Promises, Promises: President Obama’s NDAA Signing Statement

This time last year, President Obama responded to the 2011 National Defense Authorization Act with a signing statement. Objecting to the law's restrictions on the transfer of Guantanamo detainees to the U.S. for trial or to their home countries, the president promised: "My Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." (My emphasis).

This past New Year's eve, President Obama signed the 2012 National Defense Authorization Act, or NDAA. In doing so, he extended the Guantanamo transfer restrictions, while also codifying the indefinite detention without trial of suspected terrorists. In the statement he issued with that signature, he said:

"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

The pledge to seek repeal and oppose expansion of transfer restrictions had melted into a watery "reservation."

The president's Saturday statement also makes a new promise.

"I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." Although the Obama Administration has consistently claimed the power to kill U.S. citizens without charge or trial in the war on terror, as it did to the radical cleric Anwar al-Awlaki in Yemen, the president now promises not to imprison them.

Of course, a future president still might

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Bin Laden's Death Sparks Rethinking of US Policy in Afghanistan

The death of Osama bin Laden last week is prompting the Obama Administration, members of Congress and the American public to re-think the war in Afghanistan, and to wonder how the demise of the world's most famous terrorist might hasten its end.

That's as it should be. But for now, there are still 100,000 troops on the ground in Afghanistan, and some 1700 prisoners that the U.S. is detaining there indefinitely without charge or trial. That's ten times the number of prisoners at Guantanamo Bay and almost triple the number imprisoned in Afghanistan when President Obama took office. As I wrote in a new report released today by Human Rights First, based on research in Afghanistan and observation of U.S. military practices there, the United States is not providing its prisoners there even the minimum level of due process required by international law. And that's ultimately undermining the United States' ability to put an end to the war there quickly and responsibly.

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Wikileaks Documents Reveal Hazards of Blindly Relying on Secret Evidence

The flood of news stories in the wake of the latest Wikileaks document dump reveal how one Guantanamo detainee after another was imprisoned at Gitmo for years based on tips from informants that turned out to be false. As James Carafano of the Heritage Foundation said in today’s New York Times, that’s not a big surprise. Law enforcement relies on such dubious tips in building criminal cases all the time. “The nature of intelligence is that it is ambiguous sometimes. It is sometimes based on sources you wouldn’t take to Sunday school.”

In criminal cases, that’s not necessarily a problem, because criminal defendants ultimately get a chance to test the evidence in court. But that’s not the case for military detainees. Until the Supreme Court ruled in 2008 that Guantanamo prisoners had a right to challenge their detention in federal court, they were stuck in the prison with no independent assessment of their guilt or innocence.

In fact, that’s still the case for detainees imprisoned by the United States in Afghanistan today. The U.S. military holds some 1700 detainees at a prison on the Bagram Air Base in Afghanistan – nearly ten times as many as remain at Guantanamo. But unlike at Guantanamo, prisoners in Afghanistan don’t have the right to legal representation or to challenge or even to see the secret evidence being used against them.

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Return of US Citizen Detained in Kuwait Won’t End Concerns About Proxy Detention

Gulet Mohamed, the 19-year-old American citizen detained in Kuwait in December where he says he was tortured in prison could be on his way back to the United States soon, according to Justice Department lawyers. But that won't answer the larger question his detention and alleged torture in Kuwait raises: has the United States adopted a new policy of "proxy detention" of U.S. citizens by countries that engage in torture?

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Is Proxy Detention the Obama Administration's Extraordinary Rendition-Lite?

Shortly after taking office, President Obama announced he'd close CIA prisons and end abusive interrogations of terrorism suspects by U.S. officials. But the Obama administration has notably preserved the right to continue "renditions" - the abduction and transfer of suspects to U.S. allies in its "war on terror," including allies notorious for the use of torture.

Although the Obama Administration in 2009 promised to monitor more closely the treatment of suspects it turned over to foreign prisons, the disturbing case of Gulet Mohamed, an American teenager interrogated under torture in Kuwait, casts doubt on the effectiveness of those so-called "diplomatic assurances." It's also raised questions about whether the "extraordinary rendition" program conducted by the Bush administration has now been transformed into an equally abusive proxy detention program run by its successor.

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Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict "signals weakness in a time of war."

John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."

And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."

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Al-Awlaki Decision Leaves Key Questions Unanswered

"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but ... judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"

That's just one of many intriguing questions raised -- but not answered -- by the D.C. District Court today in its decision dismissing the case of Anwar al-Awlaki, a challenge to the government's authorization to kill a U.S. citizen allegedly tied to Al Qaeda overseas. Ultimately, the court won't answer any of these critical questions because it decided that Al-Awlaki's father lacks standing to sue, since he's not directly harmed by the U.S. action.

