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Thursday, August 20, 2009

Trying to Remember Why We’re Closing Gitmo?

Deborah Pearlstein

Cross-posted at Opinio Juris

Following my testimony last month to the Senate Judiciary Committee’s Subcommittee on Terrorism and Homeland Security on military commissions and the like, Senator Kyl (R-AZ) was kind enough to send along some follow-up questions to answer. His first follow-up question was one of the same as one he’d posed in the hearing itself: What if any empirical evidence is there to support President Obama’s statement that “the existence of Guantanamo likely created more terrorists around the world than it ever detained.”

It’s a fair and important question – one it's likely the President is in a better position to answer than I. Nonetheless, it gave me occasion recently to start compiling some of the reports I’ve found most persuasive over the years that led me to conclude the President’s view had merit. For your summer reading entertainment (and before Congress comes back and starts back-pedaling the otherwise sweeping bipartisan consensus in favor of closure again), I thought I’d start a list here. If folks have other sources they’d like to recommend, feel free.

Matthew Alexander’s statements are pretty powerful. A veteran Air Force counterintelligence agent who served as a senior interrogator for the United States in Iraq, Alexander wrote: “I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse.”

Alexander wasn’t the first to say as much. On June 17, 2008, former Navy General Counsel Alberto Mora testified to the U.S. Senate Committee on Armed Services as follows: “[T]here are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

In 2008, McClatchy news service published a detailed series of reports on the Guantanamo Bay detention program that it based on interviews with U.S. officials, foreign intelligence services, and former detainees. The reports concluded, among other things, that “instead of confining terrorists, Guantánamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists.”

Comments:

It is interesting that the cited two opinions join Gitmo to the completely unrelated Abu Ghraib.

Splashing the Abu Ghraib photos on television 24/7 for weeks without a doubt was a propaganda coup for enemy recruiting for Iraq. The military could actually identify and interrogate the recruits in Iraq.

Where is the evidence that Gitmo independently had the same effect anywhere in the world? Now that the Iraq War is won, Gitmo is still up and running, but I do not see the al Qaeda recruiting.

Hopefully Senator Kye will insist on proof segregating Gitmo from Abu Ghraib.
 

These sources are very interesting; thanks for providing them.

As to Bart's comments:
I don't think the poster can be faulted for comments from military officers that link AG and Gitmo. Whether they were hearing this linkage from those who joined the Iraqi resistance is unclear.

I also do not follow the rhetorical linkage between blaming media for showing the AG pictures and the claim that the military in Iraq could identify and interrogate recruits.

Finally, I do not know what it means to say that one does not 'see' AQ recruiting. I don't see them doing so either - but, then, I never did see them doing it. As far as I know this kind of recruitment effort is on-going.
 

Now that the Iraq War is won

Judging by all the shit that has been blowing up in Baghdad lately, it's not as "won" as you seen to believe.
 

CTS:

CIA, military intelligence and the occasional talented war correspondent can determine al Qaeda recruiting by counting personnel at enemy camps, review val Qaeda video and documents, interviewing al Qaeda sources and captures, and more publicly note increases in attacks carried out by the more numerous al Qaeda.

This is how the military determined the motivation of al Qaeda recruit in Iraq.

There is no similar reporting out of Pakistan and Somali, where the remnants of al Qaeda are holed up.

Kyl is right to demand actual evidence rather than speculation.
 

This comment has been removed by the author.
 

Would any law prrofessors and attorneys like to discuss this item from the Washington Post?

The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.

Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency’s interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.

If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify. …

Both groups have long said that they will zealously investigate the CIA’s interrogation program at “black sites” worldwide as part of the defense of their clients. But government investigators are now looking into whether the defense team went too far by allegedly showing the detainees the photos of CIA officers, in some cases surreptitiously taken outside their homes.

If this is true and the military can muster two witnesses of the act, these attorneys arguably committed treason by identifying covert agents to the enemy.
 

" . . . whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, . . . ."

"unlawfully provided" under what statutes? And where in the quoted portions from the WaPo is it made clear that this was indeed the case? Mayble, just maybe, such provision was lawful in preparing the defenses of clients. It's a long leap to treason that jumps out of that handy-dandy backpack filled with you-know-what.
 

Shag:

It appears that the Washington Post is referring to the classified information statutes that were at issue in the Plame matter.

I am referring to treason.

If these allegations are true, we have criminal defense attorneys taking photographs of covert CIA officers and disclosing them to al Qaeda officers at Gitmo.

I pray that these allegations are not true because the alternative is so far beyond the pale as to be almost unimaginable.
 

"If these allegations are true, ...."

Who is making these allegations? Is someone in authority alleging that the defense attorneys "unlawfully provided" the photographs to their clients, or merely pulling these out of a backpack as a possibility? And suggesting treason? Are government officials suggesting treason? Let's keep a "Rove-ing" eye out for you know whom.
 

Shag:

Who is making these allegations?

Direct your inquiry to the Obama Justice Department.

Are government officials suggesting treason?

The reported facts suggest treason. Justice is not making allegations prior to completing their investigation as is proper.

Let's keep a "Rove-ing" eye out for you know whom.

