Daphne Eviatar, Senior Associate in Law and Security for Human Rights First, discusses the Brookings Institution study that recommends codifying indefinite detention without trial, the government’s refusal to release some Guantanamo detainees who won their habeas corpus hearings and how the never ending ‘war on terror’ complicates the traditional practice of holding prisoners ‘for the duration.’
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Alright y'all, welcome back to the show, it's Anti-War Radio, Chaos 959 in Austin, Texas.
Streaming live worldwide on the internet at chaosradioaustin.org and at antiwar.com slash radio.
And our next guest on the show today is Daphne Eviatar.
She is formerly with the Washington Independent and now is Senior Associate at Human Rights First.
Welcome to the show Daphne, how are you doing?
Hi.
Started a new job, just figuring out the technical difficulties here, but I think we got it all worked out.
Okay, so, We Don't Need No Legislation is the title of your latest blog entry here at humanrightsfirst.org slash blog.
And cross-posted at the Huffington Post.
And this is extremely timely of course because today's Washington Post reports that a Justice Department task force has recommended that 50 Guantanamo detainees be held indefinitely.
Now what exactly does that mean?
Does that mean that they get a military commission or not even that?
Daphne?
It means not even that, it means we can hold them indefinitely without trial.
I mean, this is what George Bush said, this is what Dick Cheney said.
We were all hoping that eventually the Obama administration would say, we're not going to do that, we're going to give people trial.
But apparently that's not the case.
I mean, they hinted earlier on that there might be a category of individuals that they thought was too dangerous to let go, but they couldn't try them.
And I guess, you know, most of us were hoping they wouldn't do that and now they've announced that at least the task force has recommended that they hold these 50 people indefinitely without trial.
So that's just, it's basically more of what the last administration did.
Well, and also, you know, somehow this got by me.
I must have noticed it at the time or heard it at the time, but it didn't stick in my head until I read it again on Glenn Greenwald's blog today.
And that is that Obama had announced in front of the Bill of Rights and the Constitution approximately a year ago, somewhere around there, in his dueling speeches with Dick Cheney, attacking him from the right so as to normalize his extreme position, that he was going to have Congress pass a law that would basically legalize indefinite detention.
And apparently since September, he's gone back on that and said, nah, he doesn't need a law.
He's already got the authorization to use force against whoever did 9-11 and that's all he needs.
So that is the exact same position that David Addington and Dick Cheney took, right?
Right.
That is exactly the same position.
And you know, the courts have generally let the administration detain people under the laws of war indefinitely without trial.
The question is, who do they get to detain?
And so when these people are detained indefinitely, the Supreme Court has a right to challenge it in the habeas corpus proceeding, which just means they get to go to court and say, okay, what evidence do you have that I'm an enemy combatant?
Or what we now call a, I think it's the Obama administration renamed it an unprivileged enemy belligerent, which is basically the same thing.
So now the government has to show they have some evidence against the person.
And in 32 out of 40 cases, they haven't been able to show that.
So that's why people, some people are up in arms and saying, what's that?
Are you there?
Yeah, I'm there.
Okay, right on.
So let's see, where were we?
We were talking about, you were saying that the guys at Guantanamo who have gotten a chance to go before a judge under writ of habeas corpus, as decided must happen by the Supreme Court in the Bomedian decision, that 32 out of 41 of those, the courts have found that you've got nothing on this guy at all.
And I guess the question is, when you have these different categories of detainees, where some of them get military commissions and some of them don't, some of them get a habeas corpus, some of them don't, some of them are going to be tried in New York, and some of them aren't.
And we're not just talking about the Bush administration, you know, treating Hamdi and Padilla and John Walker Linde and Abu, what's his name, Musawi and all those people differently and inconsistently.
We're talking about kind of a fresh start on a brand new, completely inconsistent and confusing form of, you know, procedure here.
I'm confused as I could be, Debbie.
Well, you know, and you're highlighting a really important problem, which is, if they had evidence against these guys, they would take them to court, right?
That's why they're doing that with KSM and the 9-11 defendants, we have evidence against these guys.
So they're implicitly saying, we don't have reliable evidence against these guys, because if we did, you could take them to a court.
So by saying that, they're basically publicly saying, we're holding these guys indefinitely without evidence.
