We're back from two days of ABA meetings in Washington on sentencing reform and anti-terror legislation. The Justice Department refused to participate in the Kennedy Commission hearings held at George Washington Law School for three days this past week, but it did send a representative to our meeting Sunday morning to speak up for its request for increased anti-terror legislation. We didn't agree with the Justice Department's arguments, and in fact, they made us even more resolute that Congress needs to pass the SAFE Act to roll back some of the Patriot Act's powers, but we did appreciate the fact that they participated in the discussion.

We have to be vigilant and make sure that the Executive Branch doesn't usurp the power of the Judiciary. The New York Times addresses this Monday in an editorial on the Guantanamo detainees, The Court and Guantánamo:

When the Supreme Court rules next year, it should vindicate two important legal principles. First of all, it must send a forceful message that the detainees have a right to challenge their confinement before a tribunal. Given the absolute control the United States exerts over the Guantánamo naval base, and the terms of the 1903 lease giving it that control, it is disingenuous for the government to argue that the detainees are outside its jurisdiction.

It is no less important that the court make clear to the administration that it is not above the law when it wages its war on terrorism. Rather than arguing that its detainee policies are lawful, the administration boldly asserted that the courts had no right to review them. The Supreme Court will undoubtedly be hearing similar arguments in the days ahead. Now is the time to say clearly that the court, not the president, has the final word on what the Constitution permits.

Bump and Update: Lawyers for the Guantanamo prisoners have set up this website to keep the public informed about the legal case. The Washington Post has this later article on the case and the Supreme Court decision to hear it.

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Original post: 11/10/03 at 8:23 a.m.

The Supreme Court today said it will hear the case of detainees being held at Guantanamo :

The justices agreed to review a ruling that U.S. courts lack jurisdiction to consider claims by a group of detainees held without access to their families or to lawyers, and held without any charges brought against them.

The Supreme Court will hear arguments in the case next year, with a decision due by the end of June. It marked the first time the nation's highest court agreed to decide a case stemming from the Bush administration's anti-terrorism policies.

The appeals were filed in the Supreme Court by British, Australian and Kuwaiti citizens after lower courts ruled they did not have authority to hear the men's complaints.

More details of the case are available here.

As sometimes happens with Washington Post editorials, they start out good and then go south. Such is the case today with Freedom vs. Torture? , about Canadian Maher Arar's deportation to Syria where he was imprisoned for a year and tortured.

The Post gets this right:

Deporting someone to a vicious police state knowing the fate that awaits him there is morally repugnant. America shouldn't be subcontracting torture.

But then, it veers off course. The Post suggests that it would have been wrong to return Mr. Arar to Canada because that would have meant freedom to Mr. Arar since in the Post's view there was little likelihood of charges being brought there. Instead, the Post opines. we should fix Guantanamo so it isn't a "legal black hole" and then we could breathe a sigh of relief as we declare the Maher Arars of the world "enemy combatants" and ship them off to its confines.

No. Maher Arar was changing planes at JFK, not blowing up a building or loaded down with explosives when he was grabbed by the U.S. If the U.S. had credible evidence Arar was a terrorist threat, it should have arranged for a military transport to return him to Canada and relayed the incriminating information to Canada with a request for Canada to investigate the matter, and if Canada deemed it appropriate, to arrest him. And even that action should not have been deemed acceptable unless he was first taken before a federal judge who approved of it after a hearing at which Arar was provided counsel.

Due process of law applies to everyone in this country--citizens, residents and travelers just passing through.

On the subject of Canadian citizen Maher Arar and his allegations of torture at the hands of the Syrians after being deported there by the U.S.....Check out this page from Human Rights Watch. It has a list of countries we have deported people to that practice torture. Among them, Syria:

Syria : Administration of electric shocks; pulling out fingernails; forcing objects into the rectum; beatings; bending detainees into the frame of a wheel and whipping exposed body parts.

