Remember the OPR Report?

A year ago today, Senators Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to the Department of Justice inquiring about the status of the Office of Professional Responsibility's investigation into the conduct of Justice Department lawyers who authorized the abuse, humiliation and torture of detainees in U.S. custody.

The Senators were assured that the report had been completed; it has yet to see the light of day.

Last March, the administration explained that the holdup was because the attorneys representing the lawyers who had authorized torture wanted time to review the report and comment on it -- and presumably to suggest revisions.

But even as the lawyers wrangled over the wording, the report's conclusions were apparently so disturbing that in August, Attorney General Holder announced that his decision to open a preliminary review into the abusive interrogation of certain detainees was based in part on the findings and analysis of the OPR report - which still had not been released.

In November, Holder once again told Senators on the Senate Judiciary Committee that the report was completed, was in "its last stages of review," and that by the end of the month "the report should be issued."

That was three months ago. So where's the report?

In January, news accounts revealed that the latest version would not recommend that the lawyers whose work laid the foundation for the Office of Legal Counsel's approval of abusive practices -- John Yoo and Jay Bybee -- be referred to their state bars for ethics violations. Earlier versions reportedly did recommend that they be referred to state disciplinary authorities for sanctions, including revocation of their licenses. Yoo is now a law professor at the University of California, Berkeley; Bybee is now a federal appeals judge with life tenure. Apparently their attorneys had the last word.

Regardless of the Justice Department's official recommendations, the report - including all the relevant facts revealed during the investigation of the attorneys' conduct about how they came to authorize torture and other illegal acts - ought to be produced publicly.

Last June, Human Rights First, along with 12 other human rights groups, appealed to Attorney General Holderto release the report and live up to the administration's promises of transparency and accountability. As the groups wrote then, release of the report is critical to demonstrating that the U.S. government has in fact made a clean break from past abuses and renounced the excessive secrecy and defective legal reasoning that marred the United States' reputation as a country that upholds the rule of law. The United States is also legally obligated under the Convention Against Torture to investigate and hold accountable those who participated in the torture and abuse of detainees in U.S. custody; the lawyers who authorized those practices are not exempt from such an investigation.

Still, eight months after human rights groups sent that letter, and a year to the day after Senators Durbin and Whitehouse sent theirs, we still have no idea when the OPR report will be released, or what is now holding it up.

The longer the administration hems and haws and tinkers with the ethics report before releasing it, the more the stain of the past administration's transgressions becomes its own. It's high time for the Justice Department to come clean.


Military Commissions Are a Terrorist's Best Bet


On February 2nd, a federal court of appeals decided that an Algerian man convicted of planning to bomb the Los Angeles International Airport on the eve of the millennium deserved a far harsher sentence than he’d received.


Ahmed Ressam, who pleaded guilty to nine counts of criminal activity and then proceeded to provide information about other terrorists to the government, had been sentenced to 22 years in prison plus five years of supervision in exchange for his cooperation. The intelligence he provided led to two terrorist convictions, the identification of Zacarias Moussaoui and key information on disabling Richard Reid's shoe-bomb.


After two years, though, Ressam stopped cooperating and recanted some of his earlier statements. Although the terrorist convictions were upheld (one prisoner’s habeas petition is pending), other cases under investigation had to be dropped, and disappointed prosecutors asked the judge to sentence Ressam to a minimum of 35 years.


The Ninth Circuit Court of Appeals, in a largely-overlooked ruling last week, agreed with the government that Ressam had gotten off too easy. The court sent the case to a different judge for resentencing in light of the federal sentencing guidelines – which provide for 65 years to life.


On the one hand, the Ressam case offers a perfect illustration of how prosecutors use the criminal justice system to obtain critical intelligence from terror suspects that saves lives and leads to more prosecutions. All this without sacrificing long prison terms.

