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PARADIGM AFFIRMATIVES
AFGHANISTAN: DECREASED POLICE ROLE
PARADIGM
Research
2010-2011
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The 2010-2011 Paradigm Affirmatives Two - Afghanistan: Decreased Police Role by David Cram Helwich
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 FIRST AFFIRMATIVE CONSTRUCTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 EXTENSIONS STATUS QUO EXTENSIONS STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (BAGRAM) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- AFGHANISTAN (FIELD DETENTION CENTERS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- AFGHANISTAN (GITMO REPLACEMENT) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- BAGRAM/AFGHANISTAN REPLACING GITMO . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- OBAMA SUPPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- SECRET FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE" . . . . . . . . INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BOUMEDIENE PRECEDENT" . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- DUE PROCESS/INDEFINITE DETENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- GENEVA/INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- PRISON CONDITIONS/ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ENEMY/UNLAWFUL COMBATANT DESIGNATION . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "AFGHAN COURTS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CIA PRISON BAN SOLVES" . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS" . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "OBAMA FIXED IT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STABILITY ADVANTAGE EXTENSIONS STABILITY ADV EXT: DETENTION SPURS INSTABILITY -- INSURGENCY/AFGHAN SOVEREIGNTY . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS INSTABILITY -- PUBLIC RESENTMENT/SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . RAIDS SPUR INSTABILITY -- RESENTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- PUBLIC SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- RECRUITMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- TERROR COOP/INTELLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTERNATIONAL LAW ADVANTAGE EXTENSIONS INT'L LAW ADV EXT: DETENTION UNDERMINES GENEVA CONVENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MODELING INTERNAL LINKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- IMPACT EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ONGOING NOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ANSWERS TO: "GOOD FOR INTEL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ANSWERS TO: "OBAMA BANNED" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ADD-ON ADVANTAGE SOFT POWER ADD-ON: 2AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOFT POWER ADD-ON: EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATE OF EXCEPTION ADD-ON: 2AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOLVENCY EXTENSIONS SOLVENCY MECHANISM: CONGRESSIONAL ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURT ACCESS (GENERAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PRISONER RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOLVENCY EXT: AFGHANISTAN STABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GITMO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INT'L LAW/HUMAN RIGHTS CREDIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOFT POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TERRORISM/RESENTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ANSWERS TO: "PREVENTIVE DETENTION JUSTIFIED" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14 16 17 19 20 21 23 26 28 30 32 33 34 36 37 38 39 41
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51 52 54 55 56 58 60 61 62 63
65 66 67 68 69 70 71 72 73 74 75
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COURTS MODULE COURTS SOLVENCY MODULE: 1AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS ADVANTAGE MODULE: 1AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS ADV: EXECUTIVE ABUSE/TYRANNY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE WARMAKING/LEADERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLENARY POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS SOLVE: DEFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . JUDICIAL INDEPENDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RULING SNOWBALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE/DETAINEE ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ANSWERS TO: "CIVILIANS MAKE POOR DECISIONS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "JUDICIAL INCOMPETENCE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "LEAKS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "SECRECY/SECURITY CONCERNS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "UNDERMINE EXECUTIVE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OFFCASE ANSWERS DETENTION CASES ARE TOPICAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Most members of the American electorate believe that the issue of indefinite detention, a major political and legal controversy during the Bush era, was put to rest by the election of Barack Obama, who pledged to shut down the notorious Guantanamo Bay detention center and "return the rule of law" to U.S. military and police detention facilities overseas. However, the Obama administration has been forced to capitulate on its pledge to shut down the Guantanamo facility within its first year of office because of strong congressional opposition. Perhaps even more surprisingly, the Obama administration decided in March 2009 to continue the Bush era's contestation of a legal case where the government is arguing that the Supreme Court's recent Guantanamo-related rulings about the illegality of indefinite detention and military tribunals do not apply to U.S. facilities in Afghanistan. The Obama administration has appealed a ruling by federal district court judge John D. Bates, who ruled that the Gitmo precedents do apply to U.S. military prisons in Afghanistan, and the case is currently before a federal court of appeals. The case will likely reach the U.S. Supreme Court, but is unlikely to do so for several years as it works its way through the legal system, and it is unclear how the Supreme Court will rule in the case. In the interim, many commentators claim that the Obama administration plans on using U.S. military prisons in Afghanistan, particularly that at Bagram, as replacements for the discredited Guantanamo facility. Consequently, the Obama administration is simply shifting the problems that we currently have with detentions in Guantanamo to Afghanistan, where prisoners are afforded no legal rights and are allegedly subjected to very harsh conditions. Other analysts claim that the United States is still running secret prisons in Afghanistan, so called "black jails" where it hides detainees from international legal observers. These prisons run contrary to the spirit of an Obama order that prohibited secret prison facilities run by the Central Intelligence Agency (CIA), but do not violate the order because they are run by special forces units of the American military. Regardless of how the legal drama plays out, the United States is currently mired in a situation compromises the human rights of detainees, tarnishes America's reputation, and compromises the success of the U.S. mission in Afghanistan. The case included in this book argues that we should rectify this problem by eliminating the abusive U.S. military and police detention centers in Afghanistan. The plan has the United States federal government eliminate all detention centers in Afghanistan that do not comply with constitutional and international legal standards of judicial review of the legitimacy of the alleged prisoner's detention. The inherency evidence indicates that applying this standard will result in the elimination of all long-term U.S. military detention centers in Afghanistan, including that at Bagram and the "secret" facilities, since none of them are currently subject to judicial review. The solvency evidence argues that eliminating these "legal blackholes" is both necessary to restore American credibility and to ensure that the U.S. military no longer abuses current and potential detainees. The plan will have the effect of forcing the government to prove that it has legitimate reason to hold any suspect, either by affording that person Prisoner of War status or by proving that they have engaged in criminal activity, and are thus subject to prosecution. Therefore, there will no longer be a need for long-term detention centers like those currently run by the United States in Afghanistan. The first advantage claims that the U.S. military's arrest and detention policies in Afghanistan generate enormous resentment among the Afghan people, who view the raids and detention facilities as part of a terror campaign conducted against them by the American military. This resentment fuels the insurgency, and undermines vital cooperation between the U.S. military and the Afghan public, and there is very good evidence that claims it will be impossible for the U.S. to stabilize Afghanistan unless it closes down the detention centers that operate in violation of international legal standards. An unstable Afghanistan is dangerous because the conflict risks spreading to neighboring states, many of whom either possess nuclear weapons or have allies who do so. U.S. detention centers also facilitate terrorist recruiting, exacerbating the threat posed by Al Qaeda and other terrorist organizations, with predictable consequences. The second advantage argues that the U.S.'s detention facilities in Afghanistan, particularly Bagram and the "secret" facilities, are in violation of international law, and thus should be shut down. Current U.S. policy, which defies international standards for the treatment of prisoners during war, both undermines the credibility of the United States and erodes confidence in the international legal framework, since the most powerful country in the world acts as if it can ignore it. The plan is important in restoring international confidence in both the United States and international law because it brings the U.S. back into compliance with global legal norms regarding the military's treatment of prisoners. A strong international legal framework, the Copelon evidence argues, is necessary to protect humanity against a number of collective threats. The advantage also argues that the current prison system and lack of accountability facilitates an environment that encourages the torture of detainees, and that we need to eliminate the prisons to remove the strain of torture from the hands of American policymakers. In addition to the "vanilla" United States federal government version of the case, we have also included a second version that relies on action by the United States Supreme Court. The primary distinction between the two versions is that the first has the branches of the federal government act in union to eliminate military prisons in Afghanistan, while the second has the Supreme Court rule that the U.S.'s prisons in Afghanistan violate domestic and international law, and order that they be shut down. There are a number of cards in both the solvency and advantage observation for the Supreme Court version of case that argue that independent court action is necessary to both provide legal precedents that check executive abuses in wartime (which lead to wanton presidential warmaking) and have the legal precedential effect of prohibiting all extraterritorial detention facilities that do not comply with constitutional and international law. This case thus has the benefit of having a strong advantage that is tied to the agent and the bonus of solving for potential prisoner shift arguments/the problem of indefinite detention by the United States around the world. This is true because the court decision rendered by the plan declares facilities that indefinitely detain persons in Afghanistan illegal on constitutional and international legal grounds, and other, inferior American courts (and executive agents) will interpret that ruling as declaring all extraterritorial indefinite detention facilities illegal. There is pretty good evidence on this question. Just remember that the plan is NOT extratopical, because it only issues a ruling in the case of Afghanistan's military prisons -- the enhanced solvency claim is a CONSEQUENCE of the plan, not a mandate.
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There are also two add-on advantages that you can read with either "solvency" version of the affirmative. The first, a soft power add-on, argues that current detention policies are seen by the international community as a continuation by the Obama administration of the reviled policies of the Bush era, and that other countries are much less likely to cooperate with the United States as long as we flaunt international law -- detention policy in Afghanistan thus threatens our soft power, and the cooperation of other nations is necessary to address a number of transnational problems, such as international terrorism, the spread of infectious diseases, and the proliferation of weapons of mass destruction. You should fill in your favorite prolif, disease, and/or terrorism impact card to complete the add-on. The second add-on advances a more critical argument, claiming that the Obama administration's efforts to defend Bagram and other prisons in Afghanistan as outside the boundaries of the American polity are an example of what the philosopher Giorgio Agamben describes as the "state of exception." We need to challenge these states of exception, which allow the sovereign to defend the biological life of the polis through actions that threatens the polis' existence, to avoid our extinction. Although this affirmative case may seem to be a bit outside of people's expectations when they first look at the topic, there is a lot of evidence that provides for a very robust topicality defense. First, the acts of apprehending, interrogating, and detaining suspects are both military and police actions, and in the case of Afghanistan, are conducted by U.S. military personnel, either combat (regular military) forces or military police. The prisons are run by members of the U.S. military police, and the current tribunal system is conducted by members of the American armed forces. The interrogations and detentions occur on military bases. Thus, the detention, interrogation, and status reviews of prisoners are all functions of American military presence in Afghanistan. The plan removes the military's power to conduct these functions without judicial review, and thus constitutes a decrease in the military's presence -- the plan literally orders the elimination of military facilities that do not meet constitutional and international law standards, and the inherency evidence indicates that ALL of the detention facilities in Afghanistan will end up being shut down. The negative team may argue that the Obama administration could set up detention facilities that meet constitutional and international muster, but this would only be a consequence of the plan, and is not a mandate. Remember -- the plan shuts down military prisons that are located on U.S. military bases and are run by American military personnel. If you select this as your affirmative case, you should pay careful attention to the Bates case as it works its way through the legal system -- the appropriate federal Court of Appeals heard the Obama administration's appeal a few months ago, and they may issue a court ruling soon. Although the court ruling will likely have little effect on the substance of the affirmative case, since the losing party is certain to appeal the appeals court ruling to the U.S. Supreme Court, an appeals court ruling will generate a number of news articles about the aff, and potentially provide you with some uniqueness tricks on politics and court-related disadvantages. We are confident that the case will not be resolved before the end of the season, largely because of the long lag time between the Supreme Court's taking of a case, the oral argument, and the rendering of a decision.
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OBSERVATION ONE: THE STATUS QUO A. THE OBAMA ADMINISTRATION IS SHIFTING PRISONERS FROM GUANTANAMO TO MILITARY PRISONS IN AFGHANISTAN -- AT BEST IT WILL TAKE YEARS TO RESOLVE THE LEGAL MESS Matthew Rothschild, "Moving Guantanamo to Bagram Could Evade Court Jurisdiction," THE PROGRESSIVE, 3-25-10, www.commondreams.org/view/2010/03/25-10, accessed 4-21-10. In President Obama's first week in office, he pledged to close down Guantanamo within a year. The year's been up for two months now, and Guantanamo still remains open. Making matters worse, it looks like the Obama Administration may simply move Guantanamo to Afghanistan. The Los Angeles Times is reporting that the "White House is considering whether to detain international terrorism suspects at [Bagram Air Base] in Afghanistan, an option that would lead to another prison with the same purpose as Guantanamo Bay." And that purpose is to hold suspects indefinitely, without ever granting them any due process rights. The Supreme Court has ruled that suspects held at Guantanamo have due process rights because Guantanamo is effectively U.S. property. But the Obama Administration, like the Bush Administration before it, says that this court decision does not apply to Bagram Air Base. Last September, Obama's Justice Department told a lower court that "when it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction." Until the Court resolves that question, Obama can ship detainees from Guantanamo -- or anywhere else in the world -- to Bagram Air Base and hold them there for years at a time. It's against international law, but that hasn't stopped a President before. So it looks like make Guantanamo may soon be Spanish for Bagram, and both will translate into human rights violations. B. THE CASE WILL TAKE YEARS TO GET TO THE SUPREME COURT IN THE STATUS QUO -- MEANWHILE, DETAINEES ARE DENIED FUNDAMENTAL RIGHTS AND ARE SUBJECTED TO INDEFINITE DETENTION Spencer Ackerman, "New Bagram Rules Seem a Lot Like Old GTMO Rules," WASHINGTON INDEPENDENT, 9-14-09, http://washingtonindependent.com/58971/new-bagram-rules-seem-a-lot-like-old-gtmo-rules, accessed 4-21-10. The Obama administration is putting a new plan in place at Afghanistan's Bagram air field detention facility to bring indefinite detentions there -- a practice viewed as a replication of the Guantanamo Bay detention facility's more noxious functions -- to an end. What does it include? Assigning U.S. military officials, who aren't lawyers, to represent detainees' interests in administrative hearings, according to The Washington Post. And what does that sound like? "They're setting up what amounts to a CSRT," said David Remes, the legal director of the non-profit Appeal for Justice law firm who represents 19 Guantanamo detainees. A CSRT is the acronym for a Combatant Status Review Tribunal, the old mechanism at Guantanamo to adjudicate not a detainee's guilt or innocence, but whether he constituted a threat to U.S. national security. Detainees were at the mercy of hearsay evidence and had the burden of proving that they weren't a threat and the government's case against them was erroneous. The Bush administration contended that CSRTs provided all the process rights to which Guantanamo detainees were entitled. But in 2008, the Supreme Court ruled in the landmark Boumediene case that detainees were entitled to habeas corpus protections. And so, Remes said, several years and several thousand miles later, here we are again. U.S District Judge John Bates, a Bush administration appointee, ruled this spring that non-Afghan detainees brought to Bagram have habeas rights, but Afghan detainees at the facility don't. Remes foresees a protracted fight. "We'll spend another four years going up to the Supreme Court on the question of Bagram [detainees'] habeas rights," he said. "It's another stall. And one I would have expected from the Bush administration but not the Obama administration."
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THE U.S. IS INDISCRIMINATELY ROUNDING UP INNOCENT PERSONS AND JUST SENDING THEM TO BAGRAM REVOLUTION, "Bagram Prison, Afghanistan: A Brutal U.S. Torture Center," n. 177, 1-27-08, http://revcom.us/a/117/bagram-en.html, accessed 4-7-10. The number of detainees at Bagram rose from about 100 at the start of 2004 to over 600 in 2007, according to U.S. military figures. As part of their strategy in Afghanistan, the U.S. and allied troops carry out indiscriminate mass round-ups and keep people caught up in such sweeps in captivity for long periods of time. Many Afghans are also rounded up, without further verification or investigation, off of anonymous "tips" provided to U.S. authorities based on personal or tribal grudges.
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EVEN IF BAGRAM IS HANDED OVER, THE U.S. WILL CONTINUE TO CONTROL MOST OF THE DETENTION PROCESS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. In the past two years American officials have moved to reform the main prison at Bagram, if not the Black Jail. Torture has stopped, and prison officials now boast that the typical inmate gains fifteen pounds while in custody. In the early months of this year, officials plan to open a dazzling new prison that will eventually replace Bagram, one with huge, airy cells, the latest medical equipment and rooms for vocational training. The Bagram prison itself will be handed over to the Afghans in the coming year, although the rest of the detention process will remain in US hands.
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GUANTANAMO CLOSURE HAS NOT AFFECTED U.S. POLICY IN AFGHANISTAN Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. Images of caged and shackled detenus at the U.S. naval base at Guantanamo Bay, of torture at the Abu Ghraib prison in Iraq, and of the Gulfstream jets that were used to transfer detenus to secret prisons around the world, have been seared into the public consciousness and become indelibly linked to the U.S. response to the attacks of September 11, 2001. The news that the Guantanamo detention facility, a symbol of injustice and abuse, will no longer be operating after January 22, 2010 is to be welcomed. Guantanamo will be consigned to history, as will be, it is to be hoped, the "enhanced" interrogation techniques and secret Central Intelligence Agency (CIA) prisons. But these positive changes do not obscure the fact that hundreds of others languish in U.S. custody in Afghanistan with no means to challenge their detention, and that the U.S. continues to reserve the right to use rendition and allows the CIA to hold individuals on short-term and transitory basis without the legal framework governing such detentions being made clear. Nor can the positive changes mask the reality that the U.S. administration continues to invoke the spectre of an ill-defined and perpetual "war", where the battlefield could be anywhere from Peshawar to Peru, to claim the right to detain people until hostilities have ended, whenever that may be. On January 22, 2009, President Barack Obama signed three executive orders on detentions and interrogations. One of them committed his administration to closing the detention facility in Guantanamo Bay within a year and directed officials to conduct an immediate review of all cases of detenus being held there to determine what should happen to them. However, the new administration continues with the detentions in Afghanistan; in particular, the long-term detention facility operated by the U.S. Department of Defence at the Bagram airbase where hundreds of detenus are being held. New detentions by the U.S. and allied forces in Afghanistan have been occurring regularly.
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BAGRAM REPLACED GITMO AS THE PRISON OF CHOICE IN THE WAR ON TERROR Greg Jaffe and Julie Tate, "A Jail in Bagram, a Detainee Protest," WASHINGTON POST, 7-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071503156.html, accessed 4-21-10. Unlike at Guantanamo Bay, where detainees have access to lawyers, the 620 prisoners at Bagram are not permitted to visit with their attorneys. Afghan government representatives are generally not allowed to visit or inspect the Bagram facility. President Obama signed an executive order in January to review detention policy options. The Justice Department is leading an interagency task force examining the issue and is set to deliver a report to the president on Tuesday. In recent years, Bagram became the destination for many terrorism suspects as Guantanamo Bay came under more scrutiny through legal challenges. The last significant group transfer from the battlefield to the prison in Cuba occurred in September 2004, when 10 detainees were moved there; in September 2006, 14 high-value detainees were transferred to Guantanamo Bay from secret CIA prisons. Since then, six detainees have been moved there. The Bagram prison population, meanwhile, has ballooned. U.S. officials are building a bigger facility there that will hold nearly 1,000. The Bagram facility includes inmates from Afghanistan as well as those arrested by U.S. authorities in other countries as part of counterterrorism efforts. The prison now holds close to 40 detainees who are not Afghan citizens, many of whom were not captured in Afghanistan.
