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2011-12-22

With Indefinite Detention Measure, Has Congress Also Expanded Rendition of U.S. Citizens Abroad?

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The Obama administration is continuing to come under intense criticism from civil liberties groups for saying it will sign a controversial defense spending bill that some legal experts say would authorize the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial. While much of the media focus has been on the bill’s provisions regarding indefinite detention, Mother Jones magazine has revealed the bill also contains text that could make it easier for the U.S. government to transfer American citizens to foreign regimes and security forces, a process known as rendition. We speak with Mother Jones national security reporter, Nick Baumann, who also details the cases of several U.S. citizens who have already been detained abroad by foreign security forces, interrogated, sometimes abused, and asked questions they believe could only have come from U.S. law enforcement. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: The Obama administration is continuing to come under intense criticism from civil liberties groups for supporting a controversial defense spending bill that some legal experts say could usher in a radical expansion of indefinite detention by the U.S. government. The bill would authorize the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial.

The bill has already been approved by Congress and is awaiting the President’s signature. Originally, President Obama threatened to veto the legislation but eventually backed down as the law was slightly reworked. On Wednesday, Attorney General Eric Holder said President Obama would issue a signing statement when he signs the bill. Holder said, quote, "We made really substantial progress in moving from something that was really unacceptable to the administration to something with which we still have problems."

AMY GOODMAN: While much of the media focus has been on the bill’s provisions regarding indefinite detention, Mother Jones magazine has revealed the bill also contains text that could make it easier for the U.S. government to transfer American citizens to foreign regimes and security forces, a process known as rendition.

For more on this, we’re joined by Nick Baumann, the reporter for Mother Jones who writes about national security issues. He is with us in Washington, D.C.

Nick, talk about the significance of this other aspect of the defense bill that we have heard very little about.

NICK BAUMANN: So, there’s a menu of options in the bill for how the president—after he determines someone is a member of al-Qaeda or a member of the Taliban or member of associated forces or has supported those groups, there’s a menu of options for what he can do. He can send the person to a civilian trial, which is what civil libertarians would prefer. He could send the person to a military commission, essentially. He could detain the person indefinitely, which is what has raised so much controversy so far. And then there’s a fourth option, which allows him to transfer the terrorist suspect to a foreign country or any other foreign entity, which could be—could mean just about anything.

JUAN GONZALEZ: And Nick, in terms of this associated forces, could you—I mean, that’s a very general term—al-Qaeda, the Taliban or associated forces. And obviously, the definition is not there of what "associated forces" means. Your sense of what that could mean?

NICK BAUMANN: Well, they want to include groups like al-Qaeda in the Arabian Peninsula, which didn’t exist on 9/11, which is what the Authorization for Use of Military Force was for—it was to go after, originally, the people who perpetrated 9/11—al-Qaeda in the Islamic Maghreb, which is sort of the North African branch, and other groups like that. But it could conceivably be expanded further. It depends on how the executive branch decides they want to interpret that provision.

AMY GOODMAN: Nick, talk about the U.S. citizens detained abroad and were the subject of rendition, sent to other places.

NICK BAUMANN: Well, the interesting thing here is, I reported over the summer—and you can find this story on our website at motherjones.com—about this process called proxy detention, which civil libertarians have pointed out, these multiple cases of Americans who claim that they’ve been picked up by foreign security forces, interrogated, sometimes abused, and basically the questions they’re asked are questions that they believe could only have come from U.S. law enforcement. And my story over the summer, which was also in the September-October issue of our magazine, explained how the FBI really does have a program to facilitate these sorts of detentions on a case-by-case basis. And so you see people like Gulet Mohamed, who is a teenager from Virginia. There’s a guy, Abu Ali, who was eventually brought back to the U.S. and tried in a civilian court, but was detained by the Saudis, and a number of other cases.

JUAN GONZALEZ: Could you tell us a little bit about Gulet Mohamed’s case?

NICK BAUMANN: So, Gulet traveled abroad to stay with family. He visited family in Yemen and Somalia, which of course probably raises red flags with the government. And then he—because of radicalization there. And then he was living in Kuwait for a while. And basically what happened is, when he was at the airport, he was suddenly picked up by men who he believed to be Kuwaiti security forces and taken to a place where he claims he was tortured, basically a black site. Eventually, he was transferred out of that facility and then to a deportation facility, where he was able to contact the New York Times and get his story out there. And he was eventually released.

AMY GOODMAN: You also write in this previous piece, "Locked Up Abroad—for the FBI," about the story of the California auto parts business owner, Naji Hamdan, and what happened to him.

NICK BAUMANN: Yeah. So, Mr. Hamdan was picked up by U.A.E. security forces, and he basically claims—he has a very similar story to Gulet Mohamed. He claims that while he was being interrogated, there was someone in the room who he believed to be an American agent or a non-U.A.E. national who was sort of, you know, overseeing the whole operation. And he was investigated by the FBI, but he—back in the States, but he was never charged with anything. And he was eventually released by the U.A.E., and he now lives in Lebanon.

