Obama’s War on Terror May Resemble Bush’s in Some Areas

Michael Temchine for The New York Times

Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month

By CHARLIE SAVAGE

Published: February 17, 2009

WASHINGTON — Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda

Stephen Crowley/The New York Times

Last month, protesters called for the closing of the prison at Guantánamo Bay.

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”

These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.

“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”

Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.

But in more recent weeks, things have become murkier.

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”

To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.

But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.

Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.

Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.

Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”

He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”

Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.

For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.

Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.

“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”

Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.

The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.

Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”

Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.

“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”

Leading Human Rights Groups Request Full Access To Guantánamo Prison
(1/30/2009)

Outside Review Needed To Ensure Transparency And Full Compliance With The Law

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – Four leading human rights and civil liberties organizations asked President Obama to grant them full access to the Guantánamo Bay detention center so that they can review the conditions of confinement and make recommendations for revising U.S. detention policies. The American Civil Liberties Union, Amnesty International USA, Human Rights First and Human Rights Watch have had permission to observe the military commissions at Guantánamo since August 2004, but have thus far only been offered a guided tour of the detention camp without access to detainees.

On January 22, President Obama issued an executive order requiring a review of detention conditions at Guantánamo to ensure compliance with the Geneva Conventions and all other applicable laws. According to today's letter, also allowing the groups full access to the prison "will be welcomed as another break from the prior administration's policies on detainees, and set an example that will help advance human rights worldwide."

The full text of the letter is as follows and available online at: www.aclu.org/safefree/detention/38600res20090130.html

January 30, 2009

Dear President Obama,

As heads of four prominent civil liberties and human rights organizations, we greatly appreciate your decisive action in restoring U.S. commitment to the rule of law and respect for human rights by issuing executive orders to close Guantánamo, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture. We eagerly await your continued actions to renew American justice.

Today, we write to request full access to the Guantánamo Bay detention camps so that we may independently review and report on the conditions of confinement there and make concrete recommendations for change. In August 2004, our four organizations were granted observer status to observe the military commissions, but for years the Bush administration has denied our organizations' repeated requests for full access to the detention camps. We have only been offered the VIP tour to observe a model Guantánamo detention camp, which was far from adequate access.

Section 6 of your January 22, 2009 executive order, "Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities," addresses the issue of conditions of confinement and orders Secretary of Defense Gates to "immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with [Common Article 3 of the Geneva Conventions]."

Our presence can assist this effort. We will provide an outside assessment of current conditions and, as improvements are made, credibly, independently, and publicly report them to the world. Such access and reporting would further the objectives of the current Department of Defense (DoD) review and amplify the international benefits of improving conditions at the camps. Our presence itself will be welcomed as another break from the prior administration's policies on detainees, and set an example of transparency that will help advance human rights worldwide.

We ask you to reconsider our organizations' request for full access to the Guantánamo Bay detention camps and honor it in light of the current DoD review. According to your executive order, the DoD review "shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter." We ask that, if granted full access, our independent review should take place within the next few weeks, to allow time for us to finalize our report and recommendations before the completion of the DoD's review.

The Bush administration's past policy of secrecy regarding detention conditions at Guantánamo makes it critically important for your administration to open Guantánamo to independent review as part of a new government policy of transparency. Full and independent review of conditions of confinement by human rights organizations is urgently needed because of the secrecy regarding detention conditions at Guantánamo Bay as a whole. The ACLU and other organizations continue to struggle for production of materials requested pursuant to the Freedom of Information Act (FOIA) regarding Guantánamo Bay. The Bush administration denied full access to several UN independent human rights experts who insisted on confidential interviews with the detainees as dictated by UN protocol for such visits.

While the International Committee of the Red Cross (ICRC) has had access to Guantánamo detainees, its access has been restricted in the past and the extent of its current access is unclear to us. A leaked version of the Camp Delta Standard Operation Procedures (SOP) from March 2003 revealed that the ICRC was denied access to various groups of detainees at the camp, and a leaked version of the SOP manual from 2004 revealed continued restrictions on ICRC access.

Regardless of the ICRC's present level of access, its role is distinct from that of our organizations. While the ICRC plays an important role in visiting prisoners under the Geneva Conventions, the ICRC maintains full confidentiality in order to preserve the exclusively humanitarian nature of its work. The role of our human rights organizations in reviewing and reporting on conditions at Guantánamo would be distinct and equally important.

Granting human rights organizations full and unfettered access to a detention facility where torture and abuse have occurred will send a powerful message to the world regarding your administration's commitment to transparency and openness, consistent with your January 21, 2009 FOIA directive, which noted, "A democracy requires accountability, and accountability requires transparency." Opening Guantánamo to full review by human rights organizations would help to restore American legitimacy and standing in the world, and place pressure on other governments to open their detention centers for independent inspections.

