By Thomas Erdbrink Washington Post Foreign Service Saturday, May 29, 2010; A10
TEHRAN -- Nearly a year after President Mahmoud Ahmadinejad's disputed election victory led to wide-scale protests and a fierce government crackdown, members of Iran's thriving and internationally acclaimed cultural scene have emerged as a driving force for the opposition.
Filmmakers, singers and rappers are, in their own way, pushing for social and political changes, and many are paying the price of speaking out against a government that brooks little dissent. In response to films, songs and paintings inspired by the largest grass-roots opposition movement the country has seen since the 1979 Islamic revolution, the government has arrested artists and markedly increased censorship.
Although some artists have left the country to escape restrictions, others remain in Iran and have turned their work into tools of activism. But the protest message has to be subtle or indirect, and even then the work is often produced secretly, using legal loopholes or underground distribution networks to evade the notice of authorities.
When world-renowned director Jafar Panahi decided to make a film about a family caught in the turmoil after last June's election, he did not ask for permission from the Ministry of Culture and Islamic Guidance. Instead, the filmmaker turned his apartment into a film studio, with his wife cooking for the crew and friends playing the leading characters.
In March, security forces raided the home and arrested Panahi, the cast and his family.
"According to the law, nobody needs permits to film in their own house," he said in an interview. "But the government does not obey its own rules." Panahi was held for nearly three months; top directors such as Steven Spielberg, Francis Ford Coppola and Iranian filmmaker Abbas Kiarostami called for his release. State media reported that he had been making an "illegal movie."
On Tuesday, Panahi was released on $200,000 bail, pending the start of his trial.
"They arrest individuals to set an example to others," Panahi said Wednesday as his apartment slowly filled with guests, including actors and writers who gave him a hero's welcome. "My interrogators accused me of working for foreign intelligence agencies and said I was trying to make a movie highlighting problems in Iran. But I believe the rights and demands of millions who demonstrated have been ignored. I want to give them a voice."
He isn't the only one. The latest song by popular underground rapper Hich Kas, "Nobody," has become an instant hit, often blasting from cars on Tehran's busy streets. Hich Kas sings:
Good days will come when we do not kill each other
Do not look badly upon each other
A day we are friends and hug each other like in our school days
The song might sound conciliatory, but it ends with sounds of strife from the protests. Hich Kas, whose real name is Soroush Lashkari, left Iran before the song was distributed through the Internet and street peddlers. He is now touring in Dubai and Malaysia, where many Iranians live.
Within Iran, the opposition movement has lost steam in recent months as the government has used increasingly forceful methods, including executions, to discourage protesters from taking to the streets. Government supporters now confidently proclaim that the opposition movement is dead. But there are still signs of discontent from those who believe Ahmadinejad's supporters rigged an election that should have been won by opposition leader Mir Hossein Mousavi.
On Tuesday evening, 3,500 fans cheered, clapped and gave victory signs -- a popular opposition symbol -- when pop singer Alireza Assar sang a famous tune about corruption and dishonesty.
"People shouted 'Mousavi,' and almost everybody gave the 'V' sign," a witness said. "There would be immense cheering when the lyrics discussed corruption. Everybody interpreted the song as being against the government."
In a recent interview with Australian television, Iran's top performer of traditional songs, Mohammad Reza Shajarian, criticized Ahmadinejad for referring to the anti-government demonstrators as "dust and weeds."
"I announce that I am the voice of these dust and weeds," Shajarian said. "This voice always was and is for dust and weeds, and I do not let your radio and TV broadcast my voice."
His comments were widely repeated by foreign-based Farsi-language stations. Shajarian has said he will return to Iran within days.
Music, books, poetry and films filled with metaphors and irony played a significant role in the collapse of the Western-backed shah's government during the 1979 revolution. Books by the author Sadegh Hedayat were banned then because of their political content; during the annual Tehran book fair this month, his books and those of six other popular writers and poets -- some of whom died long ago -- were declared illegal by the Ministry of Culture and Islamic Guidance.
Government officials say censorship efforts will continue. "I promise that within a couple of years, our cinema will be mostly making appropriate films. We will try to enforce restrictions so that we can get rid of problematic films in the future," said Mohammad Javad Shamaghdari, the deputy minister, according to the semiofficial Web site Khabaronline.ir.
But filmmakers such as Panahi say they don't intend to bend to the government's will. "In the end, they want artists like me to leave, but I will never go," Panahi said. "This is my land. I will remain here and make independent movies and support what is just."
ISTANBUL — In one of the toughest actions against the powerful Turkish military in the history of modern Turkey, the police detained three of the country’s highest-ranking former generals on Monday as part of a vast investigation into a shadowy ultranationalist movement accused of planning to overthrow the Islamist-inspired government.
Ibrahim Usta/Associated Press
Soldiers kept watch as the police searched the home of a retired army commander in Istanbul.
News reports identified the detainees as a former deputy chief of the general staff, Ergin Saygun; a former air force commander, Ibrahim Firtina; and a former naval commander, Ozden Ornek. They were detained at their homes in Istanbul and the capital, Ankara.
Prime Minister Recep Tayyip Erdogan said more than 40 people in all were taken into custody during the operations on Monday, including 14 other former high-ranking military officers.
The case, which has riveted Turks, revolves around a suspected conspiracy by secular ultranationalists who are accused of developing several plots to attack civilian targets, like a mosque in central Istanbul, and to provoke a crisis with neighboring Greece, with a goal of paving the way for a coup.
More than 200 people have been arrested so far in the case, including military officers, intellectuals, academics and writers who are outspoken critics of the government, and some have been held for months without charge. A first trial opened two years ago. The case is widely referred to as Ergenekon (pronounced ahr-GEN-eh-kahn) after the mythic Turkish valley that lent its name to the suspected conspirators.
Mr. Erdogan would not elaborate on the Monday operation. Speaking at a news conference in Madrid, where he was on an official visit, he said, “We are going to learn about it once the judiciary makes an evaluation after the delivery of the security forces.”
Details of the suspected plot first emerged in 2007, when a left-wing publication printed what it said was a 2004 diary kept by Mr. Ornek, the former naval commander detained Monday. He denied the authenticity of the documents, and the publication is now closed.
Since the establishment of the modern Turkish state in 1923, the military has cast itself as the guardian of the country’s stability and secularism. It has usurped civilian governments at least four times in the past 50 years.
The arrest of high-ranking officers is widely seen here as part of the continuing struggle between the country’s relatively new religiously conservative political leadership and staunchly secular institutions in Turkey.
Turkish society divides largely along those lines, as has reaction to the conspiracy case, with secularists seeing it as a crackdown that threatens Turkey’s secular future and the conservative Islamic side regarding the case as necessary to protect their own democratically-won power.
One political analyst who has been strongly supportive of the investigation, Oral Calislar of the newspaper Radikal, said that whatever failings there might be in the trial process, they are products of the military’s distorting influence.
“Forces supporting military coups are still very powerful and resisting change,” Mr. Calislar said. “If there is a political will to prosecute military coup perpetrators, it is a fantastic will to be supported, regardless of the criticism of the methods.”
The Constitution, adopted after one of the military’s coups in 1980, assigns the army to intervene in politics to defend of the republic, a vaguely defined responsibility that has until now been read as granting the military unconditional immunity. But the Turkish military has been criticized by the European Union for its influence in civilian politics, as the country aspires to join the pact.
Individuals in these centers are not being treated or rehabilitated, they are being illegally detained and often tortured. These centers do not need to be revamped or modified; they need to be shut down.