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OBAMA WILL CONTINUE TO HOLD PERSONS AT BAGRAM Stephanie Hessler, constitutional lawyer, "The 'Other Gitmo'," THE DAILY STANDARD, 3-6-09, npg. Despite Johnson v. Eisentrager, the Supreme Court recently ruled that alien enemy combatants held at Guantanamo Bay can challenge their detention in federal court. But from a legal perspective, the Bagram facility differs from the Guantanamo Detention Camp in two key ways. First, Guantanamo is not in an active war zone. Second, the Supreme Court has decided that "in every practical sense Guantanamo is not abroad" because the United States exercises complete control over it. For these reasons, the Bush administration -- and now the Obama administration -- have argued that even if the writ of habeas corpus extends to Guantanamo, it surely must not extend halfway around the world to Bagram Airbase. Therefore, Guantanamo's closure may be largely a symbolic gesture. The Obama administration may continue to hold current (and likely future) detainees at Bagram, with far fewer rights than detainees at Gitmo. It remains to be seen the extent to which the human rights lobby will continue to fight for detainees now that the president they are fighting is Obama, not Bush.
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OBAMA HAS BEEN SILENT ON BAGRAM -- THE "OTHER GUANTANAMO" -- IT WILL LIKELY REMAIN OPEN AND A LEGAL BLACK HOLE Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. On that day, April 7, 2009, President Barack Obama had been in office for exactly 77 days. Shortly after his inauguration, Obama had ordered the closing of the Guantanamo Bay detention center and ordered the CIA to give up its secret "black site" prisons. He wanted to shed the dark legacy of the Bush years -- there should be no torture any more, no more secret kidnapping operations of terrorism suspects, no renditions. At least, that was what Obama had promised. He did not mention Bagram in his speeches. Azar was in Kabul on business. His company had signed contracts with the Pentagon worth $50 million (34 million) for reconstruction work in Afghanistan. On April 8, Azar was placed onto a Gulfstream and flown to the US state of Virginia to face charges. He was accused of having bribed his US Army contact to secure military contracts for his company, and he was later found guilty of bribery. It was a classic case of corruption, which is not the sort of crime for which a suspect is normally sent to a military prison. No one can explain to Azar why he was taken to Bagram, where the US military treated him like a terrorism suspect and, in doing so, inadvertently provided him with an insight into a world it normally prefers to keep under wraps. Bagram is "the forgotten second Guantanamo," says American military law expert Eugene Fidell, a professor at Yale Law School. "But apparently there is a continuing need for this sort of place even under the Obama administration." From the beginning, "Bagram was worse than Guantanamo," says New York-based attorney Tina Foster, who has argued several cases on behalf of detainee rights in US courts. "Bagram has always been a torture chamber." And what does Obama say? Nothing. He never so much as mentions Bagram in any of his speeches. When discussing America's mistreatment of detainees, he only refers to Guantanamo.
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STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE"
1. SUPREME COURT IS UNLIKELY TO EXTEND HABEAS CORPUS RIGHTS TO BAGRAM DETAINEES LOS ANGELES TIMES, editorial, "The Bagram Difference," 9-23-09, www.latimes.com/news/opinion/editorials/la-ed-bagram23-2009sep23,0,4445075.story, accessed 4-10-09. Yet there are important differences between the two situations. It's unlikely that the U.S. Supreme Court, which ruled that prisoners held at Guantanamo had a right to habeas corpus, would extend the same right to detainees at Bagram. Guantanamo, as the court noted in a decision last year, is subject to the "de facto sovereignty" of the United States, while the Bagram site is temporarily leased from Afghanistan. Unlike Guantanamo, Bagram is located in an active war zone. Even the federal judge who ruled that some Bagram inmates could seek habeas corpus relief confined his ruling to non-Afghans, who currently number only 30, most of them Pakistanis. 2. AT BEST, DETAINEES WILL LINGER FOR YEARS WHILE THE REVIEW SYSTEM IS LITIGATED Glenn Greenwald, "Bagram: The Sham of Closing Guantanamo," SALON, 9-16-09, www.salon.com/news/opinion/glenn_greenwald/2009/09/15/bagram/, accessed 4-21-10. Back in April, when the Obama DOJ announced it would appeal the decision, I wrote at length about the Bagram issue, and yesterday, in the wake of this new filing, numerous commentators made excellent points about these shenanigans. Spencer Ackerman notes that, the day before the ruling, the administration leaked that they were creating "new procedures" for Bagram detainees which are very similar to Guantanamo's "Combatant Status Review Tribunals" -- the very Bush/Cheney system the Boumediene court rejected as unconstitutional. This means that, at best, the Bagram detainees will now languish in prison for still more years with no habeas review while the Obama DOJ spends years litigating whether its "new system" is a sufficient Constitutional replacement for habeas review. Ackerman quotes David Remes, the legal director of the non-profit Appeal for Justice law firm who represents 19 Guantanamo detainees, as saying: "It's another stall. And one I would have expected from the Bush administration but not the Obama administration." 3. APPEALS COURT JUDGES SEEMED TO SUPPORT THE GOVERNMENT IN ORAL ARGUMENT -- THINK A PRO-ACCESS RULING IN THE BAGRAM CASE WILL APPLY TO DETAINEES AROUND THE WORLD AGENCE FRANCE PRESSE, "Rights of Hundreds at Bagram Prison Still Denied," 1-8-10, www.commondreams.org/headline/2010/01/08-1, accessed 4-21-10. A US appeals court has appeared reluctant to grant detainees at the Bagram prison in Afghanistan the same rights given in 2008 to prisoners in Guantanamo to be able to challenge their detention in US civilian courts. [Watchtowers sit along the perimeter of Bagram prison, north of Kabul. (AFP/File/Massoud Hossaini)] Watchtowers sit along the perimeter of Bagram prison, north of Kabul. (AFP/File/Massoud Hossaini) Judges here were wary of extending three detainees such rights at the military prison at the Bagram Air Base north of Kabul, indicating such a ruling could lead to other prisoners held oversees by the United States to seek redress in federal court. In April last year, US District Judge John Bates recognized the right of the detainees, held at Bagram without charge for at least six years, to challenge their detention in the United States, according to their lawyers. He based the ruling on the landmark Supreme Court move in 2008 to allow such rights to prisoners held at the US naval base at Guantanamo Bay, Cuba. "These detainees have been denied a due process," insisted attorney Tina Foster on Thursday. The three appeals court judges however expressed concern that an approval of Bates' ruling would open the door to more than 670 prisoners currently held at Bagram, and serve as precedent for other people detained in US military bases around the world. 4. THE OBAMA ADMINISTRATION HAS APPEALED THE DISTRICT COURT RULING Dawinder Sidhu, attorney, "Obama's Looming Legal Trap in Afghanistan," SALON, 4-6-10, www.salon.com/news/feature/2010/04/06/bagram_guantanamo_habeas_corpus/index.html, accessed 4-21-10. In 2009, a federal district court issued an initial opinion in al Maqaleh. The court, guided by Boumediene, determined that habeas exists for foreign detainees in Bagram because "the United States appears to have near-total operational control at Bagram." Several factors support the court's conclusion. For example, under the express terms of a lease agreement between Afghanistan and the United States, Afghanistan consigned the land and facilities at Bagram for the "exclusive, peaceable, undisturbed and uninterrupted" use by the United States. The lease expires only when the United States deems that "the premises are no longer required for its use." The government has appealed, arguing that the district court got it wrong. The United States does not possess sufficient control over Bagram, according to the Obama administration, because the American presence in Bagram is "limited" in duration and because any American operational control over the base is "constrained" by considerations of Afghan sovereignty and by the fact that other coalition forces are able to use the facility.
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STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE" cont'd
5. THE BATES RULING DOES NOT GO FAR ENOUGH, HAS BEEN APPEALED Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. On April 2, 2009, a U.S. federal judge ruled that three detenus at the Bagram airbase, who were transferred there by U.S. forces after being seized in other countries, could challenge the lawfulness of their detention in U.S. courts, noting that "aside from where they are held, Bagram detainees are no different than Guantanamo detainees." The ruling is not wide enough and leaves numerous questions unanswered -- not the least of which is: what will happen to the detenus who were initially detained in Afghanistan? Nonetheless, it was a positive step by a federal judge towards ensuring the rule of law at Bagram and against the position developed by the Bush administration and adopted by its successor. However, the Obama administration decided to appeal against this ruling. Given that detenus at Bagram do not have access to a system of effective judicial review in Afghanistan, the administration's appeal essentially means that, like its predecessor, it seeks to deny detenus held by the U.S. outside its territory or Guantanamo any effective means to challenge the lawfulness of their detention. This will amount to continuing the arbitrary nature of the detentions in violation of international human rights law. 6. THE BATES RULING IS NARROW, DOES NOT APPLY TO PERSONS CAPTURED IN AFGHANISTAN Charlie Savage, "Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus," NEW YORK TIMES, 4-2-09, www.nytimes.com/2009/04/03/washington/03bagram.html?ref=global-home, accessed 4-7-10. Judge Bates emphasized that his ruling was "quite narrow." He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture. "It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war," the judge wrote. "It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach." 7. FUTURE RULINGS WILL BE NEEDED TO EXPAND THE DOOR THAT BATES OPENED Daphne Eviatar, "Bagram Ruling Portends More Challenges to Obama Detention Policy in Afghanistan," WASHINGTON INDEPENDENT, 4-2-09, http://washingtonindependent.com/37119/bagram-ruling-portends-more-challenges-to-obama-detention-policy-in-afghanistan, accessed 4-21-10. Although Bates' ruling was limited to the detainees in the case before him, it opens the door to lawsuits from hundreds more prisoners at Bagram who are awaiting the opportunity to challenge their indefinite detention. "It shows that the courts are not going to take cosmetic rhetoric as a substitute for a legal basis for detention," said Tina Foster, executive director of the International Justice Network, which has been representing all of the Bagram detainees in federal court. "The rhetoric that we're in a war on terror and that Afghanistan is in the middle of a war zone doesn't change the fact that the U.S. government brought people who had nothing to do with the conflict in Afghanistan or the war on terror to be held in its custody in the middle of Afghanistan." Whether prisoners taken from their homes or elsewhere in Afghanistan and imprisoned at Bagram are also entitled to habeas corpus rights is likely to be decided in a future case -- unless the Obama administration decides to change its position. For now, the big question for Foster and her colleagues who've been pressing these cases for years is whether the Obama administration will appeal -- and further stall the prisoners' hearings. "The last administration just fought on everything," says Foster. "I don't know what the Obama administration is going to do with this ruling. Will they dig in their heels? It will be a very good indication of things to come, whether they are willing to expend the resources to argue that the president ought to have a right to take these prisoners -- who have been denied their rights for more than six years -- and lock them up forever."
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BOUMEDIENE DECISION'S SOVEREIGNTY STANDARD CREATES AN INCENTIVE FOR THE EXECUTIVE TO STOCKPILE DETAINEES IN AREAS WHERE THE U.S. DOES NOT EXERCISE TOTAL CONTROL Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.393-394. Courts that employ a de facto sovereignty analysis to determine the reach of the Suspension Clause will also create perverse incentives for the political branches. As shown, a minimal amount of jurisdiction retained by the host nation will render a federal court powerless to hear a detainee's habeas petition. Therefore, the United States government has a strong incentive to make strategic concessions of jurisdiction to the host nation when negotiating the terms of a military enclave in order to keep the detainees out of the judiciary's reach. As the government stakes out new offshore detention sites in the War on Terror, it is unlikely to insist on complete jurisdiction after Boumediene. Although these strategic concessions may not be as thinly veiled as the Cuban traffic law hypothetical, subtler ruses are conceivable. For example, Cuban criminal jurisdiction over detainees might at first seem like it should have displaced the Suspension Clause's application in Boumediene. But if this retained jurisdiction only applied to acts taken on the island, it should not prevent the detainees from challenging the United States' accusations regarding their conduct prior to detention. Ironically, the Boumediene Court portended its repugnance to such strategies by noting that "our basic charter cannot be contracted away like this" in rejecting de jure sovereignty as the touchstone of habeas jurisdiction. However, the de facto sovereignty test it endorsed precisely allows for this.
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BOUMEDIENE DECISION ONLY APPLIES TO GUANTANAMO Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.375. Do the noncitizens held at these other detention sites have this same basic opportunity to be heard? The Boumediene Court's analysis and recent scholarship suggest they do not. Although employing a "functional," multi-factor approach, the crux of the Court's analysis in Boumediene was the determination that Guantanamo Bay was a de facto sovereign of the United States. The path the Court took to this conclusion suggests that Guantanamo is the only United States de facto sovereign in the world, and thus the only candidate for an extraterritorial application of the Suspension Clause. Indeed, the traditional prerequisites of de facto sovereignty are complete jurisdiction and control -- a test that is not met by any other detention site publicly maintained by the United States military.
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OBAMA ADMINISTRATION IS NOW ARGUING THAT THE BOUMEDIENE DECISION DOES NOT APPLY TO BAGRAM DETAINEES Baher Azmy, Professor, Law, Seton Hall University, "Executive Detention, Boumediene, and the New Law of Habeas," IOWA LAW REVIEW v. 95, February 2010, p.482-483. The Court could have, but chose not to, expressly restrict the reach of the Suspension Clause to the arguably unique setting of Guantanamo. That decision partly reflected the Court's concern that a bright-line jurisdictional rule would invite executive "manipulation," such as locating detention operations on the other side of a jurisdictional line in order to "evade legal constraint." Currently, the jurisdictional line under consideration is the U.S. airfield in Bagram, Afghanistan, now the site of the United States' largest detention operation for "enemy combatants." Detainees filed a number of habeas cases in 2007 in the U.S. District Court for the District of Columbia on behalf of prisoners detained there, producing a recent, thoughtful district-court decision extending Boumediene's reach to a category of non-Afghani detainees transferred to Bagram from third countries. Significantly, the Obama Administration formally endorsed the position previously taken by the Bush Administration: neither the habeas statute nor the Suspension Clause permits federal courts to hear habeas petitions filed from Bagram. In its appeal of the district court's decision conferring habeas jurisdiction, the Obama Administration relied on doctrine and rhetoric eerily similar to that employed by its predecessor in defending the detention operations in Guantanamo. Indeed, Obama Administration officials have perversely defended these operations in Bagram in part on the grounds that the decision to close Guantanamo creates an urgent need for a new executive detention locale to detain indefinitely hundreds of suspected terrorists.
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STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BOUMEDIENE PRECEDENT" cont'd
4. BOUMEDIENE PRECEDENT ONLY APPLIES TO GUANTANAMO, WHERE THE U.S. HAS DE FACTO SOVEREIGNTY Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.386. Before Boumediene, the Supreme Court confronted the extraterritorial reach of the Suspension Clause only once. In Johnson v. Eisentrager, the petitioners were a group of German citizens held at Landsberg Prison, an American Army facility in Germany. The Germans had been convicted of war crimes for engaging in hostilities against America after the surrender of Germany in World War II, and they sought a writ of habeas corpus to challenge that conviction in a United States federal court. The Eisentrager Court ruled that the petitioners had no right to habeas corpus under the Suspension Clause because Landsberg Prison was outside the sovereign United States. Thus, in order to apply the Suspension Clause to the noncitizens held at the formally Cuban territory of Guantanamo Bay, the Boumediene Court had to either overrule or substantially distinguish Eisentrager. Choosing the latter course, the Boumediene Court relied on the United States' de facto sovereignty over Guantanamo. While conceding that Cuba had de jure sovereignty over Guantanamo, the Court "[took] notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory." Thus, the current law of the land is that the Suspension Clause can apply to a de facto U.S. sovereign, and that de jure sovereignty is not the dispositive factor. 5. BOUMEDIENE DOES NOT APPLY TO BAGRAM -- SOVEREIGNTY STANDARD Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.388-389. As the above demonstrates, de facto sovereignty requires both complete jurisdiction and complete control. "Control" will almost always logically follow a showing of complete jurisdiction, but the converse is not true. For example, Bagram Air Base, the principal military base in Afghanistan, is under the control of the United States but is governed by both Afghani and United States law. So while the United States' control over Bagram may be exclusive, United States jurisdiction is not. This structure of "concurrent jurisdiction" is typical of foreign U.S. military enclaves. Because the United States generally exercises complete control over its military enclaves, future cases examining the extraterritorial reach of the Suspension Clause will likely turn on the exclusivity of United States jurisdiction. 6. BOUMEDIENE RULING IS TOO WEAK -- GOVERNMENT WILL USE THE UNIQUE STATUS OF GITMO TO SHIELD OTHER DETENTION CENTERS Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.403. This Note has attempted to show the weaknesses -- even the dangers -- of using de facto sovereignty to determine the extraterritorial reach of the Suspension Clause. The enshrinement of this approach in the habeas discourse is evident from the paucity of discussion regarding the right of the host nation to be free from interference sanctioned by a United States federal court. There have also apparently been no attempts to explain the result in Boumediene as an example of the sovereign of Cuba waiving jurisdiction over the detainees at Guantanamo Bay. However, both points are important ones to make if we truly believe that the Framers' intent has special pertinence when interpreting the Suspension Clause. More important, however, is that the rule set forth in Boumediene threatens to deprive hundreds of people at other detention sites the fundamental right to contest their charges in a forum that has a federal court's promise of fairness and impartiality. Before Boumediene was decided, many commentators in favor of extending the Suspension Clause to Guantanamo explained away the de jure sovereignty of Cuba over Guantanamo by pointing to the complete jurisdiction and control exercised by the United States. As shown above, this is how the Boumediene Court defined de facto sovereignty in the actual case. Post-Boumediene, the government will presumably rely on the fact that this jurisdictional structure is completely unique to Guantanamo in order to distinguish it from other detention sites. Thus, the unique nature of Guantanamo that was used to vindicate the rights of hundreds of people will potentially keep hundreds of others in indefinite detention.
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GOVERNMENT IS USING TRIBUNALS AT BAGRAM NOW TO CIRCUMVENT HABEAS CORPUS RULINGS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. On Monday, one day after the New York Times and the Washington Post reported that the Obama administration was planning to introduce tribunals for the prisoners held in the U.S. prison at Bagram airbase, Afghanistan, the reason for the specifically-timed leaks that led to the publication of the stories became clear. The government was hoping that offering tribunals to evaluate the prisoners' status would perform a useful PR function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia (PDF), submitted yesterday, in which the government attempted to claim that "Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan." The main reason for this brazen attempt to secure a PR victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and "rendered" to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in U.S. courts. Below, I discuss the government's position regarding these men, and explain why introducing Guantanamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram's ongoing use as a secret prison for foreign suspects "rendered" from other countries.
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CURRENT ORDER AUTHORIZING DETENTIONS DOES NOT PROVIDE ADEQUATE DUE PROCESS PROTECTIONS Human Rights Watch, "US: Reform Afghanistan Detention Policy," 11-14-09, www.hrw.org/en/news/2009/11/13/us-reform-afghanistan-detention-policy, accessed 4-7-10. A US domestic law, the Authorization for Use of Military Force, is currently being used as the basis for the detentions on Afghan soil. It is inadequate because it fails to recognize that all persons held in Afghanistan are entitled to the legal protection of Afghan domestic law and international human rights law, regardless of whether they are in the physical control of the Afghan government or a foreign government. All detainees in Afghanistan are entitled to minimum protections, including the right to legal counsel, and to be able to challenge the legal and factual basis for the detention before an independent and impartial tribunal. The U.S. reforms still fall short of providing detainees with those rights. "President Obama has taken some steps to sort out the mess created by the Bush administration," said Rachel Reid, Afghanistan researcher for Human Rights Watch. "But the US will have a lot more credibility encouraging the Afghan government to respect the rule of law if it reforms its own detention practices."
