Holder: Facts, not fear

By Melina Milazzo
Pennoyer Fellow, Law and Security Program

In a hearing yesterday before the House Appropriations Subcommittee on Commerce, Justice, Science, and other Related Agencies, Attorney General Eric Holder held firm that facts, not fear must be the basis of our discussion in determining how to prosecute detainees and terrorist suspects.

“We cannot allow politics of fear to drive us apart,” Holder said in his opening remarks. “Today, our challenge is to remain not only safe but also true to our heritage, true to our principles and true to our best selves.”

Holder articulated that history and experience show that civilian courts are tested, tried, secure, and able to guard secret information, and therefore, are a viable and necessary tool in fighting global terrorism. Highlighting the benefits of using Article 3 trials over military commissions, Holder noted that our allies support civilian trials over military commissions, we are able to obtain cooperation and critical intelligence from terrorist suspects, and civilian trials, unlike military commissions, accept guilty pleas in capital cases.

Both Holder and Chairman Mollohan also underscored that hundreds of terrorists have been effectively tried and convicted in civilian courts. Indeed, Human Rights First found article 3 courts have convicted 195 self-described Islamic terrorists while the military commissions have convicted only 3, 2 of whom are now free.

Moreover, Holder dispelled misperceptions which he characterized as “make [his] blood boil.” First, he cited studies that demonstrate how a substantial number of people continue to talk even after being provided a lawyer. Defense lawyers, he stated, often advise their clients of the benefits of talking such as, receiving reduced sentences. Frequently, he stated, “the defense lawyer helping his client, also helps the government.” Also, he challenged his critics to point to proof that military commissions would provide better or more information. Finally, he countered the claim that Article 3 courts will be a forum for defendants to spout hateful propaganda giving examples of instances such as in the recent case of terrorism suspect Siddiqui where the judge removed the defendant from the courtroom after she was deemed disruptive.

Chairman Alan Mollohan and Rep. Adam Schiff criticized the politicization of these issues by highlighting how similar decisions under the Bush Administration were not denounced by these same critics. “Former officials from the last administration also support the civilian trial option and believe that precluding civilian trials out of hand is a dangerous proposal,” said Mollohan. “The decision about whether to try a case in a civilian court is best left to the Department of Justice to determine, void of politics, just as was done in the previous administration.” Rep. Schiff echoed this sentiment, suggesting that critics’ arguments were based in politics, not policy. Attorney General Ashcroft under Bush, he noted, was not criticized for deciding to Mirandize the so-called shoe bomber. In fact, Ashcroft has reportedly stated that holding civilian trials for terrorists has “use and utility.”

Holder received support for his initial decision to try Khalid Sheikh Mohammed, the alleged 9/11 mastermind, in New York City. Rep. Chaka Fattah characterized avoiding a civilian terror trial in a major city as “cowardly.” “It doesn’t befit a great nation to hesitate or equivocate on the question of following our own laws,” he said. Rep. José Serrano added, “I thought it was very dramatic to say, ‘We’re not afraid of you. We will try you at the scene of the crime.’”

In response to Rep. Frank Wolf asking when a decision will be made regarding where to try KSM, Holder responded he is “weeks away from making a determination.”

Finally, in a heated exchange with Rep. John Culberson, Holder fiercely fought back against the claim that a law enforcement approach suggests that the Administration does not understand that we are at war. “I know we are at war,” said Holder. “Let me make this very, very clear. If you were to take away from the Justice Department, from this government, from this administration and subsequent administrations the ability to use Article 3 courts, you would weaken our ability to fight successfully these wars. It is as simple as that.”

Attorney General Holder is scheduled to appear before the Senate Judiciary Committee on March 23rd. Let’s hope he stands firm in pushing back on the fearmongering again then. And that the decision we see from the Obama administration on trials for the 9/11 defendants in the coming weeks is one that brings them to justice – in federal court.

Protecting Refugees: an American Commitment and Tradition

By Elisa Massimino
President and CEO

This week marks the 30th anniversary of the Refugee Act of 1980, a landmark piece of legislation that changed the U.S. approach to refugee protection by creating the legal status of asylum and a formal process for resettling refugees from around the world. It affirmed the U.S. commitment to providing refuge to victims of religious, political and other forms of persecution.

