Statement on Prosecution of Former High OfficialsNEW YORK - February 24 - We urge Attorney General Eric Holder to appoint a non-partisan independent Special Counsel to immediately commence a prosecutorial investigation into the most serious alleged crimes of former President George W. Bush, former Vice President Richard B. Cheney, the attorneys formerly employed by the Department of Justice whose memos sought to justify torture, and other former top officials of the Bush Administration.
Our laws, and treaties that under Article VI of our Constitution are the supreme law of the land, require the prosecution of crimes that strong evidence suggests these individuals have committed. Both the former president and the former vice president have confessed to authorizing a torture procedure that is illegal under our law and treaty obligations. The former president has confessed to violating the Foreign Intelligence Surveillance Act.
We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or "truth" commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.
Drafted by The Robert Jackson Steering Committee
http://www.afterdowningstreet.
org/robertjackson Signed By:
Center for Constitutional Rights
The National Lawyers Guild
After Downing Street
http://www.afterdowningstreet.
org American Freedom Campaign
http://www.
americanfreedomcampaign.org Ann Wright, retired US Army Reserve Colonel and US diplomat
http://www.voicesofconscience.
com Backbone Campaign
http://www.backbonecampaign.
org Brad Blog
Cities for Peace
CODE PINK: Women for Peace
Daniel Ellsberg, Truth-Telling Project
Defending Dissent Foundation
http://www.defendingdissent.
org Delaware Valley Veterans for America
http://www.delvalvets4america.
org Democrats.com
Global Network Against Weapons & Nuclear Power in Space
Gold Star Families for Peace
http://www.
cindysheehanssoapbox.com Grandmothers Against the War
http://www.
grandmothersforpeace.org/gatw Grassroots America
http://www.
grassrootsamerica4us.org High Road for Human Rights Advocacy Project
http://www.
highroadforhumanrights.org Iraq Veterans Against the War
Justice Through Music
Marcus Raskin, co-founder of Institute for Policy Studies, member of editorial board of the /Nation/, member of the special staff of the National Security Council in the Kennedy Administration
Media Freedom Foundation/Project Censored
http://www.projectcensored.org
Naomi Wolf, author of /End of America: Letter of Warning to a Young Patriot/, and /Give Me Liberty: A Handbook for American Revolutionaries/
National Accountability Network
Northeast Impeachment Coalition
Op Ed News
Peace Action
Peace Team
The Progressive
Progressive Democrats of America
Republicans for Impeachment
http://
republicansforimpeachment.com United for Peace and Justice
Velvet Revolution
http://www.velvetrevolution.us
Veteran Intelligence Professionals for Sanity
http://www.afterdowningstreet.
org/vips Veterans for Peace
http://www.veteransforpeace.
org Voters for Peace
http://votersforpeace.us/
index2.php War Crimes Times
Wisconsin Impeachment/Bring Our Troops Home Coalition
World Can't Wait
Organizations and individuals can add their names to this statement at http://prosecutebushcheney.org
CONTACT: National Lawyers Guild (NLG)
Marjorie Cohn, NLG President, marjorie@tjsl.edu
Heidi Boghosian, NLG Executive Director, director@nlg.org
Friday, February 27, 2009
Support Coalition to Prosecute the War Criminals
Yesterday, the National Lawyers Guild and a diverse coalition of groups and individuals released the following statement:
Thursday, February 26, 2009
"Worse Than My Darkest Nightmare"
Binyam Mohamed's Statement Upon Being Released From Gitmo, posted at Alternet on February 24, 2009
Binyam Mohamed is an Ethiopian national who was detained in Guantanamo Bay prison. He was captured and transported in the frame of the extraordinary rendition program.
I hope you will understand that after everything I have been through, I am neither physically nor mentally capable of facing the media on the moment of my arrival back to Britain. Please forgive me if I make a simple statement through my lawyer. I hope to be able to do better in days to come, when I am on the road to recovery.
I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, "torture" was an abstract word to me. I could never have imagined that I would be its victim. It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways -- all orchestrated by the United States government.
While I want to recover, and put it all as far in my past as I can, I also know I have an obligation to the people who still remain in those torture chambers. My own despair was greatest when I thought that everyone had abandoned me. I have a duty to make sure that nobody else is forgotten.
I am grateful that, in the end, I was not simply left to my fate. I am grateful to my lawyers and other staff at Reprieve, and to Lt Col Yvonne Bradley, who fought for my freedom. I am grateful to the members of the British Foreign Office who worked for my release. And I want to thank people around Britain who wrote to me in Guantánamo Bay to keep my spirits up, as well as to the members of the media who tried to make sure that the world knew what was going on. I know I would not be home in Britain today, if it were not for everyone's support. Indeed, I might not be alive at all.
I wish I could say that it is all over, but it is not. There are still 241 Muslim prisoners in Guantánamo. Many have long since been cleared even by the U.S. military, yet cannot go anywhere as they face persecution. For example, Ahmed bel Bacha lived here in Britain, and desperately needs a home. Then there are thousands of other prisoners held by the US elsewhere around the world, with no charges, and without access to their families.
And I have to say, more in sadness than in anger, that many have been complicit in my own horrors over the past seven years. For myself, the very worst moment came when I realized in Morocco that the people who were torturing me were receiving questions and materials from British intelligence. I had met with British intelligence in Pakistan. I had been open with them. Yet the very people who I had hoped would come to my rescue, I later realized, had allied themselves with my abusers.
I am not asking for vengeance; only that the truth should be made known, so that nobody in the future should have to endure what I have endured. Thank you.
Tuesday, February 24, 2009
CCR Unmasks Pentagon Lies About Guantanamo
I received this important e-mail yesterday from Vince Warren, Executive Director of Center for Constitutional Rights. It should be read in the context of the Pentagon's whitewash report on conditions at Guantanamo prison, delivered to President Obama late last week, and made public Monday.
The following is one view on the ethics and politics of force-feeding prisoners from an ethics expert at the American Medical Association:
Dear CCR Supporter,Amazingly, the Reuters news story on the Pentagon review never mentioned that there was a full-blown hunger strike underway at the Guantanamo facility, where approximately 1 in 5 prisoners participating, and an untold number being force-fed by prison officials (and presumably, doctors).
Today, the Department of Defense issued a report that claim conditions of confinement at Guantanamo Bay uphold U.S. and international human rights law. For many of our clients, however, who have endured over seven years of arbitrary detention without charge or trial, the appalling conditions that have characterized the prison camp since its inception continue in violation of international standards to the present day.
CCR issued its own report today - "Conditions of Confinement at Guantanamo: Still in Violation of the Law" - which includes new eyewitness accounts by detainees and their attorneys.
The new report details the inhumane conditions at the base that persist despite President Obama's Executive Order of January 22, 2009, requiring humane standards of confinement at Guantanamo. These include ongoing, severe solitary confinement, other psychological abuse, incidents of violence and threats of violence from guards, religious abuse and widespread forced tube-feeding of hunger strikers. In contrast to the military's report, which appears to include very little testimony or reports from Guantanamo detainees themselves, CCR's report offers multiple cases of abuse in the last two months directly from detainees' experiences.
The report also includes a series of recommendations to ensure the conditions at Guantanamo satisfy legal standards for the humane treatment of the detainees while its closure is implemented.