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PERSONS HELD AT BAGRAM HAVE NO MEANINGFUL WAY TO CHALLENGE THEIR DETENTION Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.2. In April 2009, Human Rights First interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S. military not to be a threat to U.S., Afghan or Coalition forces. Some detainees we interviewed had been detained for five years, others from four months to two years. According to those we interviewed in April, prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers. Detainees were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- DUE PROCESS/INDEFINITE DETENTION cont'd
4. MANY AFGHANS ARE BEING HELD BY THE U.S. WITHOUT BEING ABLE TO CHALLENGE THEIR DETENTION Sahr MuhammedAlly, Senior Associate, Law and Security Program, Human Rights First, "Hidden Justice: Do Obama's Detention Reforms in Afghanistan Go Far Enough," FOREIGN POLICY, 9-18-09, http://afpak.foreignpolicy.com/posts/2009/09/18/hidden_justice_do_obama_s_detention_reforms_in_afghanistan_go_far_enough, accessed 4-7-10. The new Detainee Review Board (DRB) procedures for the approximately 600 detainees currently held in Bagram Air Base, Afghanistan, are an improvement over the existing review regime, which has resulted in prolonged and unjust detention and has been a growing source of frustration and decreased Afghan support for U.S. presence in Afghanistan. But these reforms do not address the core of U.S. detention problems that persist in Afghanistan -- problems that undercut America's counterinsurgency goals there. I went to Afghanistan earlier this year to speak to former detainees suspected of involvement with the insurgency imprisoned by U.S. forces at Bagram. What I found was troubling. Many were captured in their homes during night raids that terrorized extended families, often involving destruction of property, sometimes even death to innocent bystanders. Detainees I interviewed had been held for 9 months, 2 years, and some up to 5 years without any opportunity to review the evidence against them or to produce tribal elders or other witnesses who could vouch for their innocence and character. 5. OBAMA ADMINISTRATION IS DENYING REVIEW RIGHTS TO BAGRAM DETAINEES Catherine Herridge, "Liberals Angered By Obama's Opposition to Judicial Review for Bagram Detainees," FOXNEWS, 4-16-09, www.foxnews.com/politics/2009/04/16/liberals-angered-obamas-opposition-judicial-review-bagram-detainees/, accessed 4-21-10. President Obama signed three executive orders in January that signaled his intent to close the prison at Guantanamo Bay, fulfilling a campaign promise popular with liberals and central to his electoral victory. But three months into the detainee review, Obama finds himself the unexpected target of fresh criticism from liberals over his handling of what they consider the new Guantanamo Bay: the military detention facility at Bagram Air Base in Afghanistan. The secretive site is home to 660 detainees, 95 percent of whom were captured on the battlefield in Afghanistan. The rest were mostly captured in North Africa and the Middle East. In an editorial this week, The New York Times claimed Bagram is "the next Guantanamo" and accused the Obama administration of recycling "extravagant claims of executive power." That's because the Obama White House has sided with the Bush administration in its belief that the Bagram detainees, who are in a war zone, have no right to a court review despite a ruling last year by the Supreme Court granting Guantanamo detainees those rights. 6. MOST BAGRAM DETAINEES LACK THE RIGHT TO CHALLENGE THEIR DETENTION Daphne Eviatar, "CAP: Postpone Gitmo Close, Send Leftovers to Bagram," WASHINGTON INDEPENDENT, 11-10-09, http://washingtonindependent.com/67348/cap-postpone-gitmo-close-send-leftovers-to-bagram, accessed 4-21-10. While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue -indefinitely -- the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right. Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don't afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them. 7. U.S. IS THE ONLY COUNTRY THAT USES INDEFINITE DETENTION IN AFGHANISTAN William Fisher, "Forgotten Bagram Prisoners Turn to US Courts," TRUTHOUT, 3-5-10, www.truthout.org/forgotten-bagram-prisoners-turn-us-courts57380, accessed 4-21-10. The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody. The ACLU said, "There is growing concern that Bagram has become the new Guantanamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process." In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
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1.
MANY BAGRAM DETAINEES ARE NOT CAPTURED IN THE WAR ZONE Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. The Bagram detention facility, by now the largest American military prison outside the United States, is not marked on any maps. In fact, its precise location, somewhere on the periphery of the giant air base northeast of the Afghan capital, is classified. It comprises two sand-colored buildings that resemble airplane hangars, surrounded by tall concrete walls and green camouflage tarps. The facility was set up in 2002 as a temporary prison on the grounds of a former Soviet air base. Today, the two buildings contain large cages, each with the capacity to hold 25 to 30 prisoners. Up to 1,000 detainees can be held at Bagram at any one time. The detainees sleep on mats, and there is one toilet behind a white curtain for each cage. A $60 million extension is expected to be completed by the end of the year. Unlike Guantanamo, Bagram is located in the middle of the Afghan war zone. But not all the inmates were captured in combat areas. Many terrorism suspects are from other countries and were transported to Bagram for interrogation after being captured. Since the military prison first came into operation, all the detainees there have been classified as "enemy combatants" rather than prisoners of war, which would make them subject to the provisions of the Geneva Convention.
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SURGE WILL ONLY INCREASE THE NUMBER OF DETAINEES IN AFGHANISTAN -- WE ARE EXPANDING THE PRISON AND USING DISCREDITED 'ENEMY COMBATANT' LABELS Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. The month of March heaped insult upon injury for those who had been hopeful about Obama's detention policy. The new administration announced the deployment of 4,000 more troops to Afghanistan to add to the 17,000 already newly deployed since the inauguration. With more troops -- despite assertions that many are there for civil-society-building purposes -- comes the expectation that more prisoners will be taken. Although the administration's recently released strategy for Pakistan and Afghanistan emphasizes the use of troops for nation building, there is also the directive that elements of al-Qaeda and the Taliban will have to be dismantled and, we can only assume, imprisoned. Under President Bush, plans for expanding the ability to hold prisoners in Afghanistan were adopted in the form of a $60 million expansion of Bagram's prison facilities. The Obama administration, it seems, is poised to go through with this expansion, which will double the capacity of that prison to 1,100. Similarly, on March 13, the administration, while jettisoning the discredited term "enemy combatant," did not replace it with any label other than the equally vague reference to individuals who "substantially supported" the Taliban, al-Qaeda or "associated forces." This cloudy terminology essentially seems to agree that the detainees stand legally without rights and, therefore, in a legal no-man's-land. Critics of these developments have been quite vocal, expressing dismay that the about-face they expected from the Obama administration has not taken place. "It is deeply troubling," Anthony Romero, executive director of the ACLU, responded, "that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. It is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."
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THE UNLAWFUL COMBATANT LABEL IS STILL BEING USED TO JUSTIFY INDEFINITE DETENTION Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. As at Guantanamo, the detainees in Bagram are held by the US military as "enemy combatants", although the authorities have recently taken to also labelling the Bagram detainees as "unlawful enemy combatants". This change has occurred during litigation since 2007 on Bagram cases, without explanation and without clarification of what definition of "unlawful enemy combatant" the military was applying. As at Guantanamo, the USA applies the notion of a global armed conflict to the Bagram detention regime, as well as pointing out the ongoing armed conflict in Afghanistan when justifying indefinite detention (see further below).
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "AFGHAN COURTS"
1. BAGRAM DETAINEES DO NOT HAVE RECOURSE TO COURTS IN AFGHANISTAN Sahr MuhammedAlly, Senior Associate Law and Security Program, Human Rights First, "Obama Must Not Allow Bagram Prison to Remain an Afghan Version of Guantanamo," JURIST, 1-17-09, http://jurist.law.pitt.edu/hotline/2009/01/obama-must-not-allow-bagram-prison-to.php, accessed 4-21-10. There is no judicial process afforded to Bagram detainees. Afghan courts are unable to exercise jurisdiction over their own, or any other country's, nationals held by the U.S. military in Afghanistan. According to U.S. government court filings, a panel of three U.S. military officers -- called an Unlawful Enemy Combatant Review Board (UECRB) -- reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. Before April 2008, detainees were not even permitted to appear before the UECRB. There is no appeal from the UECRB determination. Detainees don't question government witnesses, nor can they call their own witnesses or receive guidance from an advocate. 2. AFGHAN GOVERNMENT REFUSES TO PARTICIPATE IN HANDOFF OF INDEFINITE DETAINEES ANI, "Afghanistan's Bagram Military Prison Has Nearly Double the Inmates of Guantanamo Bay," 1-8-08, http://www.thaindian.com/newsportal/world-news/afghanistans-bagram-military-prison-has-nearly-double-the-inmates-of-guantana mo-bay_10011768.html, accessed 4-10-10. With the Afghans raising objections to US attempts to persuade them to establish a similar home-grown regime of indefinite detentions and trial by military commission already endorsed by the Bush Administration, and the Americans fearing for the security and day-to-day conditions of the proposed new facility, an agreement on how the new prison facility will be used broke down in 2006. Afghanistan's President Karzai has so far refused to sign a decree establishing a legal framework for the prisoners based on the discredited Guantanamo model. (ANI) 3. EVEN THE KARZAI GOVERNMENT REFUSES TO COOPERATE WITH OUR DETENTION EFFORTS REVOLUTION, "Bagram Prison, Afghanistan: A Brutal U.S. Torture Center," n. 177, 1-27-08, http://revcom.us/a/117/bagram-en.html, accessed 4-7-10. The U.S. has been working on a plan to transfer prisoners out of Bagram to a new prison run by the Afghan military. According to the New York Times, Bush administration officials wanted the Karzai government in Kabul -- a puppet regime created by the U.S. after the 2001 invasion -- to agree to hold the prisoners as "enemy combatants" and to adopt "a legal framework like that of Guantanamo." In other words, the prisoners could be held indefinitely, without charges and any real trials. But apparently, even Karzai did not want to be seen carrying out such blatantly unjust treatment of prisoners that violates international laws, and he reportedly refused to sign a decree, written under U.S. direction, that authorized such treatment.
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CIA PRISON BAN SOLVES"
1. THE NEW DETENTION RULES HAVE BACKFIRED, SHIFTING CONTROL TO THE SPECIAL FORCES AND SECRET PRISONS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. The American troops that operate under NATO command have begun to enforce stricter rules of engagement: they may now officially hold detainees for only ninety-six hours before transferring them to the Afghan authorities or freeing them, and Afghan forces must take the lead in house searches. American soldiers, when questioned, bristle at these restrictions -- and have ways of circumventing them. "Sometimes we detain people, then, when the ninety-six hours are up, we transfer them to the Afghans," said one marine who spoke on the condition of anonymity. "They rough them up a bit for us and then send them back to us for another ninety-six hours. This keeps going until we get what we want." A simpler way of dancing around the rules is to call in the Special Operations Forces -- the Navy SEALs, Green Berets and others -- which are not under NATO command and thus not bound by the stricter rules of engagement. These elite troops are behind most of the night raids and detentions in the search for "high-value suspects." Military officials say in interviews that the new restrictions have not affected the number of raids and detentions at all. The actual change, however, is more subtle: the detention process has shifted almost entirely to areas and actors that can best avoid public scrutiny -- small field prisons and Special Operations Forces. 2. OBAMA HAS NOT FULFILLED HIS PROMISE TO END SECRET TORTURE PRISONS Stephen Lendman, "America's Secret Prisons," DISSIDENT VOICE, 3-17-10, http://dissidentvoice.org/2010/03/americas-secret-prisons/, accessed 4-10-10. Clear evidence shows otherwise that prisoners were subjected to cruel, inhumane, abusive and degrading treatment at US and foreign sites, contrary to Bush administration assurances and later from the equally culpable Obama administration. After promising to respect human rights and close Guantanamo and other detention facilities as expeditiously as possible, and refrain from operating new ones, it's kept them open, endorsed preventive detentions without charges, continues extraordinary renditions to black sites, and embraces torture as official US policy like the Bush administration. America's torture prisons still flourish as secretly and abusively as under George Bush despite promises of more humane practices, quickly broken to pursue America's imperial agenda for unchallengeable power and total global dominance.
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS"
1. DESPITE REFORMS, THE REVIEW PROCEDURES ARE STILL INADEQUATE -- USE OF CLASSIFIED EVIDENCE, FALSE INFORMATION, LACK OF PERSONNEL, LACK OF TRANSLATION Jonathan Horowitz, Open Society Institute, "New Detenion Rules Show Promise and Problems," HUFFINGTONPOST, 4-20-10, http://blog.soros.org/2010/04/new-detention-rules-show-promise-and-problems/, accessed 4-21-10. However, there are reasons for concern. Serious problems continue to damage the credibility of the new system. For example, that detainees are not allowed to review classified information seriously jeopardizes the accuracy and legitimacy of the hearings. This classification procedure, though important for protecting identities of informants, makes it nearly impossible for the detainee to effectively challenge the veracity of the allegations. To solve this problem, the U.S. military and intelligence agencies need to end their culture of over-classification and give greater priority to improving their evidence gathering capacity, as opposed to their intelligence gathering capacity. Without a shift from reliance on secret sources to greater transparency, U.S. detention operations and its detainee review system are doomed. This is not unprecedented; International Security Assistance Forces (ISAF) soldiers, who send their detainees to Afghan authorities, have been given orders to improve evidence collection for Afghan criminal prosecutions. The U.S. also needs to review its intelligence sources and eliminate those who repeatedly provide false and inaccurate information. One of the biggest complaints Afghans have of the U.S. detention policy is that informants aren't held accountable. In the highly publicized botched night raid by U.S. Special Operations Forces that killed civilians in February, the Christian Science Monitor reported the family as saying, "We want that spy who gave the false information to the Americans...I don't want the spy for myself, I want him to face justice or be handed over to the commander of the [Afghan army] corps." The DRBs also need more staff, especially personal representatives. If not supplemented, personnel will quickly burn-out and this will severely damage the quality of the DRBs. Currently, there are only eight representatives responsible for reviewing evidence, gathering witnesses, and conducting meetings for 800 detainees. Also of grave concern is the lack of adequate translation services during DRB proceedings. In the cases I observed, the interpreter at times did not provide a full translation of comments by detainees, witnesses, panel members, personal representatives, or the recorder. Inadequate interpreters should not be allowed to influence a process that determines a person's liberty. Since the DRBs are audio recorded, it would be beneficial for an independent expert to review the tapes and assess the quality of the DRB interpreters. More broadly, U.S. military should conduct a complete review of its Dari and Pashtu interpreters. 2. THE NEW BAGRAM TRIBUNALS ARE MERE SHOW TRIALS, RUN COUNTER TO SUPREME COURT STANDARDS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. Reinforcing its hopes that offering tribunals to the prisoners would deflect attention from its desire to keep holding "rendered" prisoners at Bagram indefinitely, the government included an Addendum with its brief on Monday, outlining its plans for the new tribunal system. This is designed to replace an existing review system, which, in the words of Judge Bates, "falls well short of what the Supreme Court found inadequate at Guantanamo" in Boumediene, being both "inadequate" and "more error-prone" than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals (CSRTs) that was established at Guantanamo to review the prisoners' cases. Reporters have been quick to spot that the new review system -- far from providing an adequate system that would, presumably, satisfy the Supreme Court -- is, in fact, little more than a carbon-copy of the CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on them, who explained, in a series of explosive statements in 2007, that they were designed primarily to rubberstamp the administration's insistence that the men were "enemy combatants," even though they had not been adequately screened on capture. 3. MILITARY COMMISSIONS CANNOT DELIVER FAIR AND RELIABLE JUSTICE American Civil Liberties Union, "Discredited Military Commissions Resume Despite Persistent Flaws," 4-27-10, www.aclu.org/national-security/discredited-military-commissions-resume-despite-persistent-flaws, accessed 4-27-10. The Khadr proceedings will take place as the administration considers the possible use of the military commissions for the prisoners accused of involvement in the 9/11 attacks. In November, Attorney General Eric Holder announced that the U.S. would use the federal criminal courts to prosecute the 9/11 suspects. However, after political pressure from inside and outside Congress, the administration has indicated it might change course and try the 9/11 suspects in the military commissions instead. The ACLU strongly believes that the appropriate place to try all terrorism cases is in federal criminal court and that the military commissions are unable to deliver reliable justice and fair trials and should be shut down for good. 4. LACK OF OUTSIDE ACCESS WEAKENS THE REVIEW BOARDS Jonathan Horowitz, Open Society Institute, "New Detenion Rules Show Promise and Problems," HUFFINGTONPOST, 4-20-10, http://blog.soros.org/2010/04/new-detention-rules-show-promise-and-problems/, accessed 4-21-10. As the U.S. moves forward in its various efforts to change the way it conducts detention operations in Afghanistan, it remains unwilling to allow defense lawyers into the DRBs, put non-military personnel on the review panel, or permit detainees to see classified evidence. All weaken the ability of the military to accurately determine who it should detainee and who it should set free.
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS" cont'd
5. THE NEW REVIEW BOARDS WILL NOT BE FAIR, ARE TOO SIMILAR TO THE DISCREDITED GITMO PROCEDURES Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.2. Under the newly announced DRB procedures, detainees will have improved notification procedures, the ability to attend the hearings, call witnesses that are "reasonably available" and question government witnesses, and have a personal representative to assist them during the proceedings. If properly implemented, these procedures will certainly be an improvement over the quality of process afforded to Bagram detainees under the previous Unlawful Enemy Combatant Review Board (UECRB) procedures. On the other hand, similarities between the DRBs and the discredited Combatant Status Review Tribunals (CSRTs) in Guantanamo are cause for concern. Specific problems with the CSRTs that may also arise in the DRBs involve enforcement of detainees' entitlement to exculpatory information and their ability to review and challenge the evidence against them and produce their own evidence, including witnesses, all in the absence of entitlement to legal representation or independent review of their detention. It thus remains to be seen whether these new procedures go far enough to protect against arbitrary detention while also creating a sound evidentiary basis for fair prosecutions. 6. THE CURRENT STATUS REVIEW PROCESS IS A SHAM Eric Schmitt, "Afghan Prison Poses Problem in Overhaul of Detainee Policy," NEW YORK TIMES, 1-26-09, http://www.nytimes.com/2009/01/27/washington/27bagram.html?em, accessed 4-7-10. Human rights advocates are already pressing the administration to revamp the review process for releasing or transferring the Bagram detainees, all but about 30 of whom are Afghans. This process, which the military calls "unlawful enemy combatant review boards," involves reviews of the status of each prisoner every six months. Human rights lawyers criticize the process as a sham and have called for a return to the longstanding battlefield reviews called for by the Geneva Conventions. More broadly, Mr. Obama's move away from the Bush administration's aggressive detention policies will have to be reconciled with his plans to increase combat operations in Afghanistan, a step that will almost inevitably generate new waves of detainees. 7. CURRENT PROCESS REFORMS ARE INADEQUATE -- ONLY MODESTLY IMPROVE A TERRIBLE SYSTEM Joshua Partlow, "U.S. Gives Tour of New Afghan Detention Center," WASHINGTONPOST, 11-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/11/15/AR2009111501877.html, accessed 4-7-10. Human rights groups said these measures still do not provide fair treatment for detainees. A joint statement from Human Rights Watch, Amnesty International and Human Rights First said detainees should be given lawyers and allowed to defend themselves in front of an independent and impartial tribunal. They also said that the Afghan Independent Human Rights Commission should have access to the detainees. Currently only the International Committee of the Red Cross, whose findings are confidential, can visit them. "This tour is one step in what we hope will be many more steps in U.S. detention reform. What's paramount are the due process concerns," said Jonathan Horowitz, a human rights expert with the Open Society Institute, who visited the facility Sunday. "You can't grade human rights on a curve. And if the previous administration set such a low bar, it's not hard to make it better, but what's needed is to make it good."
