University of West Georgia Abu Ghraib Dark Halls and Guantanamo Cells Discussion

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Ucbjryy123

Humanities

University of West Georgia

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Much has been made of the debate on whether to try Guantanamo detainees and other captured terrorists before military commissions or civilian courts. Given what you have read in the text, define the argument put forth by the Bush and Obama administrations in regard to this question.

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TRIGERADOR ECOS ZABRAS PRAVE i Desa Cey 42100 Weby ance · with an NSL is punishable : the national security of the United States, impede a counterterrorism or counterintelligence investiga- Seizure of Business Records abuse of NSLs, now requires semiannual reports on the impact of these tion, interfere with diplomatic relations, or jeopardize the life or safety of an individual. Noncompli- the subject of the limits the delay in ay.”The thirty-day ay, in turn, may be as contempt of court. The U.S. Congress, in order to guard against requests. granting the ments). These records may be his might involve cory. Section 213 The director of the FBI or another FBI official may apply to the FISA court to issue orders (personal) prop- sought government access (, requested from a library, bookstore, firearms sale, taxing authority, e standards for kely to be mini- eal the fact that he other hand, espionage documents facts” demonstrating that there are reasonable grounds to believe that the tangible items that are are “relevant to an authorized or preliminary investigation to protect against international under section 215 must be accompanied by a statement of procedures that will be fol- request for adment cause. ? Probable cause is required when information that is to be seized prism. of section 215. on the use Individuals are information from a “third party." standard” for these requests, although less than probable cause, has been held to be sufficient to seize is in the possession of the target of the investigation. Federal investigators are required to provide a description of the tangible thing that is sought. The attorney general is to submit an annual report recipient may petition for a modification or for a lifting of the gag order after one year. The standard to be used in evaluating whether to modify or to amend the gag order is similar to the standard for lifting a gag order for an NSL as discussed in the previous section. ion should are prohibited from revealing that a request for information has been made. The ered the as failed to Pproving DETENTION OF NONCITIZENS an offense previously Heral law Section 412 of the PATRIOT Act provides that a noncitizen may be detained for seven days without being charged with a criminal or immigration violation. The attorney general of the United States must certify that there are “reasonable grounds to believe” that an immigrant is a terrorist or has engaged in terrorist activities, Immigration removal proceedings or criminal charges must be filed after seven days, or the individual must be released. Individuals may be held an additional six months if they are unlikely to be deported in the near future and the attorney general determines that their release threatens national security or public safety. This certification may be renewed every six months. A detainee may contest the certification by filing a writ of habeas corpus. In December 2011, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012. Section 1021 authorizes the president to detain “without trial until the end of hostilities” an individual who was part of or substantially supported” al Qaeda, the Taliban, or associ- ated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” President Obama issued a statement clarifying that his “[a]dministration will not authorize the indefinite military detention without trial of American citizens." In Ziglar v. Abbasi, the U.S. Supreme Court dismissed a claims against three executive officials, includ- by the Hother hat the ed... vided omer credit ands ition rism the ing former Attorney General John Ashcroft and then-FBI Director Robert Mueller and the former Com- missioner of the U.S. Immigration and Naturalization Service James Ziglar, for designing the detention policy following 9/11, which allegedly violated the plaintiffs'constitutional rights. The detention policy led to the arrest of 700 individuals for violation of immigration regulations, a significant number of whom were held without bail for several months. The six plaintiffs had been held in Brooklyn's New York Detention Center under difficult conditions including alleged physical and verbal abuse by guards. The Court held that there were “special factors counseling hesitation” in authorizing a legal action regarding conditions "imposed on illegal aliens pursuant to a high-level ... policy created in the wake of a major terrorist attack on American soil.”Judicial intervention might interfere with the governmental response and threaten the confidentiality of high-level policy discussions. Any inquiry into national-security policy was “the preroga- tive of Congress” (Ziglar v. Abbasi, 583 U.S. __,137 S. Ct. 184 [2017]). The next section discusses additional counterterrorism procedures that are not addressed in the PATRIOT Act. an ent ag ze ay COUNTERTERRORISM er CHAPTER 15 en conne ALSE EDGE: of war principles certain persons captured in duration of the conflict.... Today, the 1. The