Read and share "Conditions of Confinement at Guantanamo" today, and join us in encouraging President Obama to implement the recommendations offered in the report and work swiftly to close Guantanamo, prosecute individuals in federal criminal courts if necessary, or release them to their home countries, the U.S. or to safe third countries.
Yours truly,
Vincent Warren
Executive Director
Center for Constitutional Rights
The following is one view on the ethics and politics of force-feeding prisoners from an ethics expert at the American Medical Association:
Force-feeding an alert and oriented prisoner -- one strong enough to require a restraint chair -- might be a way to assert control over the prison population. It might discourage strikers, or "break" the strike. But it is not medically necessary....Doc Gonzo at Daily Kos noted:
The American Medical Association (AMA) has repeatedly stated opposition to force-feeding competent individuals against their will.... The World Medical Association Declaration of Malta concludes that "forced feeding contrary to an informed and voluntary refusal is...never ethically acceptable...[and] feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment....
That's my opinion. I'm Dr. Matt Wynia, Director of the Institute for Ethics at the American Medical Association.
Of course the US should "permit" hunger strikers to starve themselves to death, if they insist. That is the entire point of a hunger strike. It's not just some advanced form of selfish whining. It is the ultimate form of civil disobedience noncooperation. The prisoner puts the death at the hands of the prison keepers, rather than cooperate with the imprisoners. The stark reality of the imprisonment is forced into clarity. The repercussions of the prisoner forcing the power relationship to its ultimate conclusion are some of the strongest effects the prisoner can have for their position, short of setting themselves on fire.
Their right to do it is built on their right to refuse medical treatment, which is more obvious to us in our unsophisticated modern condition. But all that is just some variations on our fundamental right to refuse, to refuse to cooperate with our controllers. When the cost of refusal is our personal destruction, it's clear how high a cost we will pay to keep ourselves, what is the value of what we're keeping.
And besides, what right does the US jailer have to intervene? "Compassion", so they can continue to torture the prisoner? Some basis in "rights", the cherry-picked ones for the jailer when any and all are arbitrarily denied the prisoner?
Yeah, people lose coherency when they're starving. But they're also starving, with food within reach. The will to starve to death anyway is not some dismissible "crazy". It's the follow-through on their determination past the point of no return.
Starving oneself to death on hunger strike is not something that torturers can spin down to anything less than an ultimate moral stand with the highest stakes.
Monday, February 23, 2009
Glenn and Jane on Democracy Now! -- Has Torture Been "Wiped Out"?`
Glenn Greenwald and Jane Mayer appeared on Amy Goodman's Democracy Now! the other day. There was a lot to be grateful for in letting these two important voices get further exposure. Both Mayer and Greenwald agreed there were things to be concerned about regarding the Obama administration's positions re suppression of state secrets privilege in cases such as that of Binyam Mohammed. Both agreed that the Bush Administration's organization of state torture deserved investigations and prosecutions. Both warned that dangers remain for those who would see the reestablishment of basic civil liberties.
While there is much to praise in the work of these intrepid journalists (see Glenn Greenwald's column at Salon.com on any given day, or read Jane Mayer's book, The Dark Side), a few of their comments at Democracy Now! bear further scrutiny.
Mayer, at one point, took umbrage at what she felt was Greenwald's overly negative representation of the Obama administration's actions thus far concerning torture, interrogations, rendition, and secrecy:
The latter is not an inapposite question, as all of these techniques are allowed by the current Army Field Manual, which by executive order of Barack Obama is now the standard operating procedure for interrogations by governmental and military agencies. And furthermore, I know that Jane Mayer knows this, because I emailed her to inform her of my articles on the subject, and she emailed back that it was something she would look into.
Besides the information I provided, Ms. Mayer could have perused some of the statements of Center for Constitutional Rights or Physicians for Human Rights, who have indicated their opposition to these aspects of the Army Field Manual and its Appendix M, and asked the current administration to rescind these techniques.
Greenwald's reply to Mayer shows that understands the ongoing problems with the Obama administration's actions thus far. While he has yet to mention the problems with the Army Field Manual, he doesn't pretend that Obama's reforms have totally ended any danger of torture by the current administration, which is how Mayer described the current situation in her interview with Terri Gross of NPR's Fresh Air program on 2/18/2009. She told Gross that when Obama's administration put all detainees held by the U.S. under the Geneva Conventions, they "wiped out the whole issue of torture" (quote can be heard 24 minutes into the interview).
Now, maybe Jane Mayer knows more that I do. Literally. The new executive order, "Ensuring Lawful Interrogations" has the following subsection:
If all those legal opinions regarding Army Field Manual 2-22.3 are now rescinded, where does that leave the techniques enumerated within its Appendix M and elsewhere, including the use of partial sensory deprivation, sleep deprivation, the use of fear and humiliation, isolation, and other objectionable techniques that many legal observers have termed as cruel, inhumane, and degrading, if not torture? I don't know. But leaving these techniques still in the document is like leaving a landmine intact with its fuse and only placing red flags around it. The document is still highly dangerous and violates Geneva and the Convention Against Torture. I would note that with or without legal opinions, the drafters of the AFM took care to make Common Article 3 the minimal criteria. Common Article 3 does not ban use of "coercion" on detainees, something that is specifically spelled out in the full conventions governing both POWs and Civilians.
Maybe Jane Mayer knows what the Obama administration plans to do in regards to new legal opinions on the AFM. She certainly may have the sources. But I don't put a lot of stock on intimations of insider knowledge, and besides, Mayer has suggested no such special knowledge on this point. Hence, her assertion that the issue of torture is now "wiped out" appears precipitous at best.
As for Glenn Greenwald's comments, I have no such bone to pick with its content. But I did think he revealed a certain aspect of the current situation politically that isn't emphasized enough. In commenting on the Obama administration's approach to these problems he indicated that wants to "make sure the CIA doesn’t revolt over the idea that... they’re going to be dragged into court for what they did."
What sort of a revolt does Greenwald have in mind? And why should we be so worried about it? Will the CIA go on strike? Or will they do something worse than that, i.e., strike out somehow at those they perceive as their enemies?
It's not the "revolt" aspect that is most telling. It's that a primary player in this scandal, the CIA, has so much power of intimidation, backed up by very little actual accountability to anyone. Senator Levin and the Senate Armed Services Committee did an incredible job investigating detainee abuse by the Department of Defense, but they had almost no cooperation from the CIA. The CIA's Inspector General John Helgerson reportedly wrote a stinging report in 2004 on CIA torture abuse, including the deaths of prisoners in custody, but the report has been classified. Some enterprising reporter may want to ask Obama about that at his next press conference. (Helen Thomas, are you listening?)
Over thirty years since the worst scandals related to CIA power and abuse were reported, the agency still retains its incredible power and secrecy. Its tentacles reach into the military in ways that we have yet to fully understand. (See the participation of the CIA's General Council as represented in the minutes from a meeting about interrogations and torture at Guantanamo in October 2002.) Without understanding the full consequences of how the power of the CIA is wielded in Washington, we cannot make a certain assessment of the issues at stake nor where they stand.
One could also, by the way, add in any problematic response by the military-surveillance complex to the fight against limitless wiretapping by the U.S. government. The extent of the surveillance is wonderfully, if scarily, presented in James Bamford's excellent new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. Bamford documents the size of this empire, which includes many tens of thousands of employees and gigantic corporations -- not even counting the ongoing collaboration of the telecommunications industry in the huge surveillance scheme collecting all our telephone calls, e-mails, and Internet browsing. Along with Mayer's Dark Side, The Shadow Factory provides a two-volume introduction into the secret life of American intelligence.