Furthermore, independent review of conditions of confinement by human rights organizations will assist your administration in revising its policies and improving detention conditions in the camps. If granted full access, our independent human rights delegation would include experts on detention conditions and medical professionals, and would offer your administration concrete recommendations on how to improve conditions of confinement in order to comply with relevant national and international standards and guidelines on persons in detention.

We hope that you will act quickly on this matter in the interest of transparency and the protection of human rights.

Sincerely,

Anthony D. Romero, Executive Director, American Civil Liberties Union

Larry Cox, Executive Director, Amnesty International USA

Elisa Massimino, Executive Director, Human Rights First

Kenneth Roth, Executive Director, Human Rights Watch

cc:
Secretary of Defense Robert Gates
White House Counsel Gregory B. Craig

FISA Foils ACLU Yet Again

Secret Spying Court Stays Secret, Rejects ACLU Plea Again
By Ryan Singel / August 29, 2008

For the the third time in a year, a secret spying court rejected an ACLU request to let some sunshine pierce its dark curtains of secrecy, ruling late Thursday that national security prohibits publishing even unclassified versions of court documents or allowing non-government lawyers to argue in the court.

The Foreign Intelligence Surveillance Court was reacting to an ACLU petition in July to be part of the court's review of new wiretapping powers handed to the Administration by Congress in July. Under the new law ---known as the FISC Amendments Act -- the nation's spies can order companies like AT&T and Google to help the government drop dragnets into domestic internet and phone facilities to capture all communications suspected to involve at least one foreigner.

Previously, the law said that such wiretaps had to be approved on an individual basis if done inside the U.S., while more lax rules held sway if the govenrment wiretapped such communications outside the U.S. That legality did not stop the Bush Administration, which began a secret spying program after 9/11 that included targeting these kinds of communications.

The ACLU argued that the new law expanded the government's powers so broadly that the court needed to make exceptions to its ultra-secret hearings that never allow any opposition.

Foreign Intelligence Surveillance Court judge Marya McLaughin dismissed those pleas, saying (.pdf) that there was no right for the public to know about the workings of the court.

The FISC has no tradition of openness, either with respect to its proceedings, its orders or to Government briefings filed with the FISC. [...]

Although it is possible to identify some benefits which might flow from public access to Government briefs and FISC orders ... any such benefits would be outweighed by the risks to national security created by the potential exposure of the Government's targeting and minimization procedures.

ACLU attorney Jameel Jaffer expressed frustration, yet again -- saying that secrecy should not be wrapped around a new law that affects every American's privacy.

"The Bush administration says that the new law is necessary to protect the country against terrorism, but there’s nothing in the law that prevents the government from monitoring the communications of innocent Americans," Jaffer said in a written statement. "The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

The ACLU also wanted to file a brief contesting the constitutionality of the targeting procedures and the law, but McLaughin declined, saying that the group's analysis would not be helpful since only the government and the court know how the spying works.

The FISC was given a little authority in the new law to oversee the procedures the National Security Agency will use to make sure it does not intentionally target Americans or snag purely domestic communications with its new dragnets. Under the rules, the NSA can't point the microphone at a particular American to monitor their overseas communications without a court order naming the target, but can monitor all Americans by targeting anyone outside the country using a new blanket order.

The ACLU also asked the court to make the government file unclassified versions of the documents it has to file with the court that describe the dragnets. Other than a yearly accounting of how many surveillance court orders it has granted or denied, little is known of the court and it has only released a handful of decisions in its 30-year history -- including three in the last 12 months denying the ACLU's petitions to open itself up.

The ACLU also filed suit in federal district court to contest the law, which also provides retroactive amnesty for telecoms that helped the government warrantlessly spy on Americans.

Source / Wired

August 1 , 2008

Mukasey’s Plan: New Declaration of War; Torture Cover-up.

	Watch Colbert's reaction to the recent release of new torture documents. Then, share with your friends. Unfortunately, the Bush administration's latest power grab is no laughing matter. Take Action.

On July 21st, Bush’s Attorney General, Michael Mukasey, called on Congress to take dramatic steps to subvert the Constitution. Mukasey asked that Congress issue a new declaration of war that would make the entire globe -- including the United States itself -- a “battlefield” where the president decides who will be locked up forever.

The Bush/Mukasey plan also includes a congressionally-approved subversion of the Constitution and a cover-up of the Bush administration’s systemic torture and abuse of detainees.

At the same time, an ACLU lawsuit has uncovered new evidence that the torture and abuse Mukasey wants Congress to cover up was authorized by -- you guessed it -- the Justice Department. One of the documents obtained by the ACLU is a redacted version of a previously undisclosed 2002 Justice Department opinion that authorizes the CIA to use specific interrogation methods, including waterboarding. The memo states that interrogation methods that cause severe mental pain do not amount to torture under U.S. law unless they cause "harm lasting months or even years after the acts were inflicted upon the prisoners."

