The book closed on November 4, 2008, Election Day.  However, we are continually monitoring new developments and relating them on this site. Our Nation Unhinged was officially released May 14, 2009.   
References are to the Parts in the Book.  
As of July 27, 2010:    
 
PART ONE: Manipulating the Law

On March 13, 2009, the Obama Administration announced that it would no longer use the term “enemy combatant”  as justification for holding prisoners at Guantanamo.  However, the administration claimed, and has continued to claim, the authority to hold the detainees based on the principles of the laws of war and on the Authorization for Use of Military Force (AUMF) that was passed by Congress following 9/11.  Consequently, unlike former President Bush, President Obama does not rely on the president’s authority as commander in chief.  The initial difference between the policies of the Bush administration and the Obama Administration is that under the Obama Administration’s definition of those it can hold, a person must have “substantially supported” Taliban or al Qaeda forces, while under the Bush Administration standard, any person who had “supported” Taliban or al Qaeda forces could have been detained.  

In spring 2009, several federal courts sought to modify the administration’s definition.  In May, Judge Bates held that someone who “substantially supports” al Qaeda or Taliban forces but was not “part” of the group, or did not directly participate in the group or in hostilities, was not covered by the military’s authority to detain under the AUMF.

In October 2009, the Congress adopted a new Military Commissions Act which replaced the term “enemy combatant” with a new term, “unprivileged enemy belligerent.”  The definition accompanying the new term is similar to the definition of enemy combatant used by the administration, as modified by Judge Bates in May, in that it also includes someone who has engaged in hostilities against the U.S. or its coalition partners. However, the legislation replaced “substantially supports” with “purposefully and materially supported hostilities” against the U.S.  The new definition also includes someone who was a part of al Qaeda at the time of the offense.

(For a discussion of the term “enemy combatant” as used to circumvent the Geneva Conventions throughout the Bush years, please see Professor Honigsberg’s law review article in the UCLA Journal of International Law and Foreign Affairs, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=942058.)

In March 2010, a federal district court in Northern California ruled that the Al- Haramain Islamic Foundation could successfully bring a civil claim against the U.S. because the Bush Administration surveilled the organization without a warrant. A warrant was required under the Foreign Intelligence Surveillance Act (FISA).

In the meantime, federal district courts have ordered the release of 36 detainees as the result of habeas hearings, while also ruling that 14 men can continue to be held.  However, the D.C. Circuit Court of Appeals has overturned one decision granting habeas, and another decision denying habeas.  Please also see Current Issues.  

John Yoo, Jay Bybee and the Torture Memos

For years, the Justice Department’s Office of Professional Responsibility (OPR) had analyzed whether John Yoo and Jay Bybee, as well as others in the Justice Department’s Office of Legal Counsel (OLC) violated their ethical duties and perhaps even the criminal law in drafting memoranda for the President and the CIA that supported and justified brutal interrogation and torture by American officials.  On February 19, 2010, the report was finally released.  The OPR report concluded that Yoo and Bybee violated their ethical duties and demonstrated professional misconduct by providing legal advice on torture in possible violation of both federal and international laws. 

However, Associate Deputy Attorney General David Margolis, who was hired to review the report, wrote that the men did not commit professional misconduct, even if their legal work was substandard. Margolis excused the flawed legal work by looking at the context of the times, and writing that there was a sense of urgency and time pressures from the White House and the CIA.  (Interestingly, in another part of the report, Yoo denied that any pressures had been placed on him.) Margolis did note that “Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client,” that is, to the President and the CIA. Nevertheless, Margolis indicated that he would not refer the men to their local bar associations for possible disciplinary actions. The OPR report also criticized Steven Bradbury who had also written several memos on harsh interrogations.

Consequently, it is not likely that Yoo and Bybee’s respective state bars will consider disciplinary action, such as suspension or expulsion.  It is even more unlikely that Yoo and Bybee will be prosecuted for war crimes in America. (However, please see below regarding prosecutions by other nations, particularly Spain.)