On the other hand, and as Human Rights First has been pointing out for years now, the federal courts are no bed of roses for terrorists. They have convicted many more terrorists than military commissions have. And following the only contested military commission trial since the start of the "war on terror," Osama bin Laden’s driver, who the government claimed was a key player in the global jihadist’s murderous efforts, was sentenced to only five and a half years in prison – just six months more than the time he’d already served.

Back then, the National Review’s Andy McCarthy, the former prosecutor who now argues for military interrogation, trial and detention for all terrorism suspects, wrote a piece titled: “Disgraceful Hamdan Sentence Calls Military Commissions Into Question.”


That was 2008.


Just last week, McCarthy wrote that “Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials.” Our usual procedures for handling criminal terrorism cases no longer need to be followed, because now we are at war,he says, so anything goes. Although the same critics making this argument today never pressed that position during the Bush administration, it's now become accepted wisdom among those eager both to discredit the Obama administration and to appear tough on terror that terrorism suspects belong nowhere near the civilian justice system.


It’s an odd position for these critics to take, given the track record of the military commissions. Military commissions have convicted only three terrorists since they were created. Two of them have already been released from prison. The other didn’t even present a defense at his trial.


What's more, in a military commission, conviction on charges like “conspiracy” and “material support for terrorism,” the most common charges against suspects who haven’t personally launched an attack, could be reversed on appeal, since those haven’t traditionally been considered war crimes. Or, as in the Hamdan case, they might just draw a far lighter sentence. Even the administration's own lawyers have expressed doubts about the validity of such charges in military commissions. In federal court, such charges are routine – and frequently the way prosecutors win convictions.


Then there’s the problem that certain killings in war may not constitute war crimes and so could be dismissed or appealed in a military commission. Some international law experts argue that Omar Khadr, for example, the child soldier who’s been charged with murder for throwing a grenade at U.S. soldiers in Afghanistan and whose case is now slated for trial by military commission, may not have committed a war crime even if he did throw the grenade, which resulted in one soldier’s death. That’s because attacking an enemy soldier, even by a civilian, is not traditionally considered a violation of the laws of war.


There’s another reason military commission sentences would probably be lighter than civilian ones: unlike in federal court, the military commissions have no sentencing guidelines. And as McCarthy lamented after the Hamdan trial, it’s the jury of soldiers who weigh the evidence rather than the judge that metes out the sentence in a military trial. They can choose whatever sentence they see fit – including no punishment at all.In civilian court, after the jury determines whether the defendant is guilty, the judge imposes a sentence based largely on strict guidelines governing each and every charge.


Some defense lawyers, therefore, may secretly hope that their clients are tried by military commission. Human rights and civil liberties advocates generally don’t, though, because we believe the military commissions themselves are illegal. International law requires that “unlawful enemy belligerents” be tried in a regularly constituted court – that is, a civilian federal court or the existing military court martial system. That’s part of why we also believe that creating special courts to try terrorism suspects will undermine U.S. credibility and ultimately, threaten U.S. national security.


If the goal were to win a narrower conviction or a lighter sentence for terrorists, though, then it would make sense to favor military commissions. But that probably isn’t what Andy McCarthy or Senators Lindsey Graham and Susan Collins, who’ve introduced legislation to prevent any future civilian trials of terror suspects, are after. But if they win their latest crusade on that point, then an easier ride for convicted terrorists may be exactly what we’ll all get.


Terrorist Prosecutions By the Numbers

 Last night on her MSNBC show, Rachel Maddow did a terrific segment about how Umar Farouk Abdulmutallab is now providing valuable information to the FBI, despite receiving those dreaded Miranda warnings that ‘tough-on-terror’ critics are complaining about. In the segment, Maddow citedthe Justice Department saying that more than 300 terrorists were convicted in the civilian U.S. court system by the Bush administration.

As many people know, Human Rights First published a thorough and widely-cited report in 2008 on those successful terrorist convictions. Yet our updated report, issued last year, cited only 195 terrorists convicted. So what accounts for the different numbers?