Joseph Amon, director of the Health and Human Rights division at Human Rights Watch
People who use drugs in Cambodia are at risk of arbitrary detention in centers where they suffer torture, physical and sexual violence, and other forms of cruel punishment, Human Rights Watch said in a report released today. Detention centers, mandated to treat and ‘rehabilitate' drug users, instead subject them to electric shocks, beatings with electrical wire, forced labor, and harsh military drills.
In the 93-page report, "Skin on the Cable," Human Rights Watch documents detainees being beaten, raped, forced to donate blood, and subjected to painful physical punishments such as "rolling like a barrel" and being chained while standing in the sun. Human Rights Watch also reported that a large number of detainees told of receiving rotten or insect-ridden food and symptoms of diseases consistent with nutritional deficiencies.
"Individuals in these centers are not being treated or rehabilitated, they are being illegally detained and often tortured," said Joseph Amon, director of the Health and Human Rights division at Human Rights Watch. "These centers do not need to be revamped or modified; they need to be shut down." According to the report, people are frequently arbitrarily arrested without a warrant or without reasonable cause, often on the request of a relative or as part of periodic police round-ups of people considered "undesirable." They are often lied to - or simply not informed - about the reasons of their arrest. They have no access to a lawyer during their period in police custody or during the subsequent period of detention in the centers. Military drills, sweating while exercising, and laboring are the most common means used to "cure" drug dependence in these centers, which are operated by various government entities, including military police and civilian police forces. "Vocational training" activities which take place in some centers appear motivated by benefits to the center staff as opposed to detainees. The report highlighted the large number of children and individuals with mental illnesses also detained within the centers. Both groups, according to the report, were subject to similar physical abuses.
Human Rights Watch called on the Royal Cambodian Government to permanently close its drug detention centers and conduct a thorough investigation of acts of torture, ill treatment, arbitrary detention, and other abuses occurring in them. Torture and inhuman treatment are prohibited by both the government's international human rights obligations and the Constitution of Cambodia.
"The government of Cambodia must stop the torture occurring in these centers" said Amon. "Drug dependency can be addressed through expanded voluntary, community-based, outpatient treatment that respects human rights and is consistent with international standards."
Selected accounts from individuals interviewed for "Skin on the Cable":
"I think this is not a rehab center but a torturing center." - Kakada, former detainee
"[A staff member] would use the cable to beat people...On each whip the person's skin would come off and stick on the cable..." - M'noh, age 16, describing whippings he witnessed in the Social Affairs "Youth Rehabilitation Center" in Choam Chao
"[After arrest] the police search my body, they take my money, they also keep my drugs...They say, ‘If you don't have money, why don't you go for a walk with me?...[The police] drove me to a guest house.... How can you refuse to give him sex? You must do it. There were two officers. [I had sex with] each one time. After that they let me go home." - Minea, a woman in her mid 20's who uses drugs, explaining how she was raped by two police officers
"[Shortly after arrival] I was knocked out. Other inmates beat me....They just covered me with a blanket and beat me...They beat me in the face, my chest, my side. I don't know how long it lasted...The staff had ordered the inmates to beat me. The staff said, ‘The new chicken has arrived, let's pluck its feathers and eat it!'" - Duongchem, former detainee
WASHINGTON — A teenage daughter of Osama bin Laden, who has lived with at least five of her siblings in a guarded compound in Iran since 2001, took refuge last month in the Saudi Embassy in Tehran, and family members are trying to arrange for a large number of relatives to leave Iran for Saudi Arabia or Syria, one of Mr. bin Laden’s sons said in a telephone interview on Wednesday.
The son, Omar bin Laden, broke with his father, the leader of Al Qaeda, before the 2001 terrorist attacks in New York and on the Pentagon and now lives in Qatar and Saudi Arabia. He said that his sister Iman, 19, walked away during a shopping trip in Tehran about a month ago and made her way to the Saudi Embassy, hoping to be reunited with her mother, who lives in Syria.
Omar bin Laden and his wife, Zaina, who is British, said in the interview that at least six of Osama bin Laden’s children and one of his wives live in a comfortable compound in Tehran with other relatives, for a total of about 30 family members there. The couple denied that their relatives were under house arrest, as has been widely reported, but acknowledged that Iranian security personnel accompanied them when they left the compound.
In addition to Iman bin Laden, they identified Mr. bin Laden’s children living in the Tehran compound as Osman, Mohammed, Fatima, Hazma and Bakr.
The status of another son, Saad, remained uncertain. American officials said last summer that they believed that Saad bin Laden had traveled from Iran to Pakistan and had been killed by an American missile fired from a drone. Omar and Zaina bin Laden said Saad was still in the Tehran compound when the missile attack was said to have occurred, but they said that they did not know where he was now or whether he was still alive.
The presence of some of Osama bin Laden’s family in Iran was previously known, but the report of Iman’s seeking refuge in the Saudi Embassy added to the picture of their ambiguous status in Tehran. By several accounts, the bin Laden relatives left Afghanistan shortly before the 9/11 attacks, and were detained in Iran as they tried to get home to Saudi Arabia.
In Iran, whose relations with Saudi Arabia are tense, the relatives appear to be not exactly prisoners, but not quite guests. Omar and Zaina bin Laden said the bin Ladens in Tehran had been treated well but had no official documents to permit them to leave the country.
Steve Coll, author of “The bin Ladens: An Arabian Family in the American Century,” said the news from Tehran “provides the first open evidence of the circumstances under which bin Laden family members have been living in Iran” and “confirms that the Iranians have attempted to keep them under some kind of control.”
But Omar bin Laden, 28, who recently published a memoir with his mother, “Growing Up bin Laden,” said none of the bin Ladens in Tehran had been involved in Al Qaeda. Speaking of his siblings now in Tehran, he said, “They are all younger than me and they had nothing to do with 9/11 or any kind of terrorism.”
In a statement announcing financial sanctions in January against Saad bin Laden and three people accused of being Qaeda operatives in Iran, the Treasury Department said that he had been “involved in managing the terrorist organization from Iran.” But an American intelligence official said Wednesday that Saad bin Laden played a minor role in the organization.
Omar and Zaina bin Laden said they had spoken with Osman, 26, and he had told them he believed that Iran would eventually permit the family members to leave the country. They said the 30 relatives in Tehran included about 11 grandchildren, born since the family fled Afghanistan.
“People are beginning to realize these children are innocent victims of 9/11,” Zaina bin Laden said.
Robert F. Worth contributed reporting from Beirut, Lebanon.
"If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear." Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. Also present was Amnesty International's Sarnata Reynolds, who wrote about the incident in the 2009 report "Jailed Without Justice" and said in an interview, "It was almost surreal being there, particularly being someone from an organization that has worked on disappearances for decades in other countries. I couldn't believe he would say it so boldly, as though it weren't anything wrong."
ICE agents regularly impersonate civilians--OSHA inspectors, insurance agents, religious workers--in order to arrest longtime US residents who have no criminal history. Jacqueline Stevens has reported a web-exclusive companion piece on ICE agents' ruse operations.
Pendergraph knew that ICE could disappear people, because he knew that in addition to the publicly listed field offices and detention sites, ICE is also confining people in 186 unlisted and unmarked subfield offices, many in suburban office parks or commercial spaces revealing no information about their ICE tenants--nary a sign, a marked car or even a US flag. (Presumably there is a flag at the Veterans Affairs Complex in Castle Point, New York, but no one would associate it with the Criminal Alien Program ICE is running out of Building 7.) Designed for confining individuals in transit, with no beds or showers, subfield offices are not subject to ICE Detention Standards. The subfield office network was mentioned in an October report by Dora Schriro, then special adviser to Janet Napolitano, secretary of Homeland Security, but no locations were provided.