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STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "OBAMA FIXED IT"
1. OBAMA'S ADMINISTRATION HAS DONE VERY LITTLE TO IMPROVE THE LOT OF DETAINEES Johann Hari, "Obama's Secret Prisons in Afghanistan Endanger Us All," THE INDEPENDENT, 2-12-10, www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-obamas-secret-prisons-in-afghanistan-endanger-us-all-1896 996.html, accessed 4-7-10. The Obama administration is appealing against US court rulings insisting the detainees have the right to make a legal case against their arbitrary imprisonment. And the White House is insisting they can forcibly snatch anyone they suspect from anywhere in the world -- with no legal process -- and take them there. Yes: Obama is fighting for the principles behind Guantanamo Bay. The frenzied debate about whether the actual camp in Cuba is closed is a distraction, since he is proposing to simply relocate it to less sunny climes. Once you vanish into this system, you have no way to get yourself out. The New York lawyer Tina Foster represents three men who were kidnapped by US forces in Thailand, Pakistan and Dubai and bundled to Bagram, where they have been held without charge for seven years now. She tells me there have been "shockingly few improvements" under Obama. "The Bush administration rubbed our faces in it, while Obama's much smoother. But the reality is still indefinite detention without charge for people who are judged guilty simply by association. It's contrary to everything we stand for as a country... I know there are children [in there] from personal experience. I have interviewed dozens of children who were detained in Bagram, some as young as 10." 2. THE OBAMA ADMINISTRATION IS SIMPLY COVERING UP PAST ATROCITIES, LEAVING THE POLICIES IN PLACE Joe Kishore, "Torture and the American Ruling Class," WSWS, International Committee of the Fourth International, 3-19-09, www.wsws.org/articles/2009/mar2009/pers-m19.shtml, accessed 4-7-10. From the beginning, the Democratic Party has played the role of accomplice. Leading Democratic Party officials were informed of the torture program as well as the destruction of evidence. Along with the mass media, the Democratic Party has worked systematically to ignore revelations of the crimes, or, when this has not been possible, to bury them quickly. Everything has been done to keep the American people in the dark about what exactly has taken place. This cover-up continues today. The revelations regarding the ICRC report have once again received scant attention in the media. Far from bringing those responsible to account, the Obama administration has pledged to "look forward" rather than rehash old controversies. It has backed immunity for those who penned the torture memos and has taken up the "state secrets" argument to quash lawsuits into the use of extraordinary rendition and domestic spying. The essential elements of policy are preserved. Most recently, Obama decided to cease using the term "enemy combatant," while maintaining the ability of the government to hold prisoners in the "war on terror" indefinitely, without charge. The Wall Street Journal notes approvingly in an editorial on Wednesday that Obama "lambasts his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact." Among the policies preserved, the Journal cites "interrogation, surveillance, rendition, state secrets, now detention." The continuity of the policy and the complete lack of any accountability demonstrate that what is involved is not simply the actions of one individual or one administration, but tendencies deeply rooted in the decay of American capitalism. The erosion of fundamental democratic rights has closely paralleled the extreme growth of inequality and the explosion of militarist violence. As he continues Bush's policies on detention and torture, Obama has also continued the multi-trillion-dollar handouts to the banks and the prosecution of war in Iraq and Afghanistan. The anti-democratic measures of the US government will ultimately be directed at any opposition that emerges to these policies of the financial elite. The resort to the most blatantly criminal and barbaric practices is symptomatic of a ruling class that has completely outlived itself, a dead weight upon the future development of mankind.
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INT'L LAW ADV EXT: DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY
1. U.S. POLICY ON DETENTION AT BAGRAM UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY -- MAKES US A PARIAH AGENCE FRANCE PRESSE, "Obama Draws Fire for 'Terror' Detainee Moves," 2-21-09, www.google.com/hostednews/afp/article/ALeqM5idbEF5yN4AEjDAz_xFr1EuoNxd3Q, accessed 4-10-10. In another policy declaration Friday that one detainee advocate described as "deeply disappointing," Obama backed Bush positions on prisoner rights at Bagram -- a Afghan detention facility. The ruling followed a hearing for four Bagram inmates by a US District Court in Washington last month, seeking the same rights accorded to prisoners at Guantanamo, leading to a flood of appeals in Washington courts from Guantanamo inmates challenging their detentions. US District Court judge John Bates gave the Obama administration a February 20 deadline to indicate whether it intended to "refine" the positions of the Bush administration on the Bagram detainee cases and "to provide input regarding the definition of 'enemy combatant.'" In a two-sentence statement from the Justice Department, Obama's administration said "the government adheres to its previously articulated position" ensures the facility's estimated 600 prisoners would not be able to challenge their detention in US courts. Attorneys representing the detainees reacted with dismay at the news. "The decision by the Obama administration to adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights is deeply disappointing," Barbara Olshansky, lead counsel for three of the four detainees, told AFP. 2. INDEFINITE DETENTIONS UNDERMINE RULE OF LAW AND U.S. INTERNATIONAL CREDIBILITY Carl Tobias, Williams Professor, University of Richmond School of Law, "22nd Annual Edward V. Sparer Symposium: Terrorism and the Constitution: Civil Liberties in a New America: Punishment and the War on Terrorism," UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW v. 6, May 2004, p.1147. Indefinite detentions and military tribunals undermine the rule of law at home by flouting basic constitutional protections and, globally, by eroding international law tenets. For example, the commission proceedings will limit defendants' rights in terms of what the Constitution normally guarantees for civilian trials while affording fewer safeguards than courts martial. Illustrative are the lack of provision for jury trials and the privilege against self-incrimination, lenient rules governing evidentiary burdens, proof and verdicts, and the potential to close trials. The detentions concomitantly have violated, and tribunals will undercut, major treaties to which the United States is a signatory and essential aspects of customary international law, such as due process requirements. Moreover, indefinitely detaining individuals and trying suspects in commissions resemble behavior for which America has castigated others and, thus, damage global relations by making the United States appear hypocritical. 3. SECRET DETENTION IS A SERIOUS VIOLATION OF INTERNATIONAL HUMAN RIGHTS Stephen Lendman, "America's Secret Prisons," DISSIDENT VOICE, 3-17-10, http://dissidentvoice.org/2010/03/americas-secret-prisons/, accessed 4-10-10. For purposes of HRC's report, they occur when governments authorize, consent, support or acquiesce to depriving persons of their liberty; where they're denied contact with the outside world, including legal counsel; or when states neither confirm or deny knowledge or involvement in detaining alleged terrorists or suspected collaborators. The practice is abhorrent and irreconcilable with international human rights and humanitarian law. Under no circumstances is it justified, yet America is a serial offender. As arbitrary arrests, they deny personal liberty and security. Among other international law provisions, they violate Article 1 of the International Covenant on Civil and Political Rights (ICCPR) stating: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention," and other provisions affirming fundamental international law rights. The UN's High Commissioner for Human Rights Working Group on Arbitrary Detention calls secret ones arbitrary and illegal by denying detainees information on charges against them, a prompt hearing before a judge, and right to a fair trial according to established international law principles. Secret detentions take many forms, including black sites for "High Value Detainees (HVD)," where they're physically and psychologically tortured for extended periods to extract confessions that are inadmissible in courts, according to international law. 4. DETENTION UNDERMINE RIGHTS INSTITUTIONS Benjamin Sovacool, Graduate Teaching Assistant, Religious Studies, Virginia Tech University, "Detentions, Iraq Impede the War on Terror," ROANOKE TIMES & WORLD NEWS, March 30, 2004, npg. The first consequence of refusing to charge and try suspects in the war against terror is that it weakens the importance of conventions like the United Nations declaration on human rights and the Geneva Convention. For the United States, eroding human rights protections creates the risk that American soldiers could be captured and tortured outside the protection of international norms and increases the chances that terrorist organizations could begin targeting U.S. citizens as combatants. For the world, these conventions are important international agreements that allow the global community to condemn human rights violations, such as the oppression of women in Yemen and ethnic cleansing in Rwanda and Kosovo.
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INT'L LAW ADV EXT: DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY cont'd
5. U.S. DETENTION POLICIES UNDERMINE RIGHTS WORLDWIDE Irene Khan, Secretary General, Amnesty International, TORONTO STAR, May 29, 2005, p.A17. The United States occupies a place on the world stage that carries with it an inescapable responsibility to be a global leader and champion for human rights protection. Sadly, though, U.S. policies (as in Abu Ghraib) in recent years are doing precisely the opposite. When U.S. officials commit or allow torture, what does that do to global efforts to banish that age-old scourge from the planet? When the U.S. president supports jailing indefinitely hundreds of people without charge or trial, what does that mean for the wider campaign to uphold the fundamental right to liberty worldwide? 6. DETENTION POLICIES UNDERMINE U.S. HUMAN RIGHTS CREDIBILITY David Gollust, "Rice/Human Rights," VOICE OF AMERICAN NEWS, March 28, 2005, LN. Amnesty International issued a statement generally applauding Bush administration efforts for human rights worldwide. But the group said U.S. policies on democracy and human rights will be greeted with deep skepticism as long as, an Amnesty spokeswoman said, the administration continues to flout international law and blatantly disregard the Geneva conventions on the treatment of terrorism detainees. She said the United States loses its moral voice on human rights each day it continues to hold, without charge or trial, hundreds of terror suspects at the Guantanamo Bay naval base in Cuba. 7. INDEFINITE DETENTION UNDERMINES SUASION OF U.S. HUMAN RIGHTS PROMOTION EFFORTS Amnesty International USA, Guantanamo, and Beyond: The Continuing Pursuit of Unchecked Executive Power, May 13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005 The State Department's annual criticisms of the human rights records of other countries will inevitably lead to accusations of double standards and be drained of moral power as long as the USA fails to put its own house in order. Why, for example, should the Cuban authorities respond constructively to the State Department's criticism that in 2004 Cuba "did not permit independent monitoring of prison conditions by international or national human rights monitoring groups", or that members of the Cuban security forces "sometimes beat and otherwise abused" detainees and prisoners? After all, in the southeast corner of Cuba, the US government continues to operate a military detention camp in which detainees have been kept virtually incommunicado without charge or judicial review for more than three years. With international human rights monitors denied access, evidence that detainees held in the base have been subjected to torture and ill-treatment continues to mount. 8. ABUSIVE DETENTIONS ERODE OUR MORAL AUTHORITY Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.456. The answer is no. Abusive detentions are not worth it. The United States, despite some extraordinary blotches on its history (such as slavery and the Japanese internment during World War II), has retained considerable moral authority against abusive detentions. This is in part because the United States judiciary has maintained the role as a check against abusive detentions through the use of habeas corpus. Even more importantly, the United States, at least rhetorically, has remained committed to opposing abusive detentions, which has sustained its moral authority despite its checkered history. However, the recent abusive detentions in Guantanamo, Iraq, Afghanistan, and of enemy combatants within the United States are in sharp contrast to the ideals and principles of the United States. The United States' moral authority is weakened as result of such detentions. The loss of moral authority comes with serious ramifications, some of which can already be seen and others which may occur in the future. What is clear, so far, is that the United States has opened the door to additional criticism by other nations. Some of whom have, and will continue to, cite the United States' behavior as a justification for their own abusive detentions.
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OTHER NATIONS MODEL OUR ABUSIVE DETENTION PRACTICES Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.452-455. By using the war on terror to justify abusive detentions, the United States signals to foreign nations that they are also free to use the security needs of their respective governments to abusively detain people who threaten the current regimes, including foreign citizens. In fact, foreign governments have already justified abusive detentions citing the United States as an example. For example, Malaysian Prime Minister Mahathir Mohamad has arrested his political opposition in Malaysia since before September 11, 2001, and defended the detentions by claiming that they were "more open and less arbitrary than United States detentions without trial of non-citizens." The United States openly condemns the Mohamad regime's human rights record. Yet the United States' criticism of the Mohamad regime, and others like it, is undermined by inconsistent actions. The United States has no moral authority to assert that Malaysia cannot protect itself from what it claims to be security threats, when those threats are as equally unverified as those posed by the detainees at Guantanamo Bay, or by Hamdi and Padilla. Dictators are using the United States' treatment of terrorist suspects to crack down on dissenters within their own countries. Weakened moral authority increases the risks to Americans traveling abroad, including men and women of the armed forces. When United States citizens are detained by other countries, the United States executive will have a weaker position to demand that other nations humanely treat United States citizens. These countries may claim that the detention of United States citizens is pursuant to their security interests and will be able to point to the United States' recent abusive detentions in order to justify their actions. Because other nations will be able to use the example of abusive detentions by the United States, United States citizens traveling and residing abroad will risk abusive detentions by other nations. Moreover, according to the principle of reciprocity, if another nation no longer expects the United States to abide by accepted rules of war, the other nation will not feel obligated to do so. United States soldiers are active across the world, and are often engaged in conflict abroad. How the United States treats prisoners of other nations is how United States citizens, if they become imprisoned by other nations, will be treated.
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U.S. ABUSES UNDERMINES ITS ABILITY TO PERSUADE OTHER STATES TO REJECT SIMILAR PRACTICES Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.422. In conducting the "war on terror" in response to the attacks on September 11, 2001, the United States developed a practice of detaining suspected enemy combatants, terrorists, and insurgents in a manner inconsistent with the nation's foreign policy. Treatment of these detainees has involved and continues to involve abusive practices in defiance of international legal and moral standards. The practice of abusive detentions by the United States in Guantanamo, Iraq, and within the United States weakens the United States' moral authority to confront abusive detentions by other nations. "Moral authority" is the influence gained by possessing credibility based upon moral standing in regard to that issue. This influence is gained by engaging in a practice of do-as-I do, rather than do-as-I say, policies. The type of moral authority discussed herein is the ability of the United States to influence other nations not to engage in the use of abusive detentions by not engaging in abusive detentions itself. While it may be impossible to quantify moral authority, this note will establish a discernable weakening of the United States' moral authority as a result of the United States' practice of abusive detentions. Throughout this note, "abusive detentions" will be used to describe detentions that are arbitrary, indefinite, incommunicado, lack judicial review, include acts of torture or severe interrogation techniques, or any combination of the above.
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PRISONERS CONTINUE TO BE TORTURED Mohammed A. Salih, "US Night Raids and Secret Prisons Anger Civilians," IPS, 1-29-10, http://ipsnews.net/news.asp?idnews=50159, accessed 4-10-10. Gopal reports that of the 24 people he interviewed for the story, 17 claimed they had been abused at or on route to U.S.-run prisons, in ways reminiscent of the widely-publicised abuses at Abu Ghraib prison in Iraq. Doctors, members of the Afghan Independent Human Rights Commission and government officials corroborated 12 of these claims. Torture practices included deprivation of sleep for hours or even days in some cases, suspending prisoners upside-down from the ceiling, holding them in "stress positions", and using dogs to frighten and in some cases bite the prisoners. Gopal's story is the first to probe night raids in Afghanistan in detail, and one of the very few to investigate the existence of U.S.-run secret prisons in the country. Human rights groups have repeatedly voiced concerns over the deteriorating conditions in Afghanistan, in particular in the southern and eastern parts of the country where the Taliban insurgency is strongest.
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NEW REPORTS PROVE THAT THE US IS ABUSING PRISONERS AT A SECRET PRISON Daniel Tencer, "Report: Afghans in Secret Jail 'Made to Dance' to Use Bathroom," THE RAW STORY, 4-15-10, http://rawstory.com/rs/2010/0415/afghans-abused-secret-jail-bagram/, accessed 4-16-10. Bagram prisoners 'moved around in wheelchairs with goggles and headphones on' The US military is operating a "secret jail" at an Afghan airbase where prisoners are deprived of sleep and "made to dance" by US troops whenever they want to use the toilet, a BBC report states. The BBC interviewed nine people who say they were held at the facility, known as the "black hole," at the site of the Bagram air base. The prison appears to be separate from the main Bagram prison, which the US established after the 2001 invasion and which continues to be the target of human rights complaints. A man identified only as "Mirwais" who says he spent 24 days at the facility told the BBC that prisoners are routinely subjected to sleep deprivation. "I could not sleep, nobody could sleep because there was a machine that was making noise," said Mirwais. "There was a small camera in my cell, and if you were sleeping they'd come in and disturb you." "Mirwais said he was made to dance to music by American soldiers every time he wanted to use the toilet," the BBC reports. Witnesses said the lights were kept on in their cells at all times; that the Red Cross had no access to the facility; and most had been beaten by US troops before they were brought there. The BBC report does not address under what circumstances the witnesses found themselves there, or whether any of them were insurgents.
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U.S. OFFICIALS CONTINUE TO TORTURE AND ILLEGALLY DETAIN PERSONS IN AFGHANISTAN Tom Eley, "Torture Continues at US Prisons in Afghanistan, WSWS, International Committee of the Fourth International, 12-1-09, www.wsws.org/articles/2009/dec2009/afgh-d01.shtml, accessed 4-7-10. Recent media reports reveal that the US military continues to carry on torture and illegal detention in Afghanistan at a dungeon known to inmates as "the black prison." The jail, located on the Bagram Air Base next to the notorious Bagram prison north of Kabul, operates under the executive order of President Obama. After entering office, Obama ordered the closure of Central Intelligence Agency (CIA) prison "black sites" -- which were in fact no longer active -- but exempted those prisons run by the military's Special Operations, which was headed from 2003 until 2008 by General Stanley McChrystal, now US commander of the Af-Pak theater. US military officials recently said they had no plans to close the Afghan jail and another like it at the Balad Air Base in Iraq, which they claimed were needed to interrogate "high-value detainees." Two teenage Afghan boys told the Washington Post that they were beaten, photographed naked, sexually humiliated, denied sleep, and held in solitary confinement by American guards at the prison this year. Interviewed at a juvenile detention center in Kabul, where they have been transferred, "the teenagers presented a detailed, consistent portrait" of the abuse they experienced, the newspaper reported. Their descriptions of the prison were confirmed by two other former prisoners. In addition to being punched and slapped, Rashid, who the Post describes as "younger than 16," said he was forced to view pornography "alongside a photograph of his mother." He was also forced to strip naked in front of about a half-dozen US soldiers. "They touched me all over my body," he said. "They took pictures, and they were laughing and laughing. They were doing everything." "That was the hardest time I have ever had in my life," said Rashid, who was arrested this spring. "It was better to just kill me. But they would not kill me. I was just crying and crying. I was too young." On Saturday, the New York Times published interviews with three former inmates who also spoke of the black prison near Bagram. Each informant "was interviewed separately and described similar conditions," the Times notes, and "[t]heir descriptions also matched those obtained by two human rights workers who had interviewed other former detainees at the site." One of the three men was arrested months after Obama's inauguration as US president, as were the two teenage boys interviewed by the Post. All of those interviewed by the Times and the Post maintained that they were not "Taliban." Without being charged with a crime, they were seized by US soldiers, then bound, gagged, and hooded, and taken to the "black prison." The jail, according to the Times' sources, "consists of individual windowless concrete cells, each illuminated by a single light bulb glowing 24 hours a day." The cells are small; one prisoner said his was only slightly longer than the length of his body. US soldiers throw food into the cells through slots in the door.