This document and others released from ACLU lawsuits add to a substantial body of evidence that the Justice Department authorized the CIA to torture prisoners in its custody.

The Justice Department twisted the law -- and in some cases ignored it altogether -- in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes.

Now, Mukasey -- as head of the Justice Department -- wants Congress to cover up torture committed under the watch of his predecessor, Attorney General Alberto Gonzales.

It is so outrageous that it seems like a joke or something out of "The Onion." Even The Colbert Report on Comedy Central lampooned the administration’s attempts to cover up torture. Unfortunately, this latest power grab by the Bush administration is no laughing matter.

Don’t let Mukasey cover up torture and subvert the Constitution.

>>Take Action: Tell Congress to reject the Bush/Mukasey plan to subvert the Constitution.


ACLU At Guantánamo for First Military Commission Trial This Week

With the military commission trial of Yemeni national Salim Ahmed Hamdan underway this week, the inherent flaws of the Military Commissions system continue to be apparent. The ACLU has been at Guantánamo Bay observing the proceedings which began on Monday. The Hamdan trial is the first military commission trial to take place since the Bush administration set up the notorious detention camp as a way to bypass the U.S. justice system.

"As the first trial in the administration's military commissions, the Hamdan case will test the limits of a deeply flawed and unconstitutional system," said Ben Wizner, a staff attorney with the ACLU National Security Project who is observing the trial. "At every step of the way it has become painfully clear that these ad hoc tribunals are no substitute for American civilian and military courts where the Constitution still means something. Let's end this farce and make a fresh start in a system that reflects our nation's core values."

As further proof that the commission system is fundamentally flawed, the military judge in Hamdan's case already had to remove some evidence obtained through "highly coercive environments and conditions" but did not categorically disallow all evidence derived by torture. Contrary to the rules of the American justice system, the Guantánamo military commissions also permit secret and hearsay evidence.

In 2006's Hamdan v. Rumsfeld, Hamdan won a landmark Supreme Court victory that struck down the Bush administration's original commissions as unconstitutional and inconsistent with the Geneva Conventions. However, Congress later passed and President Bush signed into law the Military Commissions Act of 2006 authorizing a modified system of military tribunals that grants the government the authority to prosecute detainees without many of the constitutional protections required by U.S. civilian courts and traditional military courts governed by the Uniform Code of Military Justice.

Following last month's Supreme Court decision ruling that the Constitution and habeas corpus apply at Guantánamo, news outlets have reported that the Bush administration is engaging in detailed planning for the closure of the detention camp. As the premise for the existence of the Guantánamo prison camp and the military commission system continues to crumble, the Bush administration is to rushing through proceedings of high profile detainees before the November election. The ACLU renews its call for the prison and the military commissions there to be shut down once and for all.

>> Read ACLU Attorney Ben Wizner’s Blog post on the Hamdan hearing.

>> Take Action: Tell America's leaders to shut down Guantánamo Bay and end the military commission system of injustice by adding your name to the petition.

Fusion Centers Part of Incipient Domestic Intelligence System

The nation’s growing network of “fusion centers” is part of an incipient domestic intelligence system, according to the ACLU. The ACLU released a report detailing spying on Maryland peace demonstrators, a mysterious domestic-spying scandal at a California military base and other recent incidents, confirming that its warnings about fusion centers were coming true.

In November 2007, the ACLU released a report, “What’s Wrong With Fusion Centers,” warning about the potential dangers of these new institutions, including ambiguous lines of authority, excessive secrecy, troubling private-sector and military roles, and an apparent bend toward collection of information about innocent activities and data mining. Our recent addendum to the report explains how new developments have only confirmed the urgency of these warnings.

“Congress and state officials need to learn more about fusion centers, engage in some very pointed inquiry about the effectiveness and the precise role of these centers, and at a minimum put in place strong checks and balances,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Too often, we’ve given our government new powers to fight terrorists, only to have them used against peace activists and other innocent Americans. This can’t be the future of law enforcement. Congress needs to end private-sector participation and military involvement in law enforcement. We need to learn from our mistakes, not repeat them.”

Dear ACLU Supporter,

A few days ago, we alerted you to Attorney General Michael Mukasey’s demand that Congress issue a new declaration of war. This would make the entire globe -- including the United States itself -- a “battlefield” where the president gets to decide who is an “enemy combatant” and lock that person up forever.

The Bush/Mukasey plan also includes a congressionally-approved subversion of the Constitution and a cover-up of the Bush administration’s systemic torture and abuse of detainees.

At the same time, an ACLU lawsuit has uncovered new evidence that the torture and abuse Mukasey wants Congress to cover up was authorized by -- you guessed it -- the Justice Department. One of the documents obtained by the ACLU is a redacted version of a previously undisclosed 2002 Justice Department opinion that authorizes the CIA to use specific interrogation methods, including waterboarding.