                                . . . . .

In addition to the memos mentioned in Our Nation Unhinged, the Obama Administration released, in March 2009, nine more memoranda written by John Yoo and others in the early years of the Bush administration.  Similar to the memos that were released earlier, these memos asserted broad-reaching presidential authority, including such extreme government powers as using the military to combat terrorists in the United States (in opposition to the Posse Comitatus Act which bars the military from engaging in domestic law enforcement) and eavesdropping without having to obtain a warrant.  The memos also asserted Congress had no power to interfere with the executive’s treatment of detainees or rendering detainees to other countries.  The memos said that constitutional rights under the Fourth Amendment (unreasonable searches) and First Amendment (free speech and press) are subordinate to the executive’s war powers as Commander in Chief.  Five days before Bush left office, Steven Bradbury, who was then the head of the Office of Legal Counsel (OLC) had issued a memo acknowledging the “doubtful nature of these propositions.”

In April 2009, the Obama Administration released four additional memoranda issued by the OLC that identified such techniques as “walling;” placing someone in a “confinement box” with insects; sleep deprivation for 11 days; stress positions; and waterboarding, among other techniques as not in violation of United States or international laws.  The techniques were parsed in excruciating detail in a memo signed by Jay Bybee, dated August 1, 2002. He wrote that the techniques did not violate the law because they did not cause severe pain and suffering that rose to the level of torture.  Bybee is currently a judge on the 9^th Circuit Court of Appeals.  Another memo, signed by Steven Bradbury in 2005, revealed that waterboarding was used 183 times on Khalid Shaikh Mohammed and 83 times on Abu Zubaydah.   

In releasing the memos, President Obama announced that the administration would not prosecute any CIA agents who participated in the interrogations of detainees.  However, after the administration released the CIA Inspector General’s report -- issued in 2004 but released in August 2009 -- Attorney General Eric Holder hired federal prosecutor John Durham to look into prosecuting CIA employees and contractors who have brutally mistreated prisoners.  Please also see Current Issues.

                                 . . . . .

A Senate Armed Services Committee Report also released in April 2009 revealed that top Bush administration officials, including Condoleezza Rice and John Ashcroft approved the use of secret prisons and waterboarding as early as July 2002, before legal approval was issued by the Office of Legal Counsel.  In fact, CIA and Pentagon officials considered harsh interrogation methods up to 8 months prior to legal approval. 

                               . . . . .

Also in April 2009, Spanish Judge Baltasar Garzon announced that he would undertake a criminal investigation of six lawyers who were involved in the Bush Administration’s policy of torture of five Spanish prisoners held in Guantanamo.  The lawyers named were former Attorney General Alberto Gonzales; John Yoo; Jay Bybee; Department of Defense general counsel William J. Haynes; former Under Secretary of Defense, Douglas Feith; and David Addington, counsel to Cheney.  In January 2010, Judge Garzon began the process by announcing that he would start taking testimonies the following month.

However, in May 2010, Judge Garzon was suspended from his duties and subject to a criminal investigation and trial for exceeding his jurisdiction for investigating enforced disappearances during the Franco regime.  The disappearances are allegedly outside the law because Spain passed an amnesty law in 1977.

 
PART TWO: Lawless Detentions in America

On February 27, 2009, the administration moved Ali al Marri from the Charleston, S.C. naval brig to Illinois, where he was first arrested, and indicted him for providing material support to al Qaeda and for conspiring to do the same.  Consequently, the Supreme Court did not hear al Marri’s appeal from the Fourth Circuit Court of Appeals -- which held that the president had the authority to detain a legal resident seized in the United States indefinitely if he was an enemy combatant.  The court agreed with the administration’s request to vacate the Fourth Circuit decision and, therefore, that decision is no longer the law.  On April 30, al Marri pleaded guilty to conspiracy to provide military support to al Qaeda.  Al Marri was sentenced to 8 years and 4 months in late October.  He could have been sentenced to 15 years. However, it appears that the judge gave al Marri credit for the time he spent without charges, in isolation, tortured and sensory deprived in the Naval brig. 