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INT'L LAW ADV EXT: TORTURE -- ANSWERS TO: "GOOD FOR INTEL"
1. TORTURE ONLY DISCOURAGES OTHER PEOPLE FROM PROVIDING KEY INFORMATION TO THE GOVERNMENT Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.591-592. Similarly, when it comes to law enforcement, the Bush premise that the key to fighting terrorism is squeezing information from the suspect in the interrogation room, is actually not what terrorism experts will tell you is what matters. They will say that in percentage terms maybe fifteen, twenty percent of the key information comes from the interrogation room. But by far and away the most important information comes from people like you and me. From the general public. People who see something suspicious and report it. And the key to a successful fight against terrorism is convincing the general public that they want to be a part of this law enforcement effort. Now you can say you know of course we would all turn in a terrorist suspect if we knew. But if you felt that by doing so you were becoming part of a dirty war, if you felt you were turning somebody over to be tortured or to disappear, you may think twice. And you would particularly think twice if you were from the community that had tended to give rise to that terrorist suspect. The more people identify with a suspect, the more information they're likely to have about that person's misconduct, the less likely they are to cooperate with the law enforcement effort. So, I would argue that, far from getting the key information by using torture and disappearance and detention without trial, that the Bush Administration is actually shutting off the most important source of information that it can get to. 2. ALLOWING LEGAL ACCESS IS THE BEST WAY TO OBTAIN INFORMATION FROM DETAINEES Center for Constitutional Rights, "Obama's Record: Indefinite Detention," 4-1-10, http://ccrjustice.org/obamas-record-indefinite-detention, accessed 4-21-10. Law enforcement experts have long known that the best way to obtain reliable intelligence from suspected criminals after arrest is to give them an attorney and a trial. The Obama administration is continuing to play on public fears to argue otherwise for political ends and to maintain the expansive detention powers it inherited from the Bush administration. Indefinite detention is the central problem with the prison at Guantanamo; it is an assault on our most fundamental principles of justice and the rule of law. 3. TORTURE DOESN'T WORK, ONLY RECRUITS TERRORISTS Adam Serwer, "The Blight of Bagram," THE AMERICAN PROSPECT, 2-26-09, www.prospect.org/cs/articles?article=the_blight_of_bagram, accessed 4-21-10. Moments after Obama signed an executive order on Jan. 23 mandating that the prison at Guantanamo Bay be closed within a year, retired Maj. Gen. John Eaton, an Iraq veteran, declared that torture was the tool of "the lazy, the stupid, and the pseudo-tough. It's also perhaps the greatest recruiting tool that the terrorists have." It seemed that America's policy of human-rights abuse and indefinite detention might come to an end. 4. TORTURE IS UNRELIABLE AND INEFFECTIVE Michael Ratner, President of the Center for Constitutional Rights (New York), "Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture," CARDOZO LAW REVIEW v. 24, April 2003, p.1521. Furthermore, I believe torture is ineffective. The idea that officials know who has information is very remote. It is unlikely they can find and obtain the truth from those who will be tortured. If we look at the errors made regarding the imposition of the death penalty in this country, we can see how risky the use of torture is. Even with full court processes necessary to prosecute an alleged murderer and the fact that proof beyond a reasonable doubt is necessary for conviction, convictions of the innocent are all too common. Imagine if, as Alan suggests, all that is needed is a warrant. No matter the strictness of the warrant requirements, many innocent people will be tortured. Torture is akin to the death penalty; it has lasting effects that can never be remedied. There are torture-healing centers throughout the world that deal with torture victims. Many of these people are damaged for the rest of their lives. 5. TORTURE PRODUCES UNRELIABLE INFORMATION, LEADS TO WILD GOOSE CHASES Michael Ratner, President of the Center for Constitutional Rights (New York), "Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture," CARDOZO LAW REVIEW v. 24, April 2003, p.1521. Third, torture will elicit a lot of false information from many people. Agents will spend wasted time tracking down false leads. The government will issue warnings that have no basis. The Supreme Court was concerned with the false confession issue in Miranda, a case that only addressed the coercive circumstances of not having a lawyer. How much more unreliable are confessions garnered as the result of torture? In sum, torture is illegal, it is ineffective, and it is clearly immoral. It harms the very nature of our democracy. It degrades us as human beings. We would no longer stand as the important example of a country that says "no" to torture, but as country that says "yes".
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INT'L LAW ADV EXT: TORTURE -- ANSWERS TO: "GOOD FOR INTEL" cont'd
6. HARSH INTERROGATION TECHNIQUES ARE ILLEGAL AND INEFFECTIVE Ken Roth, Executive Director of Human Rights Watch, "The Law of War in the War on Terrorism" Council on Foreign Relations Debate, FEDERAL NEWS SERVICE, April 14, 2005, npg. Now these rules are reflected, among other places, in the field manual that the U.S. Army uses to govern its intelligence interrogations. And these manuals have been developed by professionals who are facing quite severe security threats to their own troops in the field. And what this manual has said is, basically, one, it's illegal to ever use these techniques. Two, they don't work; you're much better off establishing rapport with an interogatee -- tricking him, fooling him, but not beating him up, not putting him in a stress position, not depriving him of lengthy periods of sleep. And finally, they refuse the use of these techniques because it is dangerous for our own troops, in the words of Colin Powell. It undermines the protection for our troops that we depend on should they be captured by enemy forces. Or to put it in the terms of Joseph Biden, we respect the Geneva Conventions because we want to protect my own son should he be in battle. 7. ARMY EXPERTS SAY THAT TORTURE IS INEFFECTIVE Ken Roth, Executive Director of Human Rights Watch, "The Law of War in the War on Terrorism" Council on Foreign Relations Debate, FEDERAL NEWS SERVICE, April 14, 2005, npg. First of all, you know, John raised the pragmatism question. Do we know whether this kind of torture works or not? Well, I'm not an expert on this, but I rely on the experts in the U.S. military who drafted the Army interrogation manual who said that they don't work, that their tradition even in the face of acute security threats are that you don't use these kinds of techniques because somebody being tortured is going to say whatever he thinks is going to stop the torture. He's not going to provide reliable information.
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ABUSE DETENTIONS INCREASE ANTI-AMERICANISM, UNDERMINE OUR ABILITY TO PROMOTE THE RULE OF LAW Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.446-447. A loss of moral authority has several potentially significant consequences. One consequence is the resulting harm to the United States' public image and credibility. International and domestic outrage over the abuses at Guantanamo, Abu Ghraib, and the abusive detentions of Hamdi and Padilla increases worldwide anti-American sentiment. Similarly, the United States' credibility in promoting principles, such as the "rule of law," is weakened because abusive detentions defy international law and United States domestic law. A second important consequence is the likelihood that other nations will mirror the practice of the United States. The United States has sent the message that when security concerns are implicated, a state may engage in the practice of abusive detentions. Thereby, the actions of the United States open the door for enemies to abusively detain citizens of the United States or its allies. This exposes the United States to the very real possibility that military personnel who are detained pursuant to a military action will not be accorded POW status and may be subject to abusive detentions.
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LACK OF SOFT POWER HURTS OUR LEADERSHIP -- UNDERMINES WAR ON TERROR, DISEASE INITIATIVES, EFFORTS TO STOP PROLIF Mitchell B. Reiss, "Restoring America's Image: What the Next President Can Do," SURVIVAL v. 50 n. 5, October 2008, pp.99-114. Still, not all criticism of the United States is illegitimate or hypocritical, and both presidential candidates -- in a rare area of agreement -- recognise that the world's image of America today is not only at odds with how the American people perceive themselves, but if allowed to persist, will have serious implications for America's foreign policies, from how the US conducts its business relations, to how it promotes democracy, to how it fights the 'war on terror'. They further recognise that bad feeling towards the United States will have consequences for global governance in the twenty-first century, affecting America's ability to join forces with other countries to fight poverty and disease, prevent the spread of nuclear weapons, end conflicts around the world, and promote international peace, security and prosperity. Thus, Senator John McCain has called for a 'new compact' with the countries of the world based on 'mutual respect and trust', while a major focus of Senator Barack Obama's campaign has been restoring America's image in the world. Still unclear, however, is what either man could actually do to repair the damage. A first step is to identify the four distinct sources of anti-Americanism and then to understand that some will be much easier to mend than others. With imaginative policies and adroit diplomacy, the next president may be able to dampen anti-Americanism, but will probably not be able to lay it to rest altogether. Note to debaters - pick a terminal impact to prolif, terrorism, or disease to go here
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FAILURE TO FOLLOW THROUGH AND RELEASE DETAINEES UNDERMINES OUR INTERNATIONAL CREDIBILITY Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. Similarly, the process of releasing individuals from Guantanamo has been excruciatingly slow and sometimes completely blocked. Those who have been declared eligible for release or transfer -- a status once referred to as "No Longer Enemy Combatants" -- have been placed essentially in the hands of the nation's diplomats. Currently, according to a January Department of Defense press release, approximately 60 detainees who have been ordered to be released still remain in Guantanamo. Where countries of origin are allies of the United States, detainees can be transferred or released. For those from countries with which we have weaker or more problematic diplomatic ties, the possibility of release or return, even after approval from U.S. authorities, often remains a wish rather than a reality. We should not underestimate the costs of this limbo. Not only does it do damage to the detainee who is neither released, transferred nor scheduled for trial, but also to the credibility of the United States. America often does not release in any timely fashion those it has named to be freed or to be transferred to custody elsewhere. The United States can no longer be taken at its word, and its judicial process no longer stands as a model of liberal freedoms.
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ABUSIVE DETENTION FUELS ANTI-AMERICANISM David Cole, Professor, Law, Georgetown University, "One Nation Under Law -- Not Bush," SALON, 7-25-06, lexis. If by "creative thinking" you means torturing suspects, "disappearing" them into CIA black sites, holding them indefinitely without hearings, and trying them in tribunals that permit people to be executed on the basis of secret evidence, then perhaps creative thinking should be suppressed. Bending to world opinion would indeed be a radical change for a president who, during the 2004 presidential debates, derisively rejected concern with how the United States is seen around the world as an unacceptable "global test." But making U.S. practice conform to the international rules that formally reflect world opinion is a necessary first step if we are to begin to reduce the unprecedented levels of anti-American sentiment found among our allies and foes alike, and offset the propaganda advantage our unilateral approach has given to al-Qaida.
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INDEFINITE DETENTION UNDERMINES RULE OF LAW, WHICH GUTS U.S. POWER ABROAD Diego C. Asencio, former Ambassador to both Brazil and Columbia et al., Brief of Diego C. Asencio, A. Peter Burleigh, Lincoln Gordon, Allen Holmes, Robert V. Keeley, L. Bruce Laingen, Anthony Lake, Samuel W. Lewis, Stephen Low, Robert A. Martin, Arthur Mudge, David Newsom, R.H. Nolte, Herbert S. Okun, Thomas R. Pickering, Anthony Quainton, William D. Rogers, Monteagle Stearns, Viron P. Vaky, Richard N. Viets, Alexander F. Watson, William Watts, and Robert J. Wozniak and Amici Curiae in Support of the Petitioners, William H. Hannay, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 20, January 14, 2004, lexis. Power counts. But this nation's respect for the rule of law -- and in particular our reverence for the fundamental constitutional guarantee of individual freedom from arbitrary government authority -- have gone far to earn us the respect and trust which lie at the heart of all cordial relations between nations. Thus the perception of this case abroad -- that the power of the United States can be exercised outside the law and even, it is presumed, in conflict with the law -- will diminish our stature and repute in the wider world. We have come to believe, in our representation of this country to other nations, that those nations are more willing to accept American leadership and counsel to the extent that they see us as true to the principle of freedom under the law. Indeed, the matter has rarely been better put than by President Bush in signing the Torture Victims Protection Act on March 12, 1992: In this new era, in which countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that they are respected everywhere.
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OBAMA'S SECRET PRISONS ARE THE MODERN STATE OF EXCEPTION Bernard Keenan, "Secret Prisons and Sovereignty," THE GUARDIAN, 8-22-09, www.guardian.co.uk/commentisfree/libertycentral/2009/aug/22/secret-prisons-bagram-sovereignty, accessed 4-21-10. Last week, the American Civil Liberties Union (ACLU) demanded that the Obama administration release information on 600 detainees held at Bagram airbase in Afghanistan. The request mirrors that made to the Bush administration seven years before, regarding the men held in Guantanamo Bay. The continued use of secret prisons to hold detainees -- some not captured in the Afghan conflict, but brought to Bagram from elsewhere -- seems contrary to the announcement of 23 January 2009 when the Obama administration, fresh into office, declared that the indefinite detention of foreign prisoners at Guantanamo Bay would end. In April, the CIA announced that it had ceased operating its network of secret prisons. Publicly at least, it seemed that the extraordinary powers claimed for the president following 11 September 2001 had been a historical anomaly, gone with Bush and his cabal. But while the US has publicly declared a commitment to the rule of law and the closure of Guantanamo Bay, existing "black sites" like Bagram airbase and other secret locations around the world, particularly the Horn of Africa, are expected to grow. The work of organisations like the ACLU, Amnesty International and Reprieve to gain information on such places and provide legal help to detainees will become even more difficult. No detainee at Bagram has yet gained access to a US court.Has Obama simply adopted a doctrine of the Bush administration, or does the ongoing existence of secret prisons and extralegal detention reveal something more about the limits of law itself? Jurists in the early 20th century, much like their Roman predecessors, were much preoccupied by the conditions under which the law could be suspended to preserve it. Europe was a very different place to the heavily regulated, legally dense creation of the past 40 years. In times of war, it is generally agreed that the executive branch of government could adopt emergency powers to suspend the normal legal order. The rationale is to deal with a crisis effectively, defeat the enemy or quickly distribute aid and supplies. In such a "state of exception", as investigated by Italian theorist Giorgio Agamben, normal legal rules are superseded by facts of life. The distinction between legal rule and bare necessity becomes blurred. In a time of emergency, the Nazi jurist Carl Schmitt wrote, "sovereign is he who decides on the state of exception". No sooner had Hitler come to power than he declared personal liberties contained in the constitution of the Weimar republic to be suspended, to bring about the Third Reich. His decree was never repealed, and so the entire 12 years of his rule was, in legal terms, a state of exception during which his word was law. The definition of a sovereign, for Schmitt, is the legal power to suspend legality itself. Interest in Schmitt was understandably renewed following the declaration by the US president George W Bush in November 2001 that "enemy combatants" would be detained without access to normal courts. The ordinary laws of war would not apply to them. This decision fitted Schmitt's concept of sovereign power to the letter. But in Agamben's reading, this is not simply a particular doctrine adopted by the Nazis and the Bush administration. Rather it is inherent in the structure of sovereignty and law. For Agamben, the "state of exception" is in fact the normal situation. The power to create legal black holes is not so much an abuse of executive power; it is something built into the nature of executive power itself. We can think of examples closer to home. Northern Ireland was governed from the moment of its creation in 1922 with the aid of the Special Powers Act, a set of executive measures that later gave the authority for internment in 1971. The lineage from the Defence of the Realm Act 1914, via the Special Powers Act and the Prevention of Terrorism Acts to the contemporary raft of counter-terrorist legislation of the past decade is easy to trace. At all points the executive has reserved the power to decide on enemies or threats to the normal order, people who are designated as outside the sphere of law, and therefore subject to detention, torture, or even death. The secret prison is, like the concentration camp, the physical manifestation of the state of exception, a place where law cannot penetrate. But those subject to such powers are not limited to the detainees of the "war on terror", against whom torture and extra-judicial imprisonment are said to be not only justified, but necessary. The paradigm provides a different way of thinking about, for example, the unlawful detention and violent removal of immigration detainees from the UK, under the powers invested in the secretary of state. It also offers insight into the deployment of counter-terrorist powers by the police against civil protests in our cities and at climate camp. In contemporary sovereignty there is always a hint of dictatorship in the power to decide who is outside the law. It is against this that those who believe in the rule of law, civil liberties, human rights and equality must struggle.
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OBAMA SHOULD ALSO SHUT DOWN BAGRAM Daphne Eviatar, "Obama's Gitmo?" WASHINGTON INDEPENDENT, 1-7-09, http://washingtonindependent.com/24052/bagram-detainees, accessed 4-7-10. Ultimately, it may be the new Obama administration, rather than the courts, that will decide the Bagram question. "They clearly can decide, like the Bush administration has done with the vast majority of detainees at Guantanamo, to send them home and moot the cases that way," said Foster, who, along with some of her colleagues, has met with members of the Obama transition team to discuss the situation at Bagram. Or, "they could close down Bagram the same way they're moving to close down Guantanamo." There's good reason to consider the latter course, regardless of the difficult legal questions involved. As Foster observes: "it does not behoove the Obama administration to have Bagram become his Guantanamo."
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OBAMA ADMINISTRATION SHOULD END THE PRACTICE TO BRINGING DETAINEES TO BAGRAM Sahr MuhammedAlly, Senior Associate Law and Security Program, Human Rights First, "Obama Must Not Allow Bagram Prison to Remain an Afghan Version of Guantanamo," JURIST, 1-17-09, http://jurist.law.pitt.edu/hotline/2009/01/obama-must-not-allow-bagram-prison-to.php, accessed 4-21-10. End Practice of Bringing Detainees to Afghanistan: The Obama Administration must end the practice of transferring persons captured outside of Afghanistan to Bagram and detaining them until the "cessation of hostilities." A prison such as Bagram created with an express purpose of avoiding compliance with the law is fundamentally at odds with American values. Strategically, it's also a mistake. Detaining a large number of prisoners indefinitely and without criminal charge is not the best way to win the "hearts and minds" and cooperation of the local population in Afghanistan. A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to reverse the policy mistakes of the Bush Administration. Bagram must not become Obama's Guantanamo."
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PERSONS IN AFGHANISTAN NEED TO BE ABLE TO EXERCISE DUE PROCESS RIGHTS Eric Lewis, "Closing America's Torture Chambers," IN THESE TIMES, March 2009, p.16. Most high value detainees have been held in Afghanistan or in secret CIA prisons that lack even the minimal transparency and process of Guantanamo. The Obama administration must make clear that, once out of an active war zone, prisoners under U.S. control will be given appropriate process and held at sites where the conditions of captivity are humane and transparent. Obama's executive order barring coercive interrogation and forbidding "black site" prisons marks a sea change from the Bush legacy of secrecy and abuse. But it is important that detainees are not brought en masse to Afghanistan or other places where the government will argue that detainees lack fundamental rights because they are in a war zone or outside U.S. sovereignty. What is critical is not only the end of Guantanamo, the place and the symbol, but also Guantanamo as a parallel legal world that is anathema to American values and the rule of law. Many of the 245 men who remain are now marking their seventh year in captivity. The closure should be done carefully but quickly.