While there is much to praise in the work of these intrepid journalists (see Glenn Greenwald's column at Salon.com on any given day, or read Jane Mayer's book, The Dark Side), a few of their comments at Democracy Now! bear further scrutiny.
Mayer, at one point, took umbrage at what she felt was Greenwald's overly negative representation of the Obama administration's actions thus far concerning torture, interrogations, rendition, and secrecy:
And they —- you know, I’m giving them maybe a little bit more credit than Glenn is, because I think what they did in their first week in office was stupendous. They put out executive orders that said, from here on out, everybody’s got rights, everybody’s covered by the Geneva Conventions, the ICRC gets to see every detainee, we’re closing the black site prisons, we’re going to shut down Guantanamo. They are moving on —- these things are not nothing; these things are really seriously great reforms.Greenwald replied, in part (emphasis added):
Well, I mean, I actually agree with Jane that it’s a mixed picture, more than perhaps my answer might have suggested, because I was addressing two specific areas where I think the Obama administration has done the wrong thing. But she’s right that the executive orders issued in the first week were promising and encouraging, and there are complexities and conflicting pressures. They need to make sure the CIA doesn’t revolt over the idea that, you know, they’re going to be dragged into court for what they did. They’re figuring out ways to try and keep some of these secrets without becoming complicit in them....There are two pertinent points I'd like to make here. One, Mayer's accolades regarding the Obama executive orders on torture and interrogation appear overly optimistic. While Obama and his team deserve credit for removing (for now) the CIA's approval for "enhanced interrogation techniques", such as waterboarding, and a closing down of CIA prisons, it left the door open for changes in the near future, and allowed the CIA to still operate prisons for unspecified short-term prisoners. Would that mean, say, the three or six month imprisonment and torture of a suspect by means of sensory deprivation, isolation, sleep deprivation and manipulation of fears, or administration of short-acting psychotropic medications?
As far as looking forward, you know, those executive orders were good, and they were encouraging, but they leave some of the trickiest questions open. You know, are we going to close Guantanamo but then move those due process-abridging military commissions inside the United States and call them national security courts, where they might be even worse? Are we going to, as you just asked and as Leon Panetta suggested, preserve some of the rendition policies that have led to such severe abuse and some of the most grotesque acts of the last eight years? I mean, these are all good questions that are very much unresolved.
The latter is not an inapposite question, as all of these techniques are allowed by the current Army Field Manual, which by executive order of Barack Obama is now the standard operating procedure for interrogations by governmental and military agencies. And furthermore, I know that Jane Mayer knows this, because I emailed her to inform her of my articles on the subject, and she emailed back that it was something she would look into.
Besides the information I provided, Ms. Mayer could have perused some of the statements of Center for Constitutional Rights or Physicians for Human Rights, who have indicated their opposition to these aspects of the Army Field Manual and its Appendix M, and asked the current administration to rescind these techniques.
Greenwald's reply to Mayer shows that understands the ongoing problems with the Obama administration's actions thus far. While he has yet to mention the problems with the Army Field Manual, he doesn't pretend that Obama's reforms have totally ended any danger of torture by the current administration, which is how Mayer described the current situation in her interview with Terri Gross of NPR's Fresh Air program on 2/18/2009. She told Gross that when Obama's administration put all detainees held by the U.S. under the Geneva Conventions, they "wiped out the whole issue of torture" (quote can be heard 24 minutes into the interview).
Now, maybe Jane Mayer knows more that I do. Literally. The new executive order, "Ensuring Lawful Interrogations" has the following subsection:
[3](c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.The provision by which the Army Field Manual claims that its techniques are legal pertains to legal reviews done by "senior DOD figures at the secretarial level, by the Joint Staff, by each of the combatant commanders and their legal advisers, by each of the service secretaries and service chiefs and their legal advisers, in addition to the director of the Defense Intelligence Agency and the director of National Intelligence, who coordinated laterally with the CIA." It was also "favorably reviewed" by Attorney General Alberto Gonzales' Justice Department.
If all those legal opinions regarding Army Field Manual 2-22.3 are now rescinded, where does that leave the techniques enumerated within its Appendix M and elsewhere, including the use of partial sensory deprivation, sleep deprivation, the use of fear and humiliation, isolation, and other objectionable techniques that many legal observers have termed as cruel, inhumane, and degrading, if not torture? I don't know. But leaving these techniques still in the document is like leaving a landmine intact with its fuse and only placing red flags around it. The document is still highly dangerous and violates Geneva and the Convention Against Torture. I would note that with or without legal opinions, the drafters of the AFM took care to make Common Article 3 the minimal criteria. Common Article 3 does not ban use of "coercion" on detainees, something that is specifically spelled out in the full conventions governing both POWs and Civilians.
Maybe Jane Mayer knows what the Obama administration plans to do in regards to new legal opinions on the AFM. She certainly may have the sources. But I don't put a lot of stock on intimations of insider knowledge, and besides, Mayer has suggested no such special knowledge on this point. Hence, her assertion that the issue of torture is now "wiped out" appears precipitous at best.
As for Glenn Greenwald's comments, I have no such bone to pick with its content. But I did think he revealed a certain aspect of the current situation politically that isn't emphasized enough. In commenting on the Obama administration's approach to these problems he indicated that wants to "make sure the CIA doesn’t revolt over the idea that... they’re going to be dragged into court for what they did."
What sort of a revolt does Greenwald have in mind? And why should we be so worried about it? Will the CIA go on strike? Or will they do something worse than that, i.e., strike out somehow at those they perceive as their enemies?
It's not the "revolt" aspect that is most telling. It's that a primary player in this scandal, the CIA, has so much power of intimidation, backed up by very little actual accountability to anyone. Senator Levin and the Senate Armed Services Committee did an incredible job investigating detainee abuse by the Department of Defense, but they had almost no cooperation from the CIA. The CIA's Inspector General John Helgerson reportedly wrote a stinging report in 2004 on CIA torture abuse, including the deaths of prisoners in custody, but the report has been classified. Some enterprising reporter may want to ask Obama about that at his next press conference. (Helen Thomas, are you listening?)
Over thirty years since the worst scandals related to CIA power and abuse were reported, the agency still retains its incredible power and secrecy. Its tentacles reach into the military in ways that we have yet to fully understand. (See the participation of the CIA's General Council as represented in the minutes from a meeting about interrogations and torture at Guantanamo in October 2002.) Without understanding the full consequences of how the power of the CIA is wielded in Washington, we cannot make a certain assessment of the issues at stake nor where they stand.
One could also, by the way, add in any problematic response by the military-surveillance complex to the fight against limitless wiretapping by the U.S. government. The extent of the surveillance is wonderfully, if scarily, presented in James Bamford's excellent new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. Bamford documents the size of this empire, which includes many tens of thousands of employees and gigantic corporations -- not even counting the ongoing collaboration of the telecommunications industry in the huge surveillance scheme collecting all our telephone calls, e-mails, and Internet browsing. Along with Mayer's Dark Side, The Shadow Factory provides a two-volume introduction into the secret life of American intelligence.