I obtained a partial list of the subfield offices from an ICE officer and shared it with immigrant advocates in major human and civil rights organizations, whose reactions ranged from perplexity to outrage. Andrea Black, director of Detention Watch Network (DWN), said she was aware of some of the subfield offices but not that people were held there. ICE never provided DWN a list of their locations. "This points to an overall lack of transparency and even organization on the part of ICE," said Black. ICE says temporary facilities in field or subfield offices are used for 84 percent of all book-ins. There are twenty-four listed field offices. The 186 unlisted subfield offices tend to be where local police and sheriffs have formally or informally reached out to ICE. For instance, in 2007 North Carolina had 629,947 immigrants and at least six subfield offices, compared with Massachusetts, with 913,957 immigrants and one listed field office. Not surprisingly, before joining ICE Pendergraph, a sheriff, was the Joe Arpaio of North Carolina, his official bio stating that he "spearheaded the use of the 287(g) program," legislation that empowers local police to perform immigration law enforcement functions.
A senior attorney at a civil rights organization, speaking on background, saw the list and exclaimed, "You cannot have secret detention! The public has the right to know where detention is happening."
Alison Parker, deputy director of Human Rights Watch, wrote a December comprehensive report on ICE transit policies, "Locked Up Far Away." Even she had never heard of the subfield offices and was concerned that the failure to disclose their locations violates the UN's Covenant on Civil and Political Rights, to which the United States is a signatory. She explained that the government must provide "an impartial authority to review the lawfulness of custody. Part and parcel is the ability of somebody to find the person and to make their presence known to a court."
The challenge of being unable to find people in detention centers, documented in the Human Rights Watch report, is worsened when one does not even know where to look. The absence of a real-time database tracking people in ICE custody means ICE has created a network of secret jails. Subfield offices enter the time and date of custody after the fact, a situation ripe for errors, hinted at in the Schriro report, as well as cover-ups.
ICE refused a request for an interview, selectively responded to questions sent by e-mail and refused to identify the person authorizing the reply--another symptom of ICE thwarting transparency and hence accountability. The anonymous official provided no explanation for ICE not posting a list of subfield office locations and phone numbers or for its lack of a real-time locator database.
It is not surprising to find that, with no detention rules and being off the map spatially and otherwise, ICE agents at these locations are acting in ways that are unconscionable and unlawful. According to Ahilan Arulanantham, director of Immigrant Rights for the ACLU of Southern California, the Los Angeles subfield office called B-18 is a barely converted storage space tucked away in a large downtown federal building. "You actually walk down the sidewalk and into an underground parking lot. Then you turn right, open a big door and voilà, you're in a detention center," Arulanantham explained. Without knowing where you were going, he said, "it's not clear to me how anyone would find it. What this breeds, not surprisingly, is a whole host of problems concerning access to phones, relatives and counsel."
It's also not surprising that if you're putting people in a warehouse, the occupants become inventory. Inventory does not need showers, beds, drinking water, soap, toothbrushes, sanitary napkins, mail, attorneys or legal information, and can withstand the constant blast of cold air. The US residents held in B-18, as many as 100 on any given day, were treated likewise. B-18, it turned out, was not a transfer area from point A to point B but rather an irrationally revolving stockroom that would shuttle the same people briefly to the local jails, sometimes from 1 to 5 am, and then bring them back, shackled to one another, stooped and crouching in overpacked vans. These transfers made it impossible for anyone to know their location, as there would be no notice to attorneys or relatives when people moved. At times the B-18 occupants were left overnight, the frigid onslaught of forced air and lack of mattresses or bedding defeating sleep. The hours of sitting in packed cells on benches or the concrete floor meant further physical and mental duress.
Alla Suvorova, 26, a Mission Hills, California, resident for almost six years, ended up in B-18 after she was snared in an ICE raid targeting others at a Sherman Oaks apartment building. For her, the worst part was not the dirt, the bugs flying everywhere or the clogged, stinking toilet in their common cell but the panic when ICE agents laughed at her requests to understand how long she would be held. "No one could visit; they couldn't find me. I was thinking these people are going to put me and the other people in a grinder and make sausages and sell them in the local market."
Sleep deprivation and extreme cold were among the "enhanced interrogation" techniques promoted by the Bush White House and later set aside by the Justice Department because of concerns that they amounted to torture. Although without the intent to elicit information, ICE under the Obama administration was holding people charged with a civil infraction in conditions approaching those no longer authorized for accused terrorists.
According to Aaron Tarin, an immigration attorney in Salt Lake City, "Whenever I have a client in a subfield office, it makes me nervous. Their procedures are lax. You've got these senior agents who have all the authority in the world because they're out in the middle of nowhere. You've got rogue agents doing whatever they want. Most of the buildings are unmarked; the vehicles they drive are unmarked." Like other attorneys, Tarin was extremely frustrated by ICE not releasing its phone numbers. He gave as an example a US citizen in Salt Lake City who hired him because her husband, in the process of applying for a green card, was being held at a subfield office in Colorado. By the time Tarin tracked down the location of the facility that was holding the husband when he had called his wife, the man had been moved to another subfield office. "I had to become a little sleuth," Tarin said, describing the hours he and a paralegal spent on the phone, the numerous false leads, unanswered phones and unreturned messages until the husband, who had been picked up for driving without a license or insurance, was found in Grand Junction, Colorado, held on a $20,000 bond, $10,000 for each infraction. "I argued with the guy, 'This is absurd! Whose policy is this?'" Tarin said the agent's response was, "That's just our policy here."
Rafael Galvez, an attorney in Maine, explained why he would like ICE to release its entire list of subfield office addresses and phone numbers. "If they're detaining someone, I will need to contact the people on the list. If I can advocate on a person's behalf and provide documents, a lot of complications could be avoided."
Cary, a suburb of Raleigh, North Carolina, has a typical subfield office at the rear of CentreWest Commons, an office park adjacent to gated communities, large artificial ponds and an Oxford University Press production plant. ICE's low-lying brick building with a bright blue awning has darkened windows, no sign and no US flag. People in shackles and handcuffs are shuffled in from the rear. The office complex has perhaps twenty other businesses, all of which do have signs. The agents, who are armed, might not wear uniforms and drive their passengers in unmarked, often windowless white vans. Even Dani Martinez-Moore, who lives nearby and coordinates the North Carolina Network of Immigrant Advocates, did not know people were being held there until she read about it on my blog.
In late October 2008, Mark Lyttle, then 31, was held in the Cary office for several hours. Lyttle was born in North Carolina, and the FBI file ICE had obtained on him indicated he was a US citizen. Lyttle used his time in the holding tank attempting to persuade the agents who had plucked him out of the medical misdemeanor section of a nearby prison, where he had been held for seventy-three days, not to follow through on the Cary office's earlier decision to ship him to Mexico. Lyttle is cognitively disabled, has bipolar disorder, speaks no Spanish and has no Mexican relatives. In response to his entreaties, a Cary agent "told me to tell it to the judge," Lyttle said. But Lyttle's charging document from the Cary office includes a box checked next to the boilerplate prohibition: "You may not request a review of this determination by an immigration judge."
Lyttle made enough of a fuss at the Stewart Detention Center in Lumpkin, Georgia, that the agents there arranged for him to appear before a judge. But the checked box in the Cary paperwork meant he never heard from the nonprofit Legal Orientation Program attorneys who might have picked up on his situation. William Cassidy, a former ICE prosecutor working for the Executive Office of Immigration Review, ignored Lyttle's pleas and in his capacity as immigration judge signed Lyttle's removal order. According to Lyttle, Cassidy said he had to go by the sworn statements of the ICE officers.