USA PATRIOT Act was intended to facilitate counterterrorism by defining new criminal offenses and by reforming relevant aspects of criminal procedure. United States and associated forces, including with the Islamic State of Iraq and Syria. (d) [A] number of the remaining individuals at the detention facility are aged in an armed conflict with alQa'ida, the Taliban, States, as determined by periodic reviews. being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United (e) Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained gagement in hostilities should they have the opportunity. t the facility, there is significant reason for concern regarding their reen- facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked. Sec. 2. [Executive Order 13492 of 2009] ordering the closure of detention In addition, the United States may transport additional detainees to tect the Nation. [the] U.S. Naval Station Guantánamo Bay when lawful and necessary to pro- Lawful Detention of Terrorists Presidential Executive Order 13823 on Protecting America Through President Donald J. Trump 2. The PATRIOT Act authorizes the FBI to issue national security letters (NSL) to obtain access to information without a court order that relevant to an investigation protect against internation terrorism or intelligence activities 3. The standard process for obtaining a national secu warrant is no different fr the standard for obtain warrant in a federal crin January 30, 2018. case. 4. Information obtained national security wart cannot be used in cri investigations. INTRODUCTION In October 2001, the U.S. Congress passed and President George W. Bush signed a new law to assist in combating the threat of terrorism, titled the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. This law is popularly known as the USA PATRIOT Act. Various amendments to the law later were incorporated into the PATRIOT Act Improvement and Reauthorization Act that was signed by Presi- dent Bush on March 9, 2006. The PATRIOT Act includes more than one thou- sand counterterrorism measures; it is divided into ten sections and modifies more than nine existing laws that address terrorism and related criminal activity. The U.S. Congress, on several occasions, has extended several controversial provisions of the statute. The two main purposes of the law are to define new federal criminal 5. Terrorists are consid "international outla and terrorists who apprehended and do not possess rig American domes under internation 6. Enhanced interr techniques are terrorist suspe the interrogati result in pain to the pain a offenses relating to terrorism and to introduce reforms to criminal procedure to make it easier to investigate and detect acts of terrorism. There is a wide variety of definitions of terrorism. The U.S. Department of State follows U.S. statutes and defines terrorism as “premeditated, politically moti- vated violence perpetrated against noncombatant targets by sub-national groups organ failure a limb. Counterterrorism 15 578 81 ne 611 Put law 595 TEST YOUR KNOWLEDGE TRUE/FALSE be remain open? Should the prison camp at Guantánamo By the authority vested in me as President by the Constitution and the laws and applicable law, the United States may detain certain persons captured in Section 1. Findings. (a) Consistent with long-standing law of war principles connection with an armed conflict for the duration of the conflict.... Today, the United States remains engaged in an armed conflict with alQa'ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.... (d) [A] number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to States, as determined by periodic reviews. protect against continuing, significant threats to the security of the United (e) Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility, there is significant reason for concern regarding their reen- gagement in hostilities should they have the opportunity. Sec. 2. [Executive Order 13492 of 2009] ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked. 1. The USA PATRIOT Act was intended to facilitate counterterrorism by defining new criminal offenses and by reforming relevant aspects criminal procedure. 2. The PATRIOT Act authorizes the FBI to issue national security letters (NSLs) to obtain access to information without a court order that is relevant to an investigation protect against internationa terrorism or intelligence activities. Sd tect the Nation. In addition, the United States may transport additional detainees to [the] U.S. Naval Station Guantánamo Bay when lawful and necessary to pro- 3. The standard process for obtaining a national securi warrant is no different from the standard for obtaining warrant in a federal crimin case. Lawful Detention of Terrorists President Donald J. Trump January 30, 2018. Presidential Executive Order 13823 on Protecting America Through 4. Information obtained thro national security warrants cannot be used in crimina investigations. INTRODUCTION In October 2001, the U.S. Congress passed and President George W. Bush signed a new law to assist in combating the threat of terrorism, titled the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. This law is popularly known as the USA PATRIOT Act. Various amendments to the law later were incorporated into the PATRIOT Act Improvement and Reauthorization Act that was signed by Presi- dent Bush on March 9, 2006. The PATRIOT Act includes more than one thou- sand counterterrorism measures; it is divided into ten sections and modifies more than nine existing laws