President, Center for Security Policy; and Elisa Massimino, President and Chief Executive Officer, Human Rights First.

Most of the usual Guantanamo-related topics were discussed, including arguments for and against the closure of Gitmo, what that closure might mean for American national security, and how we might go about transferring current detainees to domestic prisons or foreign countries for continued detention or release.  As we’ve come to expect, testimony from Congressional representatives was fairly predictable based on party membership.  Chairman Durbin opened the hearing by calling for the closure of Guantanamo Bay, stated that Gitmo had become an “international eyesore” and that “the Administration could be doing more to close (GTMO)…, [but] the President’s authority has been limited by Congress.”  Nothing too groundbreaking there, but it’s always nice to see someone in a position of authority acknowledging that this isn’t all President Obama’s fault.  Like I’ve said before, this isn’t a unilateral decision for the President to make.  It’s going to take a level of bipartisan cooperation that’s been completely absent in Congress in recent history.

But even if President Obama can’t single-handedly close Guantanamo, Chairman Durbin noted that through the FY14 Defense Bill, passed by the House Armed Services Committee in early June, he has an expanded ability to dispose of prisoners (calm down, disposing means releasing or transferring in this context) as he sees fit.  But we’ve seen problems with this as well.  First, where do we release or transfer these detainees?  Just a few days ago we saw Senator Saxby Chambliss voice concerns about releasing detainees to their home countries where they may attempt to join or re-join al-Qaeda.  Our European allies have a history of rejecting transfers of Guantanamo detainees.  And we certainly aren’t going to give them asylum here.  So even if the President’s powers to release or transfer detainees have been expanded, it’s still a delicate situation.

Ranking-Member Cruz was one of the few speakers to advocate for keeping Guantanamo Bay open, bashing the Obama administration for it’s policy and saying that we “continue to apologize for continuing the policy.”  Senator Cruz’s main argument was that we can’t embrace a “utopian fiction” where released detainees embrace global peace and pledge not to take up arms against the United States.  I could understand that concern if we were talking about releasing KSM.  I can understand that concern if we’re talking about releasing any detainee that we know was involved in attacks against the United States.  But I’m pretty sure nobody is calling for those detainees to be released.  So what about the detainees with no formal charges or evidence against them?  Are we going to hold them for the rest of their lives just because there’s a chance they could join al-Qaeda if we release them?  Apparently Senator Cruz would say yes.

Major General Eaton and Brigadier General Xenakis also testified in front of the panel, both advocating for the closure of the detention center.  Major General Eaton stated clearly that “[t]here is no national security reason to keep Guantanamo open,” and even went so far as to say the keeping it open this long has undermined national security by damaging our “moral leadership, political leadership, military power and economic power.”  Brigadier General Xenakis attacked the much-covered force-feeding policy, stating that it violates not only the basic ethics of the medical field, but also the Geneva Convention.

Rep. Pompeio joined Senator Cruz’s position, making the bold claim that “there are no human rights violations occurring at [GTMO].”  He also voiced concerns that foreign nations would torture detainees if we were to transfer them.  Now, I’m not saying I can’t see any reason behind the force-feeding policy.  I get that we don’t want upwards of 40 detainees dying of malnutrition on our watch.  But to say shoving a rubber tube through the nose and into the stomach of a fully conscious human being in an extremely painful fashion is not a human rights violation is borderline ludicrous.

The way I see it, the only semi-logical argument for keeping Guantanamo Bay open came from Mr. Gaffney.  Mr. Gaffney argued that Gitmo should remain open until a safe and effective alternative is pinpointed.  That much I can get on board with.  I already pointed out that there are some holes in the current plan.  But Mr. Gaffney’s seems to be worried about detainees escaping from super-max prisons on U.S. soil and rejoining al-Qaeda or remaining in the U.S. to plan attacks.  Is this what we’re really concerned about?  We already trust maximum security penitentiaries to hold our most notorious murderers, so why does it matter what their nationality is?  According to documents from the New York State Department of Corrections, there were a total of 10 escapes from detention facilities of any kind between 2006 and 2010.  That equates to a rate of .03 escapes per 1,000 inmates during that time period, and includes statistics from ALL New York state penitentiaries.  I, for one, am no too worried about detainees, who will probably have additional monitoring in place, escaping from super-max prisons.  Again, I agree that we need a rock-solid plan in place before we close Guantanamo, but the concerns cited by Mr. Gaffney are simply not realistic.

That’s probably a good thing since the plan proposed by Democrats involved transferring detainees to the same super-max facilities that Mr. Gaffney is so worried about.  Senator Dianne Feinstein (D, CA) pointed out that it will cost tax payers roughly $551 million to operate Guantanamo Bay in 2013, and roughly $2.1 million per detainee.  According to her estimates, it would cost only $287,000 to house a detainee in a super-max facility here in the U.S.  Especially since the sequester hit the federal government, this would obviously be a much more cost-effective model.  So on top of potentially eradicating human rights violations, we might be able to take a step towards a balanced defense budget.