Meanwhile, Lyttle's mother, Jeanne, and his brothers, including two in the Army, were frantically searching for him, even checking the obituaries. They were trying to find Lyttle in the North Carolina prison system, but the trail went cold after he was transferred to ICE custody. Jeanne said, "David showed me the Manila envelope [he sent to the prison]--'Refused'--and we thought Mark had refused it." Jeanne was crying. "We kept trying to find out where he was." It never crossed their minds that Mark might be spending Christmas in a shelter for los deportados on the Mexican side of the Rio Grande.
ICE spokesman Temple Black first told me the list was "not releasable" and that it was "law enforcement sensitive," but coordinator for community outreach Andrew Lorenzen-Strait e-mailed me a partial list of addresses and no phone numbers. I then obtained a more complete list, including telephone numbers, in response to a FOIA request. That list, received in November and dated September 2009, is about forty locations shy of the 186 subfield offices mentioned in the Schriro report and omits thirty-nine locations listed in an August ICE job announcement seeking applicants for immigration enforcement agents. These include ICE postings in Champlain, New York; Alamosa, Colorado; Pembroke Pines, Florida; and Livermore, California. The anonymous ICE official neither answered questions about why I was sent an incomplete list nor accounted for the disparity in official explanations of the list's confidentiality.
ICE obscures its presence in other ways as well. Everyone knows that detention centers are in sparsely populated areas, but according to Amnesty International's Reynolds, policy director of migrant and refugee rights, "Quite a lot of communities don't know they're detaining thousands of people, because the signs say Service Processing Center," not Detention Center, although the latter designation is used for privately contracted facilities. The ICE e-mail stated that the "service processing" term was first used when the centers were run by the predecessor agency Immigration and Naturalization Service, "because these facilities were used to process aliens for deportation," ignoring the fact that these structures were and are distinctive for confining people and not the Orwellian "processing."
Even the largest complexes, which are usually off side roads from small highways, are visible only if you drive right up to the entrance. Unlike federal prisons, detention centers post no road signs to guide travelers. The anonymous ICE official would not provide a reason for this disparity.
ICE agents are also working in hidden offices in one of the grooviest buildings in one of the hottest neighborhoods in Manhattan. Tommy Kilbride, an ICE detention and removal officer and a star of A&E's reality show Manhunters: Fugitive Task Force, is part of the US Marshals Fugitive Task Force, housed on the third floor of the Chelsea Market, above Fat Witch Bakery and alongside Rachael Ray and the Food Network. Across the street are Craftsteak and Del Posto, both fancy venues for two other Food Network stars, Tom Colicchio and Mario Batali. Above their restaurants are agents working for the FBI's Joint Terrorism Task Force.
Someone who had been working in that building for about a year said he had heard rumors of FBI agents, though he didn't see one until nine months later when a guy was openly carrying a gun through the lobby. In November, at midday, he saw two men in plain clothes walk a third man in handcuffs through a side-street door behind Craftsteak. "It was weird, creepy," he said, adding that the whole arrangement made him uncomfortable. "I don't like it. It makes you wonder, what are they hiding? Is it for good reasons or bad reasons?"
Natalie Jeremijenko, who lives nearby and is a professor of visual arts at New York University, pointed out the "twisted genius" of hiding federal agents in the "worldwide center of visuality and public space," referring to the galleries and High Line park among these buildings. Jeremijenko was incensed. "For a participatory democracy to work, you need to have real-time visual evidence of what is going on" and not just knowledge by professors who file a FOIA request or even readers of a Nation article.
In response to a question about the absence of signs at subfield offices, the ICE e-mail stated, "ICE attempts to place signs wherever possible, however there are many variables to consider such as shared buildings, law enforcement activities, zoning laws, etc." Except for "law enforcement activities," the reasons did not apply to the facilities listed here, as evidenced by signs on adjacent businesses.
The Obama administration continued to ignore complaints about the LA subfield office known as B-18 until April 1, when Napolitano and Attorney General Eric Holder, as well as ICE officials, were named as defendants in a lawsuit filed by the ACLU and the National Immigration Law Center. In September, the parties reached a settlement. The ACLU's Arulanantham said, "I never understood what [ICE] had to gain. The fact that after we filed the suit they completely fixed it makes it more mysterious" as to why their months of earlier negotiation brought few results. At the time of the lawsuit, he said, the nearby Mira Loma Detention Center had space. When I asked if ICE was trying to punish people by bringing them to B-18, Arulanantham said, "No, no one was targeted," adding, "If it were punitive, it would be less disturbing."
Arulanantham's response is, alas, more than fodder for a law school hypothetical about whether intentional or unintentional rights violations are more egregious. In 2006 ICE punished several Iraqi hunger strikers in Virginia--they were protesting being unlawfully held for more than six months after agreeing to deportation--by shuffling them between a variety of different facilities, ensuring that they would not encounter lawyers or be found by loved ones. This went on from weeks to months, according to Brittney Nystrom, senior legal adviser for the National Immigration Forum. "The message was, We're going to make you disappear."
As an alternative to the system of unmarked subfield offices and unaccountable agents, consider the approach of neighborhood police precincts, where dangerous criminals are held every day and police carry out their work in full view of their neighbors. Not only can citizens watch out for strange police actions, and know where to look if a family member is missing; local accountability helps discourage misconduct. ICE agents' persistent flouting of rules and laws is abetted by their ability to scurry back to secret dens, avoiding the scrutiny and resulting inhibitions that arise when law enforcement officers develop relationships with the communities they serve.
Indeed, the jacket Kilbride wears during arrests says POLICE in large letters. Working out of a heretofore secret location--Manhunters has no exterior shots--one that his supervisor had requested I not reveal, gives their operation the trappings of a secret police. An attorney who had a client held in a subfield office said on background, "The president released in January a memorandum about transparency, but that's not happening. He says one thing, but we have these clandestine operations, akin to extraordinary renditions within the United States. They're misguided as to what their true mission is, and they are doing things contrary to the best interests of the country."
ISLAMABAD, Pakistan — Investigators from the F.B.I. continued Friday to question five Muslim American men who were arrested in Pakistan earlier this week, but it remained unclear whether the men would be deported to the United States, a spokesman for the Interior Ministry said.
“It all depends on the investigations, and things will be clear in a day or two,” said the spokesman, Rashid Mazari.
Officials say the men, from the suburbs of Washington, were en route to North Waziristan for training with the Taliban and al Qaeda to fight American troops in Afghanistan. The police arrested them on Wednesday in Sargodha, a major city in Punjab Province that has become a growing center of militancy.
The F.B.I. said in a statement on Thursday that it wanted the men returned to the United States. The five have not been charged under Pakistani law and it is not clear what they would be charged with in the United States, American officials said.
The minister of law in Punjab, Rana Sanaullah, said Friday the Pakistani authorities wanted to complete their investigation into the links between Pakistani extremist groups and the Americans before granting extradition.
The young men had told investigators they planned to meet near the border between Punjab and North-West Frontier Province, with a person who would then take them to their destination in the tribal areas where the Taliban and al Qaeda are based, Mr. Sanaullah said.
He added that it was important for the Pakistanis to understand which militant groups the young men were in touch with before letting them return to the United States. A United States consular officer was scheduled to see the men on Friday, an American Embassy spokesman said, and they would be asked if they wanted a lawyer to represent them.
The questioning by the American investigators of the five men, aged from their late teens to mid twenties, started early Friday as each of the men was called separately into a room at the Sargodha police headquarters, a local police official said. The senior Pakistani police officials from the city were killing time outside the headquarters building as the Americans conducted their investigation, the local police official said.
On Friday, the Pakistani police also released photographs taken of the men at the police station. According to the police, three are of Pakistani origin, one is of Ethiopian descent and another is of Eritrean background.