that address terrorism and related criminal activity. The U.S. Congress, on several occasions, has extended several controversial provisions of the statute. The two main purposes of the law are to define new federal criminal 5. Terrorists are considered "international outlaws," and terrorists who are apprehended and intern do not possess rights un American domestic law under international law. offenses relating to terrorism and to introduce reforms to criminal procedure to make it easier to investigate and detect acts of terrorism. There is a wide variety of definitions of terrorism. The U.S. Department of vated violence perpetrated against noncombatant targets by sub-national groups 6. Enhanced interrogation techniques are lawful ag terrorist suspects so lor the interrogation does result in pain that is equ to the pain associated organ failure or the los State follows U.S. statutes and defines terrorism as “premeditated, politically moti- a limb. Keep in mind th to national security Americans and Am and of non-U.S.re judges. Requests federal district coz to conduct surve that the request FISA establish (Continued) or clandestine agents, usually intended to influence an audience." International TEST YOUR KNOWLEDGE: TRUE/FALSE terrorism is terrorism involving individuals from more than one country or ter- achieve a political objective that is carried out by individuals who are not part of an organized government (22 U.S.C. $ 2656(d)). that are relevant to criminal procedure. The following topics are discussed: of the State Department's definition of terrorism are the targeting of civilians to orders of FISC ment lawyers a The first part of this chapter outlines several provisions of the PATRIOT Act Target. The power or a me Electronic surveillance 7. Terrorists who are apprehended abroad are required to be prosecuted before a military commission and may not be prosecuted before a federal civilian court. Guantánamo detainees are categorized as enemy combatants and do not enjoy the right of habeas corpus review before a federal appellate court to determine the lawfulness of their detentions. . dent, or forei Act and auth affiliated wit or in activiti Sneak-and-peek warrants Information and records Detentions of noncitizens • . The PATRIOT Act is only one of a number of procedural tools that are relied on to combat the international terrorist threat. The second portion of this chapter examines several additional counterterrorism mechanisms: Probable used in ord ity” that th engage” ir Material witness warrants ck your answers on page 642. Purpose Monitoring of attorney-client communications Interrogations Military commissions and combat status review tribunals Place. be used security FIS by the for sur foreig or ind F The United States is a government and country based on the rule of law. In war or in times of national emergency, legal standards historically have been loosened in order to combat the threat confronting the nation. A number of judges and legal scholars have noted that the Constitution is not a “suicide pact" and that the first priority of government must be to protect the American people. This may involve a temporary limitation on civil rights and liberties. On the other hand, there is a danger that fear and insecurity may lead government officials to overreact and to sacrifice the very liberties that are at the core of our democracy. . The challenge is to strike the appropriate balance between combating the threat to national security and protecting civil liberties. In striking this balance in times of war and national emergency, courts consistently have held that the protection of the country must take precedence over individual rights. As you read this chapter, consider whether the United States has struck the proper balance in the “war on terror. searc gove bet An on - ELECTRONIC SURVEILLANCE pc st t! i i non In 1976, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities headed by Senator Frank Church of Idaho issued a report that documented widespread warrantless spying on Americans by U.S. intelligence agencies. This surveillance activity was based on the claim of various Democratic as well as Republican presidents that the president possessed the inher- ent power as commander in chief to protect the national security, and therefore the president was not required to obtain a court order or warrant. This claim was rejected by the U.S. Supreme Court in United States v. United States District Court (Keith) (407 U.S. 297 (1972]). The Court in Keith recognized that surveillance intended to protect the national security may be conducted on less than probable cause, but it held that the protection of individual privacy required judicial supervi- sion of this surveillance activity. In 1978, in reaction to this ruling, the U.S. Congress enacted the Foreign Intelligence Surveillance Act (FISA, rhymes with Eliza) to provide procedures for electronic surveillance of threats to national security. In 1994, FISA was extended to cover physical searches of dwellings and other structures. TM E edge ent at com/ PROCEDURE Keep Americans ce.” International e country or ter- key components ng of civilians to are not part of orders of FISC PATRIOT Act Escussed: ment lawyers are or a ON power dent, or cause that the target is the agent of a foreign Chat are relied fthis chapter in mind that FISA regulates surveillance within the United States of international threats to national security and of international terrorist activities. FISA also addresses