Posts Tagged ‘ Guantanamo ’

Overreactions to Terrorism Weaken Us

Tuesday, September 14th, 2010
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

Two good essays in the last few days reflect on America’s overreaction to terrorism. Ted Koppel, who in addition to having amazing hair, is one of this country’s most under-appreciated journalists. He writes:

Perhaps bin Laden foresaw some of these outcomes when he launched his 9/11 operation from Taliban-secured bases in Afghanistan. Since nations targeted by terrorist groups routinely abandon some of their cherished principles, he may also have foreseen something along the lines of Abu Ghraib, “black sites,” extraordinary rendition and even the prison at Guantanamo Bay. But in these and many other developments, bin Laden needed our unwitting collaboration, and we have provided it — more than $1 trillion spent on two wars, more than 5,000 of our troops killed, tens of thousands of Iraqis and Afghans dead. Our military is so overstretched that defense contracting — for everything from interrogation to security to the gathering of intelligence — is one of our few growth industries. …

If bin Laden did not foresee all this, then he quickly came to understand it. In a 2004 video message, he boasted about leading America on the path to self-destruction. “All we have to do is send two mujaheddin . . . to raise a small piece of cloth on which is written ‘al-Qaeda’ in order to make the generals race there, to cause America to suffer human, economic and political losses.”

Fareed Zakaria, whose hair is less awesome but still pretty good, brings up the same issue:

This campaign to spread a sense of imminent danger has fueled a climate of fear and anger. It has created suspicions about U.S. Muslims — who are more assimilated than in any other country in the world. Ironically, this is precisely the intent of terrorism. Bin Laden knew he could never weaken America directly, even if he blew up a dozen buildings or ships. But he could provoke an overreaction by which America weakened itself.

Both are spot on and quickly shift the question to how to avoid overreacting.  Since much of the overreaction is born from political posturing (witness Pete Hoekstra’s bizarre comments in the wake of the Christmas Day attempt), it’s going to be tough.  How is any leader supposed to dismiss a charge that he’s not doing enough to keep the country safe?

Part of the solution is understanding the terrorist threat, and how successful our defensive measures will realistically be.  Zakaria’s column again hits the mark:  “[We] are not 100 percent safe, nor will we ever be. Open societies and modern technology combine to create a permanent danger.”

And while it is possible to contain the threat, permanently eliminating it is a long term project that must address terrorism’s root causes.  Beginning that national dialogue is a key to promote this understanding, which in turn, will calibrate more measured responses to terrorism.

Bagram Detainee Case Likely Headed to the High Court

Thursday, May 27th, 2010
Matthew Dahl



Matt Dahl is a judicial clerk in Virginia and writes about national security law on his blog. The views expressed here are his own.

by Matthew Dahl

In 2008, the Supreme Court decided that detainees held at Guantanamo Bay had the constitutional right to challenge the legality of their detention. Thus ended the question of whether all detainees in the fight against terrorism had a right to habeas corpus, right? As with all complex legal questions, the answer is never that simple.

The federal Circuit Court of Appeals for the District of Columbia added to the complexity of the habeas corpus issue when it ruled last Friday on a case filed by three detainees being held at Bagram Air Base in Afghanistan. Bagram is not only the largest American military base in Afghanistan, it also serves as a major detention center for those taken prisoner there, and allegedly holds some prisoners captured in other countries as well. In an opinion by Chief Judge David Sentelle, a Reagan appointee, the court found that the constitutional right of habeas corpus does not extend to detainees being held at the base.

The court made three central determinations in its decision. First, it found that the current procedure used at Bagram to deal with the detainees is even worse than the procedure that was used at Gitmo, which the Supreme Court found to be unconstitutional. The procedures at Gitmo, referred to as Combatant Status Review Tribunals (CSRTs), did not allow detainees access to an attorney and severely restricted a detainee’s right to present evidence on his behalf or rebut evidence by the government. The court in this case found that the procedures at Bagram, called Unlawful Enemy Combatant Review Boards (UECRBs), were even less sufficient than the CSRTs, and found that this factor initially favored giving Bagram detainees habeas corpus.

But despite that finding, the court found that two other factors weighed against granting the right. It concluded that Bagram is in fact different from Gitmo because the U.S. does not intend Bagram to be a permanent base similar to Gitmo, which has been operating for over a hundred years. More importantly, it found that giving Bagram detainees the right to habeas corpus could adversely affect the military’s ability to carry out operations in Afghanistan.

