Balkinization  

Wednesday, September 12, 2012

I am the Tribunal President. That is all you need to know

Guest Blogger

Rachel Levinson-Waldman

This past spring the Liberty and National Security program at the Brennan Center for Justice filed an amicus brief urging the Supreme Court to hear the case of Adnan Latif, a detainee at Guantanamo whose detention may have been the result of botched paperwork. We learned yesterday that Mr. Latif was the detainee found dead at Guantanamo over the weekend.

I won’t belabor the details of his capture, interrogation, or prolonged detention; the recommendations for his release from the Department of Defense and the federal trial court judge in his habeas litigation; the evidence suggesting he was swept up solely because he was in the wrong place at the wrong time and his files then possibly mistaken with another detainee’s; or the absurdity of the D.C. Circuit Court’s opinion, which created an almost insurmountable barrier to challenging government evidence and in so doing effectively gutted the Supreme Court’s promise in Boumediene v. Bush of a habeas remedy for all Guantanamo detainees. All of those things are covered in our amicus brief and the many other briefs, blogs, and articles about his case.

I think what best captures the tragedy of his ten-plus years at Guantanamo is this Kafka-esque excerpt from his hearing before the Combatant Status Review Tribunal at Guantanamo (undated, but probably from about 2005):

Latif: I do not know you. Who are the other people, who are you?

Tribunal President: I am the Tribunal President. The person to my left and my right are Tribunal members. We are here to determine if you have been appropriately classified as an enemy combatant. That is all you need to know about us at this time.

* * *

Latif: I told you, I am not the person. Why do you keep referring me to that person? That is not my name.

Tribunal President: It is the name that has been provided during your interrogations and it is the name you have provided to us in the past.

Latif: That is why I told my Personal Representative in the interview it was a mistake and he needed to review the information. If that is not my name and not the city I am from.

Tribunal President: al Qaida is not a city. It is the name of an organization.

Latif: Whether it is a city or an organization, I am not from al Qaida.

* * *

Tribunal President: Did you receive training in Afghanistan?

Latif: No, that is incorrect. I have medical paperwork that will state I went there for treatment. Why didn’t my Personal Representative present the information in my medical records?

Tribunal President: Now is the time for information to be presented to the Tribunal, not before.

Latif: My medical records can verify this information. I gave this information three years ago. The information you are presenting I based on another person. You haven’t come up with the right information about me.

Tribunal President: Now is the time for you to tell us what you believe is the correct information about yourself.

Latif: All the information is in my files.

Tribunal President: We will read it when we read the files later. We are giving you the opportunity to tell us your story now, if you wish.

Latif: That is what I am doing. I gave you the information. The name is not correct. I told you I went there for medical treatment and there is official paperwork that will verify that. How can this be possible? I am supposed to review the information, so I can tell you correctly.

* * *

Latif: Is it clear now?

Tribunal President: Yes, your story is clear to us.

Latif: People told me before my story was clear, but they never went and got my files. The problem could have ended quite easily. … Why have I been here for three years? Why have I been away from my home and family for three years?

Tribunal President: That is what we are trying to determine today.

Latif: Why did you come after three years? Why wasn’t it done much sooner after my arrest?

Tribunal President: I cannot answer to what has happened in the past. I was asked to come here now, and I came.

Latif: Why am I not allowed freedom here?

Tribunal President: Because you have been classified as an enemy combatant.

Latif: How can they classify me as an enemy combatant? You don’t have the right documents.

Tribunal President: That is what we are here to determine.

Latif: For three years I haven’t been treated very well because of wrong information. Would you let that happen to you? What will be your position if you find out what happened to me was based on wrong information and I am innocent?

Tribunal President: Your current conduct is unacceptable. If you keep interrupting the proceedings, you will be removed and the hearing will continue without you.

I think often of this interchange and the outrage we would feel if we or our loved ones were subjected to this treatment in another country. Many spoke movingly yesterday of the heroism of September 11, as well as both the challenges to and reaffirmations of American values as a result of the attacks. It is tragic and ironic that the announcement of Mr. Latif’s death came on that anniversary, since the continued operation of Guantanamo – and, unfortunately, the administration’s legal positions on the detainees still confined there – are at odds with the best of those values. And, of course, his death came just a week after the administration declined to hold a single person accountable for the torture of prisoners in CIA detention facilities. I hope this latest tragedy causes us to think again about how we treat those whose health, safety, and sanity we hold – for whatever reasons – in our hands.



Rachel Levinson-Waldman is Counsel to the Liberty and National Security Program at the Brennan Center. You can reach her by e-mail at
rachel.levinson.waldman at nyu.edu

Comments:

There is nothing Kafka-esque about operational security.

