Center for Policy and Research Featured in “The New Yorker”

Yesterday, The New Yorker ran an article featuring the research of Seton Hall Law professors Jonathan Hafetz and Mark Denbeaux and the Center for Policy and Research Fellows.  The article, “The Dark Ages: A Critic at Large,” details the origins of the War on Terror and analyzes how due process and other legal matters have changed over time. The article draws on two books written by Professor Hafetz, “Habeas Corpus After 9/11:  Confronting America’s New Global Detention System,” and “The Guantanamo Lawyers:  Inside a Prison, Outside the Law,” which was co-edited by Professor Denbeaux.

The article brings to light the brutal tactics used by the DOD in interrogations of detainees at Guantanamo and other military installations throughout the world.  It also points out that the Bush administration was not held accountable for these alleged human rights abuses, instead choosing to create rules and procedures ad hoc to work around existing international and domestic laws.  In addition to citing Professor Hafetz and Professor Denbeaux’s work, the article references the Center for Policy & Research’s flagship “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data,” noting that only five per cent of Guantanamo detainees had been arrested by U.S. forces.  Pakistani and Northern Alliance forces had captured forty-seven per cent based on bounties issued by the U.S. military.

In addition to this reference, the Guantanamo Reports have been introduced into the Congressional record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament.  While the Center for Policy and Research is still working to uncover information regarding Guantanamo Bay and the treatment of detainees, work done by its students and faculty continues to affect public opinion and policy change.

Christopher Whitten, Research Fellow
Center for Policy & Research

“If the detainee dies you’re doing it wrong.”

One of the most quotable phrases coming out of Bush’s Global War on Terrorism now appears to be highly questionable. Then-CIA lawyer Jonathan Fredman was quoted by Senator Carl Levin, Chair of the Senate Armed Services Committee, as having said that the standard of detainee treatment during interrogations was “basically subject to perception. If the detainee dies you’re doing it wrong.”

This quote continues to be used in articles and books, but reporting by Stuart Taylor, Jr. (no relation) in the National Journal and by Benjamin Wittes of Lawfare sheds light on the shaky ground on which it rests. First, Fredman has denied the veracity of the quote for about as long as it has been public. The quote comes from the minutes of a staff meeting at Guantanamo in which Fredman was asked about the legal limits placed on interrogation by the federal anti-torture statute. However, much of the minutes are of questionable reliability, and in some cases patently absurd (for example, a barely understandable quote that appears to claim that Turkey considers any interrogation that “results in the subject betraying his comrades” to be torture).

It is important to note, however, that not even Fredman himself denies all of the statements attributed to him in the minutes. Perhaps the most telling of the statements which he  apparently has not denied include his reference to standard set by the Office of Legal Council, that the torture statute only bars physical pain so severe that it may cause permanent damage to major organs, or mental pain so severe that it may permanently alter the personality or senses of the detainee.

So, whatever exculpatory effect the questionability of the oft-quoted statement may have, it is important that these minutes, like any internal document that is not vetted and edited, be read with a critical eye.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Panetta Says the US Didn’t Need EIT’s to Get UBL

Over the past few weeks, the film “Zero Dark Thirty” has undoubtedly brought heightened  attention to the United States’ hunt for bin Laden (UBL).  In the film, some of the more shocking scenes include those in which the main characters, CIA agents, are interrogating detainees at various detention facilities.  The film shows some of the more frequently discussed EIT’s, or Enhanced Interrogation Techniques (arguably, just a more palatable euphemism for torture), including waterboarding, sleep deprivation, food deprivation, stress positions, blasting loud music, and playing off the detainees’ fears and cultural beliefs.

Regardless of whether director Kathryn Bigelow took artistic license when developing these scenes in the film, it is indisputable that EIT’s have been regularly used by the United States in the decade that has passed since the 9/11 attacks.  With the secrecy that shrouded the mission leading to the capture of UBL, it is only natural that the public is hungry for the details regarding how the intelligence leading to that fateful night in Abbottabad .

In an interview on “Meet the Press” that aired Sunday night, outgoing Defense Secretary Leon Panetta said that the search for UBL included piecing together a great deal of disparate information, and admitted that some of the information came from EIT’s, saying “Yes, some of it came from some of the tactics that were used at that time – interrogation tactics that were used.”

However, he continued on to say “I think we could have gotten Bin Laden without [EIT's]“- essentially revealing that the controversial EIT’s were not necessary to achieve the United States’ most significant accomplishment thus far in the Great War on Terror, capturing UBL.