Now, Mukasey -- as head of the Justice Department -- wants Congress to cover up torture committed under the watch of his predecessor, Attorney General Alberto Gonzales. It’s outrageous!

Don’t let it happen. Read the alert I’ve attached below and take action now at: http://action.aclu.org/coverup


Anthony D. Romero
Executive Director
ACLU

		Dear ACLU Supporter, Here they go again. On July 21st, Bush’s Attorney General, Michael Mukasey, called on Congress to take dramatic steps to subvert the Constitution. Mukasey is demanding that Congress issue a new declaration of war that would make the entire globe -- including the United States itself -- a “battlefield” where the president decides who will be locked up forever. Instead of ending the Bush system of injustice, he wants Congress to make it permanent. Tell Congress to reject the Bush/Mukasey plan to subvert the Constitution. Not only has Bush’s Attorney General called on Congress to issue a new declaration of war, but he is also asking Congress to: 1. Gut habeas corpus -- the freedom that protects people from being thrown in prison illegally -- with no help, no end in sight and no due process. 2. Cover up the Bush administration’s systemic torture and abuse of detainees. Judges would not be allowed to see evidence of torture and abuse and would instead simply have to trust that a president is holding the right people as ”enemy combatants.” With only five weeks left in the congressional schedule and only six months left in the Bush presidency, Mukasey’s power grab should be laughed out of town. But, given this Congress’ track record, the Mukasey proposal is no laughing matter. Tell Congress to reject the Bush/Mukasey plan to subvert the Constitution. Too many times, we’ve seen Congress cave in to the most outrageous Bush demands for out-of-control powers: The Patriot Act. National Security Letters. The Military Commissions Act. The Protect America Act. And, most recently, the congressional sell-out on FISA. Four times the Supreme Court has rejected the Bush administration’s efforts to design a war on terror system of injustice that defies the Constitution and mocks the rule of law. In the past, the administration has responded, not by respecting the Constitution, but by counting on Congress to legitimize its indefensible conduct. There is no way we can let that happen this time. Even as the House Judiciary Committee investigates whether high-level Bush White House officials may have committed crimes of torture and abuse, the Bush administration has the arrogance to ask Congress to give it the power to detain people without trial and hide torture and abuse from the courts. Tell Congress to reject the Bush/Mukasey plan to subvert the Constitution. We can’t take for granted that Congress will reject the Bush/Mukasey plan. We have to meet this outrageous proposal with an immediate wall of protest that says to Congress: “Don’t you dare.” I urge you to join defenders of freedom all across the country in raising your voice against Attorney General Mukasey’s dangerous proposal. Thanks for speaking out, Caroline Fredrickson, Director ACLU Washington Legislative Office P.S. You can read a blog post from Christopher Anders, ACLU Seinor Legislative Counsel, on the Bush/Mukasey plan to subvert the constitution here.

WAR CRIMES DOSSIER: Mukasey defends government lawyers who wrote interrogation memos : Jurist

Mukasey defends government lawyers who wrote interrogation memos
Devin Montgomery at 11:59 AM ET

[JURIST] US Attorney General Michael Mukasey [official profile; JURIST news archive] defended Bush administration attorneys who authored memoranda supporting the legality of coercive interrogating tactics - the so-called "torture memos" [JURIST news archive] - in a commencement address [text] to Boston College Law School graduates Friday. Emphasizing the legal complexity of the issues raised in the memos and criticizing the vilification of the authors [JURIST op-ed] in some quarters, Mukasey told the audience:

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.

The difficulty and novelty of the legal questions these lawyers confronted is scarcely mentioned; indeed, the vast majority of the criticism is unaccompanied by any serious legal analysis. In addition, it is rarely acknowledged that those public servants were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate. Equally ignored is the fact that, by all accounts I have seen or heard, including but not limited to Jack Goldsmith’s book [The Terror Presidency], those lawyers reached their conclusions in good faith based upon their best judgments of what the law required.

The author of one such memo [PDF text] for the Department of Defense in 2003, former Deputy Assistant Attorney General John Yoo [faculty profile], faces a civil lawsuit and calls for his resignation from Berkeley Law School. Earlier this month, a federal judge directed the CIA [order, PDF; JURIST report] to produce a 2002 Department of Justice memo that the American Civil Liberties Union (ACLU) claims authorized the agency to use specific torture techniques, including waterboarding [JURIST news archive]. AP has more.