It is true that giving the detainees at Bagram the right to habeas corpus could cause a host of problems. It would require giving the detainees access to attorneys, and creating that system could eat up badly needed military assets. Also, Bagram detainees whose detentions were invalidated would most likely be released inside Afghanistan. This could put enemy fighters directly back on to the battlefield.

However, as the D.C. Court of Appeals admits, the fact still remains that the Bagram detainees are being held without constitutionally sufficient procedures available to them. If the U.S. is going to operate a prison where habeas corpus does not apply, what is to stop it from shipping all future terrorist detainees to Bagram to avoid giving them the right?

That’s why this case is on a beeline to the Supreme Court. While the Court has disagreed with the D.C. Court of Appeals on detainee cases, it is far from clear how it will come out on this issue. One factor making it hard to predict is that the Court’s makeup will be different from when it decided its last major detainee case with the addition of Justice Sotomayor and – almost certainly – Elena Kagan.

In its last major detainee case, the Court split down ideological lines, with Justice Kennedy writing the opinion and siding with the more liberal justices. It is likely that Justice Sotomayor, as part of the liberal bloc, would vote for extending habeas corpus to the Bagram detainees. Similarly, soon-to-be Justice Kagan would almost certainly be in favor of extending the right to Bagram detainees — in 2005, while dean of Harvard Law School, she joined in a letter with three other law school deans stating that detainees should be allowed access to federal courts for review of procedures such as CSRTs and UECRBs.

That said, neither are very experienced with national security cases, so one can’t say for sure how each will vote. Another factor making it difficult to predict the outcome is the fact that Bagram and Gitmo are situated differently. Both are active military bases, but Bagram is operating in a theater of war. Allowing detainees at Bagram to engage in the habeas corpus process could affect the military’s war effort in Afghanistan, a fact that could sway one or more of the liberal justices to the other side.

The views expressed here do not necessarily reflect those of the Progressive Policy Institute.

Photo Credit: U.S. Army Africa’s Photostream

And Now For Something Completely Different

Monday, March 22nd, 2010
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

We interrupt this somewhat unscheduled progressive glee to make a brief point about national security. The Washington Post has a pointed op-ed today on Guantanamo Bay and military tribunals.

Now, let’s be clear: There are differing views within the progressive movement about the viability, constitutionality and political realities of trying terrorism suspects. There has been significant grief from progressive quarters that the administration is laying the groundwork to reverse its decision to try Khalid Sheikh Mohammed in a civilian court. (For the record, my personal view is that I stand with what the president said at the National Archives last year.) But lost in this division, there’s one issue in the Post‘s piece that we progressives should seize:

Congress and the president should hammer out a set of rules to guide judges on how to handle the Guantanamo habeas cases still wending their way through the system. And they need to agree on a legal framework to govern indefinite detentions now and in the future. [Italics mine]

Let us not forget that the Bush administration force-fed Obama this shit-sandwich. Rather than construct a legal framework to deal with terrorism detainees, the Bush White House took a pass by locking them up in GTMO and hoping the problem would never resurface. It really didn’t, until the Bushies were back cutting brush at Crawford. So, if progressives want to avoid fights and internal fallouts over terrorism suspect issues in the future, they have to define the rules of the road.

And while we can argue about the threshold of evidence regarding civilian vs. military trials, one idea that merits serious consideration is something that PPI has pushed in the past — national security courts. Here’s an excerpt from our “Memo to the New President” by Harvey Rishikof:

The thrust of the idea is to have a dedicated set of federal trial judges working with an expert bar of federal and military prosecutors and defense counsel — all with high-level security clearances. Such a court could accommodate the particular challenges of prosecuting terrorism cases in a manner wholly consistent with the Constitution, the common law, international conventions, and the relevant statutes.

This would be no sealed-off Star Chamber; trials would be open to the public unless there were truly compelling reasons to limit access in a particular case. Such openness would help give our own people and our allies the necessary proof that the United States is reasserting its identity as a champion of human rights and due process.

It’s a good idea that deserves consideration as part of the solution, even if the national security court use is ultimately mixed in with civilian and/or military trials. But the Obama administration could make things a lot easier on itself if it solved the problem with an institutional fix, and not just muddling through like they are with KSM.

…and now you can return to smiling ear-to-ear about health care.