Here's more from the same page:

The December 26 Washington Post article also discussed the rendition, or transfer, of suspected members of Al Qaeda to third countries that not only use the "stress and duress" techniques described above, but other, more brutal methods of interrogation. According to the article, U.S. officials defended renditions by saying interrogators with a greater cultural, religious and language affinity would be more successful in obtaining information. However, other comments from anonymous officials suggested that detainees were deliberately moved to countries known for their use of torture because the officers of the third countries face fewer constraints on their interrogations. One unnamed official was quoted as saying, "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." The various methods of torture used in the third countries, like the "stress and duress" techniques, are also described and condemned in the State Department's Country Reports on Human Rights. Listed below are the descriptions of the torture techniques used in reported countries of rendition, as reported by the State Department.

Here's Mr. Arar's account of his torture:

Bump and Update: Colin Powell has agreed to turn over any Canadian informant who claimed a link between Arar and al-Qaeda--"if he can find it." Sounds like doublespeak to us intended to buy time and cover for the likelihood there was no such Canadian informant:

"This morning, a few minutes ago, secretary Powell said he will try to find out if there is in reality one Canadian involved in that (incident) and the name will be given to Canada if there is one, and we will act accordingly," Chretien told the House of Commons.

We still can't get over how the U.S. media ignored Mr. Arar's story while the Canadian press and weblogs stayed on top of it. Shame on them. We think this will turn out to be the post-9/11 outrage of the Bush Administration. Rightfully so.

Update: Here is his lawyer's description of his case.

Damn Foreigner has more.

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Original Post:

While the Canadian press has been diligent in following the case of Maher Arar, a Canadian deported to Syria by the U.S. where he was imprisoned a year and tortured, the U.S. press has been noticeably silent. Today the Washington Post finally covers the story.

Maher Arar, 33, who was released last month, said at a news conference in Ottawa that he pleaded with U.S. authorities to let him continue on to Canada, where he has lived for 15 years and has a family. But instead, he was flown under U.S. guard to Jordan and handed over to Syria, where he was born. Arar denied any connection to terrorism and said he would fight to clear his name.

U.S. officials said Tuesday that Arar was deported because he had been put on a terrorist watch list after information from "multiple international intelligence agencies" linked him to terrorist groups. Officials, speaking on condition of anonymity, said that the Arar case fits the profile of a covert CIA "extraordinary rendition" -- the practice of turning over low-level, suspected terrorists to foreign intelligence services, some of which are known to torture prisoners.

Arar recites what happened to him and it is appalling:

Bruce Laingen, the highest-ranking U.S. official held hostage in Iran, writes of The Agony and the Empathy for Imprisoned:

Official U.S. government policy on the Guantanamo detainees insists that circumstances surrounding their capture justify the manner of their detention. But even granted the limits that the war on terror imposes on judicial proceedings, what appears to be happening in the camp, and, yes, what is not happening, is wrong. The effect on our image abroad is increasingly adverse. And it is unworthy of American traditions and precepts of justice.

The Supreme Court has asked the Bush Administration for an explanation in the case of a post-911 immigrant detained in secret proceedings:

One of those immigrants, known only as M.K.B., challenged his detention. But even that has been shrouded in secrecy. His appeal has reached the Supreme Court, only there is little written evidence that his case exists. Lower courts sealed all the legal filings, as well as the records of how his case was handled. The proceedings were held in secret.

That is unconstitutional, Miami public defender Paul Rashkind argued in the case from Florida. The Supreme Court should intervene, Rashkind wrote in an appeal, "to preserve and protect the public's common-law and First Amendment rights to know, but also to reinforce those rights in a time of increased national suspicion about the free flow of information and debate."

You can read the background and details of the case at Scotus Blog .

The cert petitition filed in the Supreme Court (M.K.B. v. Warden, No. 03-6747) can be viewed here. [link via How Appealing.]

Update: One of our readers points out this excellent article on the case.

The U.S. confirmed today that it is building a hard-walled prison at Guantamo, designed for long-term use.

Col. Jerry Cannon, who is in charge of the prison facility, said in a recent interview here that he was revising some of the security procedures at the camp with the expectation that it would continue to hold prisoners for some years.

The hard-walled prison will be ready next spring, said Lt. Col. Pamela Hart, the public affairs officer for the Joint Task Force that administers the detention camp and supervises prisoner interrogations. "This will be a permanent structure and will be able to house approximately 100 prisoners," Colonel Hart said.

Col. Hart says there's no plan for a death row in the new facility. So what's behind this?