Sunday, February 22, 2009
Released from Guantanamo, Binyam Mohamed Is Tortured to the End
Andy Worthington first reported that Binyam Mohamed, a key figure in legal battles around the U.S. government's attempts to use state secrets privilege to spike legal cases against the torture apparatus of rendition and prisons, will leave Guantanamo and return to the UK "early next week" (that is, this coming week). Now the Washington Post is now reporting that Binyam's attorney, Clive Stafford Smith, is "confident" his client will be released on Monday (2/23).)
But the most amazing part of the story, from the UK Guardian, and caught by Glenn Greenwald in his column Sunday, concerns the ongoing abuse of detainee Mohamed, even unto the final days of his release from Guantanamo and planned return to the UK.
Quoting from the Guardian via Greenwald's column, so I can preserve his bold emphases:
The Pentagon has lied all the way on the torture issue, and continues to lie. I criticized the make-up of the various committees assigned by President Obama to investigate Guantanamo and interrogation techniques as being . As I wrote last month after Obama's executive orders were released:
Admiral Walsh is a true believer in the endless war against radical Islam or fundamentalist terrorism, hence, he may not look kindly upon dismantling the gulag assembled for the purpose. Here's Walsh in 2006 in Dallas for a meeting of the Rotary Club:
The latest "shock" to human rights activists came when the administration ruled it would deny hundreds of U.S.-held prisoners at Bagram Airbase outside Kabul any constitutional appeal or rights. Bagram holds many of the same kinds of prisoners as Guantanamo, but is not on leased territory 90 miles from America, and the detainees are easily out of sight of U.S. news crews or popular notice.
The time is coming close when the Obama administration will have passed beyond the point of no return, and will become irretrievably associated with many of the worst aspects of the Bush torture regime. That time is not yet, and the administration may yet have other plans up their sleeves, as many Democratic supporters avow. But the torture beating of Binyam Mohamed, in full light of the world's press, and knowing this would have to come out, demonstrates the blatant hubris and contempt of the people running this country, especially its military prisons.
But the most amazing part of the story, from the UK Guardian, and caught by Glenn Greenwald in his column Sunday, concerns the ongoing abuse of detainee Mohamed, even unto the final days of his release from Guantanamo and planned return to the UK.
Quoting from the Guardian via Greenwald's column, so I can preserve his bold emphases:
Mohamed will arrive back tomorrow in the UK, where he was a British resident between 1984 and 2002. During medical examinations last week, doctors discovered injuries and ailments resulting from apparently brutal treatment in detention.Greenwald also makes the obvious comparison to the story released late last week, wherein Obama's Pentagon review of conditions at Guantanamo found all to be well, with prisoners treated humanely as required by the Geneva Conventions. I can hardly wait to see the part of the report where the force-feeding of hunger strikers is explained, or even the fact that over 1/5th of the facility's inmates are on hunger strike.
Mohamed was found to be suffering from bruising, organ damage, stomach complaints, malnutrition, sores to feet and hands, severe damage to ligaments as well as profound emotional and psychological problems which have been exacerbated by the refusal of Guantánamo's guards to give him counselling.
Mohamed's British lawyer, Clive Stafford Smith, said his client had been beaten "dozens" of times inside the notorious US camp in Cuba with the most recent abuse occurring during recent weeks. He said: "He has a list of physical ailments that cover two sheets of A4 paper. What Binyam has been through should have been left behind in the middle ages."
[U.S. Army] Lieutenant colonel Yvonne Bradley, Mohamed's US military attorney, added: "He has been severely beaten. Sometimes I don't like to think about it because my country is behind all this." . . .
The Pentagon has lied all the way on the torture issue, and continues to lie. I criticized the make-up of the various committees assigned by President Obama to investigate Guantanamo and interrogation techniques as being . As I wrote last month after Obama's executive orders were released:
Obama's changes are in general positive. But they do not go far enough, and the status of what exactly will be changed, as in the case of future adjudication of the Guantanamo prisoners, or how "terror suspects" will be handled in the months or years to come, await the conclusion of review task forces. The latter are headed by the main administration bureaucracy at State, Defense, and the intelligence agencies, and coordinated by the Attorney General. Their trustworthiness is yet to be determined, and in some cases these people are already known and not very untrustworthy, given their support of the Iraq War, or over-identification with intelligence and covert operations.Let's look briefly at Admiral Patrick Walsh, who Obama's Secretary of Defense, Robert Gates (left over from the Bush Administration), picked to head the Pentagon investigatory team. (Talk about "who will watch the watchers"! Bush's Secretary of Defense gets to pick the man who will investigate Guantanamo. You couldn't ask for such brutal irony.)
Admiral Walsh is a true believer in the endless war against radical Islam or fundamentalist terrorism, hence, he may not look kindly upon dismantling the gulag assembled for the purpose. Here's Walsh in 2006 in Dallas for a meeting of the Rotary Club:
In an exclusive television interview with CBS 11, Admiral Walsh cautioned an impatient American public that a long fight against Islamic extremists lies ahead. "I think we really need to understand the adversary that we are up against here and I think part of the impatience is not understanding fully the commitment that the enemy has to destroy not just us, it's our culture....I'm getting pretty tired now of the free ride President Obama seems to be getting on the Guantanamo and related torture issues. Of course, that's not true of everybody, as the references in the essay attest. But for the most part, I don't believe the majority of Americans are yet fully aware of how problematic many of Obama's decisions have been on this issue thus far. A whitewash of conditions at Guantanamo. Threatening allies regarding release of classified information on torture. A determination to keep some form of illegal rendition. Reliance on an army manual for interrogations that still allows many abusive procedures. The torture beatings of an inmate prior to release.
"What we are talking about today is an ideology that thrives on murder, intimidation, and fear. It puts innocent people at risk particularly those in open societies. What we are talking about are people who worship death itself."
The latest "shock" to human rights activists came when the administration ruled it would deny hundreds of U.S.-held prisoners at Bagram Airbase outside Kabul any constitutional appeal or rights. Bagram holds many of the same kinds of prisoners as Guantanamo, but is not on leased territory 90 miles from America, and the detainees are easily out of sight of U.S. news crews or popular notice.
The time is coming close when the Obama administration will have passed beyond the point of no return, and will become irretrievably associated with many of the worst aspects of the Bush torture regime. That time is not yet, and the administration may yet have other plans up their sleeves, as many Democratic supporters avow. But the torture beating of Binyam Mohamed, in full light of the world's press, and knowing this would have to come out, demonstrates the blatant hubris and contempt of the people running this country, especially its military prisons.
Learning the Lessons, circa 1976
This posting is an epilogue of sorts for the previous one, which looked in depth at the minutes of a torturers' meeting at Guantanamo, circa October 2002.
Following is a quote from Fred Branfman, one a number of participants in a conference conducted by then-Senators Philip Hart (D) and Edward Brooke (R) in Washington, D.C. in September 1976. You won't find this quote online anywhere. It comes from the book, The CIA File, Grossman Publishers, 1976, pp. 61-62, in an essay by Fred Branfman, then director of the Indochina Resource Center, entitled "The President's Secret Army: A Case Study -- The CIA in Laos, 1962-1972," emphases added.
Following is a quote from Fred Branfman, one a number of participants in a conference conducted by then-Senators Philip Hart (D) and Edward Brooke (R) in Washington, D.C. in September 1976. You won't find this quote online anywhere. It comes from the book, The CIA File, Grossman Publishers, 1976, pp. 61-62, in an essay by Fred Branfman, then director of the Indochina Resource Center, entitled "The President's Secret Army: A Case Study -- The CIA in Laos, 1962-1972," emphases added.
