Trial of Five Guantanamo Prisoners Charged in September 11th Attacks Will Move Forward

Judge Pohl, Chief Presiding Officer for the Guantanamo Military Commissions, ruled yesterday that pretrial hearings will move forward for the five Guantanamo prisoners charged in the September 11th attacks.  In doing so, he denied a request by the detainees’ lawyers to pause the case until the Pentagon resolves concerns about the security of their computer system. Continue reading

US Embassies Close in Wake of Terrorist Threat

Unless you live under a rock, you’ve probably heard about the State Department’s response to an alleged terrorist threat this past Friday.  The State Department issued a travel alert to all Americans traveling abroad and even went so far as to close 21 foreign embassies over the weekend, 19 of which will remain closed through this week.  Although the embassies that are now closed are located mostly in the Middle East and North Africa, the travel alert covers Americans traveling to all parts of the globe. Continue reading

Judge Claims No Jurisdiction Over Force-Feeding at Guantanamo

Yesterday, multiple news outlets reported that despite efforts by defense attorneys for Guantanamo Bay detainees, federal courts do not have the power to stop Guantanamo personnel from force-feeding the detainees.  U.S. District Court Judge Gladys Kessler handed down a quick decision stating that federal courts simply do not have the jurisdiction or authority to order the military to stop using force-feeding tactics in response to hunger strikes implemented by detainees to protest their detention status at Gitmo.

The decision was handed down quickly in part because the court and attorneys on both sides wanted an answer before the beginning of Ramadan, the traditional Muslim holy month that requires Muslims to fast during daylight hours.  One of the main concerns was that force-feeding detainees during fasting hours would violate this core tenant of the Islamic religion.  As I noted when I first wrote about this lawsuit, in the past the military has agreed not to force-feed detainees during these hours so that detainees could observe their holy month.  In fact, in the response to the suit filed by the pentagon, the government stated that barring any emergency situations, they would agree to only force-feed detainees after sunset.  So even though we’re going to keep shoving tubes into detainees’ (that we have already admitted are not being charged with crimes) orifices while they are strapped down to chairs, we’re at least going to let them maintain the last shred of religious dignity they might have left.  Take from that what you will.

The basis for the lawsuit was not just religious.  Detainees and human rights advocates have long claimed that force-feeding is akin to torture, especially when implemented on detainees who are of sound mind and have made conscious decisions to partake in the hunger strikes.  The legal brief submitted by defense attorneys called the process “dishonorable” and “degrading.”

Although Judge Kessler admitted that the courts could not rule on the issue, she made her personal opinion known in her decision by echoing many of the above concerns, calling the force-feeding process “painful” and “degrading.”  She not-so-subtly called on the Obama administration to take action where the courts could not and shut down force-feeding itself.  Judge Kessler singled out President Obama for a speech given back on May 23rd, which some of you may recall:

“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike.  Is that who we are?  Is that something that our founders foresaw?  Is that the America we want to leave to our children?  Our sense of justice is stronger than that.”

This coming from the same president that promised to close down Guantanamo Bay when he was first elected, and yet here we are.  I understand that it’s not that simple and that there’s a lot of politics behind the decision to keep it open.  There are a lot of politicians (and members of the public) who want to keep Guantanamo open and it’s not exactly President Obama’s unilateral decision to make.  But his administration has a chance to make a statement here and restore some level of civility to a system that’s drawn an awful lot of criticism for alleged human rights violations in recent years.  Shutting down force-feeding isn’t going to erase those incidents, but it could go a long way toward easing the tension surrounding Guantanamo Bay, at least in the short-term.  Most importantly, it would show the world that we DO respect human rights.  And as of late the world has plenty of reasons to question whether we actually do.

Sidenote – My blogging compatriots have gone into detail on what exactly the force-feeding process entails, and you can read about it here.  Seeing it in print is disturbing enough, but if you still want a better picture of the process, you’re in luck.  Over the weekend, Yasiin Bey, better known as hip-hop artist Mos Def, took the plunge and agreed to undergo the force-feeding procedure in London.  I don’t recommend clicking that link if you’re squeamish.  Keep in mind that there are 106 prisoners partaking in the hunger strikes at the moment, and 45 of them undergo this 2-hour process twice a day.