JUAN GONZALEZ: Well, some Democrats who have supported this bill have claimed that it doesn’t really add any new powers above existing law. Could you talk about this issue of existing law?

NICK BAUMANN: OK. So, there are a couple provisions in there that say, you know, we’re just codifying existing law. But the issue is that that really matters, when you take something that is previously the Bush administration’s or the Obama administration’s interpretations of its war powers and you turn that into actual legislated and passed law. That serves as a signal to judges about how they should interpret previous laws, how they should interpret what the executive branch is claiming it has the power to do. And, you know, it really has a broad effect.

AMY GOODMAN: I just want to understand this, Nick. Are you talking about American citizens—in the examples we just talked about, in Gulet or the case of Naji Hamdan, these are Americans who went abroad. And you keep talking about the script that’s followed when they’re picked up. They might first be questioned by FBI, perhaps here. They go abroad. Then they’re questioned by local security forces with information that they only could have gotten, the local security forces, from the United States. Are you saying, in this bill, that Americans could be picked up here and sent to another country?

NICK BAUMANN: I think that there is a lot of evidence that that could happen. Obviously, the government isn’t currently in the business of doing this. And if someone was arrested in the U.S. and sent to another country, it would presumably raise an outcry. But you can imagine circumstances where, for example, someone is arrested in Yemen by U.S. forces and then handed over to local security forces. And this definitely makes that easier.

AMY GOODMAN: And talk about the longstanding, but undisclosed, program, until now, the kind of reporting you’ve been doing about what the U.S. does and what they’re starting to admit.

NICK BAUMANN: OK. So, this program is sort of different from the—from having the U.S. pick up people itself and transfer to another country. The program I’ve been writing about, which is sometimes referred to as proxy detention, is when local authorities sort of pick up someone at the behest of or with the encouragement of the United States, and someone who’s a U.S. citizen. And you see this increasingly over the past five years, but it’s really been happening since at least the Bush administration, perhaps earlier. And basically, the FBI, over the world, has relationships with local law enforcement, local security forces, and they have officer FBI agents in those countries, sort of senior FBI agents, called legal attachés, who coordinate with local forces. And if there’s someone who’s traveling in that country who they believe is a terrorist threat, even if that person is an American, they are going to, you know, suggest or hint to the local forces that it might be in their interest to pick this person up.

AMY GOODMAN: And even if they’re questioned and picked up and finally released, and they’re picked up and they’re questioned with information that’s coming from the United States, they might be put on a no-fly list, and so they can’t come back?

NICK BAUMANN: Yeah, this is very common. There’s an even broader universe of people—and there’s actually an American Civil Liberties Union lawsuit about this right now—who are prevented from returning to the U.S., unless they cooperate with FBI questioning, because they’re on the no-fly list. And people have argued that that’s unconstitutional, because one of the most fundamental rights of an American citizen is to be in America, to return to America. And all the Supreme Court justices have agreed on that in previous rulings, so I think they have a pretty good chance in court. The important thing about this proxy detention bit is that the FBI did acknowledge to me that it does sort of have these relationships with foreign governments and that it does at times submit questions and receive answers about people who are being interrogated in foreign custody. So this coordination really does exist.

JUAN GONZALEZ: And Nick, this announcement by Attorney General Holder that the President will sign the bill with a signing statement—now, it’s hard to predict what the signing statement might be, but were you surprised by that particular aspect of the announcement? Because everyone expected him to sign the bill. And what do you think could be some of the areas that he might touch on in that signing statement?

NICK BAUMANN: So, I wasn’t that surprised by the signing statement, because President Obama has used signing statements in the past, especially with regards to defense authorization bills. I believe he used one on the previous defense authorization bill, because there are some transfer restrictions regarding Guantánamo detainees. But the administration’s big concern is they don’t want anything in the bill to sort of infringe on their ability to do what they want with regards to prosecuting the war on terror. I don’t think that they are particularly concerned about, you know, these allegations that could allow for indefinite detention or rendition. I think they want as much flexibility as possible, and the signing statement will probably be directed in that way, to say, you know, "We’re going to interpret this to give us a broad—a broad mandate to prosecute the war on terror." So, civil libertarians shouldn’t get their hopes up about that signing statement in any way. I have learned—I learned last night that the bill hasn’t actually been physically sent to Obama for signature yet, so, you know, they could still make some enrollment corrections to the bill, and then we’ll see what happens. I’ve also asked the White House repeatedly what the schedule for signing the bill is, and they haven’t responded. And I don’t believe anyone else has reported when he plans to sign it.

AMY GOODMAN: Nick Baumann, I want to thank you for being with us, reporter at Mother Jones magazine, covers national politics and civil liberties issues. We will link to your reports at democracynow.org. When we come back, we’re going to Arizona to talk about a scathing report that’s just been issued by the Justice Department around Sheriff Joe Arpaio. Stay with us.

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