Guantanamo Bay Detainees—Factual Errors

One of the most common rationalizations championed by the government when it comes to Guantanamo Bay detainees is that everyone there is a terrorist that wants to hurt America. For example President Bush, immediately after the decision in Hamdan, stated “one thing I’m not going to do, though, is I’m not going to jeopardize the safety of the American people. I understand we’re in a war on terror, that these people were picked up off of a battlefield, and I will protect the people.”^[1] Republican Senators Lindsey Graham and John Kyl, reacting to the same news said that “it is inappropriate to try terrorists in civilian courts. … We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions.”^[2]

However, as we have pointed out before, there is only a 6% recidivism rate for individuals being released “returning” to the battlefield. Furthermore, very few individuals at the base have been charged with anything at all, and it has come to light that the “accusations against detainees at Guantanamo Bay contain factual errors and some easily disproved assertions … raising questions about whether the US military has thoroughly investigated its cases against the roughly 400 inmates.”^[3]

The examples are quite interesting. In one situation, an individual was accused of belonging to an Al Qaeda cell “circa 1998,” even though he would have been only 11 or 12 years old at the time.^[4] In another circumstance, a detainee is accused of attending a terrorist training camp in July 2001, even though “copies of pay stubs show he was a chef in London at the time.”^[5] In 2004, three British detainees “who had been accused of appearing in an Al Qaeda video in Afghanistan” had to be released with the British government “proved that they were in London at the time.”^[6]

Even more troubling, “transcripts of Guantanamo proceedings show widespread confusion over names, places, and events.”^[7] For example, the 12-year-old was captured in Pakistan at the age of 14, and he was interrogated “using a translator from Yemen who spoke a different dialect of Arabic than was spoken in his native Saudi Arabia.”^[8] There was allegedly a situation where the word “zalata” came up. In Yemen, it means “money,” but in Saudi Arabian dialect, it means “tomato.”^[9]

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[1] In Quotes: Reaction to Guantanamo, BBC News, Jun. 29, 2006.
[2] Id.
[3] Farah Stockman, Factual Errors Cited in Cases Against Detainees, Jul. 14, 2006.
[4] Id. Of course, it is possible that Al Qaeda accepted pre-teens into the organization, but it isn’t likely.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.

Potential Terrorism Targets—Indiana #1

Most people would probably suspect that likely terrorism targets in the United States include New York City, Washington, DC, Houston, Chicago, and Los Angeles. These are all large cities with significant populations, assets, and symbols of American culture. Indiana, however, which may be best known for its Memorial Day auto race and the movie Hoosiers, leads all states with 8,591 assets.^[1]

Included on the list of likely terrorist target is Amish Country Popcorn, “which employs five people” and is located way out in the middle of nowhere “on a gravel road, not even blacktop.”^[2] Indiana has roughly 30 percent more targets than New York, which has 5,687, and nearly twice as many as California, which has 3,212.^[3] At 8,591 sites (which has increased from 8,303 in 2005, and from 322 in 2004), Indiana is ahead of Wisconsin at number 2, New York at number 3, Texas and number 5, and Illinois at number 10.^[4]

The national list of 77,069 sites includes 1,305 casinos, 163 water parks, 159 cruise chips, 244 jails, 3,773 malls, 718 mortuaries, 571 nursing homes, Old MacDonald’s Petting Zoo, the Mule Day Parade, Sweetwater Flea Market, and “an unspecified ‘Beach at End of a Street.’”^[5]

The Department of Homeland Security’s Inspector General Richard Skinner has criticized the National Asset Database for including “these ‘unusual or out-of-place’ sites ‘whose critically is not readily apparent.’”^[6] The NAD is used to “help divvy up the hundreds of millions of dollars in anti-terrorism grants each year,” and DHS’s deputy press secretary Jarrod Agen says that DHS doesn’t “find it embarrassing” because “the list is a valuable tool.”^[7]

Part of the problem with the program is that there seem to “insufficient definitions or standards for inclusion provided to States, which submit lists of locations for the National Asset Database.”^[8] Thus, the NAD includes such anomalies as Virginia listing 2,126 schools while eight States or territories list none.^[9] Or New York listing “only 2 percent of the nation’s banking and finance sector assets,” which places it between North Dakota and Missouri.^[10] Or listing an insect zoo but not the Statue of Liberty, Times Square, the Empire State Building, or the Brooklyn Bridge.^[11]

It should be noted, however, that the assets are not listed in rank of importance or likelihood of attack.^[12]

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[1] Cordell Eddings, America’s No. 1 Terror Target: Indiana? Indianapolis Star, Jul. 13, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Eric Lipton, U.S. Terror Targets: Petting Zoo and Flea Market? NY Times (via International Herald Tribune), Jul. 12, 2006.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Security Funding List: Bean Fest, But Not Times Square?, AP (via CNN.com), Jul. 12, 2006.
[12] Id.