The Pakistani police said all five were American citizens, but the American Embassy official said one of the five did not hold an American passport.
The police said Khalid Farooq, the father of Umer, one of the young men, had been arrested and was also being questioned Friday on the grounds that he knew the young men were wanted by the F.B.I. but had not reported their whereabouts.
Mr. Farooq and his wife, who run a computer business in northern Virginia, were in Sargodha when the young men turned up there after landing in Karachi on Nov. 20, police said. Mr. Farooq immigrated to the United States 20 years ago and is an American citizen, the American embassy said. Whether the men acted on a lark or were recruited as part of a larger militant outfit, the case has renewed concerns that American citizens, some with ethnic ties to Pakistan and other Muslim countries, are increasingly at the center of terrorist plots against the United States and other nations.
The youths, from Virginia, may end up being at least the fourth case prosecuted this year in which Muslim Americans traveled to Pakistan to link up with what remains a sprawling network of militant groups in the country.
Earlier this week, an American citizen of Pakistani background, David Coleman Headley, was charged in Chicago with helping plot the 2008 rampage in Mumbai, India, that killed more than 160 people.
In September, F.B.I. agents and police detectives arrested Najibullah Zazi, a 24-year-old Denver airport shuttle bus driver and former coffee-cart vendor, who prosecutors say had traveled to Pakistan for explosives training with two friends from New York. In January, Bryant Neal Vinas, a convert to Islam with family roots in South America, pleaded guilty to receiving training from Al Qaeda after traveling to Pakistan in 2008.
The five men in the current group all said on their visa applications that they were going to a wedding in Karachi, and all five gave the same address in Karachi for their stay in Pakistan, a Pakistani official said.
Their militant contact booked them into a hotel in Lahore, the official said. But once they got there, their contact went to ground and they were stranded.
They then went to Sargodha, home to the central command of Pakistan’s air force, and a city known as a center for anti-India militant groups.
The men were arrested at a four-room home in a government housing complex belonging to an uncle of the eldest of the group, Umer Farooq, 25, according to Chief Anwar.
“We had tips from local people and work of field officers that some foreigners were residing in some area of the city,” the chief said. “We watched them for a day or so and then arrested them.”
Mr. Farooq’s parents were staying at the house at the time, and his father, Khalid, was arrested as well. The police chief said the elder Mr. Farooq knew that his son and the other men were being hunted by the F.B.I., but had failed to inform the authorities of their presence.
Umer Farooq’s mother, Sabria Farooq, who was wearing a traditional chador, was interviewed Thursday at the house. She said she and her husband emigrated to the United States 20 years ago from Sargodha and returned in September to start a computer business, similar to the one they have in the Virginia suburbs close to Washington.
The five men seemed to have plenty of money, according to the police. Mrs. Farooq said one of the men, Waqar Khan, had brought $25,000 from the United States for the trip. In Karachi, the men stayed in a “good local hotel” before moving to Hyderabad, Pakistan, to make contact with a religious school, the police said.
The police identified the others arrested in Sargodha as Ramy Zamzam, 22, a dental student of Egyptian background at Howard University, who was described as a sort of “ringleader”; Ahmed Abdullah Minni, 20, born in Eritrea; and Aman Hassan Yemer, 18, a native Ethiopian. Mr. Khan is of Pakistani background and was reported to have family connections in Karachi. The spellings of the men’s names in various documents and provided by various officials have varied.
The five men bonded together in the jihadi cause, watching jihadist video clips on YouTube that showed attacks by the Taliban on allied forces in Afghanistan, he said. The group also maintained a common e-mail address, Chief Anwar said, employing a technique widely used among militants.
Before they left the United States, the men appeared to have come to the attention of an Islamic militant, identified as Saifullah, through their YouTube activities, the police chief said. Saifullah, who has links to Al Qaeda, traced their e-mail addresses through YouTube, Chief Anwar said.
After establishing the Internet connection with the militant, the men planned their journey to Pakistan and into North Waziristan, where they intended to train near Miram Shah, a headquarters of the Afghan Taliban, the police said.
The men were carrying laptops and maps of Miram Shah, and also of Kohat and Hangu, two major towns in the North-West Frontier Province that serve as the gateway to the tribal areas, the police said.
Sargodha is increasingly well traveled by Pakistani militants from Punjab who head to the Waziristan region for training in explosives and weapons conducted by Taliban and Qaeda operatives.
In the past six months, 24 militants have been arrested in Sargodha, all with ties to the Taliban and Waziristan, the police said recently. “They want to hit America,” said one investigator, who requested anonymity while discussing security matters. “They were highly emotionally motivated.”
Waqar Gillani reported from Sargodha, and Jane Perlez from Islamabad. Salman Masood contributed reporting from Islamabad, and Eric Schmitt and Mark Mazzetti from Washington. Sabrina Tavernise also contributed reporting.
Transfers of Detained Immigrants Interfere with Lawyer Access and Right to Challenge Deportation
December 2, 2009
(Washington, DC) - The Immigration and Customs Enforcement agency's increasing practice of transferring immigrants facing deportation to detention centers far away from their homes severely curtails their ability to challenge their deportation, Human Rights Watch says in a report released today. The agency made 1.4 million detainee transfers in the decade from 1999 through 2008, the report says.
The 88-page report, "Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States," presents new data analyzed for Human Rights Watch by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University. The data show that 53 percent of the 1.4 million transfers have taken place since 2006, and most occur between state and local jails that contract with the agency, known as ICE, to provide detention bed space. The report's findings are based on the new data and interviews with officials, immigration lawyers, detainees, and their family members.
"ICE is increasingly subjecting detainees to a chaotic game of musical chairs," said Alison Parker, deputy US director for Human Rights Watch and author of the report. "And it's a game with dire consequences since it may keep them from finding an attorney or presenting evidence in their defense."
Many immigrants are first arrested and detained in major cities like Los Angeles or Philadelphia, places where immigrants have lived for decades and where their family members, employers, and attorneys also live. Days or months later, with no notice, many of these immigrants are loaded onto planes for transport to detention centers in remote corners of states such as Texas, California, and Louisiana (the three states most likely to receive transfers), the report found.
The detained immigrants have the right, under both US and international human rights law, to be represented in deportation hearings by an attorney of their choice and to present evidence in their defense. But once they are transferred, immigrants are often so far away from their lawyers, evidence, and witnesses that their ability to defend themselves in deportation proceedings is severely curtailed, the report found.
"Immigrant detainees should not be treated like so many boxes of goods - shipped to the most convenient place for ICE to store them," Parker said. "We are especially concerned that the transferred detainees may find that their chances of successfully fighting deportation or gaining asylum from persecution have just evaporated."
The federal Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) has jurisdiction over the largest number of the transferred detainees. Those transfers are of particular concern, Human Rights Watch said, because that court is widely known for decisions that are hostile to non-citizens and because the states within its jurisdiction collectively have the lowest ratio of immigration attorneys to immigration detainees in the country.
Human Rights Watch acknowledged that some detainee transfers are inevitable, but said that ICE and Congress should use reasonable and rights-protective checks on detainee transfers as the best state criminal justice systems do. The report recommends concrete steps to help create such a system.
Although ICE has recently announced plans to revamp its detention system, which may provide an opening for reforms, the agency previously has rejected recommendations to place enforceable constraints on its transfer power.
Human Rights Watch's report is being released on the same day (December 2) as the Constitution Project's "Recommendations for Reforming our Immigration Detention System and Promoting Access to Counsel in Immigration Proceedings," finding that immigration detention is overused and immigrant detainees experience problems in accessing counsel and providing recommendations for reform. Also on December 2, the Transactional Records Access Clearinghouse will release detailed facility level data on detainee transfers.