The military detained Latif as a member of the Taliban, a wartime enemy.

This Geneva Conventions hearing was held solely to review the evidence of whether Latif was Taliban.

These hearings have mistakenly released dozens of enemy who later returned to battlefield.

Therefore, it is eminently reasonable that the Tribunal panel do not identify themselves, members of the intelligence community or operational intelligence about the detainee to the detainee, who if released can disclose this to the enemy.

The primary evidence against Latif was provided by a report by Pakistani intelligence.

The hearing was only to give the detainee an opportunity outside of interrogation to provide evidence that he is not Taliban.

Latif was a Yemeni who claims to have travelled to Taliban controlled Afghanistan for medical treatment, then fled Afghanistan as it was being liberated by the United States and Northern Alliance and just happened to be captured by Pakistani police in the northern tribal areas where al Qaeda and the Taliban were based.

None of this was included in the carefully edited excerpts of the hearing posted here.

The medical treatment cover story is ridiculous on its face.

Gulf state Arabs did not travel to Taliban controlled Afghanistan for its superior medical treatment. Taliban Afghanistan was positively medivel. Gulf state Arabs in Afghanistan and northern Pakistan were almost all al Qaeda allies of the Taliban.

Latif's testimony in these hearing transcript excerpts could have come from any SERE training session where our military members train to lie to and divert enemy intelligence officers.

For a good example of interrogation resistance techniques, I recommend reading the end of SAS Sergeant Andy McNab's book Bravo Two Zero, where he describes how he and his SAS mates offered their Gulf War Iraqi interrogators a series of cover stories to convince them that McNab and company were not SAS and to divert them from their mission. Afterward, reread the Latif statements here. The similarities will be plain.
 

"But on the other hand," K. went on, looking round at everyone there and even wishing he could get the attention of the three who were looking at the photographs, "on the other hand this really can't be all that important. That follows from the fact that I've been indicted, but can't think of the slightest offence for which I could be indicted. But even that is all beside the point, the main question is: Who is issuing the indictment? What office is conducting this affair? Are you officials? None of you is wearing a uniform, unless what you are wearing" - here he turned towards Franz - "is meant to be a uniform, it's actually more of a travelling suit. I require a clear answer to all these questions, and I'm quite sure that once things have been made clear we can take our leave of each other on the best of terms." The supervisor slammed the box of matches down on the table. "You're making a big mistake," he said. "These gentlemen and I have got nothing to do with your business, in fact we know almost nothing about you. We could be wearing uniforms as proper and exact as you like and your situation wouldn't be any the worse for it. As to whether you're on a charge, I can't give you any sort of clear answer to that, I don't even know whether you are or not. You're under arrest, you're quite right about that, but I don't know any more than that. Maybe these officers have been chit-chatting with you, well if they have that's all it is, chit- chat. I can't give you an answer to your questions, but I can give you a bit of advice: You'd better think less about us and what's going to happen to you, and think a bit more about yourself. And stop making all this fuss about your sense of innocence; you don't make such a bad impression, but with all this fuss you're damaging it. And you ought to do a bit less talking, too. Almost everything you've said so far has been things we could have taken from your behaviour, even if you'd said no more than a few words. And what you have said has not exactly been in your favour."
 

Quite frankly, it's never clear to me whether Mr. DePalma is a committed libertarian or, when push comes to shove, a fascist who sees no limits at all to state power once the magic words "national security" are invoked.
 

He's definitely a fascist.
 

He's a libertarian when there's a Dem president and an authoritarian when there's a Repub president.
 

Bart

I agree that the fact that the tribunal leaders don't reveal their names is not objectionable.

I also am skeptical of his story of going from Yemen to Afghanistan for medical treatment (though I would not that Yemen, while technically a Gulf state is hardly a first world marvel and I would not make a near categorical statement like "almost all" Gulf state Arabs in Afghanistan were allies of our enemies).

Here's my concern though: I can understand when supporters of these techniques argue, as you do, that this is SOP for dealing with these wartime issues. My concern is that by the admission of the supporters of this war this is a war unlike previous wars, a war not against a state or even single group, and therefore a war that has a great potential for going on indefintely. This means potentially indefinte detention of suspected enemies (and while you note that many enemies have been incorrectly released there are also cases of many innocents incorrectly detained). So it seems to me that we might want to have methods that will provide a greater chance for discovering incorrectly detained persons.
 

"I agree that the fact that the tribunal leaders don't reveal their names is not objectionable."

These tribunals are required by domestic and international law. They have to some minimum requirements here. Not even knowing the names of the people is an opening for abuse, isn't it?