Geneva Conventions—Guantanamo Bay

Approximately 4 years and 7 months after then-White House Counsel Alberto Gonzales infamously opined in a memo to President Bush that “the ‘new paradigm’ of the war on terror ‘renders obsolete’ the Geneva Conventions’ ‘strict limitations on questioning of enemy prisoners and renders quaint some of its provisions,’”^[1] the Pentagon has announced that it has changed its policies and “all detainees at Guantánamo Bay and all other prisoners in US military custody [are] entitled to protection under the Geneva conventions.”^[2]

The story seems to have first broke “in late editions of the Financial Times” yesterday, which revealed “Gordon England, the deputy defence secretary, had sent a memo to senior defence officials and military officers last Friday, telling them that common article 3 of the Geneva conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees in US military custody.”^[3]

The policy shift, which White House Spokesman Tony Snow claims is “not really a reversal of policy,”^[4] comes as Congress is meeting to conduct hearings “on the politically charged issue of how detainees should be tried.”^[5] Republican Senator Arlen Specter of Pennsylvania, who has often been—initially, at least—critical of administration policies, announced that “We’re not going to give the Department of Defense a blank check,” while his colleague on the Senate Judiciary Committee, Democratic Senator Patrick Leahy of Vermont, said that “’kangaroo court procedures’ must be changed and any military commissions ‘should not be set up as a sham. They should be consistent with a high standard of American justice, worth protecting.’”^[6]

The Pentagon’s principal deputy general counsel, Daniel Dell’Orto, told the Senate Judiciary that “he believes the current treatment of detainees … already complies with Article 3 of the Geneva Conventions.”^[7]

Common Article 3 of the Geneva Convention Relative to the Protection of Civilian Person in Time of War states that, “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions.^[8] Some of these provisions are:

• individuals who take no active part in hostilities, including members of armed forces who have laid down their arms, “shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria.
• the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
  • violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
  • taking of hostages;
  • outrages upon personal dignity, in particular humiliating and degrading treatment; and
  • the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.^[9]

Some of the policies being proposed to Congress by the administration already suggest that the administration feels the detainees should not receive courts-martial, arguing that “in some cases, courts-martial would give detainees more rights than citizens had in US civilian courts, and argued that the procedure would hamper efforts to gather intelligence on the battlefield.”^[10] Senator Lindsay Graham on the Senate Judiciary Committee, however, told DOJ and Pentagon witnesses that any failure to adopt courts-martial as a “baseline” would lead to a “long hot summer.”^[11]

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[1] Michiko Kakutani, Gonzales as an Architect of Presidential Power, NY Times, Jul. 11, 2006.
[2] US Says Guantanamo Inmates Have Geneva Rights, Guardian Unlimited, Jul. 11, 2006.
[3] Demetri Sevastopulo, Pentagon in U-Turn on Geneva Rights for Detainees, Fin. Times, Jul. 11, 2006.
[4] Anne Plummer Flaherty, U.S. Will Give Detainees Geneva Rights, AP (via Yahoo!), Jul. 11, 2006.
[5] Id.
[6] Id.
[7] Id.
[8] Geneva Convention relative to the Protection of Civilian Persons in Time of War, Apr. 21-Aug. 12, 1949, Pt. 1, Art. 3.
[9] Id. (emphasis added).
[10] Sevastopulo, supra note 3.
[11] Id.

McNabb in the News (7/9/06)

Senior Principal Douglas McNabb was quoted in The Sunday Times in an article discussing the NatWest Three.

Tony Blair offered last week to help get the three of them bail when they arrive in Houston, perhaps even to be allowed to return and prepare their case in Britain. But Doug McNabb, a … federal criminal defence lawyer, considers that unlikely: “I believe the court will find them to be a flight risk because they fought being in the US.” In other words, the three men might be shackled to each other on the journey, then jailed in maximum security prisons for as long as two years while awaiting trial.^[1]

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[1] John-Paul Flintoff, ”We are Being Royally Shafted”, The Sunday Times (UK), Jul. 9, 2006.