Significantly, though, Judge John Bates did not dismiss the case on the merits. Instead, he went out of his way to write that the case raises important legal questions regarding whether the government can target its own citizen for death in a foreign country without so much as a hearing to determine that he's done anything wrong.

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A Show Trial Wraps Up at Guantanamo Bay

In a surprising verdict issued late Sunday afternoon, a military commission jury sentenced Omar Khadr to 40 years in confinement. Given that Khadr has already served eight years at the U.S. prison camp at Guantanamo Bay, Cuba, that's a 48-year sentence for a child soldier. Khadr is also the only fighter charged by the U.S. government with murder on the battlefield since the start of the wars in Iraq and Afghanistan. He was only 15 years old when, according to his guilty plea, in July 2002 he threw a grenade that killed a U.S. soldier.

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Google Searches Undermine Government's Star Witness in Khadr Case

The government's star witness in the sentencing hearing of Omar Khadr continued to talk for hours on the stand today, explaining his view of why he believes that the Canadian captured in 2002 at the age of 15 is "highly dangerous."

But it turns out that much of the information Dr. Michael Welner relied upon, including the judgments that informed the bulk of his opinions about the future dangerousness of Omar Khadr, was based on the highly suspect opinions of a Danish psychologist, Nicolai Sennels, whose work Welner had barely read and to whom he spoke only once on the telephone. Although those opinions were easily retrievable online, Welner said he'd never come across them before.

But it's not just the Danish psychologist's opinions that cast doubt on the objectivity of the government's expert. In fact, although not raised on cross-examination, Dr. Welner himself has stated opinions in an online magazine that reflect a deep-seated fear and mistrust of Muslims, calling into question the reliability of his assessment of Omar Khadr as a dangerous "radical Islamist."

As one of Khadr's lawyers, Major Matthew Schwartz, pointed out during cross-examination this morning, Sennels wrote an open letter to Prime Minister David Cameron in July in which he called the Koran "a criminal book that forces people to do criminal things," and said that because Turkey is a   mostly Muslim country, "25-30% of marriages in Turkey are intermarriages" and "the result of inbreeding."

In another article, Sennels referred to treating Muslims as dealing with "someone from another planet" and said that the "Western world has to put a complete halt to Muslim immigration."

In another, Sennels said that "we need to understand that it is not possible to integrate masses of Muslims into Western society."

And in an interview with an online magazine, Sennels said: "We should in general make it so unpleasant and the economic disadvantage so big that the consequences of non-integration would motivate resident Muslims to emigrate."

Confronted by these statements on cross-examination, Welner said he had not seen any of the articles referenced, although he earlier testified that in preparing to testify in Khadr's case, he'd "reviewed everything he could get his hands on."

After reading each of the articles during the court's lunch break, he said that while he does not agree with all of Sennel's statements, "I feel more confident that his conclusions are useful," adding "he had an opportunity to sit and work with people he wanted to help and gained important understandings."

According to his book, Among Criminal Muslims, Sennels worked in a prison in Copenhagen counseling young Muslim inmates.

But it's not just Sennels' statements that undermine both the basis of Welner's conclusions as well as his judgment, not to mention the thoroughness of his research.

Welner himself has exhibited Islamophobia in his own writings. In Frontpage magazine, for example, he wrote that Israeli Jews living in Gaza "have provided a buffer zone for Israel, stemming the tide of Islamo-chaos," yet are forsaken by more secure Israelis. He continued: "Like the happy family living next door to a drug addict, Israeli Gazans' success shows the violent and destitute that other behavioral paths exist."

Marcy Wheeler and Jeff Kaye have also pointed out Welner's writings on Muslims' propensity for anger. "In Muslim culture, it is expected that one should show anger and threatening behavior if one is criticized or teased," wrote Welner, who does not claim to be an expert on Muslim culture. "If a Muslim does not react aggressively when criticized he is seen as weak, not worth trusting and he thus loses social status immediately."

On the witness stand today, Welner admitted that he has never before testified on the influence of "radical Islam" on detainees, or on a range of other subjects he testified about, such as the effectiveness of deradicalization programs.

It remains to be seen how the jury in Omar Khadr's sentencing hearing will weigh Welner's testimony.

U.S. Government Witness Testifies Gitmo Prisoner's Religiosity Makes Him Dangerous

In testimony Tuesday afternoon that literally had my jaw dropping, a forensic psychiatrist called by the U.S. government testified that Omar Khadr, the Canadian who Monday pled guilty to a slew of terrorist acts including murder, is too dangerous to be released because he is sincerely religious and became even more devout at the Guantanamo Bay prison.

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