Joanne Mariner

Some Benchmarks for Measuring Reform

By JOANNE MARINER


Wednesday, Feb. 11, 2009

Less than a month into President Obama's term, many of the Bush Administration's worst counterterrorism policies have been left behind. Guantanamo has a set date for closure; CIA "black sites" have been banned; and the unfair military commission proceedings at Guantanamo have been suspended.

But there have already been disappointments. On Monday, in appellate argument in the case of Mohamed v. Jeppesen Dataplan, Inc., the new administration stuck with an indefensible Bush Administration position on the state secrets privilege. In urging the court to uphold the dismissal of a lawsuit challenging CIA flights that brought suspects to be tortured, the Justice Department acknowledged that the new administration was taking "exactly" the same position as the previous one had.

Unlike the Bush Administration, which was responsible for the abusive renditions, the Obama Administration is not relying on the state secrets privilege to cover up its own misdeeds. But it is hard to fathom why the new officials would insist on such a broad interpretation of the privilege that a legitimate and important case—involving the most serious of crimes—would be tossed out of court.

The lead plaintiff in the Jeppesen case, Binyam Mohamed, claims, with much evidentiary support, that he was delivered to Morocco in 2002 and subjected to horrific torture. His claims were also the subject of a British court ruling last week—another Obama Administration disappointment.

In the UK litigation, which involved US efforts to keep evidence of Mohamed's torture secret, the judges acknowledged that Mohamed had been tortured. They held that they had to close the case, nonetheless, due to US warnings that revealing the information would endanger US counterterrorism cooperation with Britain. As the court noted disapprovingly, the Obama Administration has taken no steps to disavow the prior administration's views.

"It was submitted to us," the British court explained, "that the situation had changed significantly following the election of President Obama who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment and to close Guantanamo Bay. We have, however, been informed by counsel for the Foreign Secretary that the [US] position has not changed."

Full stop, as the British say.

What's Coming Up

So will the Obama Administration make broad and meaningful changes in counterterrorism policy, or will the scope of its reforms be more modest? Over the next couple of months, the new administration will face a series of tests that will reveal the strength of its commitment to reform. Below is a set of benchmarks by which to measure the new administration's progress.

Access to Guantanamo. Last week, four leading human rights and civil liberties groups—the ACLU, Amnesty International USA, Human Rights First, and Human Rights Watch—sent a letter to President Barack Obama asking that they be granted access to the military detention center at Guantanamo. The groups would like to review conditions of confinement there and make recommendations for revising US detention policies—recommendations that would feed into a review that the Obama Administration has already initiated.

Under the Bush Administration, human rights groups and UN monitors were barred from examining conditions at Guantanamo; only the Red Cross, which keeps its findings confidential, was allowed in. A change in policy on this question would send a powerful message that the new administration is serious about detention reform.

The Bagram 4. Next week, on February 20, the new administration is supposed to decide what position to take on the question of whether detainees held at the military prison at Bagram Air Base in Afghanistan should be allowed to challenge the legitimacy of their detention in federal court. U.S. District Judge John D. Bates, in Washington, is hearing the cases of four individuals—two Yemenis, an Afghan and a Tunisian—who are currently in detention at Bagram. Although held in Afghanistan, at least some of the four were picked up far from any battle zone, in places like Dubai and Thailand. The men, who have been held for several years, are claiming the right to pursue a habeas challenge, a right the US Supreme Court has already recognized for detainees held at Guantanamo.

Al Marri. Another pending court case with important implications for US counterterrorism policy is that of Ali Saleh Kahlah al-Marri, a Qatari citizen being held without charge in the United States. Al-Marri was arrested at his home in Illinois in 2001, held for a time as a material witness and on criminal charges, and then in June 2003 declared to be an "enemy combatant." Since then he's been held in solitary confinement in a Navy Brig in South Carolina.

The Bush Administration made the far-reaching claim that it could hold al-Marri without charge indefinitely. However, one of President Obama's recent executive orders called for a review of al-Marri's status, sparking hopes that a fairer resolution to his case will be found. March 23 marks the deadline set by the appellate court hearing al-Marri's case for the new administration to present its views.

Resettlement of detainees from Guantanamo. Last fall, a district court in Washington ordered the Bush Administration to release 17 Uighur detainees held at Guantanamo. The men, who were found not to be "enemy combatants," cannot return to China, their home country, because of the strong likelihood of torture or other abuse. Given that their detention at Guantanamo has dragged on unfairly for years, the district court ordered that they be brought to the United States for resettlement. A large local Uighur community has promised to welcome them and assist in their integration into US society.

That ruling is current on appeal—but the Obama Administration could make the policy choice to bring the 17 Uighurs to the United States at any time. Not only would such a decision be a good way to make amends for their long and harrowing detention, it would also be a powerful means of encouraging European countries to accept other detainees for resettlement.

More Challenges

The issues listed above are just the first batch; the new administration will need to make many other urgent and difficult counterterrorism-related decisions during its first year in office.

By the end of the year—when the new administration has made clear how it plans to prosecute terrorism suspects held at Guantanamo, whether it plans to allow the CIA to carry out renditions based on diplomatic assurances, whether the CIA will be allowed to use classified interrogation techniques, and whether a commission of inquiry will be established to investigate Bush Administration abuses, among other questions—we'll be able to evaluate the new administration's promise of change.


Joanne Mariner is a human rights attorney based in New York. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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