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ANYONE HELD BY THE U.S. GOVERNMENT SHOULD BE ABLE TO CHALLENGE THEIR DETENTION Daphne Eviatar, "Obama's Gitmo?" WASHINGTON INDEPENDENT, 1-7-09, http://washingtonindependent.com/24052/bagram-detainees, accessed 4-7-10. Legal experts acknowledge that the traditional laws of war don't easily apply to non-traditional conflicts such as this one, where the US is fighting a terrorist organization or a group of insurgents rather than a government. In World War II, for example, it was clear that the US could hold German or Italian uniformed soldiers until the war was over. But we're not at war with the government of Afghanistan, and Taliban and al Qaeda warriors don't wear uniforms and aren't always recognizable. So what should be done with people the government suspects are warriors, or may have information about terrorists? Can the US lawfully hold them indefinitely, without charge and with no meaningful way to demonstrate their innocence? "My own view is that if the US is holding somebody subject to its control then that person should have the right to challenge the legality of that detention absent extraordinary circumstances," said David Cole, law professor at Georgetown University Law School. "Why should it matter whether we're holding someone in Louisiana, Gitmo or Bagram if they're being held illegally? Shouldn't they have some right to question that?" The question becomes even more important when you consider that since the Supreme Court first decided in 2004 that Guantanamo prisoners have legal rights, the US military has largely stopped sending new prisoners there, sending them to Bagram instead. Bagram has "become the sort of Yucca mountain storage facility for these human beings," said Eugene Fidell, an expert on military law and visiting professor at Yale Law School.
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WE MUST FIX THE SYSTEM, NOT JUST CLOSE GITMO, TO RESTORE THE RULE OF LAW Jonathan Hafetz and Mark Denbeaux, "Guantanamo Beyond Guantanamo," HUFFINGTON POST, 12-22-09, www.aclu.org/blog/national-security/guantanamo-beyond-guantanamo, accessed 4-21-10. Those whom the government believes it can handily convict will receive full American justice, while those against whom the government lacks solid evidence will receive something considerably less. The inequities of this multi-tiered detention system will persist whether prisoners are held at Guantanamo or a "new Guantanamo" inside the country. Simply closing Guantanamo without remedying its underlying flaws will not restore the rule of law, but perpetuate a larger detention system that remains outside it.
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CIVILIAN TRIALS KEY TO PROTECTING OUR OWN LIBERTIES Joanne Mariner, human rights attorney, "Defendants, Not Combatants," COUNTERPUNCH, 7-9-03, www.counterpunch.org/mariner07102003.html, accessed 8-4-09. Last week, with President's Bush designation of six detainees as eligible for trial before military commissions, the trend toward reliance on a parallel system of justice to prosecute crimes of terrorism gained real momentum. It seems very likely, in fact, that military commission proceedings will begin within the next month or so. Judge Young, writing in the Reid case, said that the move toward trying federal crimes in military commissions was "the most profound shift in our legal institutions" he had witnessed in his lifetime. What he decried, most of all, was that this shift had "taken place without engaging any broad public interest whatsoever." Now that these proceedings are poised to begin, it is time for the public to start paying attention. At Reid's sentencing hearing earlier this year, Judge Young outlined the most compelling reasons to do so. Young told Reid that he had been tried in federal court so that justice in his case could be administered "fairly, individually, and discretely." And he explained: "Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties."
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ENDING ARBITRARY DETENTION IS VITAL MAINTAINING KEY PUBLIC SUPPORT Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.3. We are mindful that the United States, along with NATO allies and the Afghan government, is engaged in armed conflict with insurgent groups in Afghanistan and that detention is an element of armed conflict. But the United States should take additional steps to ensure an end to the arbitrary detentions that have undermined its counterinsurgency goals. U.S. counterinsurgency doctrine recognizes the benefits of consent from, and the need for cooperation of, the local population. A key determinant of that consent and cooperation is the degree to which the Afghan people view detention practices as fair, humane and beneficial to their security, and as progressively achieved through their own institutions. Reforms that accomplish these goals will deprive al Qaeda and the Taliban of the propaganda and recruiting opportunities created by unjust policies and practices.
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REGULARIZING U.S. DETENTION PROCEDURES WILL BOLSTER OPERATIONAL CREDIBILITY Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.4. Reliance upon the AUMF to detain Afghan nationals not in the United States but in Afghanistan undercuts U.S. policy objectives to encourage increased responsibility of the Afghan government for its national security affairs. A public U.S.-Afghan security agreement or Afghan legislation would bolster U.S. support for Afghan sovereignty and advance U.S. strategy to progressively devolve responsibility for detentions to the Afghan government. The implementation of such legislation or an agreement regularizing U.S. detention would also advance the credibility of U.S. military actions in the eyes of Afghans, thus supporting U.S. counterinsurgency goals in Afghanistan.
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PLAN IS KEY TO AFGHANISTAN'S LONG-TERM STABILITY Amnesty International New Zealand, "US Must Reform Afghanistan Detention Policy," 11-16-09, www.amnesty.org.nz/news/us-must-reform-afghanistan-detention-policy, acessed 4-21-10. The Obama administration should revise its detention policies in Afghanistan to make them consistent with international law, Amnesty International, Human Rights First, and Human Rights Watch said today. The United States military is hosting the media and some non-governmental organisations today at its recently constructed but empty detention facility in Parwan province, Afghanistan. The three organisations urged the US to end arbitrary detention in Afghanistan and to fully align US detention practices with international law. The organisations noted that the US has made some recent changes in its detention policy in Afghanistan. These include providing detainees with "notice of the basis of their internment" and the right to call witnesses and question government witnesses. "It's common knowledge that Afghans perceive US detention operations as secretive and lacking in due process," said Sahr Muhammed Ally, Senior Associate at Human Rights First. "The US must remedy this problem and take the critical step of bringing its detention practices into an appropriate legal framework that is consistent with international and Afghan law, and allows and provides detainees with a sufficient way to challenge their detention. Such reforms are a necessary precondition to establishing long-term stability in Afghanistan through the rule of law."
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WE NEED TO RE-BOOT OUR DETENTION POLICIES, AND THE PLACE TO START IS BAGRAM Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. THERE ARE legal, military and moral issues that would best be served by acting on the break signaled so symbolically during the first days of the new administration. President Obama's brave stance may yet produce equally bold policies. So far, however, the forward momentum has been halted in deference to the need to rethink the old policies as well as the current reality of detentions in the war on terror. Much will hinge on whether Obama sees himself as at the beginning of the process -- in terms of directives as well as rhetoric -- rather than in the middle of it. The fact that the United States faces a Bagram detention situation which has the marks of the early days of Guantanamo -- unknown prisoners with uncertain legal status -- could be seen as an opportunity to change course. Rather than play out the hand that has been dealt, the president -- having put trials, terminology and decisions on pause -could emerge from this period of reflection with a brand-new direction in mind. So far, the tone is calm, thoughtful and careful. The executive orders, the promise to review past policies and the firm timeline point toward some progress. But the bolder actions still lie ahead. Obama could refuse to tolerate any policy that deprived low-value detainees of justice. He could view with cynicism the claims that detention is equivalent to security. He could separate the CIA's need for intelligence from the roundup of large numbers of detainees from around the world. He could, in other words, begin anew. Whether or not Obama will do so, however, remains to be seen.
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MOST OF THE DETAINEES ARE INNOCENT AND COULD BE RELEASED IMMEDIATELY Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. To this day, there are hardly any photos from inside Bagram, and journalists have never been given access to the detention center. Although exact numbers are unknown, there are believed to be about 600 detainees at Bagram, or close to three times as many as there currently are at Guantanamo. According to an as-yet-unpublished 2009 Pentagon report, 400 of the Bagram inmates are innocent and could be released immediately. The detainees at Bagram still have no right to an attorney, which means that they have no legal recourse against their imprisonment and no opportunity to testify in their cases. Some have been there for years, without knowing why. Obama has announced new guidelines for the treatment of the Bagram detainees, which would require that a US military official provide assistance to each detainee -- not as an attorney but as a personal adviser of sorts. This representative could then review evidence and witness testimony for the first time, and could request that a review board examine the case.
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FOLLOWING INTERNATIONAL ARREST AND DETENTION PROCEDURES ARE VITAL TO MAINTAINING SUPPORT FOR THE WAR, STABILITY Sahr MuhammedAlly, Senior Associate, Law and Security Program, Human Rights First, "Hidden Justice: Do Obama's Detenion Reforms in Afghanistan Go Far Enough," FOREIGN POLICY, 9-18-09, http://afpak.foreignpolicy.com/posts/2009/09/18/hidden_justice_do_obama_s_detention_reforms_in_afghanistan_go_far_enough, accessed 4-7-10. Successful counterinsurgency strategy depends on U.S. actions being seen as fair by the Afghan people, whose consent and cooperation is needed to further U.S. goals in ensuring a stable Afghanistan. To this end, the United States and Afghan government should enter into public security agreements which detail rules for capture, detention, and treatment of persons in Afghanistan that are consistent with international humanitarian and human rights legal standards. A transparent and public agreement that complies with international law will give legitimacy to foreign military actions among the Afghan population and will promote the rule of law. Fair and legitimate reforms would deprive al Qaeda and the Taliban the propaganda and recruiting opportunities created by unjust military practices. Respect for the rights of Afghan citizens is not only an important element to defeat of the insurgency, it is also a necessary precondition to establishing long-term stability through the rule of law.
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WE NEED TO CLOSE THE AFGHAN PRISONS ALSO TO MAKE CLOSING GITMO MEANINGFUL Ben Farmer, "Afghanistan's 'Guantanamo' Poses New Prison Problem for Obama," TELEGRAPH, 1-24-09, www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/4332499/Afghanistans-Guantanamo-poses-new-prison-probl em-for-Barack-Obama.html, accessed 4-10-10. While Mr Obama struggles to work out what to do with Guantanamo's 245 remaining prisoners, critics claim Bagram and other detention centres around Afghanistan are still legal black holes. "If they close Guantanamo and they expand the one in Bagram, it's the same -- there will be no difference," said Lal Gul, chairman of the Afghanistan Human Rights Organisation. "If Barack Obama wants to close Guantanamo he should also set out to close not just Bagram, but detention centres in Khost, Kandahar and Jalalabad." The US military admits that Bagram holds a "small number of individuals" seized outside Afghanistan. But even less is known about who they are or why they are held than is public about the Taliban fighters detained there. Some prisoners are released each month or handed over to Afghan custody. Many are thought to have been there for years. The International Justice Network, representing the families of four prisoners, has been arguing that they should have the same legal rights to challenge their detention that were eventually given to Guantanamo inmates. "It's being used not as a temporary battlefield detention centre, but as a legal black hole where you can bring people to evade public and political scrutiny," said Tina Monshipour Foster, the organisation's executive director.
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THE ADMINISTRATION REFUSES TO COME CLEAN ON TORTURE AND DETENTION PROBLEMS IN AFGHANISTAN -- RENDERS ITS GITMO POLICY FARCICAL Thomas R. Eddlem, "The Pentagon's Detainee Torture Whitewash," NEW AMERICAN, 2-23-09, http://www.thenewamerican.com/usnews/election/815, accessed 4-7-10. If the Pentagon report on the Guantanamo prison were part of a genuine Obama administration effort to uncover torture where it has occurred and to make sure it does not happen again, that effort would have to extend to the prisons in Afghanistan and elsewhere as well as rendition programs. Thus far, when the administration has been pressed in federal court for documentation on rendition programs, they've simply offered "state secrets" excuses for keeping these programs secret. And the Obama administration has offered to provided government lawyers for the Bush-era architects of torture policies. The February 20 government statement on the treatment of five detainees at Bagram Air Force base simply extends the continuity. One month into the Obama administration, the public and private emphasis has been solely on the highly publicized Guantanamo prison rather than the prisons where the worst forms of torture occurred. The Obama administration wants to look good. They want to appear that they have abandoned the inhuman torture techniques of the Bush administration without actually abandoning them. In those places where the worst torture occurred, the Obama administration has pursued an increasingly consistent pattern of covering up past torture and keeping in place policies that allow for the torture to continue. It is becoming increasingly obvious that Obama's highly publicized emphasis on Guantanamo is a whitewash that will allow torture to continue in Afghanistan and elsewhere, and is not part of an attempt to restore the Eighth Amendment of the U.S. Constitution.
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LEAVING BAGRAM OPEN LEAVES THE CLOSING OF GITMO SIMPLY A HOLLOW GESTURE Stephen Foley, "Very Bad News: Afghanistan's Bagram Air Base Will Be Obama's Guantanamo," INDEPENDENT, 2-22-09, www.alternet.org/rights/128273/, accessed 4-21-10. Two days into his presidency, Mr. Obama promised to shut Guantanamo within a year in an effort to restore America's moral standing in the world and to prosecute the struggle against terrorism "in a manner that is consistent with our values and our ideals." But on the same day, the judge in the Bagram case said that the order "indicated significant changes to the government's approach to the detention, and review of detention, of individuals currently held at Guantanamo Bay" and that "a different approach could impact the court's analysis of certain issues central to the resolution" of the Bagram cases as well. Judge John Bates asked the new administration if it wanted to "refine" its stance. The response, filed by the Department of Justice late on Friday, came as a crushing blow to human rights campaigners. "Having considered the matter, the government adheres to its previously articulated position," it said. Tina Foster, executive director of the International Justice Network, the New York human rights organisation representing the detainees, warned last night that "by leaving Bagram open, the administration turns the closure of Guantanamo into essentially a hollow and symbolic gesture." She said: "Without reconsidering the underlying policy, which has led to the abuses at Abu Ghraib and the indefinite detention of hundreds of people all these years, then we are simply returning to the status quo. The exact same thing that had the world up in arms has been going on at Bagram since even before Guantanamo.
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CLOSING GITMO DOES NOT RESOLVE THE LEGAL QUESTION OF WHAT TO DO WITH DETAINEES -- CAN ONLY RESTORE OUR LEGITIMACY IF WE PROPERLY TREAT DETAINEES David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.726-727. Guantanamo became a focal point of international condemnation of the United States' approach to the "war on terror." One of President Obama's first actions as President was to order that Guantanamo be closed within a year. Closing Guantanamo, however, will not resolve the difficult question of what to do with the men still detained there, or with the hundreds more held at Bagram Air Force Base. President Bush's ad hoc approach to the problem, assertedly predicated on Congress's AUMF and his powers as commander in chief, was a legal and political disaster. The Bush administration took a maximalist position from the start. It insisted that it need not provide any hearings to ensure that detainees were in fact enemy combatants; that the detainees were not protected by the Geneva Conventions, and therefore could be subjected to harsh coercive interrogations; and that the detainees had no recourse to judicial protection. The Supreme Court rejected each of these arguments, as did most of world opinion. Closing Guantanamo will restore legitimacy only if the Obama administration adopts a policy that clearly rejects the illegitimate aspects of the Bush administration approach.
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REVIEW OF DETENTION IS IMPORTANT TO U.S. MORAL AUTHORITY Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.423-424. Critics of the proposition that the United States ever had any moral authority to lose will point out that its history of slavery, racism, and other human rights violations has entitled the United States to little or no moral authority against abusive detentions. However, the United States' claim to moral authority stems from two main sources: (1) its practice of providing habeas corpus review of government detentions by an independent neutral; and (2) the tradition of promoting human rights through the United States' foreign policy, since at least the end of World War II. In the United States, habeas corpus offers protection against abusive detentions by providing a detainee with a review of his or her detention conducted by the non-political branch of the government, the judiciary. The American legal tradition respects the balance between government power and individual autonomy by preserving the government's ability to detain criminals and enemy combatants, provided that the detentions are not abusive detentions.
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PLAN KEY TO SOLVING LEADERSHIP MIAMI HERALD, "Gitmo Reconsidered," 7-12-06, npg. This is a far better way to go than trying to find a way around the Supreme Court ruling that rejected the inadequate military tribunals for detainees at Guantanamo Bay. Now the government must devise rules that comply with the letter and spirit of the Geneva protocols. Hard, but not impossible. All suspects must receive fair treatment and a trial that meets international standards of justice. Surely Congress and the White House can figure out how to do that without producing a wholesale release of dangerous terrorists. The decision to extend Geneva Conventions protection to terrorist detainees sends a hopeful signal that the days of going it alone are over for this White House. As the administration is discovering on a host of issues -- from North Korea to Darfur to Iran -- even a country with the resources of the United States can't put out all the fires around the world without the help of its friends. Creating an alternative legal universe in Guantanamo, however, alienated our allies and diminished U.S. standing around the world. We can't go it alone, and we can't flout the rules of international law one day and expect that the next day others will rally to support us in a just cause.
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WE NEED TO REVERSE DETENTION AND TORTURE POLICIES TO ADDRESS THE RESENTMENT FLOWING FROM CURRENT POLICIES Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.665-666. As General Counsel Mora has made clear, the most significant source of the animosity driving these foreign fighters is a "policy of cruelty." It is this policy of cruelty that the Obama Administration must reverse. There are initial indications that President Obama appears committed to that objective. However, it must be reiterated, as was noted above, that members of the Obama Administration have claimed that the President is intent on using the policy of rendition as a tool to fight terrorism. Much like the use of detention without legal process and the use of cruelty and torture in interrogations, rendition has also proven particularly controversial with U.S. allies and others around the world, precisely because rendition has been used to transfer individuals suspected of involvement in terrorist activities to countries that have tortured them. The International Commission of Jurists has recently issued a report calling on the U.S. and other nations to reverse these policies of torture, cruel and inhumane treatment, and arbitrary detention. The Report of the Eminent Jurists Panel on Terrorism stated: Practices referred to in the evidence given to the Panel -- torture and cruel, inhuman or degrading treatment, secret detentions, abductions, illegal transfers, refoulement, arbitrary, prolonged and incommunicado detention, unfair trials, and enforced disappearances -- are not legitimate responses to the threat of terrorism. Such practices are not only inconsistent with established principles of international law, and undermine the values on which free and democratic societies are based, but as the lessons of history show, they put the possibility of short term gains from illegal actions, above the more enduring long term harm that they cause. Steps must be taken nationally and internationally to ensure that the prohibition on torture and cruel, inhuman or degrading treatment, and other such serious human rights violations again become the unquestioned norm. The U.S. must make a clean break with these past policies of cruelty, torture, and detention without legal process. The parameters of what constitutes such a break are debatable, but achieving this break may require investigations and prosecutions. At a minimum, the U.S. must end these practices by U.S. personnel and ensure that the U.S is not implicated and compromised by cooperation with, solicitation to, or willful blindness to such practices conducted by others in an attempt to further its own goals. The U.S. cannot regain the moral high ground and eliminate the stain of our involvement in cruelty and torture by ritually washing our hands if the U.S. remains knee deep in the mud and blood of the world's dungeons. This is not only essential if the U.S. is to once again claim title to our nation's fundamental principles, it is a practical necessity if we want to avoid creating more terrorists than we can possibly capture or kill.
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WE NEED A CLEAN BREAK AGAINST INDEFINITE DETENTION TO RECLAIM THE MORAL HIGH GROUND Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.666-667. The lessons of Northern Ireland are important. The government's tactics in Northern Ireland are invoked as examples to emulate by the apologists for the U.S. government's policies of torture and arbitrary detention without any regard for the abject failure those policies represent. In presenting the International Commission of Jurists' Report on Terrorism, Mary Robinson, former President of Ireland and member of the Eminent Jurists Panel on Terrorism, knowingly reminded everyone of the true results of the detention and interrogation policies in Northern Ireland when she stated, "The police themselves said that [internment] was an unmitigated disaster." Likewise, the policies adopted by the Bush Administration in the GWOT have been an unmitigated disaster that will take us many years from which to recover. We have alienated many potential allies, encouraged recruitment of terrorists, and increased violence against our own citizens and allies. It will not be hard for al Qaeda to use the United States' past actions against it as recruiting tools. The U.S. must clearly and unequivocally reject the policy of detention without recourse to legal process and the cruelty and torture that have so often accompanied those detentions. The U.S. must renounce the hypocrisy of euphemism and legal justifications for practices all decent human beings know to be immoral and unjust. Only then can the U.S. hope to regain the moral high ground and begin to truly win the hearts and minds of Muslims and Arabs throughout the world.