The fact some will be released (that happens anyway - e.g., prisoner exchanges) isn't an answer. We don't have secret trials of people domestically who are possibly dangerous or criminal who might (given burdens of proof and the like) be released. We don't keep the presiders' names secret.

I'm "skeptical" of a lot of things and that's fine. There remains various basic rules and when we start determining nameless people can detain people indefinitely ... well, what if our citizens had that done to them?

That generally is a good rule of thumb to determine if it is something a nation "may of right do." Declaration of Independence.
 

Mr. Whiskas, there is no such thing as someone who was detained incorrectly in Bartworld.
 

Sandy Levinson said...

Quite frankly, it's never clear to me whether Mr. DePalma is a committed libertarian or, when push comes to shove, a fascist who sees no limits at all to state power once the magic words "national security" are invoked.

It has been a few years since Balkinization was in a near constant uproar over Mr. Bush's exercise of CiC power and we debated these issues. Please allow me to recap my position.

A bright line exists between war and peace in the application of civil libertarianism.

Civil libertarianism requires a country at peace where the police and defense counsel are free to investigate, the police are free to arrest, the state is free to openly prosecute, witnesses and the accused is sworn to tell the truth, and the courts are free to adjudicate.

Civil libertarianism is impossible during war where warcrimes are committed in war zones where the police and defense counsel do not have safe access to investigate, where the police have no jurisdiction to arrest, about which civilian prosecutors and courts have little or no competence, and (this is critical) the enemy is duty bound to gather intelligence, lie to gain his release, and will take every opportunity to harm or kill all of the above and their families.

To the extent that libertarians do not accept the latter brutal reality, I depart from libertarianism.

Western nations have struggled for centuries to develop a liberal minimum standard of due process for detaining the enemy. The result is the Geneva Conventions.

We can detain members of the enemy for the duration of the war. This detention is not limited to enemy combatants in the process of fighting, but any and all members of the enemy force - military and civilian. This is not fascism, it is a universally accepted law of war.

In order to detain a member of an enemy force, the GCs requires the detaining military to conduct a simple hearing on the matter to be decided by the local military commander. This is not fascism, it is a universally accepted law of war.

The GCs do not require that the detaining military disclose their identities, the identities of their intelligence agents or actionable intelligence to the enemy detainee who is duty bound to report all of this intelligence to the enemy upon release and the enemies we are fighting can and have used this information to intimidate or retaliate against the detaining military, their intelligence agents, their intelligence sources and their respective families and friends. This is not fascism, this is common sense.

The US military went far above and beyond what the GCs required for Latif. Latif had repeated hearings with due process not required by the GCs, a habeas corpus hearing and then an habeas appeal. Indeed, this due process has released several hundred detainees, some 20% of which have returned to the battlefield against us.

In sharp contrast, the fascists we are fighting would have tortured (in the true sense of that word), killed and then publicly displayed the body of any of our captures.

I hope that clarifies things for you.
 

Joe

What would you do about the concern that Bart raises (I think), that knowing the Tribunal's names might put them and their families at risk from reprisals? I should think the fact that the proceedings are transcribed would protect from the things you may be concerned with.

Bart

Again, the problem I see with your discussion of civil liberties in time of war (well, one problem) is that this is a different and rather unique 'war', fought against an ill-defined foe in many nations, including our own, for what looks like a nearly interminable number of years. I'm not sure I buy your argument about the need for civil liberties to be restrained in times of war, but I think I'm even more skeptical of it with a war of the current type.
 

Mr. W:

Congress defined the enemy in its 2001 AUMF as al Qaeda and its allies, which largely boils down to the Taliban.

The military and intelligence community have to offer some basis for their belief that the detainee is a member of al Qaeda or the Taliban. In the Latif case, this appears to be a Pakistani intelligence report.

The fact that al Qaeda and the Taliban refuse to surrender and disband does not change any of the concerns behind the GC laws of war. If the detainees want to complain about the resulting length of their detentions (which for the vast majority of them who were released was less than the length of WWII), then they can direct their complaints to the Taliban and al Qeada.

I have no sympathy whatsoever for the detained members and supporters of terrorist movements. Many of the remaining 100 or so detainees should have been tried by military tribunal years ago and hung as were the Nazi war criminals.
 

"In the Latif case, this appears to be a Pakistani intelligence report."

Pardon me if I don't put much stock in that as a basis for detaining a person...

"The fact that al Qaeda and the Taliban refuse to surrender and disband does not change any of the concerns behind the GC laws of war."