ACLU reports on child soldiers and US "policy" at the United Nations Geneva

U.N. Grills U.S. on Detention of Accused Child Soldiers in Iraq and Guantánamo

Today here at the United Nations headquarters in Geneva, the U.N. Committee on the Rights of the Child reviewed the United States for its compliance with the Optional Protocol on the Involvement of Children in Armed Conflict. Ratified by the U.S. in 2002, the Optional Protocol lays out guidelines for the treatment of former child soldiers in U.S. custody and establishes the U.S.’s minimum obligations to protect children under 18 from military recruitment. Twenty-two U.S. officials, including Department of Defense officials overseeing Detainee Affairs, reported to the U.N. Committee during a public review session today.

U.N. officials questioned the U.S. delegation on the basis of “shadow reports” submitted by the ACLU and two other groups, as well as two official reports submitted by the U.S. delegation. A report the U.S. submitted last week contained the explosive revelation that the U.S. has detained 2,500 children under 18 in U.S.-run detention facilities in Iraq and Afghanistan, including 513 children currently imprisoned in U.S. detention facilities in Iraq alone.

These revelations and other information disclosed in the shadow reports prompted clear concern among the U.N. Committee members, who pointedly told U.S. officials they were concerned about the detention of children in Iraq and Afghanistan, the prosecution of former child soldiers at Guantánamo, and the abusive military recruitment of youth. The Committee pulled no punches, and were extremely forceful with the U.S. delegation, cutting them off when they digressed, pushing them repeatedly on issues, and generally expressing its displeasure with the U.S. record on children in armed conflict.

In particular, the U.N. officials pushed the United States to clarify how it has determined that only eight children have ever been detained at Guantánamo, and it questioned the U.S. on its claims that only two prisoners currently at Guantánamo were children at the time of their transfer to the prison. U.N. Committee members demanded to know why discrepancies in the figures of child detainees may exist (reports claim as many as 60 children have been transferred to Guantánamo since 2002), pointing out that the U.S. had failed to count a third prisoner currently out Guantánamo, Mohammed El-Gharani, who was only 14 when first captured and has reportedly attempted suicide seven times at Guantánamo. U.S. officials demurred, claiming that it is difficult to ascertain prisoners’ ages and that Department of Defense records indicated El-Gharani was an adult. Committee members asked how it was that the U.S. was unaware that a child was in its custody, and expressed shock that the U.S. did not give these former child prisoners the benefit of the doubt, accepting in good faith their claims they were children, instead of current practice of leaving these children imprisoned until they became adults while in Guantánamo. U.S. officials vowed to look into the case of Mohammed El-Gharani, and provided no satisfactory explanation.

The U.N. Committee on the Rights of the Child also questioned the U.S. on its detention of children in Iraq and Afghanistan. The U.S. was detaining 800 children in U.S. detention facilities in Iraq back in September 2007, and following the troop surge in Iraq, the U.S. was detaining 100 new children per month in 2007. The Committee observed that children detained at U.S.-run facilities in Iraq are treated just as adults are, without distinction demanded by international law requiring special consideration to children, and in some cases these children do not receive health and education services, without competent judicial review. The Committee questioned the U.S. about limits on the detention of children in Iraq and Afghanistan, which can be as long as a year without charge or access to an attorney, and in some cases even longer than a year —so long that, in some cases, the Committee noted, the children become adults while languishing in detention.

U.N. officials also grilled the U.S. delegation on U.S. military recruitment policies and abusive recruitment practices that target children under 18. Referencing JROTC cadet corps in which over 470,000 high school students are enrolled and the unprecedented access to public schools guaranteed to recruiters by the No Child Left Behind Act (PDF), one Committee member observed, “Using our education system to promote a military agenda seems to fly in the face of the spirit of the Optional Protocol.” Committee members repeatedly expressed concern about the military’s targeting of children of racial minorities and low-income youth, an issue the U.S. delegation never addressed in its replies to the Committee. U.N. officials also observed that there are numerous reports of aggressive and coercive recruitment practices and asked where the U.S. draws the line, as some well-documented tactics ought to be off limits.

All in all, it was a forceful demonstration of the U.N.’s disapproval of the U.S.’s policies, bookended by a polite opening and closing of the session. It was clear from the review today that the United States stands alone in some of its detention and recruitment policies. It remains to be seen whether the U.S. is capable of embarrassment and will respond to the strong disapproval and, in some cases, shock, over the U.S.’s deplorable record on these issues, by instituting real reforms. Until then, the U.S. stands apart in its failure to respect basic children’s rights standards.

See my links on Omar Khadr and on Child soldiers. There is a lot of information there and videos so give a chance to load fully.

U.S. Has Detained 2,500 Juveniles as Enemy Combatants

By Walter Pincus

Washington Post Staff Writer
Thursday, May 15, 2008; Page A11

The United States has detained approximately 2,500 people younger than 18 as illegal enemy combatants in Iraq, Afghanistan and Guantanamo Bay since 2002, according to a report filed by the Bush administration with the United Nations Committee on the Rights of the Child.