the surveillance of and of non-U.S. residents outside of the United States (50 U.S.C.SS 1801-1862). s and American residents abroad. It does not regulate the surveillance of non-U.S. citizens FISA established the Foreign Intelligence Surveillance Court (FISC), which comprises eleven federal district court judges selected by the chief justice of the United States and by three other federal judges. Requests for a warrant to conduct surveillance of a threat to national security or for a warrant that the request is turned down, the application is reviewed by the entire court. The proceedings and to conduct surveillance involving international terrorism are filed before a single judge. In the event required to satisfy four conditions to obtain a FISA warrant. are secret, and the target" of the warrant is not represented at the hearing. Gover- Target. The government must demonstrate probable member of an international terrorist organization. The target may be a U.S.citizen, resi- - foreign national. The so-called lone wolf terrorism provision was added by the PATRIOT or in activities in preparation for international terrorism. Act and authorizes the surveillance of non-U.S. residents who are not agents of a foreign power or affiliated with an international terrorist organization but who are engaged in international terrorism Probable Cause. The government is required to meet a lower probable cause standard than that used in ordinary criminal investigations. FISA orders are based on the probability of a possibil- engage” in terrorism. y" that the target of the order may engage" in activities threatening the national security or may Purpose. The primary purpose must be to investigate a threat to national security or threat of terrorism. Place. The place or communication device targeted for surveillance must be being used or about to be used by a foreign power or terrorist organization to carry out activities that threaten the national FISA is concerned with international threats to the United States. Domestic terrorism is covered by the wiretapping laws (Chapter 6, Table 6.2). The individuals who may be a target of a FISA warrant for surveillance are individuals who work for a foreign organization or government (e.g., diplomats), foreign agents (e.g., persons involved in espionage), individuals affiliated with foreign terrorist groups, ity be security. or individuals engaged in international terrorism. law. In war n loosened s and legal at the first ay involve there is a act and to allenge is 1 security national try must whether FISA warrants are necessary for both electronic surveillance (e.g., wiretapping) and physical searches that are directed against foreign threats to national security and international terrorism. The government is required, if possible, to provide the FISA court with the identity of the individual to on be targeted for surveillance as well as with the facts and circumstances that justify the surveillance , the exercise of his or her First Amendment rights. An American citizen or resident of the United States may not be singled out for surveillance based The standard is whether there is probable cause to believe that the target is an agent of a foreign power, is affiliated with a terrorist group, or is engaged in terrorism. The government must demon. strate the probability of a possibility” that the target of the warrant “may engage" in activities that threaten the national security or “may engage” in terrorism, rather than probable cause that he or she is actually engaged in conduct threatening the national security or is engaged in terrorism. In other words, FISA warrants generally are easier to obtain than warrants for ordinary criminal investigations, which require probable cause that an individual is engaged in unlawful behavior . The reason for the more relaxed FISA standard is that the safety and security of the United States would be placed at risk by demanding that the government, before initiating surveillance, establish that there is probable 2s with issued by U.S. U.S various inher- refore n was Court lance bable ervi- cause that an individual is engaged in espionage or terrorism. On the other hand, there is a risk that FISA warrants may target individuals who later prove to be loyal and law-abiding Americans. Originally, the FISA statute required that the sole purpose of the investigation was to protect national security or to combat terrorism. This standard was adopted, because there was a fear that the government would seek to use the relaxed standard for FISA warrants to pursue criminal investiga- tions in those circumstances in which probable cause was lacking that the individual was engaged in criminal conduct. The government, in order to guard against this possibility , erected a "wall" between individuals investigating threats to national security and individuals engaged in criminal investiga- tions. These two groups generally were prohibited from communicating and sharing information with one another. The wall came in for a great deal of criticism when it was revealed that information gress a) to 994, es.
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Guantanamo Detainment

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In Obama’s 2007 presidential election, closing prisons seemed an idea that was driven by
political force. President Obama and his aides were all aware of the short term remaining to
fulfill his promises to shut down prisons. Obama ...


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