That's daft. By everyone's admission this is a very different war than those the GC was based on (and of course, many argue the GC demands different treatment itself). With a more ill-defined, state-less enemy the potential for the war to go on and on is very high. Restrictions on civil liberties therefore allow for increased chances for punishing false positives so to speak, and that punishment dragging on and on.

"I have no sympathy whatsoever for the detained members and supporters of terrorist movements. Many of the remaining 100 or so detainees should have been tried by military tribunal years ago and hung as were the Nazi war criminals."

Since everyone admits some false positives were detained as supporters, this is an amazingly callous statement contrary to what I would think are the values of the United States. Hanging innocent persons is something we try to avoid.



 

Mr. W:

Concerning mistakes in detention, the saying "better ten men go free than one innocent man be convicted" is put on its head during wartime because the enemy is attempting to kill you. Under our current "draconian" enhanced GC system, 20% of released detainees are now back on the battlefield killing Americans and others. Do we really want to make that lethal recidivism rate worse by making it easier to escape detention?

If the enemy was not ignoring the laws of war and waging war as civilians, there would be a far lower probability innocent or loosely connected civilians would be detained.

Finally, if the objective is to criminally punish rather than just detain an enemy, the burden of proof becomes far greater. A military tribunal trial has many of the same burdens and due process rights as a civilian trial.


 

Mr. W. why are potential "enemy combatants" or whatever name they are using these days somehow more dangerous in that respect than any other potentially dangerous person that might have reprisals?

If the people have the wherewithal to strike back, and finding their families for some Pakistani will be no easy task in various cases, they will find a means. The tribunal are mere functionaries at the end of the day anyway.

They can lash back to someone else who is named or some building or whatever.
 

Joe

I think the answer is, this is a war.

Bart

"If the enemy was not ignoring the laws of war and waging war as civilians, there would be a far lower probability innocent or loosely connected civilians would be detained"

That's a silly shift of responsibility/ We are the ones detaining these innocents, we can't say "well, it's the fault of those tricky al qaida that make it seem like innocents are bad guys!" Since we are doing the detaining we have a responsibility to work to not detain innocents.

"if the objective is to criminally punish rather than just detain an enemy, the burden of proof becomes far greater"

For this war the two seem conflated.
 

Mr. W, I think you are missing Baghdad Bart's point. They are all guilty.
 

W., it is a special kind of "war" and that isn't a very convincing answer.

The concern raised was risk of harm to the tribunal. The most sick minded domestic who is much more likely to have the means of harming the judge isn't tried by nameless people. We aren't about giving out guards names or the home telephone numbers or anything.

BTW, calling B's idea's "daft" might be deemed insulting. Be on guard. Friendly warning!

http://www.lawfareblog.com/2012/09/thoughts-on-adnan-latif/

The above, to move on, is by someone who is often fairly accepting of a stricter line than many on the left. When such people find the result tragic, it's a sign something is off the rails.
 

Mr. W:

That's a silly shift of responsibility...

Far from it.

The reason that fighting disguised as civilians is a war crime and why irregular fighters who commit this war crime do not qualify as privileged POWs is precisely because this war crime increases the likelihood innocent civilians will be killed or detained.
 

Bart

But if we are the ones actually killing and detaining the innocent then we have some responsibility to take care to avoid it. We can't dodge responsibility by saying "well, we slaughtered that village, but it's purely the fault of those insurgents who dress like villagers!"

Joe

I hear you and am sympathetic to your point, but I think we've always considered enemies in wartime to be more dangerous than the domestic bad guy, though as you note that might not make sense...
 

Mr. W:

Put yourself in the shoes of the grunts in the village.

You are on patrol when an IED kills your buddies in the Humvee in front of you.

You get out to help and find yourself in the middle of an ambush by enemy dressed as civilians firing from homes of the local citizens.

You return fire and start clearing the buildings of the war criminals who are trying to kill you and end up killing some of the locals because everyone except for your men are dressed the same - as civilians.

Then you capture the military age men in these buildings, who have ditched their weapons and claim that they are innocents and you are war criminals for killing their kin.

You have done everything by the book and you are the one accused of being a war criminal by the locals and your own government.

Far fetched?

This is basically what happened to a Marine patrol in the Iraqi village of Haditha.

THIS is why fighting as civilians is a war crime.

Mr. W, I enjoy our conversations, but please stop making excuses for terrorist war criminals and dumping on our military.
 

Bart

Human lives are valuable things, especially when they are innocent human lives. Great care must be taken not to kill such people. It is not to dump on our military that I think they should do this, it is because I respect them to try mightily to do the right thing. In fact one might say that to think they cannot be held to such a high standard is to dump on them.