None of the detainees sentenced to prison terms or execution could be taken into the United States to serve their sentences because upon arrival, they would immediately gain new rights and avenues to challenge their detentions. Officials chose Guantánamo as a location where United States constitutional protections would not apply, and two federal courts have agreed that the naval base here is not legally part of the United States.

The Guardian reports on a new resolution by the International Bar Association's Task Force in which Judges from around the world condemn Camp X-Ray:

The International Bar Association's task force on international terrorism said: "States cannot hold detainees, for which they are responsible, outside of the jurisdiction of all international courts ."

The task force was led by Justice Richard Goldstone, a judge of South Africa's constitutional court and former chief prosecutor of the international tribunals for the former Yugoslavia and Rwanda, and Emilio Cardenas, president of the IBA and Argentina's ambassador to the UN. The UK delegate is the Labour peer Helena Kennedy.

...Justice Goldstone said: "The law just doesn't accept black holes. If they're prisoners of war they've got rights under the Geneva convention. If they're civilians they've got rights under the domestic law of the US.

The Red Cross has finally come out and criticized the indefinite detentions of detainees at Guantanamo Bay:

A senior official of the International Committee of the Red Cross said on Thursday that the holding of more than 600 detainees here was unacceptable because they were being held for open-ended terms without proper legal process.

Christophe Girod, the senior Red Cross official in Washington....said that it was intolerable that the complex was used as "an investigation center, not a detention center."

Girod said he's going public with the charge because of the U.S.'s inaction on the detainees.

Mr. Girod said, "The open-endedness of the situation and its impact on the mental health of the population has become a major problem." In 18 months, 21 detainees have made 32 suicide attempts, and human rights groups have said the high incidence of such events, as well as the number of detainees being treated for clinical depression, was a direct result of the uncertainties of their situations.

Griod said the number one question asked by detainees is, "What's going to happen to me.?"

You can read more of Griod's views here.

The Washington Post Friday has an excellent editorial on the detainees, The Court's Conscience. It discusses Fred Korematsu, and the brief he has filed in the Supreme Court supporting the Guantanamo detainees. The Post says,

Mr. Korematsu's brief is an important reminder that "we tend too quickly to sacrifice . . . liberties in the face of overbroad claims of military necessity" and that courts "have too often deferred to exaggerated claims of military necessity and failed to insist that measures curtailing constitutional rights be carefully justified and narrowly tailored."

The ACLU , Veterans for Peace and other civil rights groups are demanding proof from the Government that detainees at Guantanamo are not being tortured.

Citing news reports that the United States government may have tortured detainees or subjected them to "cruel, inhuman or degrading treatment," the American Civil Liberties Union, the Center for Constitutional Rights and medical and veterans' groups today asked agency officials for proof that that the U.S. is honoring its obligations under domestic and international law.

"The government's blanket assurances that it is not engaging in torture or illegal interrogations, while welcome, are not enough," said Amrit Singh, a staff attorney with the ACLU. "Those assurances have failed to address numerous reports documenting the torture of individuals held in U.S. custody. We are asking for records that will demonstrate whether the government is in fact complying with its obligations under domestic and international law."

Details of the groups' request can be found here.

The New York Times has an excellent article today titled Foreigners' Rights in the Post-9/11 Era: A Matter of Justice. Here's the beginning but we recommend reading the entire article:

More than 5,000 citizens of foreign countries have been detained by the government since 9/11 in connection with anti-terrorism measures. Only a handful have been charged with a terror-related crime. Many were held initially without charges, denied access to lawyers, judged in secret and locked up for months without any showing that they had committed crimes or otherwise posed any danger. More than 500 were deported for immigration violations.

The Bush administration's anti-terrorism campaign has set off a fierce legal and philosophical debate over what rights foreigners have compared with Americans. When is it permissible to treat noncitizens differently? Are there some rights — whether to a speedy trial or a formal charge — that transcend nationality, and should be accorded to every human being?

For more on the issue, Georgetown Law Professor and civil liberties expert David Cole's new book "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism" is a must read. We've made it the "hot read" of the month on CrimeLynx.

Buy the Book Today!


David Cole is the country's great voice for civil liberties today. In this important book he shows how 9/11 has been used to undermine the legal rights of immigrants—and that after them, it will be easy to target American citizens.