                                 . . . . .

In May 2009, the Supreme Court decided Ashcroft v. Iqbal.  Javald Iqbal, who had been held in the Metropolitan Detention Center with other Arab and Muslim men after 9/11, had sued former Attorney General John Ashcroft and FBI director Robert Mueller for the abuse that he suffered while imprisoned. The court ruled that the officials cannot be held liable for actions of their subordinates but can only be liable for their own personal unconstitutional conduct.  The court remanded the case to the Second Circuit, which will decide whether Iqbal can amend his complaint to show that the officials directly participated in the abuse (something that may be difficult to show).

                             . . . . .

In June 2009, a federal judge allowed Jose Padilla to continue his civil lawsuit against John Yoo.  Padilla alleged that by writing the torture memos, Yoo had authorized conduct that was in violation of Padilla’s constitutional rights while he was held in the naval brig in South Carolina.  The judge noted that “government lawyers are responsible for the foreseeable consequences of their conduct.”   

                              . . . . .

In September 2009, the Ninth Circuit Court of Appeals held that Attorney General Ashcroft could be held personally liable for detaining Abdullah al-Kidd, a U.S. citizen as a “material witness” for over two weeks and then restricting his travel for a year. Al-Kidd was never charged with a crime. In March 2010, the court refused to rehear the case by the full court (en banc).

 
 
PART THREE: Lawless Detentions in Guantanamo 
 
Section II

In January 2009, the Convening Authority of Military Commissions, Susan Crawford, admitted that the U.S. military had tortured Mohammed al-Qahtani – and that is why she did not go forward in prosecuting his case. “His treatment met the legal definition of torture,” she stated.  She noted that although the techniques were all authorized, they were overly aggressive, persistent, abusive and coercive and their combination had a “medical impact” on him that convinced her to call it torture. 

                                 . . . . .

Habeas attorney Candace Gorman wrote on March 6, 2009 that since the Obama administration officials visited the detention centers in February, changes have been made for some detainees, although not for all.  Her client, Al-Ghizzawi, was permitted to see a movie once a week and once every 4 or 5 days he is allowed outside to see the sun and trees.  In addition, the recreation area in Camp 6 was now one big cage for up to 8 men to use at the same time and one small cage where a prisoner was still kept isolated.  In November 2009, Candace Gorman revealed in her Guantanamo Blog that Al-Ghizzawi had been cleared for release.  But it was not until March 2010 that Al-Ghizzawi, after nearly 8 years of detention without charges, was transferred out of Guantanamo -- to Georgia.  A bittersweet event.

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Muhammad Ahmad Abdallah Salih, also known as Al Hanashi, allegedly committed suicide at the base on June 1, 2009.  The military would not disclose how he supposedly killed himself.  A Yemeni, Al Hanashi was the fifth man to allegedly commit suicide.  He was 31 years old and had been at the base since 2002. Al Hanashi had been on hunger strikes while at Guantanamo. In 2005, he weighed 86 pounds.   

In February 2010, a federal district court judge dismissed a civil suit brought against the government on behalf of two of the men who allegedly committed suicide at Guantanamo on the ground court did not have jurisdiction to hear cases on the deaths or mistreatment of detainees in Guantanamo (al-Zahrani v. Rumsfeld).

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Shafiq Rasul and 3 other British former detainees released in 2004 had filed a civil lawsuit against Secretary of Defense Rumsfeld and other military officials claiming that the U.S., violated their constitutional rights by torturing them and denying them the right to practice their religion. The Court of Appeals for the D.C. Circuit first ruled that the men had no constitutional rights during the time that they were in Guantanamo. However, after the Supreme Court’s decision in Boumediene, which recognized constitutional habeas rights for the detainees, the Justices ordered the Circuit Court to rehear the case. In its second ruling, the circuit court said that the military officials had “qualified immunity” from the lawsuit because they could not have reasonably known that the detainees had constitutional rights while in Guantanamo.  In December 2009, the Supreme Court refused to grant cert, essentially shutting down the lawsuit.