***
Testimony from detainees, family members, and attorneys about transfers:
"The transfers are devastating, absolutely devastating. [Detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in. I cannot overemphasize the psychological trauma to these people. What it does to their family members cannot be fully captured either. I have taken calls from seriously hysterical family members - incredibly traumatized people - sobbing on the phone, crying out, ‘I don't know where my son or husband is!'" - Rebecca Schreve, immigration attorney, El Paso, Texas, January 29, 2009.
"In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico.... All my evidence and stuff that I need is right there in New York. I've been trying to get all my case information from New York ... writing to ICE to get my records. But they won't give me my records; they haven't given me nothing. I'm just representing myself with no evidence to present." - Kevin H. (pseudonym), Otero County Processing Center, Chaparral, New Mexico, February 11, 2009.
"I have never represented someone who has not been in more than three detention facilities. Could be El Paso, Texas, a facility in Arizona, or they send people to Hawaii .... I have been practicing immigration law for more than a decade. Never once have I been notified of [my client's] transfer. Never." - Holly Cooper, immigration attorney and clinical professor of law, University of California Davis School of Law, Davis, California, January 27, 2009.
"Ever since they sent him there [to New Mexico], it's been a nightmare. My mother has blood pressure problems, and her pressure goes up and down like crazy now because of worrying about him and stuff. [His wife] has been terrified. She cries every night. And his baby asks for him, asks for "Papa." He kisses his photo. He starts crying as soon as he hears his father's voice on the phone even though he is only one.... Last week [my brother] called to say he can't do it anymore. He's going to sign the paper agreeing to his deportation." - Georgina V. (pseudonym), sister of detainee, Brooklyn, New York, January 23, 2008.
A detainee who was transferred 1,400 miles away to a detention facility in Texas after a few weeks in a detention center in southern California said that the difference for him was "like the difference between heaven and earth. At least in California I had a better chance. I could hire a[n] attorney to represent me. Now, here, I have no chance other than what the grace of God gives me." - Michael M. (pseudonym), Pearsall Detention Center, Pearsall, Texas, April 25, 2008.
A legal permanent resident originally from the Dominican Republic, who had been living in Philadelphia but was transferred to Texas said, "I had to call to try to get the police records myself. It took a lot of time. The judge got mad that I kept asking for more time. But eventually they arrived. I tried to put on the case myself. I lost." - Miguel A. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008.
The Obama administration is looking to convert hotels and nursing homes into immigration detention centers and to build two model detention centers from scratch as it tries to transform the way the government holds people it is seeking to deport.
These and other initiatives, described in an interview on Monday by Janet Napolitano, the secretary of homeland security, are part of the administration’s effort to revamp the much-criticized detention system, even as it expands the enforcement programs that send most people accused of immigration violations to jails and private prisons. The cost, she said, would be covered by greater efficiencies in the detention and removal system, which costs $2.4 billion annually to operate and holds about 380,000 people a year.
“The paradigm was wrong,” Ms. Napolitano said of the nation’s patchwork of rented jail space, which has more than tripled in size since 1995, largely through Immigration and Customs Enforcement contracts for cells more restrictive, and expensive, than required for a population that is largely not dangerous. Among those in detention on Sept. 1, 51 percent were considered felons, and of those, 11 percent had committed violent crimes.
“Serious felons deserve to be in the prison model,” Ms. Napolitano said, “but there are others. There are women. There are children.”
These and other nonviolent people should be sorted and detained or supervised in ways appropriate to their level of danger or flight risk, she said. Her goal, she said, is “to make immigration detention more cohesive, accountable and relevant to the entire spectrum of detainees we are dealing with.”
Several of the initiatives Ms. Napolitano described, to be formally announced on Tuesday afternoon, are steps on a road outlined in August, when John Morton, the assistant secretary for Immigration and Customs Enforcement, announced an ambitious plan to transform the penal network into a “truly civil detention system.”
But the corrections expert he had put in charge of the overhaul, Dora B. Schriro, quit last month to become the corrections commissioner in New York City, after delivering a report on her eight-month top-to-bottom review of the system. The report had remained under wraps until now.
Dr. Schriro’s departure, and the delay in making her report public, dismayed many of the dozens of immigrant advocacy groups she consulted. Her 35-page report, provided to The New York Times after the interview on the condition that it not be posted on its Web site until Tuesday afternoon, calls for prompt attention to individual complaints about a lack of medical care, and “a credible grievance process, sustained in an environment free from intimidation and retaliation.”
In her interview, Ms. Napolitano said little about medical care but promised that within six months the Department of Homeland Security would “devise and implement” a classification system to better place people with medical or mental health needs in the right detention centers.
That vow puzzled some immigrant advocacy groups that deal with seriously ill detainees, including some who have died in federal custody after not getting proper treatment. The groups said they were concerned about the gap between announced plans to improve medical care and the actions of immigration officials.
Cheryl Little, the director of the Florida Immigrant Advocacy Center, pointed to the case of a woman she called Rosemarie, who, while being detained at the Glades County Detention Center, has suffered severe daily bleeding as a result of a fibroid tumor in her uterus.
“This has gone on for more than the five months she has been in ICE custody,” Ms. Little said. “Since June, we have tried everything to get her proper treatment. We started the requests at the local level and escalated up to D.H.S. headquarters. Ultimately we’ve had to file a lawsuit, and Rosemarie still hasn’t had the surgery she needs.”
Ms. Napolitano noted repeatedly that some of the initiatives she was announcing were “easier said than done.” Plans to speed the implementation of an online system for families and lawyers to locate detainees, for example, have been complicated by privacy issues and by the fact that many detainees share names and some stay in the system for only a couple of days, she said.
Likewise, though alternatives to detention are much cheaper than the jails under contract — $14 a day at most per person, compared with more than $100 a day — the overall cost is more complicated to calculate, she said.
About 19,000 noncitizens are supervised daily using alternatives like electronic bracelets, but their immigration cases are moved to the back of the line for adjudication. Homeland Security is working with the Justice Department, which oversees immigration courts, to modify that practice, she said, and this fall will submit a proposal to Congress to expand detention alternatives.
A request for proposals to build two model detention centers, one in California, will be issued within a year, said Mr. Morton, the ICE official. On Oct. 30, he said, he will solicit proposals and market research about converted hotels, nursing homes and other residential facilities that could serve as less expensive and less restrictive detention centers.
Mr. Morton said that on Sept. 18 the agency began housing nonviolent detainees, including new asylum seekers, at the Broward Transitional Center in Pompano Beach, Fla., near free legal help. But Charu al-Sahli, the statewide director of the Florida Immigrant Advocacy Center, said the Broward center, run for profit by GEO, a large prison company formerly known as Wackenhut, had been housing asylum seekers since 2003.
A former work-release center now surrounded by barbed wire, it is being expanded to house 700, up from 530.
“Even though it’s a nicer environment than a jail,” Ms. al-Sahli said, “these are still the people we would hold up for release, not just nicer detention.”
The cavernous room in the U.S. District Court in Washington, D.C., was nearly empty, except for a few journalists holding yellow legal pads. A small parade of government lawyers marched in and rested their briefcases on their desks before approaching the trio of lawyers representing Mohammed Jawad, an Afghan national who was detained in 2002 after being accused of throwing a grenade at an American convoy, injuring several American soldiers. He was between 12 and 17 years old at the time and has been in U.S. custody for seven years. The hearing, held in June, was not related to Jawad's guilt or innocence. Rather, it was his habeas corpus proceeding -- the legal challenge to the government's ability to hold him in the first place.