Although 2,400 of the juveniles were captured in Iraq after the U.S.-led invasion in March 2003, only 500 are still held in detention facilities in that country. The administration's report, which was made public yesterday by the American Civil Liberties Union, says that most of the detained Iraqi youths were "engaging in anti-coalition activity."

As of last month, 10 juveniles were still being held in Bagram, Afghanistan, out of 90 that had been captured in that country since 2002, according to the report.

Eight juveniles were brought to Guantanamo Bay since 2002, having been captured at ages ranging from 13 to 17. Although there are no juveniles at the prison in Cuba now, two people being held -- 21-year-old Omar Khadr and 23-year-old Mohammed Jawad -- were under 18 when they arrived. Both are facing trial by a military commission on charges of attempted murder.

Three of the other six juveniles once held at Guantanamo were sent back to Afghanistan in 2004, where they were put into a UNICEF rehabilitation program for child soldiers, according to the report. The last three juveniles were transferred back to their home countries.

The ACLU decried what is described as a "lack of safeguards" for youths captured by the U.S. military and "no comprehensive policy in place" for dealing with juveniles.

"Juveniles and former child soldiers should be treated first and foremost as candidates for rehabilitation and reintegration into society, not subjected to further victimization," Jamil Dakwar, director of the ACLU's human rights program, said in a statement.

In Iraq, where the U.S. military holds more than 20,000 Iraqis in detention centers, the United States reported the average stay of a juvenile as less than a year and said a "majority of juvenile detainees are released within six months."

A "very small percentage," however, have been kept for more than a year because the juveniles were "assessed to be of a high enough threat level," the report said.

In August 2007, the U.S. military established a juvenile education center in Iraq. At that time, 820 juveniles were held in detention facilities in Iraq. In February, according to the U.S. report, a plan was approved to improve education programs available to juvenile detainees.

Iraqi children jailed by US army [Peace and war, Human rights] — Administrator @ 9:56 am

This video from the USA is called Iraqi Kids & The US Military - The Shameful Truth.

From AFP news agency:

US Army detains 500 minors in Iraq: report

Thursday, May 15, 2008 (Washington)

Around 500 minors are currently detained by the US army in Iraq, as well as nearly a dozen juveniles in Afghanistan, a US civil liberties group revealed.

‘’Since 2002, the United States has held approximately 2,500 individuals under the age of 18 at the time of their capture in Guantanamo Bay, in Iraq, and in Afghanistan,'’ said a US government report for the UN children’s agency, made public by the American Civil Liberties Union.

‘’As of April 2008, US forces held approximately 500 juveniles'’ in Iraq, where ‘’all detainees, regardless of age, are held by US forces as imperative threats to security at the request of the sovereign Iraqi government and pursuant to a UN Security Council Resolution,'’ the report said.

Pentagon spokesman Jeffrey Gordon confirmed the report was true but gave no further comment.

The number of minors in US detention in Iraq rose as high as 800 in 2007.

In addition, around 10 minors are currently held in US custody in Afghanistan’s Bagram prison, and are considered ‘’enemy combatants.'’

These are just the figures for the United States Army. There are also other United States military forces, like the Marines etc., other United States government agencies, private mercenary corporations, British and other Bush allies, etc. in Iraq and Afghanistan. The number of children they detain is not included in this report.

National Coalition to Abolish the Death Penalty wins a big one!!

I know I have readers who think a military execution is A-OK. I do not. I don't care for the death penalty at ANY time.

For one thing, people CAN Change. If we incarcerated just the rottweillers instead of privatizing prisons, there would be PLENTY of money to see that improvements are made so that EVERYONE could live in humane environments: not just the elites.

Okay, so I am an idealist. SO WHAT?

Do you really think the rottweillers running the government have better ideas? Look around and see the degeneration in the world in the past few years!! That should tell you plenty.

Alot of different kinds of "deals" would be made if the death penalty were NOT on the table and crime evidence was not "sealed" when someone is killed by injection, gunshot, hanging or any other barbaric XIIIth century practice. The Authoritians' power would melt away.

Oh, I could go on with this essay until the day and NEVER be finished with it.

But if you have a good heart there is no way you can handle the death penalty.

When Tookie Williams was executed and I read the painful details, this blog went down for nearly three months and I wasn't even sure why. Now I do know, my part o my "sensitive soul" was somehow extinguished on that table with him.

My sensitive soul is THRILLED to find this email in my inbox today. I am not a believer that we have to live in lalaland to live a great life. I think we have to count the victories and the defeats.

This to me is HUGE victory! Huge big! HURRAH!!

Virginia

2 May 2008

Greetings All,

The National Coalition to Abolish the Death Penalty congratulates Levon "Bo" James on his newfound freedom earlier today (May 2, 2008), as well as all those who worked so tirelessly to win his release after 14 years on death row for a crime he did not commit.