The High Court Dismisses the Uighurs’ Case

Monday, March 1st, 2010
Matthew Dahl



Matt Dahl is a judicial clerk in Virginia and writes about national security law on his blog. The views expressed here are his own.

by Matthew Dahl

On March 23 the Supreme Court was set to hear Kiyemba v. Obama, the most significant case regarding Guantanamo Bay detainees since it decided that detainees had the ability to challenge their detention through use of the constitutional right of habeas corpus. The question before the court in Kiyemba was whether if a Gitmo detainee is granted release by a federal court through a habeas corpus challenge the executive branch must let him go him even if it meant releasing them into the United States. Today, the court decided to avoid answering that question and sent Kiyemba back to a lower federal court.

Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs. U.S. forces captured them at a terrorist training camp in Afghanistan shortly after the beginning of operations there. The Uighurs were training to carry out terrorist attacks against China. They eventually ended up at the U.S. military prison at Guantanamo Bay, and were held there for years despite the fact that they were not deemed to be enemy combatants. They were held because legal constraints prevented the U.S. from transferring them back to China due to the likelihood that they would be tortured — even executed — and the U.S. could not find another suitable country to accept them. The Uighurs filed the Kiyemba suit demanding they be set free even it if meant releasing them into the U.S.

The central issue in Kiyemba is this: What good is the right to challenge detention if there is not also a right to be released from incarceration? It seems logical that when a court decides that a prisoner is not being lawfully held, he is entitled to be released immediately. However, it is not so black and white with the Gitmo detainees.

There are serious concerns over releasing Gitmo detainees on U.S. soil. One is that a court could end up releasing a dangerous detainee because of shaky evidence that couldn’t be used for their prosecution. It has proven difficult for government attorneys to justify the continued detention of some detainees because evidence against them was classified, tainted by questionable interrogation techniques, rests with government operatives still overseas, or is based on questionable statements made by fellow detainees. This means that a dangerous detainee could actually be released into the U.S. because of a lack of reliable evidence to justify their detention.

Another legitimate concern is that even if a detainee was not a danger to the U.S. when they began their incarceration, they are now. As you can imagine, being wrongfully incarcerated by a country for years may lead to some pretty negative feelings toward that country – feelings that could be expressed violently.

Finally, there is the “not in my back yard” argument. No one is going to want former Gitmo detainees in their community. Even though a detainee may not be a legitimate security threat, a volatile situation could be created by citizens that are afraid of or angry at a detainee in their community.

Tackling difficult and complex issues is the Supreme Court’s most important job. Did the court punt on a major issue in this instance? Some might think so, but this case is different — the security concerns involving Gitmo detainees are very real and very serious.

The fact is that there are diplomatic solutions to the problem. In the Uighurs’ case, only five out of the original 22 Uighurs remain at Gitmo. The executive branch has been working hard to relocate them, and had recently persuaded Switzerland to take two of the men. In addition, the other detainees had been offered -– and refused – to be released to the island nation of Palau. The administration argued that those offers changed the circumstances under which the detainees’ challenge was brought in the first place -– an argument with which the court agreed.

By sending it back to the lower court, the Supreme Court forestalled having to rule on a difficult question. Indeed, if the remaining five Uighurs are released to another country, the judicial system will be able to avoid having to make a decision on the case. Once the Kiyemba case is resolved, the executive will have more time to relocate the remaining detainees at Gitmo, and hopefully will be able to right the constitutional ship through diplomatic efforts rather than by judicial order.

Cheney’s Terrorists

Tuesday, February 9th, 2010
Donald Edwards



Major General Donald Edwards, Vermont Army National Guard (Ret.), served in the U.S. Army for 37 years, including two tours with eight campaigns in Vietnam. He served as a congressional staffer from 1997-1999. He is a resident of Maine and Ashburn, Virginia.

by Donald Edwards

The following is a guest column from Major General Donald Edwards, Vermont Army National Guard (Ret.), who served in the military for 37 years.

Just last week, Director of National Intelligence Dennis Blair declared with certainty that there will be another terrorist attack aimed at the United States within the next six months. With the Obama administration pursuing record numbers of drone attacks and taking out top al-Qaeda leaders, it’s hard to understand how this could be the case. But the paradox becomes clearer if we take a quick trip back through time to examine the track record of one particular individual: Vice President Dick Cheney.

As a former military officer, it is immensely difficult to speak out against our former vice president. While he was in office, I believed that it was inappropriate to criticize Dick Cheney. But now that he is no longer in government, I am compelled to speak my mind about his disastrous national security policies.