Had more of us looked more closely and honestly at what Presidential actions in Vietnam told us about executive value systems, for example, the American public might have been better prepared for Watergate. Indeed, Watergate might have been prevented. Or, for another example, we might today look more closely at what executive leaders like [CIA Director] Mr. Colby brought to Vietnam: the issuing of ID cards linked to computerized bio-dossiers to all Vietnamese over the age of fifteen; the establishment of a nationwide system of surveillance through informers and a U.S.-created police force that grew from ten thousand in 1961 to one hundred and twenty thousand in 1974; Mr. Colby's practice of setting quotas on the number of Vietnamese civilians to be assassinated or arrested per month per district, a decision that resulted in tens of thousands of murders under Operation Phoenix; the setting up of special "administrative detention" procedures whereby special "Councils" imprisoned tens of thousands without benefit of trial or representation by lawyers but solely on the basis of police dossiers prepared after brutal tortures on all those picked up in mass roundups of men, women, and children, often in postcurfew raids in the dead of night.Can we now see how this failure to understand led to the Iraq debacle, Abu Ghraib, and currently, the escalation of the war in Afghanistan? Will we learn the lessons this time?
For if we could understand that Vietnam was just America writ large, that the mind-set exhibited by executive leaders in Vietnam was the same mind-set they brought to solving problems at home, not only might we be better prepared for understanding the growing "privacy invasion" in this country -- the data banks, the surveillance, the wiretapping, the use of informers -- but we might have alerted an American citizenry far more ready to combat such a threat than is at present the case.
Friday, February 20, 2009
Minutes from a Torturers' Meeting at Guantanamo
What follows below was transcribed from a PDF of the original document (or a copy of same), posted on the website of Senator Carl Levin, Chair of the Senate Armed Services Committee. It, along with a wealth of other documentation, was used in preparing the SASC's highly critical report late last year on interrogations and detainee treatment, which concluded that high officials bore responsibility for the mistreatment and torture of prisoners under U.S. control.
The document below constitutes the minutes from a meeting held at Guantanamo in early autumn, 2002. It is presented with minimal editorial comment, as I believe it speaks for itself. So far as I know, no other transcription of this document, minus certain excerpts, has ever been published or posted before. It is done so here as a public service, to promote the position that prosecution of the government's torture crimes is of paramount importance.
Cast of characters:
Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo; Lt. Col. Jerald Phifer, who sent a memo to Maj. Gen. Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more "severe interrogation techniques" (Dunleavy told a superior that Phifer was his "point of contact" on interrogation matters); Major John Leso, a military psychologist, who was present at the torture interrogation of Mohammed al-Qahtani(Leso, like Major Burney in the minutes, were members of the Behavioral Science Consultation Team [BSCT] -- Burney is reportedly a psychiatrist -- last month, the Convening Authority of Military Commissions at Guantanamo dropped the charges against al-Qahtani, concluding his treatment amounted to torture); Dave Becker, representing the Defense Intelligence Agency; and John Fredman, then chief counsel to the CIA's counter-terrorism center.
I'd like to make only two observations that I think are relevant at this point. One, it is clear that coercive interrogations amounting to torture had already begun at Guantanamo prior to this October 2002 meeting. In the document itself, the participants have a general discussion recalling how prisoner "063", Mohammed al-Qahtani, "has responded to certain types of deprivation and psychological stressors," indicating, perhaps, that al-Qahtani was some kind of experimental test case. (H/T to Trudy Bond, who noted this fact in an article published at Counterpunch earlier this year.)
Secondly, it struck me when transcribing these minutes the degree to which John Fredman, the CIA legal counsel and rep to this meeting, dominated the discussion. All the participants seem to bow to his authority, especially on legal issues, with Lt. Col. Beaver chiming in as well. While the BSCT members -- who are the medical professionals present -- appear to criticize "fear-based" interrogations techniques at the beginning of the meeting, in favor of rapport-building, as well as abusive environmental "approaches," as the discussion veers more and more to propositions regarding blatant torture, like the "wet towel" (waterboarding) technique, nary a protest is heard from these individuals, who have by their actions disavowed the ethics of their medical and/or psychological professions.
One final note: the acronym LEA refers to Law Enforcement Agency, and basically refers to the FBI. The acronym SERE, which appears throughout, refers to the Survival, Evasion, Resistance, Escape program found in the various military branches. Meant to inoculate U.S. servicemen against the rigors of enemy capture and torture, Sen. Levin's investigation documented the various ways in which SERE methods were reverse-engineered to provide torture techniques for use by the military and CIA on prisoners held under U.S. control. So far as we know, the first approach by the Defense Department (specifically, by DoD Chief Counsel William J. Haynes, II) to the Joint Personnel Recovery Agency, parent department for SERE, regarding information on SERE techniques, was in December 2001, well before any legal memo by Bush's Office of Legal Counsel allowing (illegally) for abusive treatment of detainees. There can be no alibi that DoD was following legal advice or protected by presidential order at that point in time.
Re transcription: I have tried to follow as much as possible the layout, spelling, punctuation, and font emphasis of the original. Bullets have been changed to asterisks, arrows to long dashes. All brackets and parentheses are as in original, unless otherwise indicated.
***********
The Immediate Aftermath
It is worth noting some of the administrative responses to this meeting. On October 11, a week after the Counter Resistance Strategy Meeting, LTC Jerald Phifer wrote a request to Major General Michael B. Dunleavy, Commander at Guantanamo, requesting use of Counter-Resistance Strategy techniques. He divided them into three categories of intensity.
Category I included direct approach and rapport building techniques, but also false identification of national identity of the interrogator, yelling at the detainee, and "techniques of deception." Category II techniques included use of stress position, isolation up to 30 days, light/auditory deprivation, 20 hour interrogations, nudity, hooding, and use of phobias "to induce stress." Category III techniques included the "wet towel" (waterboarding) treatment, threats of death to the prisoner or his family, and exposure to cold.
On the same day, the Staff Judge Advocate at Guantanamo, LTC Diane E. Beaver, wrote a legal brief that concluded "the proposed strategies do not violate federal law." She did suggest, though, that Category II and III techniques undergo further legal review "prior to their commencement." Still on the same day, Maj. Gen. Dunleavy wrote a memo to the Commander of U.S. Southern Command asking for approval of the techniques. He concluded, without exception, that "these techniques do not violate U.S. or international laws.
On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to use the techniques to the Joint Chiefs of Staff. While he worried about the legality of some of th Category III techniques, particularly the death threats, he urged them to consider that he wanted "to have as many options as possible at my disposal."
A few days after that, on October 28, 2002, Mark Fallon, Deputy Commander at Criminal Investigation Task Force (CITF) sent a memo to a colleague. He was uneasy about what he had read in the Counter Resistance Strategy Meeting Minutes. He told his colleague the comments of Beaver and others "looks like the kinds of stuff Congressional hearings are made of." The techniques "seem to stretch beyond the bounds of legal propriety."
The document below constitutes the minutes from a meeting held at Guantanamo in early autumn, 2002. It is presented with minimal editorial comment, as I believe it speaks for itself. So far as I know, no other transcription of this document, minus certain excerpts, has ever been published or posted before. It is done so here as a public service, to promote the position that prosecution of the government's torture crimes is of paramount importance.