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Note: you should use the initial Observation One (status quo) argument, and can also use the other advantages to the "USFG" version of the case. PLAN: THE SUPREME COURT OF THE UNITED STATES SHOULD ORDER THAT ALL U.S. MILITARY AND POLICE DETENTION FACILITIES IN AFGHANISTAN BE SHUT DOWN, HOLDING THAT THE FACILITIES VIOLATE CONSTITUTIONAL DUE PROCESS RIGHTS AND INTERNATIONAL LAW BECAUSE THE DETENTION FACILITIES DO NOT AFFORD JUDICIAL REVIEW OF THE LEGITIMACY OF A DETAINEE'S DETENTION. FUNDING AND ENFORCEMENT ARE GUARANTEED. OBSERVATION TWO: SOLVENCY A. LACK OF JUDICIAL REVIEW IS THE SOURCE OF DETAINEES ABUSES -- JUDICIAL REVIEW IS VITAL TO SOLVE THE PROBLEM Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. The denial of judicial review for detainees designated by the USA as "enemy combatants" in the so-called "war on terror" has been an integral part of an unlawful US detention regime operated over the past seven years. Treating detainees as perceived security threats and "intelligence assets" from whom information could be coerced rather than as human beings to whom legal process was due led not only to arbitrary detention, but also to detention conditions and interrogation techniques that violated international law, including the prohibition on torture or other cruel, inhuman or degrading treatment, secret detention and enforced disappearance, as well as the formulation of administrative review and trial procedures geared to admit information obtained under torture or other ill-treatment. Effective judicial review of executive detentions, coupled with fundamental reform of the legislative and policy framework under which such detentions have operated, would offer protection against such human rights violations, and a route to remedy for detainees, and should be fully guaranteed by the new administration and Congress as part of bringing the USA's policies and practices into line with international law and standards. The history of detentions at Bagram -- as well as the history of US detentions in Guantanamo and elsewhere in what the Bush administration called the "war on terror" -- serves to highlight the need for full and effective judicial review.
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ADVANTAGE ONE: AN ACTIVE JUDICIARY A. AFGHANISTAN'S DETENTION CENTERS OPEN THE DOOR TO EXECUTIVE TYRANNY Tom Curry, "Bagram: Is it Obama's New Guantanamo?" MSNBC, 6-3-09, www.msnbc.msn.com/id/31046933/, accessed 4-21-10. But law professor Kal Raustiala, the director of UCLA's Burkle Center for International Relations, said Bates' ruling was narrow enough that it would not significantly disrupt military operations. "Judge Bates ruled on only a handful of individuals, all of whom were brought to Bagram from elsewhere," he said. "Limited to these cases, the diversion is not that great." He said the crucial point is that Bates "is trying to take away the incentive to bring outsiders (those captured outside Afghanistan) to Bagram. He wants to avoid the problem posed by Guantanamo -- that the government is incentivized to move individuals there to avoid habeas and other rights." If Bagram or other foreign bases are beyond the reach of habeas corpus, "it creates a mechanism for executive tyranny in a world in which it is easy to fly someone in there on a suspicion," said Raustiala. B. GRANTING THE PRESIDENT TOO MUCH AUTHORITY RISKS DEVASTATING INTERVENTIONARY WARS Arthur M. Schlesinger Jr., Professor Emeritus, City University of New York Graduate Center, THE IMPERIAL PRESIDENCY, 2004, p.497-498. There is little more typically American than to despair of the republic. As early as 1802, Hamilton pronounced the Constitution a "frail and worthless fabric." Seventy years later Henry Adams declared that "the system of 1789" has "broken down." The dirges of our own day are hardly novel. But the constitutional strain imposed by chronic international crisis is new. Tocqueville's warning lingers. International crisis has given American Presidents the opportunity to exercise almost royal prerogatives. Some Presidents have exercised these prerogatives with circumspection. Others have succumbed to the delusion that American has been charged by the Almighty with a global mission to redeem fallen humanity. In The Imperial Presidency I doubted that a messianic foreign policy, America as world savior, was reconcilable with the American Constitution (see pages 163-166, 206-208, 298). Nearly two decades later, I conclude with the same question. When an American President conceives himself the appointed guardian of the world in which an eternal foreign threat requires a rapid and incessant deployment of men, weapons and decisions behind a wall of secrecy, the result can only be a radical disruption of the balance of the American Constitution. It is hard to reconcile the separation of powers with a foreign policy driven by an indignant ideology and disposed to intervene unilaterally and secretly everywhere around the planet. The Constitution must buckle under the weight of a vainglorious policy, aiming at the redemption of lesser breeds without law, relying on secret actions and duplicitous methods, involving the United States in useless wars and grandiose dreams. C. JUDICIAL REVIEW OF DETENTION POLICIES KEY TO JUDICIAL INDEPENDENCE AND CHECKING THE EXECUTIVE Center for Justice & Accountability et al., Brief of the Center for Justice and Accountability, The International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies as Amici Curiae in Support of Petitioners, Nicholas W. Van Aelstyn, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 30, January 14, 2004, lexis. While amici hail from many countries and have diverse backgrounds, all share an interest in defending the rights of individuals against the arbitrary actions of governments, particularly in countries that are emerging as democracies within the community of nations. One of the most important of these rights is the protection of individuals from indefinite detentions. Toward that end, they all recognize that a strong, independent judiciary with the power to review executive action is critical to the defense of individual rights. Amici also recognize the profound influence of the examples set by the United States and this Court. Defenders of democracy and human rights in the home countries of all individual amici look to the rule of law modeled by the United States. The maintenance and promotion of a strong and independent judiciary is key to the missions to which the institutional amici are dedicated, and to the struggles each of the individual amici face in their native countries. D. THE PLAN REVERSES CURRENT COURT DEFERENCE ON THE BASIS OF PLENARY POWER, WHICH INVITES ABUSE OF NON-CITIZENS Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.60. In each of these situations, the Court defers to Congress or the Executive because it claims that the political branches have exclusive jurisdiction over matters relating to foreign policy, military affairs, national security or war powers. The rationale is the same one used in the plenary power cases, and the end result is also the same: persons who are subject to U.S. law or to the consequences of U.S. foreign policy or military action but who are deemed Other by virtue of some combination of race, ethnicity, national origin, religion, political affiliation, or citizenship, cannot effectively challenge the government's actions because the judiciary refuses to hold the government accountable to either the Constitution or international law.
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DETENTION POWERS NOW CLAIMED BY THE EXECUTIVE ARE BROAD AND SUBJECT TO ABUSE David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.705-706. Finally, the Bush administration cited the AUMF and its own executive power as authority to detain anyone it declared an "enemy combatant" -- whether captured at home or abroad. It initially held them incommunicado and denied them any hearings whatsoever, and it subjected them to cruel and inhuman coercive interrogation, and in some instances, torture. While the Bush administration initially described all those it held at Guantanamo as the "worst of the worst," it subsequently released more than 500 of them, suggesting that they might not have been so dangerous after all. Of the more than 500 released, the Pentagon claimed in January 2009 that 61 had returned to terrorism, a figure disputed by others as unfounded. As this overview demonstrates, existing law gives the government substantial options for detaining those whom it suspects of terrorist activity. At the same time, it also shows that existing authorities are susceptible to abuse and already afford the government too much unchecked power to detain. Within the United States alone, thousands of people were detained who posed no demonstrable threat. Accordingly, if reform is necessary, it should start by seeking to correct for the abuses evident in the wake of 9/11. While concerns about the need for preventive detention often rest on hypothetical scenarios, the case for reform of existing laws is supported by actual experience.
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INDEFINITE DETENTION UNDERMINES THE CONSTITUTION -- FEDERAL COURTS CAN SUCCESSFULLY TRY THE CASES Jonathan Hafetz and Mark Denbeaux, "Guantanamo Beyond Guantanamo," HUFFINGTON POST, 12-22-09, www.aclu.org/blog/national-security/guantanamo-beyond-guantanamo, accessed 4-21-10. Indefinite detention is threatening to become Guantanamo's legacy. Never before has the United States sought to imprison individuals permanently without charge merely because it suspects they may be dangerous. Such a regime is anathema to the Constitution, which requires that those accused of wrongdoing be brought to justice through a criminal trial. It is also profoundly un-American, and should alarm conservatives and liberals alike. Bringing suspected terrorists to trial in federal court is the right move. It honors the Constitution's guarantee of due process and maintains criminal trials as a check on the unlawful exercise of state power. Federal courts have also proven highly capable of trying suspected terrorists without sacrificing basic constitutional rights. They not only boast high conviction rates but have shown they are adept at preventing the disclosure of classified or other sensitive information. Holder's decision to prosecute the alleged 9/11 co-conspirators thus moves U.S. counter-terrorism policy in the right direction. But as long as the government retains the power to detain without trial, the impact of such decisions will be limited.
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EXECUTIVE POWER ENCROACHMENT IN THE WAR ON TERROR IS A SERIOUS THREAT TO OUR LIBERTY Erwin Chemerinsky, Professor, Law and Political Science, Duke University, " The Assault on the Constitution: Executive Power and the War on Terrorism," U.C. DAVIS LAW REVIEW v. 40, November 2006, p.19-20. Throughout American history, the government's response to threats has been repression. The war on terrorism is now over four years old and shows no signs of abating. Authorities have imprisoned some individuals without due process for nearly that long and have given no indication about possible release. These detentions have lasted longer than either World War I or World War II. In addition, the loss of freedom to average citizens has been enormous and, most disturbingly, there is no reason to believe that the country has been made any safer by the loss of liberty. There is no reason to believe that the government could not have fought terrorism just as effectively without ignoring the Constitution and the rule of law. The late Justice Louis Brandeis wrote: Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Justice Brandeis, of course, never knew John Ashcroft, Alberto Gonzales, or Donald Rumsfeld, but if he had, he could not have chosen a more apt description.
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COURT DEFERENCE ON PLENARY POWER NOT JUSTIFIED Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.58-59. This is the same argument being made today with respect to actions taken against Muslims and persons of Middle Eastern or Arab ancestry. The Justice Department assures us that they are not interrogating or detaining hundreds of people because of hostility to them or their race (or religion), but because "we are at war with terror." The courts are, again, being urged to defer to the Executive because foreign affairs and national security are areas in which the political branches have plenary authority. However, when we look closely at both the World War II internment cases and the extensive use of this very justification for the exercise of plenary power over immigrants, American Indians, and residents of U.S.-controlled territories, it is difficult to accept as a legitimate exercise of the courts' responsibility to uphold the Constitution and, more fundamentally, the rule of law.
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USING PLENARY POWER TO JUSTIFY COURT DEFERENCE IN INTERNATIONAL LAW VIOLATIONS MAKES THE U.S. LOOK HYPOCRITICAL Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.59. Nonetheless, the United States is widely condemned for criticizing other countries' violations of international law while only complying with or enforcing those aspects of international law that coincide with U.S. interests. Although the Constitution explicitly directs federal courts to enforce international law, as we have seen in many of the examples discussed above, the Supreme Court frequently upholds statutes or executive actions which it acknowledges are in direct violation of treaties or customary international law. In such cases the Court falls back on a series of doctrines it has created, many of which are in essence extensions of the plenary power doctrine.
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COURT ALLOWS DISCRIMINATION AGAINST IMMIGRANTS BASED ON PLENARY POWER DOCTRINE Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.51. The Court has continued to rely on the plenary power doctrine to uphold immigration laws and practices that violate both the Constitution and international law. As noted in Part IV, the plenary power doctrine was invoked to justify the exclusions, based on secret evidence, of Ellen Knauff, the wife of a U.S. citizen, and Ignatz Mezei, a permanent resident, as well as Mezei's indefinite detention. In 1984, the Eleventh Circuit cited the Chinese exclusion cases, Nishimura Ekiu, Mezei, and other plenary power "classics" to hold in Jean v. Nelson that noncitizens who have not been admitted continue to "have no constitutional rights with regard to their applications, and must be content to accept whatever statutory rights and privileges they are granted by Congress." In 1986, the Supreme Court refused to grant certiorari in Garcia-Mir, another Eleventh Circuit case which followed Jean and specifically excluded consideration of claims under international human rights law. The Justice Department has consistently relied on the plenary power cases to justify its use of secret evidence in removal proceedings against Arab Americans, and it will no doubt continue to do so in its defense of its current practices of arbitrary and indefinite detention and selective deportation.
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ELIMINATING TRIBUNALS CHECKS MILITARY CONTROL OF THE COURTS Jonathan Turley, Professor of Public Interest Law, George Washington University, "The Military Pocket Republic," NORTHWESTERN UNIVERSITY LAW REVIEW, v. 97, Fall 2002, p.110-111. The recent changes by the Bush Administration, however, serve to expand the governance authority of the military system and, in some respects, put greater emphasis on its separateness. The most obvious such change can be found in the establishment of the military tribunals. The Bush Administration asserted the authority to create an alternative legal system under the DOD for terrorism suspects held outside of the United States. By keeping these prisoners just on the other side of the border, President Bush has allowed the military to draft its own rules of evidence and procedure outside of the operations of either the U.S. Constitution or federal law. As a result, the military system would be used as an alternative to the federal courts. Thus, President Bush would decide which prisoners to send to a federal trial with full constitutional protections and which to send to a military tribunal. While this executive order is unlikely to be used against a sizable number of individuals, it represents a considerable conceptual change in the role of the military. The view contained in the order, and stated by various officials like Attorney General John Ashcroft, is that the federal system is functionally inadequate in handling such trials and that the military would do a better job because it is unconfined by the Constitution. After over a hundred years since Sherman's remarks, the military system is not only separate but, in this circumstance, the civilian system is actively yielding authority to the military system to carry out core functions of governance. The implications of the military tribunals for a Madisonian system are troubling. As noted earlier, one of the greatest points of distinction between the Roman model of separation and the currant military is the existence of a strong constitutional system of tripartite governance. The claim of executive authority to create an alternative legal system threatens the very essence of that system and could significantly change the view of citizens of the proper functioning of a Madisonian system. The tribunals use the very separateness of the military as its most vital asset in the trial of accused terrorists. Such a view is historically and legally questionable. However, if allowed to stand, the tribunals could open the door to greater circumvention of the civilian system and shift the center of gravity of the Madisonian system toward a semi-autonomous pocket republic. The effect on society seems predictably negative, resulting in a greater separation from the political system and from meaningful control by the electorate. If greater integration of the military would be beneficial to society, the Bush Order constitutes both a conceptual and practical shift in the opposite direction.
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INDEFINITE DETENTION DESTROYS LIBERTY AND THE RULE OF LAW -- UNDERMINES OUR CONSTITUTION AND THE VERY RULE OF LAW American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. Supreme Court Justice Antonin Scalia recently wrote that "freedom from indefinite imprisonment at the will of the Executive" represents the "very core of liberty." On this issue, Justice Scalia is exactly right. Indefinite detention without charge or trial violates the essence of American due process and the rule of law. Nevertheless, there are disturbing reports that President Obama and key members of his administration are considering continuing or even expanding the indefinite detention policies that began during the Bush administration. Under such a regime, people who have never committed a crime, or for whom the government lacks reliable evidence of criminal conduct, could be imprisoned indefinitely -- perhaps for their entire lives -- without charge or trial. Any system of indefinite detention without trial for suspected terrorists would be unnecessary, unwise, and unconstitutional. Individuals who pose a genuine danger to the United States can be prosecuted in our existing courts under our existing laws. And any statute that purports to authorize the long-term detention of suspected terrorists on the basis of perceived future dangerousness rather than past criminal conduct will likely be invalidated by our federal courts. Finally, a system of detention without trial for terrorism suspects would rightly be viewed by Americans and throughout the world as an illegitimate continuation of the Guantanamo detention regime that so damaged our credibility as a nation that adheres to the Constitution and the rule of law.
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JUDICIAL REVIEW IS NECESSARY TO CHECK EXECUTIVE ABUSE Amnesty International, "USA: Obama Administration Must Take New Approach on Bagram Detentions," 2-19-09, www.amnestyusa.org/document.php?id=ENGAMR510242009&lang=e, accessed 4-7-10. Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another. In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared. While the new US administration has committed itself to resolving within a year the cases of the approximately 240 detainees still held in Guantanamo, it has not yet said what its intentions are for US detentions in Afghanistan. Some 600 detainees -- the majority of them Afghan nationals, but also individuals of other nationalities -- are being held in US custody in the Bagram detention facility without access to the courts or legal counsel. Some have been held for years. The US authorities must now ensure that all US detentions in Afghanistan comply with international law.
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COURT ACTION KEY TO CHECKING A POLITICAL SLIPPERY SLOPE TOWARD UNCHECKED EMERGENCY POWERS Oren Gross, Associate Professor, Law, University of Minnesota, "Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?" YALE JAW JOURNAL v. 112, March 2003, npg. Accommodation of exigency considerations within the body of the legal system may induce the government to use its emergency powers expansively even when such use is uncalled for under the prevailing circumstances. If the power "is there," it is more likely to be used than when it has first to be put in place. Moreover, the existence of such constitutional dictates could encourage unscrupulous political leaders to foment an atmosphere of fear so as to be able to invoke these extraordinary constitutional powers. The danger that government will exercise permissible, special emergency powers "and wield [them] oppressively or selfishly, to the detriment of liberty, equality, or enduring national progress," may be "less inevitable but more dangerous." By the mere incorporation of a set of extraordinary governmental powers into the legal system, a weakening of that legal system will have already taken place and a dangerous threshold will have been crossed. The system will have embarked on its descent along a slippery slope as government will resort to special emergency powers in situations that are farther and farther away from a real exigency.
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FEDERAL COURTS CAN TRY THE PRISONERS -- IMPORTANT TO UPHOLDING INTERNATIONAL RIGHTS American Civil Liberties Union, "Indefinite Detention Should End with the Closure of Guantanamo, Says ACLU," 9-25-09, www.aclu.org/human-rights_national-security/indefinite-detention-should-end-closure-guantanamo-says-aclu, accessed 4-21-10. "We are concerned by reports of possible delays in the closure of Guantanamo, which holds hundreds of men who have been imprisoned for years without charge or trial and has become a symbol of lawlessness and cruelty. The prison camp should be closed as soon as possible. "As important as when Guantanamo is closed, however, is how it is closed. Closing Guantanamo must include ending the policies that the prison has come to represent, such as indefinite detention without charge or trial. It would be unacceptable to close Guantanamo only to institute the same policies at similar facilities elsewhere in the world. "We are also deeply troubled by the reported suggestion by administration officials that, even after Guantanamo is closed, as many as 60 terrorism suspects -- including individuals with no connection to any conventional battlefield -- may continue to be held indefinitely without charge or trial. If there is evidence to support the allegation that these men have committed crimes, the government should file charges and prosecute them in federal courts, which are perfectly capable of handing terrorism cases while protecting fundamental rights. In a democracy, there is no room for a system of detention that allows human beings to be imprisoned indefinitely without charge or trial."