And that's a really dangerous thing.
I mean, even aside from the constitutional issues, the justice issues, that, you know, we just shouldn't be that kind of a country issue, it's just a national security problem.
You're telling the world we hold people indefinitely without trial, even though we don't have evidence against them.
That's dangerous.
And that's what they use to recruit new jihadists.
So I can't, it's hard to understand the logic of this decision.
It's almost hard for me to understand the logic of even appointing this justice task force to do these recommendations and make it so official.
I mean, why wouldn't they just write up a memo or something?
Do you know what their reasoning is, or their supposed reasoning behind isolating these 50 out of the 196 that are still there?
Well, we're not privy to the exact information that the task force looked at, but what we know is that the task force is looking at each individual case to try to decide what's the best thing to do.
And what we can surmise is that they looked at the evidence in these 50 cases and found they didn't have enough to bring them to trial.
But for some reason, you know, maybe based on like some hearsay evidence or some sort of maybe evidence elicited through torture, the kind of things that are considered not reliable and therefore not admissible in court, they might have, you know, believed maybe this guy's dangerous.
You don't know to prove it, but maybe he is.
And on that basis, they seem to have decided we're going to keep holding him.
And you know, look at the politics of this, which is that the Obama administration doesn't want to be seen as letting, as releasing 50 people that the Republicans are going to say, hey, these are terrorists.
So there's a lot of politics behind this.
But even though we don't know what the task force looked at, we know that it was an individualized determination based on the evidence they have against each person.
Well, now, part of this, too, is that the Bush administration originally put the base at Cuba because it's a lawless zone.
But American courts, at least the first time, I think it was the Ninth Circuit out in San Francisco or something, ruled against that back in 2004.
And I think they've abandoned that position.
Right.
The courts have forced them off of that position, that lawlessness is OK as long as it's in Cuba.
Right now, they've said that even Cuba has we have control over this base in Cuba.
And so they do have some constitutional rights.
But so now they're saying, I guess, that Gitmo is just bad public relations with the orange jumpsuits and what have you.
So they are now going to bring them to Illinois, but they're not applying the Constitution to them any more than before.
They're just bringing Gitmo here.
Basically, I mean, you know, there's no problem.
The Congress isn't really letting them bring Gitmo here.
So so far, Congress is the appropriation of any funding that would allow the administration to bring them to Illinois.
As much as the administration, they want to do that.
It's not clear that's going to happen.
But yeah, the idea is we're going to now hold people indefinitely without charge and without trial in the United States soil in a U.S. prison.
And, you know, arguably that's worse or worse, but it's not very different.
Yeah.
So at this point, really, it could be in Illinois.
It could be at Guantanamo Bay.
It could be at Bagram in Afghanistan or in a secret underground dungeon in Thailand.
At this point, it's the same difference.
Mostly, I guess if they're at Guantanamo, they get one rid of habeas corpus and that's the difference.
Is that it?
That is the difference.
And that's an important difference, because at Bagram, they don't in Bagram, they don't have any right to take their case to court, even if they're held for 10 years without trial.
But if it was just going to take a sort of a minimal review procedure, but it's not public, we don't really know what goes on in it.
They don't have a right to a lawyer.
They don't have a right to any sort of defense.
So it's not considered very legitimate.
So it makes a difference if they're at Guantanamo, at least because the court has said they have the right of habeas corpus.
That means they have the right to challenge their detention in court eventually.
You know, it's taken eight years for some of those guys to get that.
It seems like when the when, as you said, 32 out of 41 times where these guys have gotten rid of habeas corpus and this is after hundreds have been released just by the military and the Bush administration before that.
But where they have had the judge say, no, release this guy, they're not being released.
And that's because why?
The government is appealing that rid of habeas corpus.
Is that how that works?
You know, it's partly because the government has appealed, but mostly it's because government has said we don't have any place to send them.
So all the people from Yemen, for example, even if they've won their habeas corpus case, the government, for the most part, has not released them.
They've released a few, but hardly any.
As you know, now the government's all worried about Yemen.
And if we send people back to Yemen, they're going to become terrorists.
So that's the thing.
And as a result, the government's ignoring the court orders to say these people have to be freed.
And there's, I think, about a dozen people who have been and I don't know the number off my head.