Every day at Human Rights First we see up close the ways in which the Refugee Act makes a difference in the lives of individual refugees. There is no more concrete reflection of the Refugee Act’s achievements than seeing refugees and their families find safe haven in the United States.

Watch our video highlighting what this Act meant – including how it helped one of our clients restart his life.



While the last 30 years has seen much progress in protecting refugees fleeing persecution, we also have seen in our work at Human Rights First where the United States has at times faltered in it its commitment – interdicting Haitians at sea without adequate protection safeguards, allowing political preferences to undermine the objectivity of asylum adjudications in the 1980s, and nearly shutting down the resettlement system in the wake of the September 11 attacks.

Particularly in the last fifteen years, a barrage of new laws, policies and legal interpretations have undermined the institution of asylum in the United States and led this country to deny asylum or other protection to victims of persecution. Detention has escalated dramatically, and refugees with well founded fears of persecution are barred from asylum due to a filing deadline that limits access to asylum.

We can do better. Our history as a country of refugees, our tradition as a safe haven and beacon of hope for the persecuted, and our obligations under the UN Refugee Convention and Protocol all tell us we must do better.

Yesterday, on the anniversary of the signing of the act, Human Rights First held a symposium bringing together policymakers and experts in U.S. refugee and asylum law to discuss how we can overcome the current challenges in the U.S. refugee resettlement and asylum systems. It was an inspiring meeting that gave me hope for future reform.

This week we have seen movement: Senators Patrick Leahy (D-VT), Carl Levin (D-MI), Richard Durbin (D-IL), and Daniel Akaka (D-HI) have introduced the Refugee Protection Act of 2010 (S. 3113), legislation designed to strengthen America's commitment to protecting refugees by repairing many of the most severe problems in the U.S. refugee and asylum systems. Human Rights First commends these Senators for their leadership. You can demonstrate your support for their efforts here.

Millions of Americans are here today because at some point they or their parents – or grandparents – had to flee from oppression or persecution and were either granted asylum or resettled as refugees here in the United States. After reflecting on the last 30 years since this law was passed, we have a lot to be proud of, but there is still a lot of work to be done. Together, we can ensure that our nation lives up to the promise of the Refugee Act.

State Dept Promises To Produce Legal Justification for Drone Attacks

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted on the Huffington Post.

State Department Legal Adviser Harold Koh has promised to produce the Obama administration's legal justification for its increased use of drone strikes to kill suspected terrorists, reports Shane Harris of the National Journal.

"I have studied this question," Koh told the audience at an American Bar Association breakfast yesterday. "I think that the legal objections that are being put on the table are ones that we are taking into account. I am comfortable with the legal position of the administration, and at an appropriate moment we will set forth that in some detail."

Let's hope that "appropriate moment" comes pretty soon, because controversy over the drone attacks is heating up. The ACLU in January filed a FOIA request asking the government to turn over that legal justification, as well as the facts underlying it. Then this week, after receiving a response from the CIA that it can neither confirm nor deny the existence of any relevant documents, the ACLU filed a lawsuit.

Meanwhile, as Adam Serwer points out at The American Prospect, a New America Foundation study raises concerns that about a third of the victims of drone attacks have been civilians, and international lawyers have been debating for months now whether the targeted killings violate international law. (Jane Mayer's story on drone attacks in The New Yorker last October does an excellent job of laying out the controversy.)

Such an eminent legal expert as Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, has said that the drone attacks, despite their obvious appeal to the U.S. and the U.K., raise serious legal concerns.

As he explained in a recent article in The Guardian with Hina Shamsi, "Drones may only be used to kill in an armed conflict. The killing must fulfill a military need, and no alternative should be reasonably possible." In Afghanistan, where U.S. forces are fighting armed militants but not the troops of another country, "the target must have a direct connection to the combat, either as a Taliban or al-Qaida 'fighter', or as a civilian who is 'directly participating in hostilities'. The use of force must be proportionate, meaning that commanders must weigh any expected military advantage against possible harm to civilians." Violating these requirements could constitute a war crime.