In a careful act of self-defense or military action taken with such great care, but innocents are unfortunately killed because terrorists confuse oour troops, then I would say the fault lies only on the terrorists. But if we don't take great care then fault lies partly on us. Likewise if we don't take great care not to detain innocents fault lies on us. It is to stand casuality on its head to absolve of all blame the persons who actually fired the weapon that killed someone or who forcibly detained someone.

Consider a police officer who knows a bad guy has a hostage inside a dwelling. If the officer were to recklessly storm the dwelling and the result was the hostage was killed then of course some blame is going to go on the officer. He can't absove himself by saying "well, if that guy hadn't taken the person hostage she would never have been killed, so it is all simply his fault." According to this line of thinking Janet Reno and the ATF bear no responsibility for the deaths in Waco, because if it were not for the cultist not releasing the others....You see where this type of thinking leads.
 

In Bartworld the military never makes mistakes.
 

Mr. W:

I am not excusing the military when they do not follow their training (and that training is extensive these days) and needlessly harm civilians. My point is that, when the enemy fights as civilians, the likelihood of civilians being harmed increases exponentially and the enemy is completely responsible for that added harm.

During the Persian Gulf War, we had no problem distinguishing uniformed Iraqi troops from the local Iraqi civilians and I never heard of Iraqi civilians being harmed by Americans in the towns we captured.
 

Bart

I agree that the enemy fighting as civilians increases the likelihood civilians will be harmed and that they bear the bulk of the responsibility for that when it happens. However, as you seem to concede our forces can be more or less careful when combating such a wicked enemy. My point is we have a strong duty to the former and when the case is the latter we are now responsible in part.

To bring this back to detentions, we should take great care not to detain innocents.
 

In Bartworld if they are detained by the US military they are not innocents.
 

What relevance do the acts of soldiers on a battlefield have to do with the acts of a tribunal many years later and thousands of miles away?

A police officer on the beat is not held to the same standards as a court for common sense reasons, but what we excuse the beat cop for doing we don't expect the court to do.

Now, considering that an awful of of what we've done during the GWOT passed the minimal standards of the Geneva Conventions (remember waterboarding?), it seems more than a perverse to cite the GC in this case as if it reflects some sort of credit on our conduct.

Now, in this case, the man denies categorically that he is who they say he is. It certainly seems extremely difficult for a detained person to prove anything without a lot of help from outside.

Yes, it's bad that some people released by these tribunals have "returned" to fight against us (Some suggest that the experience of being unjustly detained may have radicalized some into becoming jihadists who were not jihadists before. Most people aren't Nelson Mandela) but that still isn't much comfort to some poor stiff caught up mistake.

Given how many death penalty exonerations we have seen under much more controlled situations than a battlefield, I think it's putting rather too much faith in the government to expect that the false positive rate in this is very, very high. We know for a fact there have been grievous errors made. Are we really going to take the position that we don't care if mistakes are made and people's lives are ruined or lost simply because they're not us?

And if we do take that position then what grounds to we have for objecting when our targets hate us and take action against us?
 

Now, considering that an awful of of what we've done during the GWOT passed the minimal standards of the Geneva Conventions (remember waterboarding?), it seems more than a perverse to cite the GC in this case as if it reflects some sort of credit on our conduct.Windows 7 Pro product Key
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Seth:

Now, in this case, the man denies categorically that he is who they say he is. It certainly seems extremely difficult for a detained person to prove anything without a lot of help from outside.

Actually, the tribunal was referring to Latif by one of the multiple names he gave military interrogators - another strong suggestion that Latif is lying about his cover story.

Just as in court cross examination, interrogation is about testing a story from multiple angles and then pointing out all the inconsistencies.

Lying is difficult, not telling the truth.

For example, you could easily provide interrogators with the information necessary to prove you were mistakenly captured as a Taliban - full name; date and place of birth; family members, employers and friends who could identify you and place you; social security number; etc. If you were overseas, you would have a passport, a visa, hotel and other travel information.

It is doubtful that Latif's cover story went much beyond the generalities he provided the tribunal, which is another strong suggestion he is lying.
 

Happy Constitution Day. (9/17)


http://t.co/49X5c8rU
 

This comment has been removed by the author.
 

It appears that one of the released Gitmo detainees led the al Qaeda attack on our Libyan embassy which murdered our ambassador and three others.

http://www.foxnews.com/politics/2012/09/19/top-administration-official-says-strike-in-libya-was-terror-attack/

This is not merely a legal exercise.
 

Bart, do you have any idea how many people would be in jail if we never let anyone out on the chance that they might be involved in another crime?
 

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