With his great-niece Tatyana McCormick and great-nephew Christian McCormick in hand, Levon "Bo" Jones walks out of the Duplin County Jail a free man after spending 13 years on death row, charged with robbing and shooting Leamon Grady in February 1997. News&Observer Staff Photo by Shawn Rocco

ACTION OPPORTUNITY: This is an excellent opportunity for letters to the editor of your local newspaper, noting some of the points below. Please also watch for newspaper coverage in your local paper and when you see it, even if it is a one paragraph blurb in the national roundup, clip it and mail it (or a copy) to your state legislators with a brief hand written note calling their attention to the problem of wrongful convictions and stating your personal objections to the death penalty.

Please visit http://www.newsobserver.com/ to see more photos and ongoing news coverage.

Earlier today the NCADP issued the following statement, and below that you will find a press release from the ACLU Capital Punishment Project, whose attorneys worked on this case.

CONTACT: David Elliot, NCADP Communications Director

202-331-4090, ext. 220 cell: 202-607-7036

delliot@ncadp. org www.ncadp.org

AS EXECUTIONS ARE SET TO RESUME,

NATION LEARNS OF YET ANOTHER DEATH ROW EXONERATION

May 2, 2008 -- Diann Rust Tierney, executive director of the National Coalition to Abolish the Death Penalty, issued the following statement today in response to today's announced exoneration out of North Carolina :

"It's been more than seven months since an execution occurred in the U.S. - the longest de facto moratorium in our country in 25 years. And today, just as executions are set to resume in the U.S. , Levon "Bo" Jones becomes the 129^th person to be freed from death row since 1976, after evidence of innocence emerged. He's the eighth wrongly convicted death row inmate out of North Carolina alone. Nationally, there have been five death row exonerations since the current de facto moratorium began in late September. Jones is the second consecutive North Carolina man to be freed from death row after evidence of police misconduct was brought to light.

"It is therefore inappropriate -- indeed, incredible -- that executions are set to resume beginning next Tuesday in Georgia . Today I am reflecting on the fact that during the seven-month moratorium, states that are now gearing up to resume executions did absolutely nothing to assure that society's ultimate sanction is fair or accurate.

" New Jersey is an example of the good that can come when states stop and assess. Legislators there during the past year held hearings on New Jersey 's death penalty system and ultimately decided to repeal it. Other states such as California and Tennessee also launched studies of their death penalty statutes.

"In contrast, states like Alabama and Texas sat on their hands - waiting for a signal from the U.S. Supreme Court that they could resume executions. And when the Court did rule, its conclusions did nothing to clean up the mismanagement and incompetence that is more routine than not in states carrying out executions. Mr. Jones spent 13 years on death row, and had he been an inmate in Alabama , Oklahoma , Texas or Virginia , it is quite likely he would be dead today - and the truth buried with him.

"This is proof positive that we don't need to return to business as usual. States should suspend executions until they have examined their system and can assure us that innocent people are not at risk of execution."

****

And here is the press release from the ACLU.

Innocent North Carolina Man Exonerated After 14 Years On Death Row

Levon "Bo" Jones Fifth Innocent Death Row Inmate Freed In Past 11 Months And 129th Since 1973

FOR IMMEDIATE RELEASE
May 2, 2008

CONTACT: Will Matthews, ACLU, (212) 549-2582 or 2666; media@aclu.org

KENANSVILLE , NC - An innocent man who spent 14 years on North Carolina 's death row after being wrongfully convicted for a 1987 murder will be released from prison today. Jones has been represented by American Civil Liberties Union Capital Punishment Project lawyers Cassandra Stubbs and Brian Stull, along with North Carolina attorney Ernest "Buddy" Connor.

Levon "Bo" Jones, an African American man who has always maintained his innocence, was sentenced to death in 1993 for the murder of Leamon Grady, a white man. Jones is the fifth innocent death row inmate to be exonerated in the United States in the past 11 months, and the third innocent North Carolina death row inmate to be granted release in the past six months. He is the 129th death row exoneree since 1973.

"We never had any doubt about Bo Jones' innocence," said Connor. "We knew when we started the case that there were serious holes in the evidence. After we began seriously investigating the case, it completely unraveled."

A federal judge ordered Jones off death row in 2006 and overturned his conviction, declaring that the defense provided by Jones' initial defense attorneys was so poor that they missed critical evidence pointing to his innocence. After keeping him imprisoned in anticipation of a retrial, the Duplin County, N.C. District Attorney announced Thursday that the state was dropping all charges and Jones would be released.

The sole witness accusing Jones of the murder, Lovely Lorden, admitted in an affidavit filed last month that she "was certain that Bo did not have anything to do with Mr. Grady's murder" and that she did not know what happened the night Grady was murdered. A new trial had been set to begin May 12.