In the days and years following September 11, 2001, Vice President Cheney stood out as the chief architect of a calamitous approach to U.S. foreign policy that resulted in a weakened United States and the recruitment of a new generation of terrorists dedicated to anti-American jihad. The Bush-Cheney contribution to terrorist recruitment is clear from the numbers: In 2000, there were 423 international terrorist attacks. The Iraq War heralded a sharp spike in terrorist attacks, which continued with a 607 percent average yearly increase. Eight years later, there were 11,770 international terrorist attacks, as the terrorists birthed by the Bush-Cheney policies grew up.

Unlike Dick Cheney, who glorifies conflict but has never put his own body on the line, I am a retired military officer. I know firsthand the long list of security threats that our country faces. And I know that Cheney’s reckless strategy, out of touch with today’s threats, made that list longer. The first rule of grand strategy – from Sun Tzu to General Petraeus – is to choose your own battlefield. On September 12, 2001, the United States was in a position to frame the security threats of the new century as the world united against violent, radical extremists. Osama bin Laden, on the other hand, was eager to frame his battle as the West versus Islam. The Bush administration walked onto al-Qaeda’s battlefield and began fighting Osama bin Laden’s war.

As even former Defense Secretary Donald Rumsfeld realized, winning the fight against al-Qaeda requires killing more terrorists than we create. Instead, Cheney served as a prime recruiter for our enemies. Al-Qaeda featured Guantanamo Bay in its recruiting videos, citing its evasion of the Geneva Conventions as “evidence” of American’s lack of moral standing and antipathy toward Islam.

Defeating al-Qaeda turns on human intelligence, which requires careful infiltration, relationship-building, cultural research, and triangulation of information. But conservatives based their intelligence-gathering tactics on Hollywood movies: bust a knee cap hard enough, and the truth will pour out like blood. In reality, interrogators rarely know whether they have the right knee cap — and even if they do, actual intelligence agents know that busting it is likely to yield a string of lies, misinformation, and false leads. Instead of generating information and creating leads, Cheney’s strategy led to an Arab generation growing up on images of Abu Ghraib.

Finally, quashing al-Qaeda requires focusing on the countries where the movement had built relationships and infrastructure. For over a decade, al-Qaeda’s senior leadership had lived in and erected training camps along the Afghan-Pakistan border. Meanwhile, Bin Laden’s roots lie in Yemen, and he repeatedly recruited the radically loyal tribes originating in that country for his riskiest missions. Yet the past administration ignored Yemen and starved Afghanistan for troops in order to launch a war in Iraq, where there were no terrorists. Terrorist attacks spiked following the invasion of Iraq, and have continued to grow since.

For a generation of young Arabs now in the prime terrorist age range of 18-25, September 11 was their first political memory. The Bush-Cheney strategy handed Al Qaeda the colors they needed to paint a false picture of “America versus Islam.” It produced hundreds of terrorists who learned that they could be heroes by fighting the West — the West that tortured and indefinitely detained Arab brethren and killed women and children.

And to think we had an opportunity, in the wake of 9/11, to bring about a smarter, more hopeful strategy. America was unified and ready to sacrifice on September 12. If our leaders had called on the best and brightest to learn Arabic or join the CIA, we would now have a flood of fresh intelligence experts. If they had asked us to declare our independence from oil – demanding that auto companies innovate and asking environmentalists to accept a resurgence of nuclear power – we would have stopped funding the bullets that are now going into terrorist guns.

We have not heard the last from Cheney’s terrorists. We cannot waste another day. We must act immediately to build the covert networks we need to fight terrorists. We must prioritize shutting down Guantanamo — a gift that keeps on giving for Al Qaeda — and not make it a political football. And we must understand that, as we did during the fight against the Soviet Union, claiming the higher ground in the debate is strategically important. Cheney sold America’s greatest weapon – our moral authority and our freedoms — on the cheap. Let’s win it back, before more of Cheney’s terrorists strike again.

Update: The original version of this piece did not include the author’s full rank and title. We regret the error.

