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Daphne Eviatar on Latif and the NDAA

Benjamin Wittes
Monday, November 21, 2011, 11:33 AM

Daphne Eviatar of Human Rights First writes in with the following comments on Latif and the detention provisions of the NDAA:

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Daphne Eviatar of Human Rights First writes in with the following comments on Latif and the detention provisions of the NDAA:

There’s already been great commentary on the Latif case here from Ben, Sabin Willett and others. On Sunday the New York Times editorial board weighed in, writing that the D.C. Circuit Court in the Latif case has eviscerated the right of habeas corpus provided to Guantanamo detainees by the Supreme Court in Boumedienne. I agree with that analysis. But I write to add that the Latif decision underscores the danger of Congress passing the detention provisions of the National Defense Authorization Act (NDAA), as passed by the Senate Armed Services Committee – also the topic of much discussion on this blog. By gutting the right to habeas corpus, Latif highlights the complete lack of due process provided by the United States in its system of indefinite military detention. The NDAA would expand what has so far been cast as a temporary system created by the exigencies of wartime into a permanent feature of American law. And that would be tragic.As the Times points out, the court in Latif turned the usual appellate review system on its head when it “replaced the trial court’s factual findings with its own factual judgments.” As every lawyer knows, judges aren’t supposed to do that on appeal. The court ruled that the government’s intelligence report should have been presumed true, unless there is “clear evidence to the contrary.” But in fact, it’s almost impossible to directly challenge the veracity of government intelligence reports since their production is shrouded in secrecy. As Judge Tatel wrote in dissent in Latif, such reports are “produced in the fog of war, by a clandestine method that we know almost nothing about.”As Sabin put it on this blog last week: “when the circuit lays the thumb of presumption on the scale, there’s no more judicial review—not even in the court of appeals. ‘Review’ is in the anonymous DoD analyst who wrote the report.” Unfortunately, this is the way that the U.S. government now detains people, based on secret intelligence and without judicial review, both at Guantanamo and at the U.S.-run Bagram prison in Afghanistan, where the U.S. military now imprisons nearly 3000 suspected insurgents in detention without charge or trial. Having been there, I can report that it’s a surreal experience to watch the hearings they receive, where the government doesn’t have to publicly present its key evidence because it’s classified. The classified reports are only revealed in a closed session, which the detainee himself never gets to see. The upshot is that detainees held in U.S. military custody are denied basic due process of law. They do not have a meaningful opportunity to challenge their detention before a neutral arbiter. To make matters worse, even if they’re cleared for release by a court or by the Obama administration, they may still be imprisoned indefinitely at Guantanamo or Bagram if the Administration decides it’s too dangerous to return them to their homes. Congress is now poised to codify this unprecedented system of indefinite detention based on secret evidence into U.S. law. Under the proposed sections 1031 and 1032 of the NDAA headed for a vote in the coming weeks, this system of holding individuals suspected of having links to an anti-U.S. insurgency without affording them a meaningful opportunity to challenge the government’s evidence could now become not just a temporary wartime measure, as it’s been presented since 2001, but a permanent feature of the U.S. “justice” system. Of course, it’s not really justice, which is why it wouldn’t fall under the Department of Justice’s purview. It would be the establishment of a permanent military prison system that would sweep in not only foreigners and lawful U.S. residents but even U.S. citizens. In light of the court decision in Latif, that means the codification of a permanent system of indefinite military detention – with mandatory military detention for some terrorism suspects -- in the United States without due process. That not only violates international law, but violates the most basic principles upon which this nation was founded. Sabin brings it home in his description of the situation in Latif:A man sits in government prison for ten years and counting, on the strength of a secret document created by the jailer, in haste, from hearsay, which didn’t persuade an experienced trial judge. Does that sound like the stuff of regimes we are prone to condemn?Let’s hope the Obama administration follows through with its veto threat.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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