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
My excitement ran high when Mark Denbeaux phoned to tell me I would be heading to the Guantanamo Naval Base for a week, for I had been studying, writing and talking about both its detention facility and its military commissions for years. Now I would be attending, as a journalist and observer, pretrial proceedings in the military tribunal capital prosecution of abd al Rahim Hussayn Muhammad Al Nashiri, the Saudi claimed to have presided over bin Laden’s “boats operation,” for which he had planned three attacks on foreign ships, including the devastatingly lethal one in 2000 on the USS Cole, the destroyer fueling in Aden Harbor in Yemen. Continue reading
High-value Guantanamo detainee Khalid Sheikh Mohammed (“KSM”) has released a 36-page ‘nonviolence’ manifesto, filled with deeply extremist religious ramblings and advocating that Muslims should avoid using violence to spread Islam. What KSM fails to realize however, is that, while what he likely means is avoiding force, his hate-filled, extremist rant is nonetheless promoting violence, hate, and intolerance. Continue reading
Earlier this morning, I posted briefly on the Benghazi report issued yesterday by the Senate Intelligence Committee (the report itself was approved about a month ago, but was only declassified yesterday). Several news outlets, including The New York Times, have pointed out that the report is “broadly consistent with the findings of previous inquiries into the attack on Sept. 11, 2012.” Continue reading
As the debate over the NSA surveillance scandal rages on, two Congressional committees are now in the midst of a battle that will determine who gets the first crack at reforming the NSA’s intelligence gathering policies. The battle between the House Intelligence Committee and House Judiciary Committee will largely determine the extent to which the Foreign Intelligence Surveillance Act (FISA) will be modified in the post-Snowden era. While much is still unclear, a historical comparison to the Pike and Church Committees from the Cold War era may well demonstrate which stance the government should take on NSA reforms. Continue reading
This week, the Pentagon began notifying would-be observers of the first Guantanamo Periodic Review Board hearing, scheduled for November 20th, that the hearing (and all subsequent hearings) will be held in secret. The announcement highlights the challenges government officials face as they try to balance their commitment to transparency with the perceived national security risks associated with public hearings. Given the amount of classified information addressed in these hearings, it is impossible for the government to ever achieve true transparency throughout this process, leaving the public to question whether our country’s purported commitment to justice is being upheld at Guantanamo. Continue reading
“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984. It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.
Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration. Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances. Continue reading
Early yesterday, the sentencing phase of the trial of Bradley Manning, the source of the Wikileaks scandal, began at Fort Meade. As I said yesterday, Manning was acquitted of aiding the enemy, the most serious charge against him. Still, Bradley Manning was convicted on 20 of 22 counts, including charges of violating the Espionage Act of 1917. The prosecution and defense both agreed with Col. Denise Lind that Manning faces a total of 136 years in a military prison for his crimes.
On top of the potential 136-year prison sentence, the parties also agreed that Bradley Manning will be demoted to the rank of enlisted private, dishonorably discharged from the Army, and stripped of all pay and benefits that he would have otherwise received.
The star witness of yesterday’s sentencing hearing was Brig. Gen. Robert A. Carr (ret.), who is now an executive at defense contractor Northrop Grumman. General Carr’s expertise on the matter comes from a long career overseeing the Army’s intelligence gathering operations in Iraq, Afghanistan, and Bosnia. His last assignment as a member of the Army was to gather information and assess the extent to which information released by Wikileaks harmed soldiers in the field and jeopardized American national security.
Now that the bulk of Bradley Manning’s sentence has already been settled, all that remains is to determine how much of the potential 136-year sentence he will actually serve and what monetary fines the court will impose on him. I find it hard to believe at this point that Manning, who is just 25 years old, will ever be a free man. I guess that’s just what 20 separate convictions for espionage will get you. But now that he has been stripped of all benefits and pay and will probably spend most or all of his life behind bars, arguing about monetary fines is basically just a formality. It’s probably not very realistic to expect him to pay up.
Anyways, General Carr’s testimony centered around whether or not Bradley Manning’s crimes actually led to any deaths in the field. General Carr claimed that exactly one death, an Afghani national with ties to the U.S. government, occurred as a result of the Wikileaks scandal. The Taliban reportedly killed him after obtaining the information. However, when pressed by the defense, General Carr admitted that the man was never named in war logs released by Julian Assange and any mention of the death was stricken from the official record. General Carr still insisted that Bradley Manning’s crimes had put U.S. soldiers and Afghani allies at risk by detailing the relationship between certain Afghani forces and the U.S. military.
It’s interesting that not even General Carr, the prosecution’s authority on the supposed damage caused by Bradley Manning, could not point to a single instance where the leaks led to even one casualty. The only such accusation was quickly stricken from the record. To me, this shows just how desperate the government was to make an example out of Manning with the aiding the enemy charge. There’s really no other explanation for moving forward with that charge with only one precarious piece of evidence.
The trial still has a long way go. The defense is still days, maybe weeks away from presenting evidence of mitigating circumstances that could soften the blow of Bradley Manning’s 20 convictions. Like I said before, Manning isn’t going to be a free man any time soon. But if today was any indication, he might not be looking at a 136-year sentence after all.
Chris Whitten, Research Fellow
Center for Policy and Research
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
The Foreign Intelligence Surveillance Court was created by Congress in
1978 to review applications for warrants related to national security
investigations. According to the Federal Judicial Center website, initially the court
was created in part as a response to allegations that the executive
branch was abusing its authority in conducting domestic electronic
surveillance in the interest of national security. (Sounds familiar,
doesn’t it?) Presumably the goals of the court have been to preserve
an air of fairness in relation to what are otherwise sensitive issues of
national security dominated by the executive branch.
But, it’s fairly disconcerting to have a court creating a body of law
that is essentially kept a secret from the public. So in February,
Senator Diane Feinstein sent a letter to presiding judge of FISA,
requesting that “important rulings of law” be declassified by FISA
to inform the public about FISA.
In 2010, the Office of the Director of National Intelligence and the
Department of Justice established a process to declassify opinions that
are “assessed to contain a significant interpretation of law,” but the
policy never really took hold. The court’s presiding judge Reggie
Walton, wrote in response to Feinstein’s letter that, “While
classification determinations are made by the Executive Branch in the
first instance, the facts presented in applications to [FISA] always
or almost always involve classified intelligence activities, the
disclosure of which could be harmful to the nation’s security.”
So it seems that while FISA was originally formed as a response to
the Executive branch’s abuse of authority, it really just serves as a
mechanism by which that same branch can maintain an authoritative
stranglehold on national security practices through the language of
“classification.” As a result, the power of FISA is as great as the
executive branch’s power to classify, which is always growing.
Perhaps there are highly sensitive issues that FISA is protecting,
but a judicial policy to protect information “classified” by the
government is especially problematic when the government is known to
over-classify. The real question is, are the the “classified intelligence activities” that
Reggie Walton claims FISA’s secrecy protects truly of a sensitive
and detrimental nature to our nation’s security, or just more instances of the
government classifying information to protect itself from public scrutiny?
Alison Frimmel, Research Fellow
Center for Policy and Research