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UNFETTERED COURT ACCESS FOR DETAINEES IS A FOUNDATION OF INTERNATIONAL HUMAN RIGHTS LAW Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. Everyone has the right to liberty and security of person. A government may only arrest, detain or imprison a person strictly in accordance with the law. Arbitrary detention, the antithesis of this legal obligation, is absolutely prohibited under international human rights law, which applies at all times. The notion of arbitrariness of detention under human rights law, in accordance with the UN Human Rights Committee's "constant jurisprudence", is "not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law". Detainee access to a court to challenge the lawfulness of detention is a basic requirement of international human rights law. No-one may be denied effective remedy for conditions of detention or treatment that violate their rights, such as the right to be free from torture or other ill-treatment. Among the Bagram detainees whose habeas corpus petitions are currently before Judge Bates in the US District Court are individuals who were allegedly subjected to enforced disappearance prior to being taken to Bagram. Enforced disappearance, like torture, is a crime under international law. Remedy and accountability remain absent in such cases.
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COURT-ORDERED COMPLIANCE IS KEY TO STRENGTH OF INTERNATIONAL LAW, COMPLIANCE OF OTHER NATIONS Human Rights Institute, Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners, Vaughan Lowe, Guy S. Goodwin-Gill, counsel, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 23, January 14, 2004, lexis.. The rationale for interpreting domestic law in harmony with international law loses none of its force when a fundamental human right is involved. The U.S. aims to serve as a model of human rights protection in the world community and recognizes that compliance with international law is indispensable in the pursuit of this objective. By conforming with minimal standards under international law, the U.S. not only protects the rights of the persons directly involved, but also meets the expectations of other nations, fostering goodwill and compliance. The expectations of nations with whom the U.S. shares common legal and political traditions are particularly poignant. Other countries, including those hostile to the U.S., should be denied the opportunity to cite U.S. violations as "excuses" for their own.
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INDEFINITE DETENTION MODELED, THREATENS JUDICIAL INDEPENDENCE Center for Justice & Accountability et al., Brief of the Center for Justice and Accountability, The International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies as Amici Curiae in Support of Petitioners, Nicholas W. Van Aelstyn, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 30, January 14, 2004, lexis. Amici are the Center for Justice and Accountability and the International League for Human Rights, both non-governmental organizations, and also the individuals Youk Chhang, Benjamin Cuellar, Vojin Dimitrijevic, Tahir Elci, Jakob Finci, Gustavo Gallon, Sudarshana Gunawardana, Chandra Kanagasabai, Mulya Lubis, Lia Mukhashavria, Ahmed Othmani, Dr. Aurora Parong, Dr. Marijan Pavcnik, Naly Pilorge, Carlos Slepoy Prada, Lakshman Kumar Upadhyaya, and Benjamin Hyun Yoon. While amici hail from many countries and have diverse backgrounds, all share an interest in defending the rights of individuals against the arbitrary actions of governments, particularly in countries that are emerging as democracies within the community of nations. One of the most important of these rights is the protection of individuals from indefinite detentions. Toward that end, they all recognize that a strong, independent judiciary with the power to review executive action is critical to the defense of individual rights. Amici also recognize the profound influence of the examples set by the United States and this Court. Defenders of democracy and human rights in the home countries of all individual amici look to the rule of law modeled by the United States. The maintenance and promotion of a strong and independent judiciary is key to the missions to which the institutional amici are dedicated, and to the struggles each of the individual amici face in their native countries.
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INDEPENDENCE ACTION KEY TO WORLD PEACE, SOLVENCY Michelle Austein, journalist, "Judicial Independence and Rule of Law Essential, Judges Say," WASHINGTON FILE, 8-16-06, http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2006&m=August&x=20060816144026hmnietsua0.700329, accessed 9-4-09. Washington -- "The best hope of living in peace and prosperity in the world today is if all nations abide by the notion of the rule of law," said Former U.S. Supreme Court Justice Sandra Day O'Connor August 14. "Laws properly adopted by a country must be applied, interpreted and enforced by an independent judiciary," O'Connor told a panel of judges in Islamabad, Pakistan, using video conferencing. Judges must be able to enforce laws, even in the face of political opposition, O'Connor said. They must be free to render fair and impartial judgments without fear of retaliation by other branches of government, she said. At the same multinational panel, Honorable Chief Justice of Pakistan Iftikhar Muhammad Chaudhry said that judicial independence is an essential element of a nation practicing good governance. The panel discussion featuring sitting and former judges from several countries was part of a four-day international judicial conference. The 91 participants from 43 countries, including 20 sitting chief justices, discussed common issues and shared ideas about judicial roles and powers. O'Connor said it is vitally important that lawyers and judges "speak out in support of the concept of independence of the judiciary and that they help us maintain it and retain it and apply it." Judge Robert Henry of the U.S. Court of Appeals for the Tenth Circuit, also speaking via video, encouraged judges to discuss the issues they commonly share, including tenure, resources, executive branch support and such internal problems as corruption. "It is very important for judges around the world to come together to exchange thoughts, exchange commentary, and to exchange tactics with each other for how we deal with these problems," Henry said. From the day they are appointed, judges, whether appointed to a lower court or the Supreme Court, must be independent, impartial and maintain no personal interest in a case, Chaudhry said. O'Connor added that judges must be bound to high ethical standards and be subject to discipline for violating these standards. One of the biggest concerns the judges mentioned was corruption. Controlling judges' corruption is one of the most important ways to ensure the independence of the judiciary, Chaudhry said. Many of Pakistan's courts enforce a judges' code of conduct to help fight corruption, he said. The conference coincided with the 50th anniversary of Pakistan's Supreme Court. See the Supreme Court of Pakistan's Web site for more information. More information about judicial independence is available on the Democracy Dialogues Independent Courts Web site.
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FAVORABLE AFGHANISTAN RULING WOULD APPLY TO DETAINEES IN OTHER COUNTRIES Del Quentin Wilber, "U.S. Appeals Court Wary of Habeas Corpus Challenge by Detainees in Afghanistan," WASHINGTON POST, 1-8-10, www.washingtonpost.com/wp-dyn/content/article/2010/01/07/AR2010010703205.html, accessed 4-10.10. An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court. The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.
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FAVORABLE RULING WOULD APPLY TO MILITARY DETAINEES AROUND THE WORLD Del Quentin Wilber, "U.S. Appeals Court Wary of Habeas Corpus Challenge by Detainees in Afghanistan," WASHINGTON POST, 1-8-10, www.washingtonpost.com/wp-dyn/content/article/2010/01/07/AR2010010703205.html, accessed 4-10.10. Attorneys for the Bagram detainees say that the only way to ensure that the government is properly holding them is for a judge to hear their case, they say. During oral arguments, Judges David S. Tatel and Harry T. Edwards pushed one of the attorneys for the detainees, Tina Monshipour Foster, to craft an argument that would limit the reach of habeas corpus to just her clients at Bagram. They wondered whether granting such rights to the Bagram prisoners would extend habeas corpus to military bases across the globe. Such a ruling could be difficult to align with Supreme Court precedent, the judges suggested.
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RULING FOR MAQALEH WOULD PROVIDE ACCESS FOR ALL DETAINEES Dawinder Sidhu, attorney, "Obama's Looming Legal Trap in Afghanistan," SALON, 4-6-10, www.salon.com/news/feature/2010/04/06/bagram_guantanamo_habeas_corpus/index.html, accessed 4-21-10. At issue is the precarious reach of the writ of habeas corpus -- the time-honored legal right to petition a court to ensure that the executive has sufficient cause to detain an individual. In 2008, the Supreme Court held in Boumediene v. Bush that Guantanamo detainees are entitled to habeas. As the Boumediene case resolved only whether habeas applies to detainees at Guantanamo -- and not other international post-9/11 American facilities -- it remains unclear whether foreign detainees at Bagram can invoke the habeas writ. Indeed, this very question is at the heart of al Maqaleh v. Obama -- an ongoing legal battle between several current Bagram detainees and the Obama administration. Because these Bagram detainees have not yet been accorded the habeas right, there is concern that the administration's proposal would place all prospective foreign terrorism suspects beyond the rule of law, without fundamental habeas protections. In reality, though, this could actually open the door to the al Maqaleh court ultimately holding -- against the government -- that habeas does extend to foreign detainees in Bagram. In other words, in resolving an important policy question, the administration could seriously weaken its legal case.
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LACK OF JUDICIAL ACCESS CAUSES TORTURE AND ABUSE Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. As at Guantanamo, in the absence of judicial oversight the detentions in Bagram have been marked by torture and other kinds of ill-treatment of detenus. Agents of the Federal Bureau of Investigation (FBI) deployed in Afghanistan between late-2001 and the end of 2004 reported personally having observed military interrogators in Bagram and elsewhere employing stripping , sleep deprivation, threats of death or pain, threats against detenus' family members, prolonged use of shackles, stress positions, hooding and blindfolding other than for transportation, use of loud music, use of strobe lights or darkness, extended isolation, forced cell extractions, use of and threats of use of dogs to induce fear, forcible shaving of hair for the purpose of humiliating detenus, holding detenus in an unregistered manner, sending them to other countries for "more aggressive" interrogation and threatening to take such action.
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JUDICIAL REVIEW IS VITAL TO PREVENTING ABUSE OF DETAINEES AL JAZEERA, "US Expands Prison in Afghanistan," 2-20-09, http://english.aljazeera.net/news/asia/2009/02/200922041829271189.html, accessed 4-7-10. Amnesty International has urged Obama to continue its break from his predecessor's "unlawful detention policies" by ensuring that "all US detentions in Afghanistan comply with international law" and giving the detainees access to US courts. "Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the human rights group said. "In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses -- even children have not been spared."
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JUDICIAL REVIEW STOPS TORTURE Amnesty International USA, Guantanamo, and Beyond: The Continuing Pursuit of Unchecked Executive Power, May 13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005 Judicial review of the lawfulness of detentions is a fundamental safeguard against arbitrary detention, torture and ill-treatment, and "disappearance". Unsurprisingly, then, with the US courts having been kept out of reviewing the cases for more than three years, there is evidence that all these categories of abuse have occurred at the hands of US authorities in the "war on terror". Indeed, Amnesty International believes that abuses have been the result of official policies and policy failures and linked to the executive decision to leave detainees unprotected by not only the courts, but also by the prohibition on torture and other cruel, inhuman or degrading treatment as defined under international humanitarian and human rights treaties binding on the USA. The US administration still does not believe itself legally bound by the Geneva Conventions in relation to the detainees in Guantanamo, Afghanistan and in secret locations, by customary international law, or by the human rights treaty prohibition on the use of cruel, inhuman or degrading treatment in the case of foreign detainees in US custody held outside of US sovereign territory. Nor has it expressly abandoned the notion that the President may in times of war ignore all the USA's international legal obligations and order torture, or that torturers may be exempted from criminal liability by entering a plea of "necessity" or "self-defence" (see below).
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REVIEW IS VITAL TO STOPPING TORTURE Amnesty International, USA, Human Dignity Denied, Torture and Accountability in the 'War on Terror,' October 27, 2004, http://web.amnesty.org/library/Index/ENGAMR511452004 Central to the USA's "war on terror" detention policy has been to keep the detainees away from the courts. The administration chose Guantanamo precisely because it believed that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba," although it recognized that the issue was not "definitely resolved" in law. It is clear that the US administration has seen its own judiciary, as well as international law, as an unwanted check on its activities. A key safeguard against torture is for prisoners or others acting on their behalf to be able to invoke the power of the courts to challenge the legality of the detention and otherwise ensure the prisoner's safety. It can also serve as a safeguard against "disappearances" by asking the courts to locate a person who has "disappeared".
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SAFEGUARDS, EMPIRIC RECORD DENY LEAKS CLAIMS Juan R. Torruella, " On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power," UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW v. 4, May 2002, p.689-690 Furthermore, such a conclusion runs contrary to experience, plain facts, and common sense. Trials of this nature have been taking place in United States District Courts with some regularity, with an almost unbroken success record for the government. There have been no allegations that these trials pose any danger to the safety or security of the nation, although the government is held to a higher standard of proof than is contemplated by The Order. None of these allegations seem a sufficient justification, under the Constitution, to dispense with the requirements of due process under the Fifth Amendment. Furthermore, any fear that classified information may be divulged by virtue of the nature of these trials, thus compromising American intelligence sources and adversely affecting national security, a legitimate concern, has been addressed by Congress through the passage of the Classified Information Procedures Act in 1980. These procedures have been used on numerous occasions in security-sensitive trials, again most of which the government has won.
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COERCED NATURE OF EVIDENCE IS NOT A JUSTIFICATION FOR NOT PROVIDING A TRIAL American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. Coerced evidence should not be a basis for detention. Proponents of a system of indefinite detention, including President Obama, have argued that the criminal justice system may be incapable of adjudicating some terrorism cases because the necessary evidence is too "tainted" by coercion to be admissible in U.S. courts. But evidence obtained through torture or coercion is inadmissible not only because it was secured immorally and illegally, but also because it is inherently unreliable.
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MULTIPLE TRIALS PROVE OUR CLAIMS Laura K. Donohue, "Bias, National Security, and Military Tribunals," CRIMINOLOGY & PUBLIC POLICY v. 1 n. 3, July 2002, ASP. Second, there is nothing wrong with using the ordinary criminal system to try suspected terrorists. In the Southern District of New York, Mary Jo White, the federal prosecutor, obtained a 100% conviction rate for the 26 jihad conspirators accused of complicity in previous attacks both in the United States and against American personnel and property overseas. The six major trials and handful of minor ones demonstrated that the criminal justice system had adequate procedures for dealing with classified information. This was, precisely, the point of the Classified Information Act: to protect national security.
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WORLD TRADE CENTER, OKLAHOMA CITY TRIALS DISPROVE SECRECY CLAIMS John Lichtenthal, "The Patriot Act and Bush's Military Tribunals: Effective Enforcement or Attacks on Civil Liberties?" BUFFALO HUMAN RIGHTS LAW REVIEW v. 10, 2004, p.420-421. Supporters of the military tribunals point out the positives of the procedures. Bruce Fein, former Associate Deputy Attorney General under the Reagan administration, noted, "at time of warfare, expedition is critical." Secrecy is another advantage, as it would prevent the government from making public sensitive or classified information. In the words of John Ashcroft, "frankly, you don't want to compromise intelligence information in times of war." Former Solicitor Robert Bork noted, "an open trial -- covered by television, would be an ideal stage for Osama bin Laden to spread his propaganda to all the Muslims in the world." The military tribunals would also be beneficial to jurors, as they would be protected from reprisals from terrorists. But many of these advantages can be achieved through other means. The Classified Information Procedures Act outlines how classified information could be handled at trial. Furthermore, efforts were taken at the 1993 World Trade Center bombing trial and the McVeigh trial to protect classified information. For example, in the McVeigh trial: the news media sought access to a variety of documents that had been filed under seal. In granting partial access, Judge Matsch specifically articulated the importance of open criminal trials. Extensively quoting Chief Justice Berger, he stressed the "crucial prophylactic aspects" of public trials and the vital importance of "'satisfying the appearance of justice' -- by allowing people to observe it." At the same time, Judge Matsch carefully identified and articulated certain circumstances where there is no tradition of access and where secrecy is necessary. Provisions were also made at the 1993 World Trade Center bombing trail to protect the anonymity of the jurors.
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DETENTION IS PART OF THE MILITARY MISSION Human Rights First, UNDUE PROCESS: AN EXAMINATION OF DETENTION AND TRIALS OF BAGRAM DETAINEES IN APRIL 2009, November 2009, p.5. The United States, along with NATO allies and the Afghan government, is engaged in an armed conflict with insurgent groups in Afghanistan. The power to detain is an essential element of armed conflict, serving both the security interest of the detaining authority and the humanitarian interest of the detainee, who might otherwise be killed. There is a complex interplay between legal and practical considerations regarding detention in an armed conflict fought on foreign soil against non-state armed groups. The current U.S. strategy in Afghanistan recognizes the benefits of consent from, and the cooperation of, the local population and authorities in all aspects of the war effort, including detention. Increasing the Afghan stake in detention is already a part of the U.S./ISAF strategy in Afghanistan.
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THE DETAINEES ARE CONTROLLED BY MILITARY POLICE CORRECTIONS TODAY, "My Time in an Afghan Prison," December 2008, www.thefreelibrary.com/My+time+in+an+Afghan+prison.-a0193145673, accessed 4-15-10. Prior to Sept. 11, it was not a common practice for U.S. Army correctional specialists to mentor others on confinement operations. The Military Police (MP) Corps, the branch of the U.S. Army responsible for the custody and control of U.S. military prisoners and enemy prisoners of war, is exclusively charged with the confinement mission. Correctional specialists are stationed at Army and sister service correctional facilities across the U.S. and overseas in Korea, Germany, Cuba, Iraq and Afghanistan. Until recently, correctional specialists were normally assigned to non-deployable units. That changed after U.S. troops began combat operations in Afghanistan in November 2001. The MP Corps' mission to conduct detention operations grew exponentially during the spring of 2002 in support of the global war on terror. Suddenly, MP Corps officers, noncommissioned officers and soldiers who had previously focused on domestic corrections missions, were required to rapidly understand and instruct enemy detention operations to coalition partners, allies and soldiers in the Army National Guard, Army Reserves and sister service elements. This training mission was essential to standardize the conduct of confinement operations within the Department of Defense, the agency responsible for teaching our soldiers and allies proper confinement procedures and preventing incidents like Abu Ghraib.
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THE PRISONS ARE ON MILITARY BASES William Fisher, "Afghan Prison Looks Like Another Guantanamo," IPS, 1-14-08, www.ipsnews.net/news.asp?idnews=40786, accessed 4-15-10. It is a prison located on the U.S. military base at base in the ancient city of Bagram near Charikar in Parvan, Afghanistan. The detention centre was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses some 630 prisoners -- close to three times as many as are still held at Guantanamo.
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DETENTION IS A FUNCTION OF POLICE PRESENCE Devallis Rutledge, "Justifying Temporary Detentions: How Much Suspicion is Enough," POLICE, March 2010, www.policemag.com/Channel/Patrol/Articles/Print/Story/2010/03/Justifying-Temporary-Detentions.aspx, accessed 4-15-10. A detention occurs when an officer has said or done something that would cause a reasonable innocent person to believe he is not free to disregard the police presence and go about his business. (Florida v. Bostick) A detention must be justified by "reasonable suspicion" of criminal activity on the part of the detainee. Under this standard, it is counter-productive error for officers to speak of "PC for the stop." Probable cause is never constitutionally required for detentions. (US v. Sokolow)
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BAGRAM AND SIMILAR FACILITIES ARE MILITARY PRISONS Tim Golden, 'U.S. Prison Grows Beyond Capacity Afghanistan', INTERNATIONAL HERALD TRIBUNE, January 7, 2008, npg. "As the Bush administration struggles for a way to close the military prison at Guantanamo Bay, Cuba, a similar effort to scale down a larger and more secretive American detention center in Afghanistan has been beset by political, legal and security problems, officials say. The American detention center, established at the Bagram military base as a temporary screening site after the invasion of Afghanistan in 2001, is now teeming with some 630 prisoners -- more than twice the 275 being held at Guantanamo.
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