All in all, we are still in a stalemate.  The hearing was essentially a summary of all the arguments we’ve heard about Guantanamo Bay over the past 5 years.  Democrats and members of the military are still pushing for its closure while Republicans are standing firm on keeping it open.  I don’t know that we’re any closer to actually closing Gitmo after the hearing, but it’s good to see that we haven’t given up the fight.

***Special thanks to Mr. Rick Erkel for reporting on the hearing

Chris Whitten, Research Fellow
Center for Policy and Research

Senate Panel Debates the Close of Guantanamo

Yesterday afternoon, for the first time since 2009, a Senate committee took to the issue of closing the Guantanamo detention center. The hearing was called by Sen. Richard Durbin (D-Illinois), the Senate’s No. 2 Democrat and chairman of the Senate Judiciary subcommittee on the Constitution, and Civil and Human Rights. In his opening remarks, Sen. Durbin referred to the prison as a sad chapter in American history, a place he had “never imagined in 2013… would still be open.”

“Every day it remains open, Guantanamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights.” – Sen. Durbin

Sen. Durbin has long been critical of Guantanamo Bay. In 2009 he stated that he would be OK with accepting detainees into the Illinois supermax facility. Earlier this month, along with California Sen. Dianne Feinstein, Sen. Durbin asked President Obama to order the Pentagon to stop routinely force-feeding the hunger strikers, challenging the military claim that the enteral feedings were humane and modeled after the federal Bureau of Prisons.

Opposing Sen. Durbin’s request to close the prison, Senator Ted Cruz (R-Texas) harped on the threat of detainee recidivism. Quoting from a recent study by the Director of National Intelligence which found that 28 percent of detainees previously released from Guantanamo were suspected or confirmed to have joined up with terrorist groups upon leaving US custody, Sen. Cruz emphasized the risk we face by releasing the detainees. In agreement, Center for Security Policy president Frank Gaffney stated that moving prisoners from Guantanamo to the U.S. could result in attacks on domestic prisons as well as the spread of radical Islam to other inmates.

As of now, little progress has been made on the closing of Guantanamo. Congress appears to be divided, even among its own factions. I tend to agree with Sen. Durbin and propose that we close Guantanamo. We give the detainee’s their day in court and either send them back to their country of origin if that country is willing to accept them, or we place them in supermax prisons within the United States. Mr. Gaffney’s concerns are ludicrous. We hold hundreds of terrorists in supermax facilities – to my knowledge, there have been no attacks or major issues stemming from the domestic detention of detainees. In fact, a detainee in the general population of a prison will probably have more to fear from us than we will of him. Furthermore, should we allow the detainees to return to their country of origin and something goes wrong – another Abu Ghraib-type escape or a detainee returning to a terrorist cell – just look at what happened to Saeed al-Shiri. While I am not proposing or endorsing the use of drones, I am pointing out that the Obama administration clearly has no problem finding more permanent solutions when it deems necessary. On top of that, the study Sen. Cruz referred to only took into account the number of detainees associated with militant groups, not the number who have actually engaged in violent activities themselves. If I were to guess, the majority of detainees that we saw fit for release were more concerned with starting families and their lives than plotting more attacks.

So what comes next? Most likely nothing. The Pentagon finally announced that they will be establishing Periodic Review Boards – two years after the Obama administration called for their creation (no official dates as of yet). Force feeding and genital searches are still a go. Another day, another story. Maybe next time there is a senate hearing, the Obama administration will actually show up.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Force-Feeding Condemned by Top Congressmen

As the controversy surrounding force-feeding tactics at Guantanamo Bay continues, two top members of the U.S. Senate have spoken out in favor of ending the practice.  Senators Richard Durbin and Dianne Feinstein called on President Obama to stop force-feeding prisoners partaking in hunger strikes in protest of their status at Guantanamo.  This comes just days after a U.S. District Court Judge handed down a ruling stating that federal courts have no authority to shut down the force-feeding program, but agreeing with detainees and their attorneys that the practice is troubling and may violate human rights.  The decision put the burden solely on President Obama to address the situation, and it looks like he will be receiving pressure from Congress as well.

Senators Durbin and Feinstein did imply that there may be cases where force-feeding is medically necessary, but stated that the military does not observe proper guidelines and safeguards even in those cases.  This was not Senator Feinstein’s first attempt at convincing the government to stop force-feeding.  Last month she wrote a letter to Secretary of Defense Chuck Hagel after a visit to Guantanamo in which she called hunger strikes a “long-known form of non-violent protest aimed at bringing attention to a cause, rather than an attempt of suicide.”  This seems to imply that Feinstein’s views are in line with others who believe that force-feeding is inhumane in instances where protests do not threaten Guantanamo personnel and involve mentally competent detainees.

