Human Rights First's U.S. Law and Security Digest is a weekly report to help keep you up to date about developments in U.S. national security law and policy that have an impact on civil liberties and human rights.

"It seems to me that the Administration has inadequate faith in America's institutions, including our judicial system. They seem to be saying, ‘Unlike our previous enemies, like the Nazis, or the Soviet Union, these terrorists are so powerful that we can only defeat them by abandoning our tried-and-true principles and reduce ourselves to the same lawless level.'"

David Cynamon, lead attorney for Guantanamo detainee Fawzi al Odah, December 4, online question-and-answer session

"We have to seriously think about whether we could do business in Iraq under those conditions...I think under normal conditions no company would have a problem with its employees being accountable to local law. But the reason we're in Iraq is because normal conditions don't exist."

An executive from a U.S. firm in Iraq under contract with the U.S. government, commenting on the proposed law in Iraq that would eliminate contractor immunity

CIA DESTROYS INTERROGATION TAPES
It was widely reported on Thursday, December 6, that in 2005, the CIA destroyed tapes documenting the interrogations of two al Qaeda suspects. One of the interrogations featured Abu Zubaydah, an alleged al Qaeda official who was in secret CIA custody for four years until his transfer to Guantanamo as a high-value detainee in September 2006. The identity of the second suspect remains unknown. The tapes showed agency operatives in 2002 subjecting the suspects to harsh interrogation techniques. CIA Director Gen. Michael Hayden said yesterday that the November 2005 decision to destroy the tapes was made to protect the identities of the CIA interrogators and because the tapes no longer had intelligence value. The tapes posed a "serious security risk," explained Hayden and, had they become public, they would have exposed agency officials "and their family to retaliation from Al Qaeda and its sympathizers." The tapes were not turned over to attorneys for Zacarias Moussaoui, nor were they provided to the Sept. 11 commission, which had formally requested transcripts and other evidence taken during prisoner interrogations. Hayden claimed that leaders of Congressional oversight committees knew about the tapes and also knew of the CIA's plan to destroy them, though several members of Congress have said they did not hear about the destruction until a year later. In related news, Congress announced on Wednesday that intelligence committees in the House and Senate have voted to outlaw harsh interrogation techniques used by CIA interrogators and to require all U.S. interrogators to abide by the 2006 Army Field Manual. "Experienced interrogators have repeatedly said that the field manual gives them everything they need to get actionable intelligence from dangerous prisoners," said Elisa Massimino, Washington Director of Human Rights First. The provision will be included in a 2008 intelligence authorization bill and will likely face a presidential veto. Read more.

SUPREME COURT CONSIDERS DETAINEE HABEAS RIGHTS
On Wednesday, December 5, the Supreme Court heard oral arguments in the consolidated cases of Boumediene v. Bush and Al Odah v. United States concerning the rights of prisoners at the Guantanamo Bay military prison. At issue is whether the detainees have a constitutional right to the writ of habeas corpus, the ability to challenge their confinement before an independent judge. The cases involve 37 plaintiffs who have been held in detention at Guantanamo for nearly six years. If the Court finds that the detainees have a constitutional right to habeas, the next question is whether the Combatant Status Review Tribunals held at Guantanamo provide an adequate substitute to habeas review. Seth Waxman, who represents the detainees, described the current system as "Kafka-esque." Justice Ginsburg suggested that the question of an adequate alternative could be remanded to the D.C. Circuit. And Solicitor General Paul A. Clement acknowledged that the D.C. Circuit, which has been designated to hear reviews of the work of the military commissions, could make changes to the tribunal system. Human Rights First joined other NGOs in writing an amicus brief in support of the detainees' right to habeas. The Supreme Court's decision is expected by early summer. Read more.

HAMDAN APPEARS BEFORE GUANTANAMO MILITARY TRIBUNAL
On Wednesday, December 5, a military tribunal convened to continue proceedings against Yemeni national Salim Hamdan, a former driver for Osama bin Laden. A key issue at the hearing was whether Hamdan should be designated an "unlawful enemy combatant." On Tuesday, December 4, defense counsel moved to compel the prosecution to produce nine witnesses to testify at the hearing about Hamdan's involvement with Al Qaeda. Hamdan acknowledges that he was Osama bin Laden's driver, but contends that he was just a low-level employee. On Wednesday, Judge Allred granted the defense request to call several of the witnesses, but denied its request to call three "high-value" detainees. At the hearing, which was held on Thursday, prosecutors presented testimony that Hamdan had told investigators he had sworn an oath to bin Laden, carried a gun, and carted weapons and that, during one interview, Hamdan had demonstrated "uncontrollable enthusiasm" for bin Laden. At the conclusion of the hearing late Thursday night, the judge deferred a ruling. Hamdan's case faced a logistical setback in June when Judge Allred paralyzed commission proceedings by ruling that the tribunals only have jurisdiction to try "unlawful enemy combatants," not detainees such as Hamdan, who had been designated only "enemy combatants." Hamdan faces up to life in prison if convicted by a military tribunal. Read more.

RETIRED OFFICERS AND PRESIDENTIAL CANDIDATES MEET TO DISCUSS TORTURE
A group of retired generals and admirals met with seven presidential candidates in Des Moines, Iowa last weekend to discuss the importance of putting an end to U.S. policies authorizing torture and abuse. All candidates from both parties were invited. Attendees included Senators Joe Biden, Hillary Clinton, Chris Dodd, John Edwards and Barack Obama and Governors Mike Huckabee and Bill Richardson. General Joseph P. Hoar, General David M. Maddox, Vice Admiral Lee F. Gunn and Lieutenant General Charles P. Otstott co-chaired. "Those who seek to be commander in chief must be well versed in issues related to the Geneva Conventions and the rules governing treatment of prisoners," commented General Hoar. After meeting with the officers, Mike Huckabee, the only Republican candidate in attendance, publicly denounced waterboarding and stated that "torture should not be the policy of the United States of America." The meeting was hosted by Human Rights First and was the second of its kind. The first was held in April in New Hampshire. Read more.

DECEMBER 10: FIELD HEARING ON TORTURE AND PROHIBITED TREATMENT
The U.S. Helsinki Commission will present a field hearing with Co-Chairmen of the Commission Senator Benjamin L. Cardin (D-MD) and Congressman Alcee L. Hastings (D-FL). Featured witnesses will include Elisa Massimino, Washington Director of Human Rights First. The hearing will begin at 10:00 a.m. at the University of Maryland, College Park Campus, Stamp Student Union – The Atrium. More information.

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