Yup, I am sure that the Obama Justice Department is conducting criminal investigations at the request of Karl Rove.
 

"The reported facts suggest treason. Justice is not making allegations prior to completing their investigation as is proper."

Let's identify the "reported facts" that suggest treason. And too whom do they suggest treason other than our intrepid backpacker? Justice is wise not to make allegations. So it seems the backpack is talking, wishfully thinking, shooting from the hip, without awaiting completion of the investigation.

I guess "Rove-ing" eye was a tad too subtle about outing covert CIA agents.
 

Shag:

The four elements of treason are: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act providing aid and comfort to the enemy.

The WP reporting alleged that the American Civil Liberties Union and the National Association of Criminal Defense Lawyers photographed covert CIA officers and provided these photographs to three criminal defense attorneys who in turn provided these photographs to enemy al Qaeda officers detained at Gitmo while we are at war.

Divulging the identities of covert agents to a wartime enemy is (1) an overt act (4) providing aid and comfort to the enemy (3) from which any sane juror would infer an intent to provide aid and comfort.

If the allegations are true, the only legal obstacle to convicting the three lawyers of treason is finding two witnesses to the overt act. Here, definition of the overt act is very important. If the overt act starts with the coordination with ACLU/NACDL and ends with showing the photos to the enemy, then Justice can flip the folks that provided the photos to the attorneys to get the two witnesses.

Instead, if the overt act is limited to showing the photos to the enemy, then the only two witnesses are the traitor and the enemy shown the photos. Unless the attorney confesses, you will not have two witnesses.

In any case, you should have strong RICO and conspiracy charges against ACLU, NACDL and the attorneys with the underlying charges being violation of the classified information statutes.
 

Here's backpacker's case:

"The WP reporting alleged that the American Civil Liberties Union and the National Association of Criminal Defense Lawyers photographed covert CIA officers and provided these photographs to three criminal defense attorneys who in turn provided these photographs to enemy al Qaeda officers detained at Gitmo while we are at war."

When these CIA officers were photographed, did the photographers know they were covert CIA officers (assuming they were - Rove can be consulted on this as an expert!)? And with the "enemy" in capture in Gitmo, how did providing the photographs to them provide aid and comfort to the enemy? Did it make them feel good, comfort them while being detained?

That backpack is quite a cornucopia overflowing with you-know-what. Our backpacker might be better served if his backpack contained Coors instead of crap.
 

Shag from Brookline said...

When these CIA officers were photographed, did the photographers know they were covert CIA officers?

Lets think about this for all of a nano second. ACLU and NACDL are taking photographs of CIA officers they allege participated in the interrogation of al Qaeda high value targets - perhaps the most classified activity of the Bush Administration.

Get real.

And with the "enemy" in capture in Gitmo, how did providing the photographs to them provide aid and comfort to the enemy?

Ok, this one might take two or three nano seconds.

The contention of the involved attorneys is that their al Qaeda are unlawfully detained and should be immediately released. The military has in fact released the majority of detainees held at Gitmo, including top commanders of al Qaeda and the Taliban who have gone back to terrorism. The Obama Administration is considering the release of even more al Qaeda.

So, these allegedly traitorous attorneys are going to argue that they provided top secret information to enemy officers at Gitmo with the knowledge that they would never be released or communicate with the outside?

Good luck with that defense.
 

In a nano second our intrepid backpacker comes up with:

"So, these allegedly traitorous attorneys ...."

Who in authority alleges this? Or is it just more of the same spewing from that backpack filled with you-know-what. If the authorities are not alleging this, then defamation - in a nano second from a nano-mind - surfaces. Perhaps this constitutes the commission of group libel.

Maybe the aid and comfort to the enemy detained at Gitmo in seeing these pictures was in the form of a wet dream. Maybe the enemy detained at Gitmo has secret means to pass on these photos to cells in foreign lands.

Attacking these defense lawyers is a tactic that won't work here. Perhaps MADD can use such tactics against nano-minded DUI defense attorneys in Colorado, and at least put some "alleged" drunks in the slammer.
 

It should be pointed out that -- even if the photographs were shown to the detainees (and we don't know if said detainees are "al Qaeda" yet, do we?) -- they didn't have to be shown in such a manner as to identify the subjects. They could have been in a "line-up", and presented so as to see if the detainee could pick out those that they already had seen, and the actual identities of the various photographic subject need not have been revealed at all. IOW, no additional information not already possessed need have been imparted to the detainees.

Cheers,
 

Arne Langsetmo said...

It should be pointed out that -- even if the photographs were shown to the detainees (and we don't know if said detainees are "al Qaeda" yet, do we?)

The only folks reported to have been interrogated under the CIA's enhanced interrogation program are all high value al Qaeda officers.
 

It's great to have first person sources like Alexander. You might say we should all have expected blowback from torture, but getting the full, horrifying, picture from experts who were there, makes a difference.

When we tortured, not only was it wrong, not only was it illegal, not only did it remove us from the civilized world, it also just plain made things worse. No one who was there, who understands the situation, is confused about this. Torture was counterproductive. When we tortured, we gave radical Islam the best gift it ever got.
 

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