I think it's about a dozen people who've been ordered freed by the court but are still being held in prison at Guantanamo.
Well, and so tell me about this madness that you're writing about at humanrightsfirst.org slash blog today.
We don't need no legislation.
These guys are saying that you're right, Daphne, all this lawless confusion and an indefinite detention in this system is is wrong.
We need to pass a new law that'll make it all OK.
Is that really the argument here?
Well, yes, some people are saying that.
And, you know, the Brookings Institution put out this report.
The Brookings Institution.
Yeah.
Sorry, that's just funny to me.
That entire organization is funny to me, but I'm sorry.
Please continue.
Well, and it's interesting because the person who authored the report, the main author, is not even a lawyer.
And he is talking about an analysis of the legal system and whether the judicial system is adequate to handle this problem of the habeas corpus cases and whether what rights people have and the government's right to detention.
So I don't personally I've had some problems with the legitimacy of their analysis.
But NPR this morning, for example, National Public Radio did a big story sort of highlighting this particular report and saying that suggesting that it means we need new legislation that Congress would pass to allow the government to hold people indefinitely without trial and without charge in the United States.
And then we don't have to have all these complicated court decisions.
And that's what they're saying.
But in fact, if you look at it, any new legislation is going to end up in the courts anyway.
And the courts have adequately I mean, I don't know a lot of their decisions, but they have been figuring out under the laws of war and under the Constitution what the government has to hold people or not.
And there's no reason to have new legislation that reinforces that right.
That's been just going to get challenged all over again.
Well, so this is kind of strange.
Do you have any predictions about how we're you know, which way we're headed with this?
Because it seems like if the courts if it's all going to end up with the courts, I guess either Scalia says it's all OK or it's not.
But if the Constitution means anything, then none of this is OK.
It's all going to get struck down like McCain-Feingold eventually.
Yeah, well, you know, the problem is the court.
Does this seem like sunny optimism?
Yeah, I can.
Yeah, I don't.
Honestly, I think if you look at the direction the court's been moving in, which tends to be more conservative than the public right now, I'm testing more conservative than the administration.
You know, if I had to guess, I would guess or I don't even want to guess.
All I can say is I think that, you know, so far the courts have upheld the government's right, you know, in a war to hold people who are combatants for the duration of the war.
But here we have what's called a war on terror, which has no end.
It has no geographic limitation.
And that's where it's really not clear what's constitutional, what's not.
And that's what the court ultimately decides.
I mean, I don't I don't want to predict how they're going to do it.
But even if the law of war allows for indefinite detention during a war of combatants, it's not clear that the people that these 50 people, for example, that the government wants to hold indefinitely, it's not clear they are combatants.
And that's why a lot of them have been in their habeas cases.
And it's not clear that this is a war that constitutes that kind that falls under the laws of war because it's, we call it a war, but it's an indefinite fight against terrorism.
So it's a very complicated situation that ultimately does have to be left to the court, kind of whether we like it or not.
I don't think Congress is going to really come up with a better answer.
Mm hmm.
It's a bad day for this for people who care about things like the Constitution and, you know, international law and upholding basic liberties, because we just had a government that's suggesting it's going to start holding people without trial and with evidence.
So it's kind of a bad day.
And we're hoping it's going to get better.
And that somehow the courts will reverse some of this.
But it's hard to say what's going to happen.
Could you please tell us all about Human Rights First?
Yes, Human Rights First is a human rights organization, as its name suggests, it used to be called the Lawyers Committee for Human Rights.
It started about 25 years ago.
And we advocate focusing on US policy, trying to get the United States policy to take into consideration first, human rights positions, and just to be more mindful of the human rights implications of its national security policy.
So I'm involved in it's a law and security group.
And so we focus on national security.
And so things like Guantanamo, and we are very much supportive of closing Guantanamo, having either tried or released that sort of thing.
Right on.
Well, you know, if you don't do it, nobody will.
So thanks.
Thank you.
Thank you so much for your interest, Scott.
Really appreciate it.
Everybody, that's Daphne Eviatar.
She's Senior Associate for Law and Security at humanrightsfirst.org.
You can find We Don't Need No Legislation at humanrightsfirst.org slash blog.
And there's an incredible archive over at the Washington Independent of all kinds of great knowledge for you.
