City Bar Offers President Obama Recommendations on the Detention, Treatment and Trial of Terrorism Suspects

The New York City Bar Association has written to President Barack Obama with suggestions on the detention, treatment and trial of terrorism suspects. While acknowledging that the Obama Administration has “made substantial progress on some of these issues,” the letter, signed by City Bar President Carey R. Dunne, states that “important elements of your Administration’s announced agenda in these areas remain unfulfilled.” The letter covers the specific areas of Detention, Treatment, Drones and “Targeted Killings,” Trial and Accountability. “Perhaps the thorniest unresolved problem for your second term is finishing the job of closing the detention facility at Guantanamo,” reads the letter drafted by the City Bar’s Task Force on National Security and the Rule of Law. “The decision to close the prison was sound when you announced it in 2009, and the passage of time has only weakened the arguments for keeping the facility open.” The letter offers several concrete suggestions, including making it a top priority to release or transfer the 86 detainees (representing more than half of the current population) who have been cleared for release by the Guantanamo Review Task Force. “Our ideals of fairness and justice cannot abide the detention of individuals who have never been charged with any offense, yet who remain in captivity, for many years, despite having been cleared for release or transfer after a thorough review,” reads the letter. The letter commends the Obama Administration for improvements on detainee treatment. “In particular, we applaud your January 2009 Executive Order banning so-called ‘enhanced interrogation techniques’ and mandating interrogations in accordance with the Army Field Manual.” Nearly four years after the Executive Order, however, “there are occasional suggestions, from some quarters, that perhaps the lines can and should be blurred. It is critical that these occasional suggestions be swiftly refuted and that it be clearly understood, around the world, that the United States observes clear, bright lines against torture,” the letter states. On the issue of drones and “targeted killings,” the letter states, “The authority of our government to kill individuals, including U.S. citizens, away from an active theater of traditional warfare and without a trial or other public evidence of due process, raises many important questions. In addition to Constitutional, statutory, and treaty-based concerns, it portends global implications that may undermine humanity’s general assumptions about the security of life under the law, even in time of armed conflict.” The letter calls for more transparency, and in particular for the release of the legal memorandum that, according to press reports, provided the basis for the drone strike against Anwar al-Awlaki. In addition, the City Bar “endorses the project, recently reported in the New York Times, to develop clear, written, detailed standards to guide the drone policy.” The letter strongly supports the President’s stated presumption in favor of civilian-court trials: “The record of the past 20 years overwhelmingly demonstrates that the Article III courts are up to the challenge of handling even the most complex terrorism cases.” In contrast, the letter points out problems with military commissions, despite the fact that they were recently reformed. These include their slow pace (“It is hard to believe, for example, that the individuals accused of perpetrating the 9/11 attacks have still not been brought to justice.”), their novelty (“Because of their novelty, the commissions are still, in some areas, making it up as they go along.”), their limited jurisdiction, their limitations on defense counsel, and the likelihood that the commissions will continue to be perceived by many as a form of “second class” justice. On the issue of accountability, the letter states, “If the last twelve years have taught us anything, it is that crucial decisions about detention, treatment and trial must not be made by a small group of insulated Executive Branch officials without meaningful accountability to the coordinate branches of government, the citizenry, and the press. We urge you to re-examine the Justice Department’s invocation of the state secrets doctrine in litigation, and to mandate a more sensible and discerning approach to classification of sensitive materials.” The letter also calls for compensation for unlawful government conduct, citing the cases of Maher Arar and Khalid El Masri and our nation’s treaty obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions. And while acknowledging numerous investigations and other efforts to shed light on matters such as torture and extraordinary rendition, the City Bar calls for a fuller and more transparent accounting than has occurred to date. “In particular, we urge prompt declassification and release in as much detail as possible of the recently-adopted Senate Select Committee on Intelligence report on ‘enhanced interrogation.’ As part of our core mission, we have called upon foreign governments to undertake meaningful inquiries into alleged human rights abuses, often echoing similar appeals by the U.S. government. The Association believes that the efficacy of such initiatives can only be enhanced by applying the same principles at home.” In conclusion, the letter states, “Your second term presents an opportunity to reaffirm the bold statement, from your first inaugural address, that ‘we reject as false the choice between our safety and our ideals.’ Toward that end, we hope the recommendations in this letter are helpful.” The letter may be read here: