McCain/Lieberman bill re interrogation and detention

March 5, 2010

* Senate Bill (McCain, Lieberman sponsors), “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010”

See attached. In brief, this bill would require at least some period of military detention and un-mirandized interrogation by a HIG-type group of interrogation specialists for persons who are suspected of engaging in hostilities against the United States or coalition partners through unlawful means, or who support such hostilities. The bill also provides for the availability of non-criminal detention for such persons (for the duration of hostilities), and prohibits spending DOJ funds for civilian criminal trials of them.


Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

February 11, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here. Read the rest of this entry »

Today’s executive orders on GTMO, interrogation, detention, and Al-Marri

January 22, 2009

* Today’s executive orders on GTMO, CIA detention and interrogation, and the Al-Marri case

Attached are copies of the four new executive orders.  A brief overview of each follows below.  The long and short of it is that a variation of the NSC principals’ committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri’s status before it must file a merits brief in that case.

The GTMO closure order

This order appears to track the draft version about which I posted earlier.  Please see that earlier post.  Short version: all the expected options are to be used to effect closure in 1 year. Read the rest of this entry »

forthcoming scholarship; more on the Senate Armed Services interrogation report

January 9, 2009

1. Forthcoming Scholarship

Our Nation Unhinged:  The Human Consequences of the War on Terror

University of California Press

Peter Jan Honigsberg

Professor of Law

University of San Francisco

Abstract: Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, “Kill me!” Hunger strikers at Guantánamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration’s response to the attacks of September 11, 2001—and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed. Read the rest of this entry »

veto threat re Defense Authorization Act; National Security Division Progress Report

September 9, 2008

1. Statement of Administration Policy on the National Defense Authorization Act

OMB has issued an SAP setting forth the Administration’s views on S.3001, the defense authorization bill.  The SAP is here.  There are many interesting features in the SAP.  In relevant part, for example, the SAP states that if “S. 3001 were presented to the President, his senior advisers would recommend that he veto the bill, especially if the bill includes the following provisions:

  • Private Security Contractors in Combat Zones: The Administration strongly opposes section 841, which defines most security functions in a combat zone as “inherently governmental” and restricts the use of contractor personnel for those functions.  This provision would significantly increase the reliance on already stretched military forces and reduce the options for providing security for non-military personnel, which could impede the ability to provide humanitarian and reconstruction relief in combat zones.  Furthermore, the Departments of State and Defense have significantly improved the policy and guidelines governing the activities of private security contractors. These improvements ensure that private security contractors operate under strict rules for the use of force that are defensive in nature, carefully supervised, and allow the use of deadly force only as a last resort in response to imminent threats and in the exercise of the inherent individual right of self-defense.
  • Prohibition on Interrogation of Detainees by Contractor Personnel: The Administration strongly objects to requirements that would prevent the Department of Defense (DoD) from conducting lawful interrogations in the most effective manner by restricting the process solely to government personnel; in some cases, a contract interrogator maypossess the best combination of skills to obtain the needed information.  Such a provision would unduly limit the United States’ ability to obtain intelligence needed to protect Americans from attack.

  • Defense Intelligence Matters: The Administration strongly opposes sections 921, 922, and 923, which interfere with Executive Branch authorities and responsibilities. Section 921 interferes with the President’s authority to supervise and manage the Executive Branch by requiring that active duty military officers, not civilians, serve as the Deputies to the intelligence chiefs of the military departments, thus inappropriately and unnecessarily limiting the pool of individuals from which the President may select the senior military advisers in question.  Section 921 could also, if the new qualifications it imposes are applied to existing officeholders, usurp the President’s exclusive authority to remove Executive Branch officers by rendering the existing office holders unqualified for their offices and thus attempting a constitutionally improper de facto legislative removal of the existing officers. Section 922 reorganizes elements of the Secretary of Defense’s senior staff and eliminates Undersecretary of Defense for Intelligence (USD(I)) authorities to execute technology and acquisition programs or provide operational support to combatant commands.  Section 923 would intrude on the President’s constitutional authority to control and regulate access to classified national security information by requiring that the Department carry out the Advanced Sensor Applications Program, by specifying which organizations will execute and oversee the program, and by purporting legislatively to mandate that particular individuals with program authority shall have “complete access” and “current” updates on specific types of military and foreign intelligence information.  Together, these provisions interfere with staff-level Executive Branch assignments and prevent USD(I) from carrying out the activities for which it was created.

Potential Amendments:

  • Intelligence Interrogations: The Administration strongly opposes any amendment that would impose a requirement to video-record all intelligence interrogations, which is impractical, burdensome, and runs the risk of significant unintended consequences in current and future military operations.  Further, the Administration strongly opposes any amendment that would prevent the Intelligence Community from conducting lawful interrogations in the most effective manner by restricting the process solely to Government personnel; as noted above, in some cases, a contract interrogator may possess the best combination of skills to obtain the needed information.

There is much more interesting stuff in the SAP – certainly worth a read.

2. DOJ National Security Division, “Progress Report” (April 2008)

DOJ has posted the April 2008 National Security Division Progress Report to its website.  The 70-page document is here.  It provides a very handy overview for students or others who are not familiar with the organizational structure of the NSD, the Counterterrorism Section, the Counterespionage Section, or the Office of Intelligence.