                                 . . . . .

In August 2009, a federal district court judge ruled that there was sufficient evidence that Fawzi Al Odah was part of Taliban or al Qaeda forces thereby justifying his continued detention.  Al Odah’s case had been consolidated with Shafiq Rasul’s in the 2004 Supreme Court decision, Rasul v. Bush. 

Section III

In December 2009, the federal government indicated that it may try Magid Khan, one of the “high-value” detainees held in Guantanamo, in federal court in Brooklyn New York. Khan’s emigrated with his family from Pakistan when he was 16.  The family was granted asylum in the U.S. Khan graduated from high school outside Baltimore and also worked for the state of Maryland. He was captured in Pakistan in 2003 and likely taken to Afghanistan where he was tortured in the CIA’s extraordinary rendition program. In 2006, he was transferred to Guantanamo.

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In December 2009, the Court of Appeals for the Second Circuit affirmed a government motion for summary judgment against Tom Wilner and other Guantanamo attorneys.  The lawyers had sought to discover, through a Freedom of Information Request, whether the National Security Agency and the Department of Justice had eavesdropped on the lawyers’ communications with their clients.  The court upheld the government’s “Glomar Response,” that is, the court allowed the government to neither confirm nor deny the existence of such information or records.

 
 
Section IV

Salim Hamdan was released from Guantanamo to Yemen in November 2008 to serve the last month of his sentence.  He was freed in early January 2009. 

                                . . . . .

Federal District Court Judge Urbana had ruled in November 2008 that the 17 Uyghurs, who were no longer determined to be enemy combatants but still held in Guantanamo, should be brought to the United States to attend their habeas hearings.  The government appealed to the United States Court of Appeals for the DC Circuit, and in February 2009, the appeals court overturned the lower court ruling.  The higher court held that federal courts do not have the authority to order the government to bring individuals into the U.S.  Only the political branches, i.e. the president and Congress utilizing their immigration powers, may make those decisions.  

The Supreme Court granted certiorari in October 2009.  The Obama administration had been trying to forestall the granting of cert. This case, Kiyemba v. Obama, raised the critical question of whether federal judges could provide a true remedy of sending the detainees to the U.S. in those habeas cases where the detainees could not be transferred to another country (because no other country would take them), or returned to their home country (because they would be tortured or killed).

In June 2009, the U.S. government had transferred 4 Uyghurs to Bermuda.  Six Uyghurs were relocated to the Pacific island nation of Palau at the end of October.  The other 7 Uyghurs remained in Guantanamo.  However, Switzerland agreed in February 2010 to accept two of the Uyghurs (the two are brothers) currently in Guantanamo.  [The brothers have not yet been released to Switzerland as of this writing.]

As soon as Switzerland agreed to accept the brothers, the Justice Department asked the Supreme Court to dismiss the Kiyemba case or uphold the court of appeals decision. The government argued that all the Uyghurs had been cleared to leave and have been offered a place to go -- and to the extent that the men were still in Guantanamo, it was their own choice.  On March 1, the Supreme Court agreed with the government and, accordingly, declined to hear the appeal.  In addition, the court erased the D.C. Circuit Court decision that had ruled against the Uyghurs.  The Supreme Court then returned the case to the court of appeals for it to reconsider the situation in light of the fact that every Uyghur had now received an offer for resettlement in another country.  

                                . . . . .

Federal District Court Judge Leon ruled in November 2008 that the government did not have sufficient evidence to continue to hold Lakhdar Boumediene and four other Bosnian detainees in Guantanamo -- based on the accusation that they had planned to travel to Afghanistan. The judge held that there was sufficient evidence to hold the sixth defendant. Three of the five men were sent home to Bosnia in December 2008.  Boumediene was released to France in May 2009.