Given the secrecy of the United States' drone program, it's impossible to know whether the government has met these legal requirements. That's left the administration open to critics' suggestions that it has not, and may well be fomenting anger among the residents of areas being targeted.

General Stanley McChrystal has said that reducing civilian casualties in Afghanistan is critical to a key part of his counterinsurgency strategy -- winning the "hearts and minds" of the Afghan people. Revealing the facts about how the United States is using its expanded and now well-known drone program must be a critical component of that strategy.

Taking on the Enablers of Mass Atrocities

By Julia Fromholz & Ann-Louise Colgan*

This week’s arrival of a new National Security Council Director for War Crimes, Atrocities and Genocide Prevention marks an important step in enhancing the administration’s capacity to address these terrible crimes. However, a single new position can achieve limited effect without a new policy approach––one that includes a focus on those who enable, and not only those who perpetrate, mass atrocities.

Atrocities always take place amidst complex tensions, whether political, environmental, or historical. But they also tend to share some basic dynamics. These horrors visited upon civilians are organized crimes. And while U.S. and international policymakers rightly focus attention on the perpetrators of these crimes, inadequate efforts are aimed at the enablers who make these violent acts possible—those countries and commercial actors who provide the goods, services, and resources critical to the commission of crimes against humanity.

In Darfur, for example, transfers of arms and ammunition by China, Russia, Chad, and other states to the Sudanese government or rebel forces have helped sustain violence for the past six years. Yet the United Nations (U.N.) has made no serious effort to enforce its arms embargo on the region or to use other means to halt the supply of weapons.

A less known example of enabling appeared in last November’s report by the U.N. expert panel charged with monitoring the embargo, which noted the dependence of the belligerents in Darfur on “technicals.” These trucks mounted with weapons allow armed groups to commit attacks across vast desert regions in western Sudan. The panel presented evidence that more trucks came from the official Toyota dealership and second-hand dealers in the United Arab Emirates than from any other source. Yet despite the international community’s rhetorical commitment to stopping the violence in Darfur, no attempt has been made to interrupt that supply.

In the Democratic Republic of the Congo, the illicit mineral trade generates revenues for rebel groups, materially sustaining their capacity to commit atrocities against civilians. The commercial actors––some licit and some not––involved in the extraction, transportation, and trade of these natural resources form a broad and loose network. Attempts to halt the atrocities in eastern Congo would benefit from more concerted efforts to disrupt the enabling network and stanch the flow of money and arms to the perpetrators.

To overcome the challenges that have vexed past administrations, the Obama administration would do well to take on the enablers as an integral part of its approach in all atrocity cases. Identifying enablers and curbing their activities can choke off the perpetrators’ access to the necessary means. This can change their crude cost-benefit analysis and alter the dynamics in these situations where many civilian lives are at stake.

The first step of taking on enablers is finding more information on them. In order to effectively prevent or halt atrocities, the U.S. needs a clear picture of all the players who sustain the crimes. If enablers are included in intelligence gathering and analysis on the identity of key actors and the levers that can be employed to influence them, policymakers will have both a more complete view of how the atrocities are happening and a wider range of options for response.

In some cases, those options might start with simply shining a light on the role of enablers, as that alone may be sufficient to change the behavior of some. If countries or companies are involved unwittingly or are particularly susceptible to concerns about negative publicity, being associated with an atrocity situation may prompt them to adopt new due diligence commitments to avoid complicity.

In other cases, providing assistance to build the law enforcement capacity of weak states can strengthen their efforts to address illicit trafficking practices that enable the commission of atrocities.

For more resistant enablers, a further range of options could slow or interdict their activities. Diplomatic pressures can start with expressions of concern but progress to reductions of diplomatic ties or of various forms of assistance. Economic sanctions can be broad or targeted; enforcing embargoes focused on specific commodities, such as arms, may be especially effective in tackling commercial enablers. Travel bans and asset freezes focused on key individuals can quickly gain their attention and cause them to rethink their actions.

Establishing a focus on enablers as a core element of U.S. efforts to prevent and halt atrocities can help end these complex crimes. It can shift the calculus of perpetrators and change the circumstances that permit their crimes. It can provide policymakers with a broader set of levers to influence urgent situations. And by targeting those same actors and networks that are often also engaged in other forms of illicit activities and transnational crimes, it can also address a broader set of national security concerns.