Cheney At War

Wednesday, December 30th, 2009
Ed Kilgore



Ed Kilgore is a PPI senior fellow, as well as managing editor of The Democratic Strategist, an online forum.

by Ed Kilgore

Former Vice President Dick CheneyThe last person we needed to hear about the terrorist incident over Detroit was Conservative of the Year Dick Cheney. But naturally, he’s out now with the most obnoxious statement imaginable about the president’s own reaction:

As I’ve watched the events of the last few days it is clear once again that President Obama is trying to pretend we are not at war. He seems to think if he has a low-key response to an attempt to blow up an airliner and kill hundreds of people, we won’t be at war. He seems to think if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won’t be at war. He seems to think if we bring the mastermind of Sept. 11 to New York, give him a lawyer and trial in civilian court, we won’t be at war.

He seems to think if he closes Guantanamo and releases the hard-core Al Qaeda-trained terrorists still there, we won’t be at war. He seems to think if he gets rid of the words, ‘war on terror,’ we won’t be at war. But we are at war and when President Obama pretends we aren’t, it makes us less safe. Why doesn’t he want to admit we’re at war? It doesn’t fit with the view of the world he brought with him to the Oval Office. It doesn’t fit with what seems to be the goal of his presidency — social transformation — the restructuring of American society. President Obama’s first object and his highest responsibility must be to defend us against an enemy that knows we are at war.

Forget for a moment the stupid little slur at the end about “social transformation,” an obligatory nod to the conservative movement’s bizarre suggestion that Barack Obama is in the process of creating a Soviet America of some sort. What’s amazing about Cheney’s statement is his extraordinary assertion, in the absence of any real evidence on the subject at present, that the attempted bombing was some sort of major act of war like 9/11 warranting a major reaction by the nation and its chief executive.

Has it crossed Cheney’s mind, even once, over the last nine years that routine overreaction by U.S. leaders is one of the most cherished goals of al Qaeda and its allies? Does Cheney understand that conceding the ability of a scattered band of terrorists to completely control the foreign policy of the world’s great superpower, to dominate its news, to panic it into abandoning its own values and legal system, “emboldens” terrorists more than anything else we could do?

Just wondering.

This item is cross-posted at The Democratic Strategist.

Dick Durbin Deserves Credit for Leadership on GTMO

Tuesday, December 15th, 2009
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

Gitmo guard towerThree cheers for Dick Durbin, the senior senator from Illinois.

Rather than offering shrill, partisan talking points at the prospect of closing the Guantanamo prison—equal parts Islamic extremist recruiting tool and human rights stain on our national psyche—Senator Durbin has consistently offered a pragmatic, progressive voice that is steadfast in its resolve to close Gitmo while ensuring the security of the country. The result is today’s announcement that the administration will likely open the detention facility in Thompson, Illinois as the destination for many of Guantanamo’s detainees.

When conservatives were doing their best Chicken Little impersonation about the alleged perils of bringing hardened terrorists to American soil, Durbin rebuffed Dick Cheney and Newt Gingrich, calmly telling NBC’s David Gregory on Meet the Press that:

Continuing Guantanamo, unfortunately, makes our troops less safe.  The bottom line as I see it is Guantanamo should close in an orderly way. … The fact is that closing Guantanamo, that announcement by the president, as well as abandoning torture techniques and so-called enhanced interrogation, finally said to the rest of the world that it’s a new day.  Join us in a new approach to keeping this world and America safe.  I think it was a break from the past we desperately needed. …

[W]hen we checked with the director of FBI, Mr. Mueller, he said there’s no question that supermax facilities, not a single escape, we limit the communication of these detainees and prisoners, and we can continue to do that. …

I’d be OK with them in a supermax facility, because we’ve never had an escape from one.  And as I said, we have over 340 convicted terrorists now being held safely in our prisons.  I just don’t hear anyone suggesting releasing them or sending them to another country.  That isn’t part of the prospect that we have before us. …

With this stance, Durbin shows how rational solutions are hardly mutually exclusive from either American values or safety: closing Guantanamo is a moral and security imperative, and the idea that America’s well-being is threatened by terrorists in supermax facilities is nothing more than a political scare tactic.

And as a result of Durbin’s sensible position, it looks like job-starved Illinois will be rewarded in the process. The state will retro-fit the empty Thompson prison to meet the new security standards, and then have to staff the facility once open.  Thompson sits in Carroll County, IL, where unemployment rests at 11.1 percent; a refurbished facility could bring as many as 3,000 jobs.

And though this is anecdotal evidence, I asked Mike Satlak—my college buddy, an Oswego, IL resident, and in the interest of full disclosure, a Dick Durbin fan—about the prospect of moving prisoners to rural Illinois.  “I’m not scared at all of any security threat, I live 120 miles from Thompson and it could really use the jobs.”