The White House turned to its usual response, stating that it does not want any detainees to die of malnutrition while in detention.  So it’s ok to hold them indefinitely with no hope of release even though we lack the necessary evidence to press charges, but it’s not ok for them to protest a largely unreasonable policy in a manner that poses no threat to the United States or its military personnel.  Got it.

The Senators also called on President Obama to make good on his long overdue promise to close Guantanamo Bay altogether, which was just another drop in the proverbial ocean of similar requests made since Obama took office.  As sad as it is, it’s almost laughable at this point to think that another request to close Guantanamo will make a difference with so many members of Congress still in favor of keeping it open.  But I guess it’s nice to know that there are still politicians out there who believe that it can be accomplished.

Do I think this latest effort to stop force-feeding and close Guantanamo will make any difference?  Not really.  Like I’ve said before, closing Guantanamo will be a long, painful process and there are still too many people who want to keep it open.  It’s not a groundbreaking prediction but I don’t think Guantanamo Bay will be closed any time in the near future.  I think our short-term goal needs to be putting an end to force-feeding.  If you believe Monday’s decision, we should be able to sidestep much of the political process and leave it up to President Obama if we focus on that.  That doesn’t mean we should abandon efforts to close the base, but we need to focus on the immediate problems that we can fix right now.

In a related story, two hunger-strikers dropped out of the over 4 month-long protest for unspecified reasons, bringing the total number down to 104.  However, 45 are still being force-fed on a daily basis.

Chris Whitten, Research Fellow
Center for Policy and Research

A FISC for Drones?

With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.

Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)

The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.

In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.

Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.

As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.

Ex Ante or Ex Post?

If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.

However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.

Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.”  This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.

I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.

Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”

Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.

Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.

Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure  warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.

There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.

Lastly, as Chesney himself points out:

Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…

This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.

I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

When Will Obama Close GTMO?

Since President Obama’s inauguration last month, his unfulfilled promise to close Guantanamo Bay Detention Center has once again risen to the forefront of the public discourse.  Throughout his campaign as a presidential candidate, and into his first term as President of the United States, Obama stated multiple times that he was going to ensure Guantanamo closed its doors.  In fact, on January 22, 2009, he began his second term in office by signing an Executive Order directing that, “the detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.”

Why, then, in 2013, four years after this Executive Order, is Guantanamo still open?

During the Executive Order’s signing ceremony, Obama made it clear that closing Guantanamo would be accomplished in a manner that prioritized United States national security and foreign policy interests.  This may be true, but as we have seen throughout Obama’s first term as President, closing Guantanamo is far easier said than done.

A lot of the pushback against closing GTMO comes from our representatives.  Congress has used its spending oversight authority both to forbid the White House from financing trials of Guantánamo captives on U.S. soil and to block the acquisition of a state prison in Illinois to hold captives currently held in Cuba who would not be put on trial — a sort of Guantánamo North.[1]  Despite these road blocks, Sen. Dianne Feinstein, D-Calif., the Senate Intelligence Committee chairwoman, has indicated recently that “if the political will exists, we could finally close Guantanamo without imperiling our national security.”[2]

If President Obama wants to close GTMO, he needs to take some serious action soon, and establish a concrete plan that will garner support from the public, but more importantly, the politicians voting for his plan.  Today, most Republicans and some Democrats remain opposed to closing the facility.  House Armed Services Chairman Buck McKeon has said, “no one has ever argued that Guantanamo Bay is ideal, but before you talk about closing it you have to tell the country what you will replace it with.”

While politicians cite a variety of reasons for opposing closing down GTMO, it frequently comes down to cost and safety.  A quick look at operating costs reveals it is far cheaper to house the remaining GTMO detainees in the United States vs. at the facility.

As of today, the 166 detainees held at Guantanamo costs the United States an astounding $114 million each year to operate.  Transferring these detainees to a facility in the United States would be far cheaper.  According to John Maki, who heads the John Howard Association (a watchdog group that monitors Illinois prisons), it cost $26 million annually to run the Tamms Supermax in Illinois- a recently closed prison with fewer than 200 inmates which was frequently referred to as being “tougher than GTMO.”  That’s 22.8% of the cost of operating GTMO.

As to the safety argument, Senator John Thune, Republican of South Dakota, has stated that “the American people don’t want these men walking the streets of America’s neighborhoods.” Ignorant comments like this are tainting public opinion. As dangerous as some of these men may be, they will in no way be “walking the streets of America’s neighborhoods.” They would be locked up in a highly secure prison- no more dangerous than the murderers, rapists, and other criminals they would be sharing their facility with.

Thus, it is clear that the real hurdle to closing GTMO is the fear mongering of our Congress.  America is ready for GTMO to close, we just need our elected representatives to get on board with us.

Paul Juzdan, Research Fellow

Center for Policy and Research


[1] http://www.foreignaffairs.com/articles/136781/carol-rosenberg/why-obama-cant-close-guantanamo

[2] http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=617e2735-349d-447c-8fc6-78d2a3a00bc5