It is widely believed that Jawad's confession, offered to Afghan authorities shortly after his capture, was coerced through torture. Jawad is illiterate, and the confession was written in a dialect he didn't speak, accompanied by a separate page bearing only his thumbprint. His military defense attorney, Maj. Eric Montalvo, says that as soon as Jawad was asked about the incident in a language he could understand, he denied everything. Then, Montalvo says, Jawad was handed over to American interrogators who tortured him ("They did things that were classified"). After Jawad attempted suicide in his Guantánamo cell in 2003, he was subjected to the government's "frequent flyer" program, in which the detainee is moved from cell to cell every few hours for days or weeks on end, in order to deny him sleep.
Because Jawad was technically captured "on the battlefield," he appeared before a military commission in 2007. At the hearing, the presiding judge threw out the coerced confessions and the original prosecutor, Lt. Col. Darrel Vandeveld, resigned in disgust, penning a letter in which he denounced the commissions as a travesty. Jawad has been denied a criminal trial, where his culpability might be determined according to the high standards of federal courts. "Under the Bush administration, there was this attempt to blur the criminal-justice system and the military-justice system and create this hybrid system that lacked due-process safeguards," says Stacy Sullivan, a counterterrorism adviser for Human Rights Watch. "We hoped that during the Obama administration we'd be able to put those pieces back where they belong. That doesn't seem to be happening."
At the habeas hearing in June, the Department of Justice was scheduled to submit a series of documents regarding Jawad's detention that had been collected by an Obama administration task force investigating Guantánamo and U.S. detention policy. But Justice Department attorney James Gilligan informed Jawad's lawyers that the department was unable to provide the documents on the grounds that the information was "protected." When Maj. David Frakt, one of Jawad's lawyers, asked when the documents would be ready, Gilligan just chuckled. An uncomfortable silence fell on the group as Frakt stared at Gilligan. "I don't know," Gilligan finally said.
Watching the proceedings, Montalvo, shrugged and said, "The government has no case. They know it. They're stalling."
The story is an old one for Jawad's lawyers -- they believe the government knows it cannot justify holding him, but it doesn't want to let him go. More galling to Jawad's defense counsel is the fact that the government sought to include Jawad's confessions to Afghan authorities, obtained through torture, as evidence against his release. In July, his lawyers filed a motion to suppress the confessions, which made up about 90 percent of the evidence against him. This time, the government chose not to challenge the motion -- but failed to commit to his release. Judge Ellen Segal Huvelle eviscerated the government for having little cause to continue holding him. "This guy has been there seven years -- seven years," Huvelle said. "Without his statements, I don't understand your case. I really don't."
At the core of the dispute over the detention of suspects like Jawad is whether or not there are, as President Barack Obama claims, "detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people." This is the so-called "fifth category" of detainees -- exactly how many there are, the government has yet to determine. (Assistant Attorney General David Kris told Congress in July that half of the Guantánamo detainees' cases had been reviewed, and none had yet been put into the "fifth category.") "There will be some, who we have picked up and who are in Guantánamo ? who for a variety of reasons can't be prosecuted," says former CIA counsel Jeff Smith. "We have convincing intelligence information, but it is not enough to prosecute them."
Frakt isn't buying the administration's assertion about the necessity of preventive detention -- the practice of imprisoning suspected terrorists even in cases where the government cannot prove they have committed crimes. "When you look at the minimal amount of evidence required to convict someone of something like material support for terrorism, and they don't even have that much, how is it that we know that these people are so dangerous?" he asks. Frakt's concerns likely have a great deal to do with the way the government has treated his client -- and not only because it tried to get his coerced confession admitted as evidence.
Montalvo says government officials "believe they have a guilty guy who tried to hurt Americans." But after seven years of failing to justify his detention, the government agreed on July 29 to release Jawad to return home to Afghanistan -- though it implied he might still be subject to criminal prosecution.
In his inauguration speech, Obama declared, "As for our common defense, we reject as false the choice between our safety and our ideals." And in his first weeks in office, he took some important first steps to that end. He outlawed the use of "enhanced interrogation techniques" (the Bush administration's euphemism for torture), suspended military commissions, and ordered Guantánamo closed within a year. But when it came to detainees like Jawad, Obama found that Bush had set a precedent that was difficult to break. "It ultimately comes down to a question of risk aversion," says Matthew Waxman, who was the deputy secretary of defense for detainee affairs from 2004 to 2005. "How much risk is the government willing to take in releasing someone who is believed to pose a continuing danger?"
***
In a different era, Mohammed Jawad might have had his day in federal court -- he would have been able to face his accusers, to hear the evidence against him, and to be tried by a jury rather than by a panel of military judges. Prior to September 11, 2001, the federal government's approach to terrorist suspects tasked the CIA with intelligence-gathering, while the FBI's responsibility was to take that intelligence and build prosecutable cases. But the Bush administration, fearing that the FBI's approach was too expensive and time consuming, and therefore unsafe, began relying on the CIA's determinations alone. "For wide swaths of counterterrorism policy that were now being conducted under a law-of-war framework, the FBI's role relative to the Defense Department and the CIA was probably diminished," Waxman says. The administration began apprehending people on the basis of intelligence, and the information implicating the captured, no matter how reliable, would often be inadmissible in court because of its origin.
For Bush administration officials, that didn't really matter; they didn't intend to bring many terrorists to trial. Their new framework treated most terrorist suspects not as criminals, as they had originally been classified, but as "enemy combatants" -- akin to soldiers in a conventional war, in which detainees are released after a peace accord is signed. But because the war against terrorism has no definable end point, the Bush administration asserted the authority to indefinitely detain terrorist suspects -- including those whose confessions had been wrung out of them through torture. The detainees would be tried, the Bush administration announced in 2002, in military tribunals that required less evidence than civilian courts do to convict defendants, therefore increasing the possibility of conviction.
Legal experts declared the administration's actions unconstitutional, and the left set out to prove it in court. In a series of high-profile cases, individual lawyers and groups like the American Civil Liberties Union scored one victory after another in establishing due-process rights for detainees. In 2004, Georgetown law professor Neal Katyal filed a brief on behalf of detainees in Rasul v. Bush, in which the Supreme Court found that U.S. courts had jurisdiction over deciding whether or not detainees were wrongfully imprisoned. In 2005, Congress, prompted by media reports detailing the Bush administration's torture policies, passed the Detainee Treatment Act, which further clarified the government's obligation to abide by prohibitions against cruel, inhuman, and degrading treatment. The following year, Katyal was the lead counsel in Hamdan v. Rumsfeld, which established that the Bush military tribunals were unconstitutional. The lawsuit also forced the Bush administration to go to Congress for the authority to detain "enemy combatants" and try them in military courts. (That authority was granted by the 2006 Military Commissions Act.) In the series of rulings, the Supreme Court established that the government's obligation to the Constitution did not end at American shores.
Yet these legal victories created few changes for the detainees the government was intent on keeping. Real reform -- a whole new approach to fighting terrorism -- would have to wait for a new administration, one as concerned with preserving the rule of law as protecting the country. For the civil-liberties left, a young senator from Illinois -- a former constitutional-law professor -- seemed like he was just the man for the job. On the campaign trail, candidate Barack Obama was fearless in the face of conservative demagoguery on national security -- he even said that if he managed to capture Osama bin Laden, he would subject him to a jury trial to avoid making him a martyr. He pledged to institute a system for trying detainees based on the Uniform Code of Military Justice, which has rules similar to those in federal courts. Some civil-liberties advocates dared to hope that if Obama was elected their fight would be over.