Chris Whitten, Research Fellow
Center for Policy and Research

SETON HALL LAW SCHOOL ISSUES REPORT DETAILING GOVERNMENT SPYING CAPACITY ON GTMO LAWYERS AND CLIENTS

Attorney-Client Meeting Rooms Implanted with Cameras that can Read ‘Tiny Writing’ and Microphones Disguised as Smoke Detectors that can Hear ‘Whispers’
Seton Hall University School of Law’s Center for Policy & Research has issued a report: “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship.” The report details the surveillance and recording technology in designated attorney-client meeting rooms at Guantanamo Bay— capacities that are inexplicable unless being utilized to eavesdrop on confidential communications. The report also details the often contradictory if not false government statements regarding attorney-client privacy and the utilization (or even the existence) of the hyper-sensitive monitoring equipment installed in the supposedly private rooms.
The issue of government surveillance encroaching upon attorney-client privacy is expected to come to a head in the upcoming Military Commission Hearings in Guantanamo Bay.
Law Professor Mark Denbeaux, Director of the Seton Hall Law School’s Center for Policy and Research, commented, “If the government has spied on attorney client communications discussing trial strategy the legitimacy of the military commissions is again in grave jeopardy. It is now clear that the government has secretly implanted surveillance equipment in the meeting rooms that has spying capacities that are inexplicable unless being utilized to eavesdrop on confidential attorney client communications. The court must determine the extent to which such communications have been penetrated; if the government spying allows the government to know an attorney’s defense before trial, the proceeding ceases to be a trial and is reduced to a farce.”
The Seton Hall Law Report concludes that lawyers at Guantanamo Bay can no longer assure their clients that the government is not listening to their conversations or reading or recording the attorneys’ written notes. The report further notes that:
  • Listening devices in the attorney-client meeting rooms are disguised as smoke detectors.
  • The listening devices are so hypersensitive that they can detect even whispers between attorneys and their clients.
  • Cameras in the attorney-client meeting rooms are so powerful that they can read attorneys’ handwritten notes and other confidential documents.
  • The cameras can be operated secretly from a location outside of the room.
  • The attorney-client meeting rooms turn out to have been the former CIA interrogation facility.
  • Importantly, the CIA recording equipment was upgraded after the CIA left.
“With cameras and microphones so powerful they can read ‘tiny writing’ and hear ‘whispers,’ the government assurance of a right to counsel seems more like a trap than a right,” said report co-author and Seton Hall Law student Adam Kirchner.

 

Abu Ghaith Trial Postponed Due to the Sequester

It seems as though the already controversial Federal trial of Usama Bin Laden’s son-in-law, Sulaiman Abu Ghaith, may be in jeopardy- at least temporarily.

Abu Ghaith’s trial began on March 8 when he pled not guilty to conspiracy charges based on intelligence pointing to possible connections with Al-Qaida and the 9/11 attacks.  Prior to Monday, Abu Ghaith’s trial was scheduled to begin as early as September.  However, the recent sequester that has slashed federal government spending will now push proceedings back as far as 2014.

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Abu Ghaith’s public defenders argued that blanket budget cuts of 5.1 per cent would not allow them to adequately defend their client, especially given the gravity of the charges against him.  In addition, the budget cuts will force the defense team to take at least a five-week unpaid furlough this fall.  The prosecutors also requested a postponement, agreeing with the defense that the sequester will place a heavy burden on both sides during trial preparation.  Judge Lewis Kaplain called the delay “troublesome,” noting that it was difficult to contemplate that such a high-profile case would be delayed due to budget difficulties.  Still, he agreed and set the trial date for January 7, 2014.

In addition to pushing the trial back, the defense also moved to strike a 22-page statement made by Abu Ghaith shortly after he was turned over to U.S. forces in Jordan.  They also said they will seek a venue change, partly due to the close proximity to the Manhattan federal courthouse to the former site of the World Trade Center, which they believe may have an effect on the jury’s verdict.