Cast of characters:
Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo; Lt. Col. Jerald Phifer, who sent a memo to Maj. Gen. Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more "severe interrogation techniques" (Dunleavy told a superior that Phifer was his "point of contact" on interrogation matters); Major John Leso, a military psychologist, who was present at the torture interrogation of Mohammed al-Qahtani(Leso, like Major Burney in the minutes, were members of the Behavioral Science Consultation Team [BSCT] -- Burney is reportedly a psychiatrist -- last month, the Convening Authority of Military Commissions at Guantanamo dropped the charges against al-Qahtani, concluding his treatment amounted to torture); Dave Becker, representing the Defense Intelligence Agency; and John Fredman, then chief counsel to the CIA's counter-terrorism center.
I'd like to make only two observations that I think are relevant at this point. One, it is clear that coercive interrogations amounting to torture had already begun at Guantanamo prior to this October 2002 meeting. In the document itself, the participants have a general discussion recalling how prisoner "063", Mohammed al-Qahtani, "has responded to certain types of deprivation and psychological stressors," indicating, perhaps, that al-Qahtani was some kind of experimental test case. (H/T to Trudy Bond, who noted this fact in an article published at Counterpunch earlier this year.)
Secondly, it struck me when transcribing these minutes the degree to which John Fredman, the CIA legal counsel and rep to this meeting, dominated the discussion. All the participants seem to bow to his authority, especially on legal issues, with Lt. Col. Beaver chiming in as well. While the BSCT members -- who are the medical professionals present -- appear to criticize "fear-based" interrogations techniques at the beginning of the meeting, in favor of rapport-building, as well as abusive environmental "approaches," as the discussion veers more and more to propositions regarding blatant torture, like the "wet towel" (waterboarding) technique, nary a protest is heard from these individuals, who have by their actions disavowed the ethics of their medical and/or psychological professions.
One final note: the acronym LEA refers to Law Enforcement Agency, and basically refers to the FBI. The acronym SERE, which appears throughout, refers to the Survival, Evasion, Resistance, Escape program found in the various military branches. Meant to inoculate U.S. servicemen against the rigors of enemy capture and torture, Sen. Levin's investigation documented the various ways in which SERE methods were reverse-engineered to provide torture techniques for use by the military and CIA on prisoners held under U.S. control. So far as we know, the first approach by the Defense Department (specifically, by DoD Chief Counsel William J. Haynes, II) to the Joint Personnel Recovery Agency, parent department for SERE, regarding information on SERE techniques, was in December 2001, well before any legal memo by Bush's Office of Legal Counsel allowing (illegally) for abusive treatment of detainees. There can be no alibi that DoD was following legal advice or protected by presidential order at that point in time.
Re transcription: I have tried to follow as much as possible the layout, spelling, punctuation, and font emphasis of the original. Bullets have been changed to asterisks, arrows to long dashes. All brackets and parentheses are as in original, unless otherwise indicated.
Counter Resistance Strategy Meeting Minutes
Persons in Attendance:
COL Cummings, LTC Phifer, CDR Bridges, LTC Beaver, MAJ Burney, MAJ Leso, Dave Becker, John Fredman, 1LT Seek, SPC Pimentel
The following notes were taken during the aforementioned meeting at 1340 on October 2, 2002. All questions and comments have been paraphrased:
BSCT Description of SERE Psych Training (MAJ Burney and MAJ Leso)
* Identify trained resisters
* Al Qaeda Training
* Methods to overcome resistance
* Rapport building (approach proven to yield positive results)
* Friendly approach (approach proven to yield positive results)
* Fear Based Approaches are unreliable, ineffective in almost all cases
* What's more effective than fear based strategies are camp-wide environmental stratetgies designed to disrupt cohesion and communication among detainees
* Environment should foster dependence and compliance
LTC Phifer: Harsh techniques used on our service members have worked and will work on some, what about those?
MAJ Leso: Force is risky, and may be ineffective due to the detainees' frame of reference. They are used to seeing much more barbaric treatment.
Becker: Agreed.
-- At this point a discussion about ISN 63 [Mohammed al-Qahtani] ensued, recalling how he has responded to certain types of deprivation and psychological stressors. After short discussion the BSCT continued to address the overall manipulation of the detainees' environment.
BSCT continued:
* Psychological stressors are extremely effective (ie, sleep deprivation, withholding food, isolation, loss of time)
COL Cummings: We can't do sleep deprivation
LTC Beaver: Yes, we can -- with approval.
* Disrupting the normal camp operations is vital. We need to create an environment of "controlled chaos"
LTC Beaver: We may need to curb the harsher operations while ICRC [International Committee of the Red Cross -- added by transcriber] is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD.
Becker: We have had many reports from Bagram about sleep deprivation being used.
LTC Beaver: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.
COL Cummings: The new PSYOP plan has been passed up the chain
LTC Beaver: It's at J3 at SOUTHCOM.
Fredman: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has "moved" them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.
Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical. Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture described as anything leading to permanent, profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you're doing it wrong. So far, the techniques we have addressed have not proven to produce these types of results, which in a way challenges what the BSCT paper says about not being able to prove whether these techniques will lead to permanent damage. Everything on the BSCT white paper is legal from a civilian standpoint. [Any questions of severe weather or temperature conditions should be deferred to medical staff.] Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. The CIA operates without military intervention. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theatre. In those rare instances, aggressive techniques have proven very helpful.
LTC Beaver: We will need documentation to protect us
Fredman: Yes, if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be extremely detrimental. Everything must be approved and documented.
Becker: LEA personnel will not participate in harsh techniques
LTC Beaver: There is no legal reason why LEA personnel cannot participate in these operations
-- At this point a discussion about whether or not to video tape the aggressive sessions, or interrogations at all ensued.
Becker: Videotapes are subject to too much scrutiny in court. We don't want the LEA people in aggressive sessions anyway.
LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.
Fredman: The videotaping of even totally legal techniques will look "ugly".
Becker: (Agreed)
Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.
LTC Beaver: Does SERE employ the "wet towel" technique?
Fredman: If a well-trained individual is used to perform [sic] this technique it can feel like you're drowning. The lymphatic system will react as if you're suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (ie, insects, snakes, claustrophobia). The level of resistance is directly related to person's experience.
MAJ Burney: Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue. It is very difficult to disprove someone else's PTSD.
Fredman: These techniques need involvement from interrogators, psych, medical, legal, etc.
Becker: Would we blanket approval or would it be case by case?
Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through the DOJ.
LTC Phifer: Who approves ours? The CG? SOUTHCOM CG?
Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.
LTC Phifer: Can we get DOJ opinion about these topics on paper?
LTC Beaver: Will it go from DOJ to DOD?
LTC Phifer: Can we get to see a CIA request to use advanced aggressive techniques?
Fredman: Yes, but we can't provide you with a copy. You will probably be able to look at it.
An example of a different perspective on torture is Turkey. In Turkey they say that interrogation at all, or anything you do to that results in the subject betraying his comrades is torture.
LTC Beaver: In the BSCT paper it says something about "imminent threat of death",...
Fredman The threat of death is also subject to scrutiny, and should be handled on a case by case basis. Mock executions don't work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book.
Becker: I like the part about ambient noise.