As this administration takes new steps to get ahead of future atrocities, it should widen its view: those who enable the world’s worst crimes should be put on notice that they, too, are on the hook.

* Julia Fromholz is Director of the Crimes Against Humanity Program at Human Rights First, and Ann-Louise Colgan is Senior Associate in that program.

Protecting Refugees: an anniversary, a new bill, and some recommendations

Yesterday a bill was introduced in the Senate that would strengthen America's commitment to providing safe haven to refugees fleeing persecution. It would repair many of the most severe problems in the U.S. refugee and asylum systems. Take action now - urging your senators to cosponsor the bill.

The introduction of the bill - the Refugee Protection Act of 2010 - comes at an opportune time, s we're celebrating the 30th anniversary of the Refugee Act of 1980, a groundbreaking piece of legislation that set the framework for the U.S. refugee and asylum systems.

Today Human Rights First is hosting a symposium marking the 30th anniversary of the Refugee Act of 1980 - in Washington D.C. today. Watch it live - and follow our commentary on Twitter.

Learn about the Refugee Act and its impact in our video:



Human Rights First also unveiled a series of key policy reform recommendations for the Obama Administration and Congress to renew U.S. commitment to protecting refugees.

These recommendations aim to prevent the unnecessary and prolonged detention of asylum seekers, end the practice of barring refugees with a well-founded fear of persecution on the basis of an arbitrary asylum filing deadline, and ensure the protection of refugees at risk of imminent harm by creating a fast-track resettlement process.

Lindsey Graham's Third Strike?

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted on The Huffington Post

Given Senator Lindsey Graham’s military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terrorists since the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.

In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees’ legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration’s military commissions were unconstitutional.

So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.

Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.

With Graham’s urging, Congress passed the law anyway.

Since then, the military commissions have convicted exactly three terrorists – one of whom did not even put up a defense. The other two have already been set free.

In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees’ access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.

That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government’s Guantanamo detainee dilemma.

Given his track record, does Graham really have any credibility on this issue?

This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.

“I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen,” said Senator Lindsey Graham. “It has never been done in the history of warfare and now is not the time to start.”

Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.

Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham’s proposal is a very bad idea.

“It’s sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president,” said Retired Admiral John Hutson at a recent press conference.

Retired General Harry Soyster called on President Obama to stand firm in “administering the great justice system of this country,” adding that he should “not give into political pushes that would push us clearly in a wrong path with long-term consequences.”

Retired Major General William Nash said pushing the 9/11 trials into military commissions would “give aid to our enemies” and “lessen our reputation with our allies.”

Even General Colin Powell opposes the idea: “The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS’s Face the Nation.

Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists’ right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.

Graham doesn’t seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.

“There is a law already on indefinite detention,” Senate Armed Services Chairman Carl Levin, (D-MI), told Congressional Quarterly. “It’s called the Geneva Convention.”

Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said “I don’t think there’s any need for a new statute,” adding that it “confuses the issue to suggest that we don’t have that authority now.”

That hasn’t stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.

The question is whether anyone will fall for it this time around.

Families of 9/11 Victims Support Federal Courts

As the debate continues around federal courts or military commissions for 9/11 terrorist suspects, it’s worth listening to those who lost family members in the attack. Kristen Breitweiser, who lost her husband on 9/11, writes about talking to her fourth grade daughter about the news that President Obama may soon reverse the decision to try KSM in federal courts. Talat Hamdani lost her son, a NYPD cadet who died trying to evacuate the World Trade Center, writes that such a reversal “would send the message that our principled decisions become expendable when the going gets tough. That is not the legacy I wish for my son.”

Trying 9/11 suspects in federal courts is the surest way to serve justice for Kristen and Talat. They have waited long enough.

Our federal courts are best equipped to handle the case against KSM and the other 9/11 defendants for a multitude of reasons: they have a successful track record, especially compared to the flawed military commission system, they have the necessary tools to protect sensitive information, they would signal to the country and the world American faith in the rule of law and our institutions upholding it. The facts and the experts are behind federal courts.