Chris Whitten, Research Fellow
Center for Policy and Research

Seton Hall’s Jonathan Hafetz Published in “The Guardian”- “Deprived of justice, the Guantanamo detainees’ last resort is to hunger strike”

Seton Hall professor Jonathan Hafetz’s article “Deprived of justice, Guantanamo detainees’ last resort is to hunger strike” was published last week in The Guardian.  

In contrast to the articles focusing on why these hunger strikes won’t work, Hafetz instead focuses on why detainees need to hunger strike. Hafetz, a professor of international law and counsel to Guantanamo detainees, writes that refusing to eat is the only means the detainees have of exerting control over their captors and reminding the public of their humanity.  While legal rulings and policies surrounding GTMO can (and have) been ignored, US officials cannot ignore a dying detainee.  At a minimum, the hunger strikes remind the public that Guantanamo is still open and remains a significant human rights issue.  

“Why the Guantanamo Bay Hunger Strikes Probably Won’t Work”

In a recent article published in The Atlantic entitled “Why the Guantanamo Bay Hunger Strikes Probably Won’t Work,” Olga Khazan argues that hunger strikes are only an effective form of protest if your cause is sympathetic to begin with.  Historically, says Khazan, hunger striking has been an effective means not just of obtaining immediate demands, but of shifting the political climate surrounding the issue.  

GTMO detainees, however, are not likely to reap these benefits.  As men whose names are synonymous with terrorism and political turmoil, they don’t fit the archetype of the sympathetic, politically popular hunger strikers whose protests are often successful.  Hunger strikes typically tend to occur in prison, and result in making the detainees’ captors look evil, soulless, and cruel.  However, when the public views those engaging in the hunger strikes as evil, un-American terrorists, it is almost certain that the detainees will not win the “sympathy vote” and accomplish any real change through their hunger striking.  

Arguably, history at Guantanamo has already proven Khazan’s point.  Guantanamo has been open for about eleven years, and the detention center has seen several major hunger strikes.  None of these hunger strikes have ever accomplished anything significant, aside from creating a health crisis at GTMO.  When the detainees are already viewed by the public as “bad people” it makes it incredibly difficult for them to elicit the type of sympathy needed to pressure the government into bringing about any significant changes at GTMO.  

Kelly Ann Taddonio, Research Fellow
Center for Policy & Research

 

Ramifications of Federal Court Trials vs. Military Commission

 

Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan.  Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years.  This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.

In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases.  Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.

But what are these implications?  For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress.  In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court.  Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties.  Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.

Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen.  The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.

Beyond policy considerations, there are legal implications at the heart of the discussion.  In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay.  For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court.  However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.

The type of evidence allowed also differs between military commissions and federal courts.  While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court.  This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require.  However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions.  In military commissions, the defendant would have no right to subpoena witnesses.  Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances.  During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense.  Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist.  However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto.  In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed.  Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.

Finally, the process of selecting the judge and jury are much different in federal court than in a military commission.  In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military.  In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public.  Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.

 

As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye.  The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for.  With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.

Christopher Whitten, Research Fellow
Center for Policy & Research

Gates Supports Drone Court

English: Official portrait of United States Se...

Official portrait of United States Secretary of Defense Robert Gates  (Photo credit: Wikipedia)

The number of high-profile officials and former officials who have voiced support for a court to review lethal drone operations is multiplying.

On Monday, former CIA Director and Defense Secretary Bob Gates told CNN that while he has long advocated the use of drones to monitor and target suspected terrorists, he also supports greater oversight.

Gates’ opinion will carry weight. As a career public servant who has served both Democratic and Republican administrations, he is perceived as a trustworthy source of non-partisan analysis. And because in the last two administrations he held high-level positions bearing directly on drone operations, he can be considered to have intimate knowledge of their uses, and their risks.

“I’m a big advocate of drones,” said Gates. While  he admits that innocent people are sometimes killed by drones, he says “the numbers, I believe are extremely small”. Given the limited options to confront the terrorists and insurgents in places like Pakistan, Gates still thinks that drones are the best option, explaining “You do have the ability to limit that collateral damage more than with any other weapons system that you have.”