Jones' exoneration and release comes two weeks after a U.S. Supreme Court ruling in Baze v. Rees upholding the three drug lethal injection method of capital punishment used in Kentucky . Other states have begun to lift a de facto national moratorium on the use of the death penalty.

"This case highlights the serious and rampant flaws inherent in the death penalty," Stubbs said. "A system that can't protect the innocent from conviction shouldn't gamble with life and death. This case - and those of the many other innocent exonerees - should give states pause about lifting moratoriums after the Baze decision."

Stull said there is a direct link between Jones' 14 years on death row and the quality of his first trial counsel.

"This case points out the problems with capital counsel in many parts of the country," he said. "Bo Jones's first trial lawyer never bothered to get the many conflicting statements of Lovely Lorden, let alone do the kind of investigation necessary in a first degree murder case. We will never know if Lorden would have admitted the truth earlier had the case been investigated and had she been adequately cross-examined. "

Jones was represented in post-conviction by the North Carolina Center for Death Penalty Litigation, which persuaded the federal court to grant him a new trial.

Larry Lamb, a codefendant of Jones who has also always maintained his innocence, remains behind bars, serving a life sentence. Lamb turned down a plea offer of a six year sentence and was also convicted based on the testimony of Lorden. He plans to ask the newly formed North Carolina Innocence Inquiry Commission to review his case.

***

Have an excellent weekend!

--abe

Abraham J. Bonowitz

Director of Affiliate Support

National Coalition to Abolish the Death Penalty

www.NCADP.org

abe@ncadp.org

202-331-4090

561-371-5204 (Mobile)

ACLU Demands Immediate Release Of Inspector General Report On FBI's Role In Illegal Interrogations

(4/22/2008)

Filing Follows Stonewalling By Defense Department

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK - The American Civil Liberties Union filed a Freedom of Information Act (FOIA) request today with the Departments of Justice and Defense for the release of a report on a long-running investigation of the FBI's role in the unlawful interrogations of detainees in Iraq, Afghanistan and Guantánamo Bay. The Justice Department's Office of Inspector General (OIG) launched the investigation after internal government documents - uncovered by an ACLU lawsuit - revealed that FBI agents stationed at Guantánamo Bay expressed concern after witnessing military interrogators' use of brutal interrogation techniques.

According to recent media reports, the OIG investigation has been completed for months. The Defense Department, however, has blocked the OIG from releasing it, claiming that the report still needs to be reviewed and redacted by the Pentagon.

"The Pentagon is using the classification review as a pretext to delay the release of a report that ought to have been released months ago," said Jameel Jaffer, Director of the ACLU National Security Project. "It's increasingly clear that the report is being suppressed not for legitimate security reasons, but in order to protect high-level government officials from embarrassment, criticism, and possibly even criminal prosecution. The report should be released immediately."

Inspector General Glenn Fine has stated that his report was finalized months ago. In the last few weeks, Fine has taken the unusual step of publicly criticizing the Defense Department for delaying the release of the report.

The OIG investigation was initiated in 2005 after the ACLU obtained documents in which FBI agents described interrogations that they had witnessed at Guantánamo Bay. The documents included:

• An e-mail in which FBI agents stated that Defense Department interrogators had impersonated FBI agents during an interrogation and used "torture techniques." The email stated that the techniques were ineffective.
• An e-mail in which an FBI agent stated that "on a couple of occasions" he or she "entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water," and that on one occasion he or she entered a cell to find that "the A/C had been turned off, making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconscious on the floor with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night."
• An e-mail that suggests that, although FBI agents began reporting abuse in 2002, the FBI did not initiate any comprehensive investigation of the abuse until after the Abu Ghraib photographs were published in 2004.

While the documents obtained by the ACLU were most notable for their description of illegal interrogation methods used by military interrogators, the documents also raised serious questions about the FBI's participation in abusive interrogations, the actions of FBI personnel who witnessed abusive interrogations, and the response of FBI officials to reports of abuse.

Today's FOIA request seeking the OIG report itself as well as all documents related to the investigation is part of a broader ACLU effort to uncover information about the Bush administration's torture policies. In October 2003, the ACLU and the New York Civil Liberties Union - along with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace - filed a request under the Freedom of Information Act for records concerning the treatment of prisoners in U.S. custody abroad. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit enforcing the request - including the Bush administration's 2003 "torture memo" written by John Yoo when he was a deputy at the DOJ's Office of Legal Counsel.

A copy of today's FOIA request is available at:

www.aclu.org/safefree/torture/34956lgl20080422.html

The documents received in the ACLU's FOIA litigation are online at: www.aclu.org/torturefoia

In addition, many of the FOIA documents are also compiled and analyzed in a recently published book by ACLU attorneys Jaffer and Amrit Singh, Administration of Torture. More information is available online at: www.aclu.org/administrationoftorture