       . . . . .

In April 2009, a Canadian federal court ordered the government to seek to return Omar Khadr, who was a juvenile when captured, back home to Canada.  The court wrote that the government’s refusal to request that Khadr be repatriated “offends a principle of fundamental justice and violates Mr. Khadr’s rights.”  The Canadian Federal Court of Appeals upheld the lower court decision in August.  Prime Minister Stephen Holder appealed the decision to the Supreme Court of Canada.  In January 2010, the Canadian Supreme Court ruled that the Canadian government violated Khadr’s rights when they interrogated him, without counsel and as a young man, in the harsh conditions of Guantanamo.  However, the court would not order Canada to demand Khadr’s return to his home country.

In late April 2010, preliminary proceedings began on Khadr’s military tribunal. The initial issue was whether alleged confessions by Khadr in the early days after his capture would be admissible.  His lawyers argued that Khadr -- who was 15 at the time he was interrogated -- was harshly treated and tortured at the time he gave the statements. Please see Current Issues.   Khadr was forced to wear blackened goggles and earmuffs on the way to the hearings, so that he would not know the route from his cell to the courthouse. 

According to testimony at Khadr’s pretrial hearing in May 2010, the first person to interrogate him was an Army interrogator who was subsequently convicted in 2005 of detainee abuse of another Bagram detainee.  Khadr, who was 15 at the time of the interrogation, was lying on a stretcher and sedated after major surgery on his body and eyes. The interrogator told Khadr, in what the interrogator described as a fictitious story designed to convince Khadr to talk, of an Afghan juvenile who was gang-raped by “neo Nazis” and “big black guys” in an American prison and then died.  The defense counsel are seeking to keep Khadr’s confessions out of his trial, on the grounds that they were coerced.  During the hearing the military prosecutors also played a grainy al Qaeda video showing him building roadside bombs.  The judge delayed the hearing for 4 weeks so that Khadr could undergo a mental health exam by a government forensic psychiatrist and clinical psychologist. He set August 10 for trial to begin.

However, in July 2010, Khadr fired his civilian attorneys and said that he would boycott the military commission proceedings because they were unfair and unjust. 

                              . . . . .

In June 2009, Mohammed el Gharani -- who, like Khadr, was a juvenile when captured and held in Guantanamo -- was released back to his native Chad. 

In August 2009, a district court ruled that the government’s case against Mohammed Jawad, another man who was a juvenile when captured, was “riddled with holes.”  The judge also ruled that a confession that Jawad gave was a product of torture.  Jawad, who may have been as young as 12 or 13 when arrested, was released back to his family in Afghanistan. 

                              . . . . .

In October 2009, Congress included new rules for military commissions, creating the Military Commissions Act of 2009.  The bill provides more protections to the defendants by further limiting the admission of coerced testimony and hearsay evidence.  However, the act does not change its focus on exclusively applying to non-citizens, and juveniles may continue to be prosecuted in the commissions.  The term “unlawful enemy combatants” which appeared in the MCA of 2006 has morphed into “unprivileged enemy belligerents” in this 2009 act (see discussion at the start of this page re the term “enemy combatant”).

Five high-level detainees, including 9/11 self-described mastermind Khalid Shaikh Mohammed, may be sent to the mainland for trial in federal court.  Please see the Current Issues section. 

President Obama, on his second full day in office, January 22, had ordered that Guantanamo be closed within one year, that all CIA black sites be closed and that all prisoners be provided the minimal protections under the Geneva Conventions – i.e. that Article 3 would apply to them.  For further discussion on meeting these objectives, please see the Current Issues section as well as the comments below regarding the CIA sites. 