But despite their efficacy, Gates agrees with the recent calls for some form of oversight panel or court:

“Whether it’s a panel of three judges or one judge or something that would give the American people confidence that there was, in fact, a compelling case to launch an attack against an American citizen – I think just as an independent confirmation or affirmation, if you will – is something worth giving serious consideration to”

Currently, the Senate Intelligence Committee is reviewing proposals for creating such a tribunal. However, no legislation has yet been started.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Former Detainees in the News: Uighurs in Albania and Palau

This past week, we saw two separate looks at former detainees of Uighur ethnicity and the challenges they face as former Guantanamo detainees.[1] [2]

The Uighurs are of a Chinese ethnic minority that has been subject to persecution in China.  As a result, no released Uighur detainees have been returned to China and have instead been sent to Albania, Bermuda, El Salvador, Switzerland and Palau.  As previously examined in the Center’s National Security Deserves Better: “Odd” Recidivism Numbers Undermine the Guantanamo Policy Debate, the Uighurs in Bermuda have been resettled successfully.

We also now know that at least one other Uighur former detainee, Abu Bakker Qassim, has been somewhat-successfully resettled in Albania.  Qassim initially had difficulty learning the Albanian language and reconciling his idea of Albania with the reality.  However, he has managed to bridge the gap by becoming a pizza-maker.  Qassim notes that while he had never even heard of pizza before he arrived in Tirana, Albania, his work has greatly improved his grasp on Albanian.  However, Qassim notes that it isn’t easy for him to make ends meet; he only works part-time, and the state aid he receives isn’t enough to support him, his wife and infant daughter.  The stigma of Guantanamo remains with him, making it difficult to find a better job.  Because Qassim is not an Albania citizen, he cannot obtain a passport.  Without a passport, however, Qassim must remain in Albania or return to China and face almost-certain persecution and arrest.

The challenges faces by Qassim are mirrored by the Uighur former detainees in Palau.  Six Uighurs in total were sent from Guantanamo Bay to Palau in late 2009, in what was intended to be a temporary stop before a permanent home was found for the former detainees.  However, the years have passed and Palau has been increasingly unable to support its charges.  Although the US and Palauan governments aided the former detainees in obtaining minimum-wage jobs, they struggle to pay for utilities and food.  Even the President of Palau, Tommy Remengesau, has expressed regret over the situation, noting the unfairness of their situation.

The recent shuttering of the U.S. State Department Guantanamo Closure office has made these six question whether they will ever leave Palau and settle in a permanent home.  Like Qassim in Albania, these six are not Palauan citizens and therefore cannot obtain passports in order to leave.  Ambassador Daniel Fried, who had run the Guantanamo Closure office up until its end, has stated he will continue to negotiate for permanent settlement of the Uighurs, even though he was reassigned to a position overseeing sanctions for Iran and Syria.

In 2008 a Washington federal court judge ordered all Uighurs to be released.  However, three Uighurs remain at Guantanamo Bay, because as with the former detainees in Palau, the U.S. has been unable to find a country to accept them.  Many countries fear the Chinese response to acceptance of Uighur former detainees.  As a world power, the U.S. is seemingly in a position to accept all of the Uighurs and withstand China’s response.  However, the public outcry that has accompanied any talk of bringing detainees to the U.S. to be held in prisons, never mind bringing detainees here for release, has completely shut down any likelihood of this happening.

Both the U.S. courts and the U.S. government have accepted that the Uighurs were never a threat to U.S. interests or forces.  However, if the U.S. government won’t stand and accept these clearly innocent men in our country, it is hard to imagine how we will convince any other country to do so.

Kelly Ross, Research Fellow

Center for Policy & Research


[1] Michelle Shephard, Uighurs who went from Guantanamo to paradise running out of money and patience, The Star  (Toronto), Feb. 7, 2013,  http://www.thestar.com/news/world/2013/02/07/uighurs_who_went_from_guantanamo_to_paradise_running_out_of_money_and_patience.html.

[2] Nate Tabak, Former Guantanamo Detainee Now Making Pizza in Albania, PRI’s The World, Feb. 7, 2013, http://www.theworld.org/2013/02/uighur-guantanamo-detainee-albania/.