Putting the State of the Union Speech into Practice

By Devon Chaffee, Advocacy Counsel, Law and Security

Tonight, in his State of the Union Speech, President Obama said, “Let’s reject the false choice between protecting our people and upholding our values. Let’s leave behind the fear and division, and do what it takes to defend our nation and forge a more hopeful future – for America and the world.” While his administration has made progress over the past year toward realigning our national security policy with our laws and values, additional steps must be taken to reform U.S. detention policy. The following are steps the Administration should take to put last night’s words into practice:

Close Guantanamo

The Obama administration continues to hold 198 men in prolonged detention without charge at Guantanamo and it will not meet the one year deadline it set for closing the detention facility. Further steps need to be taken to ensure prompt closure of Guantanamo and to bring the number of Guantánamo detainees held without charge down to zero. These steps include:

• Bring Guantánamo prisoners suspected of crimes to justice in federal civilian courts. On November 13, 2009, Attorney General Eric Holder announced that the Justice Department would prosecute five Guantánamo detainees suspected of conspiring to commit the 9/11 attacks in federal courts of New York. These suspects and other detainees for whom there is sufficient admissible evidence that they have committed crimes should be promptly transferred for prosecution before federal civilian courts.

• Abandon the flawed military commissions. The military commissions, revamped for the third time in 2009, continue to fail to achieve justice or provide due process and have resulted in only three convictions in over seven years. This process should be abandoned in favor of the proven federal criminal justice system that has convicted over 145 terrorism suspects since the 9/11 attacks.

• Increase efforts to repatriate & transfer Guantánamo detainees to third countries. The Obama administration must intensify efforts to repatriate detainees not suspected of crimes or otherwise cleared for release and to find homes in third countries for detainees that cannot be repatriated for fear of persecution or torture.

The Administration must work closely with Yemeni officials to address current security concerns and to minimize potential risk before reinstating transfers there. With all transfers the administration can and should take steps to mitigate risk by focusing on expanding risk assessment efforts, monitoring, and other security programs, including allotting sufficient resources to successfully reintegrate former detainees into society.

Prevent Torture and Promote Humane Treatment

• Ensure that all detention and interrogations continue be governed by a clear standard of humane treatment. Very little has been made public about the standards that will govern the High Value Interrogation Group (HIG) established pursuant to the recommendations of the Special Interagency Task Force on Lawful Interrogation. The administration must ensure that the HIG has the clear guidance it needs to conduct its interrogations effectively and humanely and must make clear that cruel and coercive interrogation techniques, such as sleep and sensory deprivation and extreme isolation, are off the table. Apart from interrogation, conditions of detention must also be humane, and in compliance with applicable provisions of the Geneva Conventions.

• Provide the International Committee of the Red Cross (ICRC) with access to all armed conflict and security detainees. Holding prisoners incommunicado increases the risk of torture and abusive detention and interrogation practices. The administration should ensure that the ICRC has prompt notice of all detentions and timely access to all prisoners in U.S. custody in Afghanistan and to all Guantanamo detainees that remain in U.S. custody, wherever that may be, including those that will face prosecution in U.S. federal courts.

• Provide all U.S. interrogators with the tools they need to fulfill their responsibilities legally and effectively. Ensure that U.S. interrogators have the education, training, and support, they need to conduct lawful and effective interrogations. This should include resources for research and professional developments as well as a review of existing interrogation protocols–such as those in Appendix M of the Army’s field manual on interrogation–that have questionable utility and are particularly vulnerable to abuse.

Ensure Accountability for Past and Future Abuses

• Hold perpetrators to account for crimes of torture and prisoner abuse. Attorney General Holder announced in August that he was launching a preliminary review into the whether federal laws were violated in connection with overseas interrogations. This review needs to be expanded to examine the architects of the system of prison abuse, not only those who implemented it or engaged in conduct beyond the bounds of unlawful guidance and orders.

• Make public the results of Justice Department investigation of the role of government lawyers in authorizing torture and other abuse. In 2005 the Justice Department’s Office of Professional Responsibility began investigating the role of key lawyers from the Office of Legal Counsel in authorizing cruel interrogations. In mid-November 2009 Attorney General Holder told the Senate that the report was finally completed, in the last stages of review, and would be issued by the end of the month. It is far past time for the results of this investigation to be made public.

• Establish a nonpartisan commission of inquiry. It is not enough to put an end to unlawful practices. To ensure avoiding their repetition, they must also be thoroughly renounced. A nonpartisan commission should be established to ensure the U.S. government learns from past mistakes and effectively prevents future abuse. Such a review is needed to identify the systematic failures that lead to widespread prisoner abuse and to evaluate the impact of those policies on U.S. national security.

• Provide victims of torture and other abuse with access to remedies. The United States government has a legal obligation to provide victims of torture and other human rights abuses with access to enforceable remedies. The administration should cease attempting to block victims of torture, lesser forms of abuse, and arbitrary detention from having their day in court through invocation of doctrines such as the state secrets privilege and immunities that violate international law.

• Promptly investigate and prosecute all instances of arbitrary detention and detainee mistreatment by military and civilian personnel, including private contractors. Changes in policy are necessary but insufficient to ensure lawful detention. Detention policies and practices must be transparent. Where violations of the law are suspected, prompt investigation must ensue and individuals reasonably suspected of violations must be held accountable.

In the case of private contractors, a mandatory code of conduct should be established to ensure compliance with the law. Authorities must ensure that legal mechanisms are in place to hold contractors and their employees accountable for abuses. Where contract personnel violate the code of conduct and the law, prompt and transparent investigations leading to civil and criminal accountability, where warranted, must follow.