As the Bush years drew to a close, however, a rift began to open on the intellectual left. There was still near-unanimous agreement that torture was deplorable and that detainees had a right to due process, but the coalition was divided on the issue of preventive detention. While some groups, like the ACLU, continue to advocate for a "charge or release" policy in all circumstances, independent legal experts are engaged in a vigorous debate about how -- and when -- it is constitutionally permissible to hold suspects against whom we have scant evidence.
An early sign of the split came in 2007 when Katyal, one of the legal heroes in the fight for detainee rights, co-authored an op-ed in The New York Times with former Bush lawyer Jack Goldsmith, who was responsible for retracting the legal rationale for the "enhanced interrogations." Katyal and Goldsmith argued that Congress should "establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure." The national-security courts would resemble the Foreign Intelligence Surveillance Courts that grant the government wiretap authority -- they would have access to classified information and be able to grant or reject the government's authority to detain an individual, based on the evidence presented. This, according to Katyal and Goldsmith, would help the executive branch cope with those detainees who are being held on the basis of solid intelligence, while preventing the government from holding others based on tenuous evidence.
Civil-liberties groups criticized Katyal's proposal, saying it resembled the policies they had been fighting against for the past six years. They were even more surprised when, in December 2008, another longtime champion of civil liberties, Katyal's Georgetown University colleague David Cole, published a series of articles calling for a statute permitting preventive detention of members of groups that have declared war against the United States. "Terrorism ? is a crime. Just like murder is a crime, just like rape is a crime. We don't have preventive detention for those crimes. So terrorism ought to have nothing to do with whether you have a preventive detention statute or not," Cole says. "But war should have something to do with it." The government, Cole argues, should be able to indefinitely detain members of al-Qaeda or a similar organization, whether they're captured in a combat zone or not.
"Is this the same David Cole who appeared on panels with me over the last few years and who didn't seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?" asked American University law professor Kenneth Anderson on the legal blog Opinio Juris in December 2008. If preventive detention "is sensible and legal now," he continued, "why wasn't it sensible and legal during the Bush years?"
Others warned that limiting preventive detention to al-Qaeda members would prove impossible. "Al-Qaeda is not like the German army, not like the Japanese army. There are no membership requirements," says Jonathan Hafetz, a lawyer with the ACLU who represented Jawad. "It is a diffuse organization and can spin into or become other organizations."
Some of the debate boils down to where a suspect is captured. Most civil-liberties advocates, including groups like Human Rights Watch, concede that the military has the authority to detain those it captures in a zone of combat, treating them as though they were enemy soldiers. Indeed, that authority is already granted by Congress under the 2001 law that authorized the use of military force in Afghanistan. But they believe that individuals captured away from combat zones should be tried in civilian courts. And suspects like Jawad, who were captured in a combat zone and tortured into implicating themselves, should be released.
Jawad's case is not just a test of how the Obama administration will handle the suspects detained during the Bush era. It's an indication of how the administration intends to detain and try terrorist suspects in the future. The Obama administration has been struggling with a fundamental question that the fractured intellectual left is finding difficult to answer: Is it possible to fight terrorism without abandoning the law?
***
At the American Constitution Society's annual convention in June, Noel Francisco, a former Bush lawyer in the Office of Legal Counsel, appeared on a panel alongside several longtime critics of Bush policy who had recently been hired by the Obama administration. Francisco noted with a hint of smugness that the issues surrounding terrorist suspects were not as simple as the left once implied. "What about the detainees that you really don't have any admissible evidence against, or the ones that frankly, you don't think committed crimes but if you release, you're pretty sure will take up arms against you again? There's not a good answer to that question," he said. "Guantánamo Bay, for better or for worse, was the best thing that we could come up with. And what you're all struggling with now is, what is the best thing you could come up with? And it's not that easy."
In a May speech on national security, Obama declared, "I am not going to release individuals who endanger the American people. Al-Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again." He then sparked outrage from some civil-liberties advocates when he went on to say that he would revive the Bush administration's military commissions with some modifications -- such as the exclusion of evidence obtained through torture -- to ensure due process.
What makes Obama's embrace of military commissions so strange is that the government hasn't had any trouble trying terrorists in federal courts -- indeed, administration officials have said they will attempt to try most terrorist suspects that way. A Human Rights First study showed that since the 1990s, 91 percent of terrorist suspects tried in civilian courts have been convicted, and the remaining 9 percent were later imprisoned on lesser charges. This is a conviction rate more suited to Vladimir Putin's Russia than to the United States -- something civil-liberties groups would likely be protesting if they weren't so busy trying to get terrorist suspects their day in court in the first place.
With that kind of record, who needs preventive detention? Obama does, his defenders argue, explaining that the president has inherited an untenable situation. Even if he changes the policy so that, in the future, the United States only detains those against whom we have solid evidence, we are still left with the detainees whose cases were bungled by the Bush administration. Those who were tortured into implicating themselves probably can't be tried at all. But at least thus far, the administration has made an effort to treat suspects as if it intends to bring them to trial. After a federal judge issued a ruling in April granting habeas rights to prisoners at Bagram Air Force Base in Afghanistan who were captured away from the battlefield, the administration sent in the FBI to read the prisoners their Miranda rights. "These are cases where they are looking at potential criminal charges," said Gen. David Petraeus, commander of U.S. Central Command. "We're comfortable with this."
Cole says the notion that the Obama administration is simply continuing Bush's counterterrorism policies isn't true. "The important difference is that Obama is saying we will be guided and governed by the rule of law," Cole says. "Bush was saying quite the opposite." The distinction is a legalistic but important one: The Bush administration believed that there were simply no limits to the president's power in wartime. By insisting that its power to detain suspects is granted by Congress, the Obama administration has conceded that such authority is subject to oversight from other branches of government -- and can ultimately be taken away. And unlike the Bush administration's dismissal of civil libertarians and human-rights advocates, the Obama administration has been actively soliciting their views as it figures out how to proceed with the detainees in custody.
The administration has said it is working to come up with a constitutional preventive-detention policy. In the meantime, federal courts have been hashing out the finer points of preventive detention, implicitly accepting that some form of detention is constitutional. Ben Wittes, a scholar at the Brookings Institution, argues that now is the time for civil-liberties advocates to step up and define what a preventive-detention policy should look like. "Human-rights groups are very quick to denounce proposals for what I think of as framework legislation to govern detentions that we are already doing," Wittes says.
As the clock ticks closer to the deadline for closing Guantánamo and deciding the fate of the detainees there, many left-leaning legal and national-security experts have weighed in. Most believe preventive detention should remain confined to the battlefield. "If this is where the administration is headed -- as opposed to seeking some broad new preventive detention authority," Deborah Pearlstein, a national-security expert who teaches at Princeton University, wrote at Opinio Juris, "I'm prepared to wait a few extra months to get there."
In late July, the day after the government agreed to release Jawad, Judge Huvelle's once-empty courtroom was packed with buzzing reporters. Government lawyers refused to say for certain whether Jawad might actually make it home to Afghanistan or whether they would criminally indict him before his transfer. Huvelle seemed to discourage the government from pushing for prosecution, here or in Afghanistan. "Enough has been imposed on this young man to date," she said. "I hope the government will succeed in getting him sent back home."
The lawyers closest to the detainees are still pushing Obama to reject preventive detention entirely. Now that Jawad may have found some small measure of justice, they have a renewed sense of hope in the administration. "The pendulum is swinging back, the rule of law is being restored," Frakt says. "They're trying to make change in a very thoughtful, deliberate way." Pointing out that detainees have won 29 out of the last 34 habeas cases, Frakt is cautiously optimistic that the Obama administration will do the right thing on preventive detention. "If these are the 'worst of the worst' then we were all misled as a country. And I think that's what they're finding."
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