 
PART FOUR: Foreign Prisons and CIA Black Sites 

In November 2009, the Court of Appeals for the Second Circuit ruled, in an en banc decision, that Maher Arar’s civil lawsuit against U.S. officials could not go forward.  The court held that Arar did not have a claim under the Torture Victims Protection Act and that “special factors,” such as national security, foreign policy and classified information, barred Arar’s lawsuit under a “Bivens” claim for violation of his constitutional rights.  Arar, who holds Canadian and Syrian citizenship, had been seized at Kennedy airport in New York and forcibly sent to Syria under America’s extraordinary rendition program.  In Syria, Arar was imprisoned in a tiny, dirty, underground cell and tortured.  The majority opinion said that in these kinds of cases, Congress and not the courts, should decide whether an action for damages may be sustained against the government.  The dissenters argued that the decision leaves Arar, who was likely totally innocent yet tortured for months because the U.S. rendered him to Syria, without a remedy.  The U.S. Supreme Court refused to hear the case. 

In 2007, Canada had paid Arar approximately 10 million dollars for its role in mistakenly identifying Arar to the U. S. government and in not protecting its citizen. 

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The trial of U.S. and Italian agents who were accused of seizing Egyptian cleric Abu Omar off a street in Milan in 2003 and transporting him to Egypt, where he was tortured under America’s extraordinary rendition program, was completed in November 2009.  Twenty two American CIA agents, including a CIA station chief, and an American Air Force Colonel were convicted in abstentia of the kidnapping.  Two Italian military agents were also convicted. Three Americans and two Italians were given diplomatic immunity.  All but one of the American defendants received sentences of 5 years. The CIA’s station chief received 8 years. Since the U.S. does not intend to extradite the men to Italy, it is unlikely that the agents will ever be imprisoned. This case was the first where American agents were tried and convicted on charges involving America’s practice of extraordinary rendition. 

In May 2010, Spanish prosecutors asked a judge to issue arrest warrants for 13 CIA agents who were involved in the extraordinary rendition of Khaled El-Masri from Germany.  The plane had stopped in Majorca on the way to Macedonia where he was picked up.  From Macedonia, the plane ultimately took him to Afghanistan, where he was held in a CIA prison and tortured.

In June 2010, the European Court of Human Rights agreed to hear El Masri’s case.     .   .   .   .   .

In April 2009, the Ninth Circuit Court of Appeals in Mohamed v. Jepperson Dataplan, rejected the administration’s position that the civil case against Jepperson should be thrown out on the grounds that state secrets would be disclosed.  Instead, the court reinstated the lawsuit.  The suit had been brought by five men picked up and transported to foreign prisons and tortured under the CIA’s extraordinary rendition program.  Jepperson had provided aviation services to the CIA. The court held that the state secrets doctrine only applied to evidence, not information. Thus, information about extraordinary rendition may be classified, but particular pieces of evidence may not be.  In October 2009, the full court (en banc) agreed to hear the case.

                                    . . . . .

Within days after he became president, Obama issued orders shuttering CIA black sites and requiring the CIA to abide by the Army Field Manual, which forbids torture, including waterboarding.  However, the CIA still has the authority to pursue its extraordinary rendition program of seizing and sending suspected terrorists to other countries, relying (as the Bush administration supposedly did) on diplomatic assurances that the detainees would not be tortured.   
 
PART FIVE: Detentions in America with Due Process

On March 20, 2009, the Justice Department allowed the Special Administrative Measures (SAMs) that have been imposed on John Walker Lindh since he was convicted, to expire.  This means that certain restrictions, such as access to him by others than his family and lawyers, are eased. 

In January 2010, the prison doubled the number of hours per month -- from 4 to 8 -- that Lindh would be allowed visitors.

In January 2010, the Fourth Circuit Court of Appeals turned down Zacarias Moussaoui’s appeal for a new trial or a new sentencing. A significant portion of the denial was based on the fact that Moussaoui had pled guilty, thereby vitiating many of his claims on appeal.