In fact, both are true – as is an NYU Center on Law and Security report that recently found that more than 500 suspected terrorists have been convicted in the civilian justice system since September 11, 2001. It all just depends on what you’re counting.

Human Rights First took the most conservative approach. Relying on two respected former federal prosecutors in New York with experience trying terrorism cases, we wanted to see how many cases the courts have handled specifically related to radical self-described Islamic or “Jihadist” terrorism, such as al Qaeda, since that’s where the public debate has focused. So the former prosecutors – James Benjamin, now a partner at the highly-respected law firm of Akin Gump Strauss Hauer & Feld, and the other, Richard Zabel, now head of the criminal division in the U.S. Attorney’s office of the Southern District of New York – analyzed just that.

But there are other violent terrorist groups out there, such as the Revolutionary Armed Forces of Colombia (the FARC) and the Tamil Tigers. Prosecutions of their leaders and supporters raise similar concerns about the need to obtain important intelligence information and to protect classified evidence and the identity of certain witnesses. According to a Justice Department spokesman, the Department’s statement that more than 300 terrorists were convicted in U.S. courts during the Bush administration therefore includes those prosecutions, since they also represent the Justice Department’s experience and expertise in handling these complex and sensitive cases.

The NYU numbers, meanwhile, are even broader. In its recently-released report, the Center for Law and Security looked at all cases since the terrorist attacks of September 11, 2001 that the Justice Department initially described as terrorist-related. Many of those suspects were not charged under terrorism-related statutes, however, but charged with fraud or immigration violations instead. That was part of an initial post-9/11 strategy to get potential terrorists off the streets before they could attack, even if the government did not have sufficient evidence of terrorist connections to secure a conviction. Increasingly, the government has moved away from that strategy and charged suspected terrorists with terrorism-related crimes.

So the numbers just depend on what you’re counting. But the main point – regardless of how many hundreds of convictions we’re talking about – is that the Department of Justice has proven itself time and again to be well-equipped to interrogate terrorist suspects, investigate terrorism plots and prosecute complex terrorism cases. Military commissions, by contrast, have not: they’ve only convicted three terrorists so far, two of whom have already been released from prison.

The recent hysteria about how we shouldn’t be giving constitutional rights to non-U.S. citizens is a red herring. (It’s also worth noting, as Glenn Greenwald explained in an excellent post on Salon on Monday, that the Constitution requires according foreigners detained in the U.S. Constitutional rights – as the Supreme Court ruled as far back as 1886 and recently reaffirmed in its decision inBoumedienne v. Bush.)

Not only does the U.S. Constitution confer those rights, but based on the experience of our own time-tested federal justice system, sound national security policy demands it.


Feinstein Calls For Critical Army Field Manual Review

 In a letter to the New York Times published on Saturday, Senator Dianne Feinstein (D-Calif.) recommends that the Pentagon review whether the portion of the Army Field Manual that governs the interrogations of “unlawful enemy combatants” should continue to allow the use of “separation” – actually, a form of extreme and potentially abusive isolation – as an interrogation technique.

That’s a great idea, and one that’s long overdue.

As former military interrogator Matthew Alexander explained in an op-ed in the Times on January 21, to which Senator Feinstein was responding, “extended solitary confinement is torture, as confirmed by many scientific studies.” Senator John McCain (R-Ariz.), who wrote about his experience as a prisoner of war in Vietnam, has described the extreme isolation he suffered as “an awful thing” that “crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” The Nobel prize-winning group Physicians for Human Rights has similarly said that the sort of isolation allowed by the field manual for interrogation purposes may “amount to psychological torture.” It’s called on the Obama administration to revoke Appendix M, which authorizes the technique, and review its contents with human rights organizations.

Human Rights First, in its Blueprint for the Special Task Force on Interrogation and Transfer Policies issued last year, similarly warned that Appendix M of the Army Field Manual risks treatment "known to result in severe psychiatric harm in violation of domestic and international law" and called for a single interrogation standard to apply to all detainees in armed conflict.