-- At this point a discussion about the ways to manipulate the environment ensued, and the following ideas were offered:
* Medical visits should be scheduled randomly, rather than on a set system
* Let detainee rest just long enough to fall asleep and wake him up about every thirty minutes and tell him it's time to pray again
* More meals per day induce loss of time
* Truth serum; even though it may not actually work, it does have a placebo effect.
Meeting ended at 1450.
***********
The Immediate Aftermath
It is worth noting some of the administrative responses to this meeting. On October 11, a week after the Counter Resistance Strategy Meeting, LTC Jerald Phifer wrote a request to Major General Michael B. Dunleavy, Commander at Guantanamo, requesting use of Counter-Resistance Strategy techniques. He divided them into three categories of intensity.
Category I included direct approach and rapport building techniques, but also false identification of national identity of the interrogator, yelling at the detainee, and "techniques of deception." Category II techniques included use of stress position, isolation up to 30 days, light/auditory deprivation, 20 hour interrogations, nudity, hooding, and use of phobias "to induce stress." Category III techniques included the "wet towel" (waterboarding) treatment, threats of death to the prisoner or his family, and exposure to cold.
On the same day, the Staff Judge Advocate at Guantanamo, LTC Diane E. Beaver, wrote a legal brief that concluded "the proposed strategies do not violate federal law." She did suggest, though, that Category II and III techniques undergo further legal review "prior to their commencement." Still on the same day, Maj. Gen. Dunleavy wrote a memo to the Commander of U.S. Southern Command asking for approval of the techniques. He concluded, without exception, that "these techniques do not violate U.S. or international laws.
On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to use the techniques to the Joint Chiefs of Staff. While he worried about the legality of some of th Category III techniques, particularly the death threats, he urged them to consider that he wanted "to have as many options as possible at my disposal."
A few days after that, on October 28, 2002, Mark Fallon, Deputy Commander at Criminal Investigation Task Force (CITF) sent a memo to a colleague. He was uneasy about what he had read in the Counter Resistance Strategy Meeting Minutes. He told his colleague the comments of Beaver and others "looks like the kinds of stuff Congressional hearings are made of." The techniques "seem to stretch beyond the bounds of legal propriety."
Quotes from LTC Beaver regarding things that are not being reported give the appearance of impropriety.... Talk of "wet towel treatments" which results in the lymphatic gland reacting as if you are suffocating, would in my opinion; shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.If you wish to repost this essay you can download a .txt file of the html here (right click and save). Permission granted.
"I have attained the highest power"
An extraordinary performance from the Finnish bass Matti Salminen performing the title role of Mussorgsky's Boris Godunov. New York, 1985. Conductor: Zubin Mehta.
Tuesday, February 17, 2009
Under Oath, MI5 Officer Reveals Official British Torture Program
The UK Guardian, which has been right on top of the Binyam Mohamed drama unfolding in the British courts, delivered another bombshell article this morning in London. "Whitehall devised torture policy for terror detainees," the headline reads, "MI5 interrogations in Pakistan agreed by lawyers and government."
The British High Court resumed their hearing of Binyam's request for documents to prove his torture, as part of the legal proceedings against him at Guantanamo. Previously, the British judges had ruled that what they called "powerful evidence" suppressed relating to the torture of Mohamed by the U.S. and their proxy torturers in Morocco, where Mohamed had been sent as part of the Bush Administration's policy of "extraordinary rendition." The judges then revealed that they had been told by the British Foreign Minister, David Miliband, that the requested documents could not be released, or U.S.-UK intelligence relations would be affected.
From the article:
The article continues:
What is happening in Britain right now is sure to spill over to U.S. politics eventually, especially when the questions start to be "What did he know, and when did he know it":
H/T Trudy Bond
The British High Court resumed their hearing of Binyam's request for documents to prove his torture, as part of the legal proceedings against him at Guantanamo. Previously, the British judges had ruled that what they called "powerful evidence" suppressed relating to the torture of Mohamed by the U.S. and their proxy torturers in Morocco, where Mohamed had been sent as part of the Bush Administration's policy of "extraordinary rendition." The judges then revealed that they had been told by the British Foreign Minister, David Miliband, that the requested documents could not be released, or U.S.-UK intelligence relations would be affected.
From the article:
Miliband's position in the affair came under renewed attack yesterday after it emerged that his officials solicited a letter from the US state department to back up his claim that if the evidence was disclosed, Washington might stop sharing intelligence with Britain....And what was that wrongdoing. According to an MI5 officer testifying anonymously before the British court, and named only "Witness B". The Guardian reports that:
Evidence heard by the court in-camera – once the public and the media had been excluded – resulted in Jacqui Smith, the home secretary, asking the attorney general, Lady Scotland, to investigate "possible criminal wrongdoing" by both American and British security and intelligence officers.
A number of British terrorism suspects who have been detained without trial in Pakistan say they were tortured by Pakistani intelligence agents before being questioned by MI5. In some cases their accusations are supported by medical evidence.One of those suspects was Binyam Mohamed, who awaits a return from Guantanamo to Britain, terribly weakened by a months-long hunger strike. Witness B had interrogated Mr. Mohamed in Karachi, and in cross-examination by the court, the MI5 officer admitted that the prisoner had looked in "an extremely vulnerable position." The witness also allowed that he told Mohamed that he'd "get more lenient treatment if he cooperated."
The article continues:
Asked then whether the transfer concerned him, Witness B replied: "I was aware that the general question of interviewing detainees had been discussed at length by security service management legal advisers and government, and I acted in this case, as in others, under the strong impression that it was considered to be proper and lawful." He denied that he had threatened Mohamed and said the prisoner appeared well enough to be questioned.As the details of the gory torture program leak out, it becomes clearer and clearer that the Obama administration's refusal to declassify relevant documents in Binyam's case amounts to a terrible cover-up of very serious war crimes. No matter what you think or want to think about Barack Obama, Eric Holder, and the rest of this new Democratic administration, they are treading very close to being implicated in war crimes. They should know this information will leak out, and to move now will save the U.S. credibility, and their own administration serious embarrassment or worse.
Mohamed was eventually able to tell lawyers that before being questioned by MI5 he had been hung from leather straps, beaten and threatened with a firearm by Pakistani intelligence officers. After the meeting with MI5 he was "rendered" to Morocco where he endured 18 months of even more brutal torture, including having his genitals slashed with a scalpel. Some of the questions put to him under torture in Morocco were based on information passed by MI5 to the US.
The Guardian has learned from other sources that the interrogation policy was directed at a high level within Whitehall and that it has been further developed since Mohamed's detention in Pakistan. Evidence of this might emerge from 42 undisclosed US documents seen by the high court and sent to the MPs and peers on the intelligence and security committee (ISC).
What is happening in Britain right now is sure to spill over to U.S. politics eventually, especially when the questions start to be "What did he know, and when did he know it":
In a letter to the committee, Clive Stafford Smith, the director of Reprieve, says: "The ISC would want to know whether the intelligence services brought the issue of Mr Mohamed's abuse to the attention of the prime minister (then Mr Blair) – and, if not, why not." He said if the evidence had been brought to Blair's attention, "the ISC would want to know what, if anything, was done about it. If nothing was done, that would raise serious questions about the respect that the UK government has for its obligations under the convention against torture."We must demand that the U.S. release all documents in the Binyam case immediately. The British government, too, must release what documentation they are holding in the Binyam Mohamed case. The time to come clean is now.
H/T Trudy Bond
Monday, February 16, 2009
On the U.S. Duty to Prosecute War Crimes (Part II)
(For part one of this article, please click here.)
