Wednesday, November 26, 2008

Updates on Hamdan, Jawad, & the Army Field Manual Controversy

While the drama over the assemblage of Obama's so-called "team of rivals" continues, pressed on by the near-total collapse of the U.S. economy, important developments occurred in two important cases that have been followed by this blog and countless others over the years.

Salim Hamdan, famously Osama bin Ladin's former driver, imprisoned at Guanatanamo for seven years, and the first to be tried by Bush's infamous military commissions, is due to be released at any moment and flown home to Yemen, a full month before the end of his prison sentence. It's believed he would finish the sentence in Yemeni custody. From the McClatchy report:
The apparent decision to send Hamdan back to Yemen resolves questions about whether the United States would release him after his sentence was completed. A six-member military jury convicted Hamdan, 40, of providing material support for terror in August, but handed prosecutors a defeat by sentencing him to 66 months in prison, with credit for time served.
Smintheus at NION has a typically ascerbic take on the Bush Administration's decision re Hamdan:
He's shipping Hamdan to Yemen and letting that government take the onus of releasing him when the sentence expires. The most important thing, as with the Uighurs, is that George Bush should not have to face up to his own defeat.
Likewise, Gary Norton, over at Daily Kos, comments:
What was Hamdan's big crime? He worked as a driver for Osama bin Laden for a while. Now let's put this crime in perspective. Hitler had a driver named Erich Kempka. Unlike Kempka who was a high ranking SS officer who worked for Hitler for over a decade, Hamdan worked for a couple of years for OBL making $200 a month. Hamdan was a gofer. Kempka was in charge of Hitler's motor pool and was part of his inner circle, to the point that he was one of the men chosen to be with Hitler at the end. Kempka was not charged with anything by the Nuremberg court and, in fact, was called a defense witness in the trial of Martin Bormann.
But Bush and the Pentagon have placed hundreds of innocent prisoners into indefinite detention, submitting an untold number to torture. And now, according to a press release from Center for Constitutional Rights (CCR):
With less than 60 days left in the Bush presidency, the chief prosecutor at Guantanamo Bay, Col. Lawrence Morris, has threatened publicly to bring additional charges against detainees before the military commissions....

It is disgraceful that Col. Morris is attempting to preempt the results of the election by expanding the fiasco of the military commissions at the last minute. Any effort to expand the military commissions at this point is an attempt to further institutionalize these illegitimate tribunals and to prevent the next administration from acting quickly to put the military commissions to an end.

Write today to the Secretary of Defense, Reps. Conyers, Delahunt and Nadler, and Sens. Leahy and Durbin and call for an immediate end to any further charges before the military commissions.
Two Strikes Against Jawad's Gitmo Prosecutors

Meanwhile, last week the military commissions prosecutors in the case of Mohammed Jawad -- who was a teenager at the time of his capture in Afghanistan -- suffered what must be a fatal blow. In October, the judge in the case, Col. Stephen Henley, threw out Jawad's "confession" made to Afghan interrogators as tainted by torture. But Henley had not yet ruled on the applicability of another "confession," the one made to U.S. interrogators.

The Bush administration ardently argued for the inclusion of this "evidence," even as one of the chief prosecutors in Jawad's case resigned, citing government malfeasance.

Here's how David McFadden at AP summarized Hensley's new decision (as posted at the Washington Post website):
In Wednesday's ruling, Henley disqualified Jawad's second confession while in U.S. custody on Dec. 17 and 18, in part because the U.S. interrogator used techniques to maintain "the shock and fearful state" associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.

"The military commission concludes the effect of the death threats which produced the accused's first confession to the Afghan police had not dissipated by the second confession to the U.S.," Henley wrote. "In other words, the subsequent confession was itself the product of the preceding death threats."
Hensley's ruling came despite the fact that the Military Commissions Act, while supposedly forbidding torture evidence, allows "some statements obtained through "coercion"... at the discretion of a military judge."

A Battle Too Far? Recission of AFM's Notorious Appendix M

As the CCR plea makes clear, the machinery that is the torture state-within-a-state is unrelenting in its quest to use every means at its disposal to support the counterinsurgency and military campaigns of the United States. Hamdan's freedom, and the likely release of Jawad in the near future (or so one hopes), are momentary victories in the war against brutality and oppression, exemplified by the use of torture and inhumane abuse. There is much more to be done.

For example, the modern consensus, supported by Obama's team, and a myriad of others, including prominent human rights organizations and activists, is that all interrogations, including those of the CIA, should be held to the standards of the current Army Field Manual on interrogations. But the problem is that the AFM does allow torture and abusive treatment. As I wrote last February:
In fact, the reconstructed AFM maintained a core of coercive interrogation techniques that are central to the CIA-created KUBARK form of torture that relies on the induction of Debility, Dread and Dependency in prisoners, mainly through the use of isolation, sensory deprivation, and the inculcation of weakness and fear. The AFM keeps all three. It lies about banning sensory deprivation, but anyone who reads Appendix M of the AFM will see it all laid out for them: use of goggles and earmuffs for sensory deprivation purposes, restriction of sleep to four hours nightly max for 30 or more days, allowance of "fear up harsh," and isolation for 30 days or more. "Or more" means "as authorized."
I believe that the AFM, with its Appendix M, represents a violation of Common Article 3 of the Geneva Conventions. Human rights organizations and activists that have latched onto acceptance of the AFM, as proposed by Democrats, are in fact in danger of endorsing, albeit sometimes critically, a document that violates international law. They should pause to think about this.

New times admits of new tactics. The willingness to see the new AFM made some kind of sense when the current administration held supreme power (although I still disagreed with such an approach). But to maintain the same position now, with an incoming Democratic administration that at least on paper says it will eliminate torture, is to find oneself repositioned from the progressive to the retrograde.

Rescind Appendix M of the AFM. This must be part of any call upon Obama as he supposedly will seek to act to change torture policies in the first days of his administration.

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