We’re not talking here about separating a detainee from other terrorism suspects to prevent collusion or to allow an interrogator to confront one detainee with another’s statements. Those are logical and lawful tactics. But the sort of extreme isolation that Appendix M allows is ultimately designed to “break” detainees mentally. That’s unlawful and inhumane. And it doesn’t produce reliable information.

Although the Army Field Manual limits the first instance of a detainee’s isolation to 30 days, that period can easily be extended simply by the approval of a military general. Based on his military interrogation experience, Alexander predicts that “there will be numerous waivers to even that minuscule requirement.”

Appendix M allows for other forms of abuse as well, such as sleep deprivation, by saying that detainees in isolation must be allowed "four hours of continuous sleep every 24 hours." That still allows for repeated back-to-back 20-hour interrogations.

Although Senator Feinstein isn’t on board with all of Alexander’s criticisms of the field manual, this is the first time that she’s acknowledged that Appendix M allows for the abuse of detainees and should be reconsidered.

She should now use her leadership on the Senate Intelligence Committee to urge the administration to do just that


An Intelligent Way to Enhance National Security?

Ever since the failed attempt to blow up a Northwest airline carrier on Christmas Day, critics have been pressing to militarize the treatment of all terrorism suspects and deny them the basic due process rights provided by the law.

On Tuesday, bills were introduced in both the House and the Senate to require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense before filing any civilian charges against a foreigner suspected of engaging in or materially supporting terrorists, regardless of where he’s arrested. Senators Joseph Lieberman of Connecticut and Susan Collins of Maine have also written to Attorney General Eric Holder urging him to transfer the failed Christmas bomber, Umar Farouk Abdulmutallab, to military custody. And on Wednesday, six Senators wrote to Holder “in light of recent events” urging him not to try the four 9/11 suspects in a federal civilian court.

Political posturing to look tough on terrorism is not a new strategy for federal lawmakers. But the level of disingenuousness involved in this particular instance is genuinely striking.
After the State of the Union speech last night, Virginia Governor Bob McDonnell complained that “this foreign terror suspect was given the same legal rights as a U.S. citizen” – as if foreigners have not always been entitled to Constitutional due process when brought to trial in the United States.

At hearings last week, Sen. John McCain (R-Arizona) called the decision to place Abdulmutallab in the federal judicial system "a terrible, terrible mistake when it's pretty clear that this individual did not act alone."

Sen. Lieberman called it "a kind of 'Alice in Wonderland' turning of the world of common sense on its head." And former New Jersey Republican Governor Thomas Kean, who led the investigation into the 9/11 terrorist attacks, said he was "shocked and upset" that Abdulmutallab was read his rights before being fully questioned.

Meanwhile at the National Review, Bill Burck, former Deputy Counsel to President George W. Bush and a former federal prosecutor, was “startled” by Dennis Blair’s and Michael Leiter’s admissions last week that “they were never even consulted about the decision” (his emphasis, not mine) to let the FBI handle the interrogation.

But is the FBI’s handling of Abdulmutallab, arrested at a Detroit, Michigan airport, really so shocking?

In fact, as these critics surely know, every single terrorism suspect arrested in the United States during the eight years of the Bush administration after September 11 was initially interrogated by the FBI, as was Abdulmutallab. Ultimately, every one that was tried had their trial in a civilian federal court. Only two individuals arrested in the United States were ever transferred to military custody – Jose Padilla and Ali Saleh Kahlah al-Marri. And in both cases, the Bush administration, after holding the men for years in military detention, charged them as ordinary criminals and accorded them a civilian trial. 

More than 200 terror suspects have been interrogated and tried this way since Sept. 11, including Richard Reid, the “shoe bomber,” in the case most comparable to Abdulmutallab’s.

So as Senator Claire McCaskill pointed out a hearing last week, to start turning all terror investigations in the United States over to the CIA or the military would be a drastic departure from longstanding precedent.

