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

 

 

NSA Received Help from FISA for Surveillance Authorization

Just as many predicted from the beginning, it looks like the NSA surveillance scandal has reached beyond the NSA to other branches of government.  On Saturday the New York Times reported that over the past few years, the Foreign Intelligence Surveillance Court, or FISA, has basically created an entire new category of law pertaining to surveillance for the NSA and CIA.  FISA has reportedly handed down over a dozen classified rulings on everything from espionage to nuclear proliferation to cyber attacks.  It appears that FISA has quietly taken over the Supreme Court’s role in all matters pertaining to surveillance.

Most notably, the court used a particular case to expand a little-known doctrine called the “special needs” doctrine that allows authorities to sidestep the Fourth Amendment by performing search and seizure operations without the need for a warrant.  The government claims that this expansion of the special needs doctrine is only applicable in terrorism-related cases.  The exception is typically used only for things like airport screenings and DUI checkpoints.  Professor William C. Banks of Syracuse University stated that the use of this doctrine is just “another way of tipping the scales toward the government in its access to all this data.”

So how can FISA justify the expansion of this doctrine, essentially abandoning the use of the Fourth Amendment’s protection from arbitrary searches and seizures?  It looks like it came down to the interpretation of one word:  Relevant.  Instead of interpreting the word in the narrow sense used in most criminal cases, the court elected to broaden its scope, allowing the NSA to collect any records that could possibly be relevant to national security concerns.  This interpretation has drawn sharp criticism in the past few days.  A senior partner at Perkins Cole LLP, the Justice Department’s go-to firm on federal surveillance law, claims that FISA has destroyed the meaning of “relevant” altogether, essentially changing it to mean “everything.”  He also mentioned that a typical federal or state court would laugh the prosecution out of the courtroom if it tried to argue for this new interpretation.

But what does this mean for the average American?  Probably not much.  As I’ve said before, I don’t think the NSA has the time or resources to rifle though billions of pages of records that they know are not “relevant” to national security.  I have a hard time believing that our government is reading all our “LOL’s” and “IDK’s” when there is so much at stake.  In fact, it’s come out that even though the NSA has the power to collect the records, they still needed a warrant to actually access them.  Sure, the government still has plenty of egg on its face and has sufficiently embarrassed itself on a global scale.  But now, roughly a month after Edward Snowden first released information on this scandal, we still have yet to hear of any connection between the NSA’s programs and any non-terrorism-related arrests.

With that said, it’s hard not to be concerned when courts hand down secret rulings that essentially throw away our Constitutional protections.  At least for now the traditional law requiring warrants for searches and seizures still applies to normal cases, but that won’t make to many people feel better about the fact that we have a highly secretive court handing down classified decisions that have the potential wipe out our most basic freedoms.  I’m usually willing to give the government a pass when it comes to protecting our national security, but this has to stop somewhere.  I think it’s safe to say that the American government has officially pole-vaulted over that fine line between protecting our freedom and trampling on it.

Chris Whitten, Research Fellow
Center for Policy and Research

President Obama to give speech on counterterrorism policy, drones, and GMTO

President Obama is scheduled to deliver a speech on Thursday at the National Defence University on the administration’s counterterrorism policies, and how it intends to bring those policies in line with his long-standing pledge to honor the rule of law.

According to a White House official, speaking anonymously to the Washington Post Saturday, President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.”

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

This speech could go some way toward fulfilling the promise that President Obama made in his 2013 State of the Union address, in which he proclaimed that his new administration would “ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” Many, including myself, have been disappointed with the level of transparency the administration has maintained regarding national security efforts over the last 4 years or so. 

The speech comes at a time of increasing unrest in the national security arena. Indeed, it has already been delayed due to the hunger strike at the Guantanamo Bay Detention Facility and the brouhaha over the Justice Department’s subpoena of the AP’s phone records. While the events at Guantanamo Bay can to some degree be attributed to the policies of the Bush administration (in opening the prison) and to Congress (in refusing to allow it to close), the AP seizure is something that rests firmly in Obama’s lap, and is indicative of his Justice Department’s approach in general. Rather than increasing transparency, Obama’s Justice Department has been ruthless in suppressing leaks and punishing leakers.

While I have no sympathy for the likes of Bradley Manning, the number of prosecutions related to national security leaks has been higher under Obama than his predecessors, with at least some chilling effect on the “unofficial transparency” that leaks tend to serve. And while Obama has recently pushed for a new Federal shield law to protect reporters’ sources, his downright schizophrenic approach to transparency has been a bitter disappointment. Hopefully, Thursday’s speech will help to alleviate that disappointment.

 

 

DOJ Targeted Killing White Paper

On Monday, NBC obtained an unsigned Justice Department white paper outlining the Obama administration’s legal position on circumstances under which the United States could lawfully kill a U.S. citizen in a counter-terror operation.  Unfortunately, the 16-page document is not the full OLC memo that has been requested by several members of Congress, but an abbreviated version of it that was provided last summer to members of the Senate Intelligence and Judiciary committees.

The white paper expressly limits its scope to those citizens who are a senior al-Qaeda member or an “associated force” in a foreign country, outside an area of active hostilities. In brief, it asserts it would be legal to use lethal force against a U.S. citizen in such cases if three conditions are met:

1) an informed, high-level government official has determined that the targeted individual poses an imminent threat to the U.S.;

2) capture is infeasible; and

3) the operation complied with applicable laws of war.

The while this white paper is as yet the most detailed public account of the Obama administration’s legal justification for the targeted killing of Americans, it is unfortunately short on details of the decision-making process. As pointed out by Steve Vladeck at Lawfare, most Americans understand that there may be occasions in which U.S. citizens who engage in terrorist activities must be targeted in the same way that foreign terrorists are. What matters is the process for coming to that decision. We have due process protections because we are concerned no only about government overreach, but also to adequately protect us from erroneous determinations and unnecessary reliance on force. This helps ensure that, for example, they really are an active member of al Qaeda, that they cannot they be arrested, and that we cannot simply wait until capture is feasible.

The criteria listed above clearly attempt to ensure that these issues are addressed, but this is not nearly enough. A constitutional lawyer like President Obama should not need reminding that unchecked executive power is very dangerous to liberty. And there is nothing in this white paper to suggest that any outside check or review has been placed on the Executive’s ability to conduct these lethal operations against its own citizens.

In fact, it suggests that judicial review is inappropriate. Its reasoning for this is that it would require ex ante review of targeting decisions, which are inherently predictive and not amenable to judicial determination. This would be quite astute, were it true. However, most critics who have called for judicial involvement in targeted killing decisions, myself included, have clearly stipulated that the courts review the governments actions ex post, and at least partly ex parte.

Additionally, as Steve points out, the white paper’s suggestion that targeted killing decisions are non-justiciable political questions is absurd. These determinations are in many ways no different than those made in law enforcement situations, as when a sniper shoots a hostage-taker. Such cases are often reviewed (ex post) by the courts. Even in those ways in which they are different, the courts have already been involved, as with the spate of recent habeas litigation.

It is because of these issues that the white paper does nothing to satisfy the concerns over executive power. Many have claimed that this document displays the Obama administration’s backslid into something resembling the “Bush Doctrine.” But rather than the nitpicking over the legal conclusions of the white paper as many analysts have (Mary Ellen O’Connell is still ranting about “zones” of conflict—see my analysis), it is this refusal to allow any review of the decision-making process that raises the most severe concerns over President Obama’s targeted killing program.

Paul Taylor, Senior Research Fellow

Center for Policy & Research