The critics’ mantra since Christmas that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence is also wholly unsubstantiated. Last week Senator Jeff Sessions (R-Ala.) chastised FBI Director Robert Mueller for allowing FBI agents to read Abdulmutallab his Miranda rights. But as Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney, pointed out, an actual review of real-life terrorism prosecutions reveals that “very successful interrogations have been conducted and very significant intelligence information has been obtained from suspects who have been Mirandized.” In fact, sometimes giving Miranda warnings “is actually a part of an interrogation plan for that particular subject,” he said.

Cooperation of suspects arrested in the U.S. criminal justice system has led to invaluable intelligence about the existence of al-Qaida sleeper cells within the United States, training camps in Afghanistan, how to safely dismantle the device used by Richard Reid (the shoe bomber) and details regarding some of the most high-level terrorism suspects, such as Khalid Sheik Mohammed and Hambali, the mastermind of Jemaah Islamiah, a terrorism network in Southeast Asia.

Previous Senate Judiciary Committee hearings have also revealed that FBI-led interrogations have actually been more effective than the far more aggressive ones conducted by the CIA and Defense Department.

In any event, a detainee arrested in the United States and held in military custody is still entitled to a legal representation.

Meanwhile, civilian trials have been far more successful than military commissions, which have won only three convictions in eight years, as compared to 195 in civilian criminal court.

None of this is to suggest that the Bush administration was ‘soft on terror.’ But it wasn’t very smart on terror, either. Not only haven’t most military detainees been convicted, but the detention of hundreds of suspects for years without charge or trial created a national security nightmare for the United States. Hundreds of Muslims were subjected to unlawful and ineffective “enhanced” interrogation techniques devised by inexperienced and unprofessional psychologists with no background in intelligence gathering. The use of those techniques fomented so much anger in the Muslim world against the United States that even President Bush and former presidential candidate John McCain eventually acknowledged that the Guantanamo Bay detention facility had become a liability for the United States and should be closed.

FBI Director Mueller made clear last week that the FBI brought in high-level interrogators who first questioned Abdulmutallab for intelligence purposes, and obtained valuable information, before reading him his Miranda rights. That’s part of FBI protocol for handling terror suspects. But to forbid the United States from trying terrorists as criminals is to force the US government to continue down the same reckless course that’s landed us in our current national security quagmire.

If there was one thing Senators agreed on at their hearings last week, it was that the government needs a rational way of deciding where and how to interrogate and try terror suspects, based on input from top terrorism specialists and interrogators. Administration officials have promised to create just that. But if the administration bows to political pressure and starts subjecting every terror suspect to CIA interrogation and indefinite military detention, it’s only going to exacerbate the current conundrum.

The U.S. Supreme Court has said the government can detain “enemy combatants” – now called “unprivileged enemy belligerents” -- captured on a battlefield for the duration of a military conflict. But the court in the Hamdi case was talking about the battlefield in Afghanistan; it did not suggest that the airport in Detroit could be a battlefield. To expand the definition that broadly would allow the government to get around the Constitution in almost any criminal investigation by simply declaring the target a potential terrorist. And what would prevent the government from throwing a U.S. teenager surfing Jihadi web sites at home in New Jersey into coercive interrogation and years of indefinite detention? Could that possibly comport with the U.S. Constitution, let alone international law?

Members of Congress pressing for legislation that would require the government to respond to all potential terror cases militarily are stepping onto a slippery slope they’ll likely regret if they can convince their colleagues to join them.

In his State of the Union speech, President Obama called on Congress to “put aside the schoolyard taunts about who is tough” and “reject the false choice between protecting our people and upholding our values.”

He could have gone further and said that rejecting our values actually increases the danger to Americans. Guantanamo Bay was bad enough; hundreds of jihadi suspects subjected to secret interrogations and indefinite detention on U.S. soil is hardly an intelligent way to enhance national security.


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