The most common objection made to those who proclaim a duty to prosecute torture crimes under the UN Convention Against Torture (CAT) treaty concerns the treaty's non-self-executing status. A typical discussion occurred at The Volokh Conspiracy website a few weeks ago:
The dissent in Medillin, by Justice Breyer, and joined by Justices Souter and Ginsburg, describes some of the underlying case law that supports the idea that the Supremacy Clause of the Constitution is in effect for all approved treaties:
As to Yoo's contention that "Congress’s control over treaty implementation through legislation" was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):
One can argue that lacking legislative implementation, that the overwhelming intention of the treaty demands, as Justice Roberts wrote, that the U.S. fulfill its "international obligations". If the Democratic Party-led Congress wants to make matters even more clear, it can pass laws to specifically implement Sections 4, 5, and 7 of CAT.
Law, Politics, and the Fight Against Torture
At bottom, the legal questions are subsidiary to the political issues and intent. As Yoo's seeming apostasy regarding executive power makes clear, the argument about the various Federal powers comes down to supporting those policies that allow the U.S. to pursue untrammeled a free hand to intervene and act any way it wants anywhere in the world. Arguments about strict constructionism, or judicial activism, or the intent of the Framers is really an argument about how the U.S. should operate in the world today.
We reap today the failures of our society and its legal and governmental systems to address massive violations of international law for decades now. The greatest violator is the CIA (and sometimes the U.S. military), who countenanced and/or engaged in torture in Guatemala, Greece, Brazil, and South Vietnam (the Phoenix Program), and now, in Afghanistan, Iraq, and putative U.S. soil at the Guantanamo Naval Base and also undeniable U.S. territory, the U.S. Navy brig at Charleston (Jose Padilla). For decades, human rights and international law has been violated by the U.S. government, which has done its best to hide the fact via "plausible deniability", legalistic loopholes, and reliance on "state secrets" claims of national security (such as the Obama administration has now claimed in more than one instance).
A key instance of this point is the recent finding by the Justice Department’s Office of Professional Responsibility that the memos justifying torture written by Yoo and others were, as Jason Leopold reports in a current article, "tainted by political influence":
The duty to prosecute the war crimes of the past administration is not only about fulfilling international obligations, or rendering justice to victims, it is about deciding the very direction this country is headed. It is not hyperbole to say that the existence of whatever is left of democracy in this country is at stake. We must prosecute and punish Bush, Cheney, et al. for their war crimes. To fail yet again, as after the Vietnam War, is unthinkable. It would mean a further degeneration of U.S. democracy into something unrecognizable, into out and out tyranny.
The most common objection made to those who proclaim a duty to prosecute torture crimes under the UN Convention Against Torture (CAT) treaty concerns the treaty's non-self-executing status. A typical discussion occurred at The Volokh Conspiracy website a few weeks ago:
For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).But, even in a decision by the Roberts court, it was found that non-self-executing treaties "still constitute international obligations." The quote comes from Medellin v. Texas, where the court ruled that the President could not enforce by himself, minus any implementing federal law, the provisions of the Vienna Convention/World Court. Let's look at one particularly relevant passage, however, in the majority opinion in the case, which proponents of weakening the CAT treaty's requirement to prosecute torture might want to ponder (emphasis added):
Section 7 of the Convention Against Torture thus is not judicially enforceable.
... under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. (Majority Opinion, p. 24-25)Yoo vs. the Supremacy Clause of the Constitution
The dissent in Medillin, by Justice Breyer, and joined by Justices Souter and Ginsburg, describes some of the underlying case law that supports the idea that the Supremacy Clause of the Constitution is in effect for all approved treaties:
The Clause means that the “courts” must regard “a treaty . . . as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson, 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.)....Not surprisingly, we see John Yoo quoted in Medellin as a legal expert on the issue of non-self-executing treaties. Yoo is an ideologue who helped write a series of memos that justified the use of interrogation techniques that amount to torture. In his essay, "Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding," Yoo argues:
... by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land.” Lessee of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Baldwin,J., concurring).
Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more.See Appendix A, infra (listing, as examples, 29 such cases,including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence).
This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation.... It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that could independently execute treaty obligations. The Framers also anticipated that Congress’s control over treaty implementation through legislation would constitute an important check on the executive branch’s power in foreign affairs.How strange that Yoo argues here for a check on the executive branch, he who has argued elsewhere for a powerful executive with massive wartime powers. But not strange when you realize that all these legal opinions are meant to cynically promote a particular political agenda in which U.S. foreign policy is free of international constraints. If in the case of treaty law this means eviscerating the executive's power to enforce the law of the land, so be it, all the better to eliminate the constraints of international law upon mighty America.
As to Yoo's contention that "Congress’s control over treaty implementation through legislation" was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):
The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically, Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically....As one last point, let's look once more at the language of the Convention Against Torture, or rather the U.S. Reservations to CAT, Section II (5)(emphasis added):
Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “executed,” taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277.
But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276),further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. (Dissent, p. 6)
5. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.
One can argue that lacking legislative implementation, that the overwhelming intention of the treaty demands, as Justice Roberts wrote, that the U.S. fulfill its "international obligations". If the Democratic Party-led Congress wants to make matters even more clear, it can pass laws to specifically implement Sections 4, 5, and 7 of CAT.
Law, Politics, and the Fight Against Torture
At bottom, the legal questions are subsidiary to the political issues and intent. As Yoo's seeming apostasy regarding executive power makes clear, the argument about the various Federal powers comes down to supporting those policies that allow the U.S. to pursue untrammeled a free hand to intervene and act any way it wants anywhere in the world. Arguments about strict constructionism, or judicial activism, or the intent of the Framers is really an argument about how the U.S. should operate in the world today.
We reap today the failures of our society and its legal and governmental systems to address massive violations of international law for decades now. The greatest violator is the CIA (and sometimes the U.S. military), who countenanced and/or engaged in torture in Guatemala, Greece, Brazil, and South Vietnam (the Phoenix Program), and now, in Afghanistan, Iraq, and putative U.S. soil at the Guantanamo Naval Base and also undeniable U.S. territory, the U.S. Navy brig at Charleston (Jose Padilla). For decades, human rights and international law has been violated by the U.S. government, which has done its best to hide the fact via "plausible deniability", legalistic loopholes, and reliance on "state secrets" claims of national security (such as the Obama administration has now claimed in more than one instance).
A key instance of this point is the recent finding by the Justice Department’s Office of Professional Responsibility that the memos justifying torture written by Yoo and others were, as Jason Leopold reports in a current article, "tainted by political influence":
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.Moreover, it seems, according to a Newsweek report, that Bush Attorney General Michael Mukasey tried to squelch the OPR report. These kinds of intrusions into how the law operates, or rather the institutions of the law, are not aberrations. They are the direct consequences of political programs and societal conflicts in action. They will never totally go away, and they call for political action -- legislative, judicial, and actions by the members of civil society, that is, by citizens -- to redress the wrongs implemented by reactionary sections of the society.
The duty to prosecute the war crimes of the past administration is not only about fulfilling international obligations, or rendering justice to victims, it is about deciding the very direction this country is headed. It is not hyperbole to say that the existence of whatever is left of democracy in this country is at stake. We must prosecute and punish Bush, Cheney, et al. for their war crimes. To fail yet again, as after the Vietnam War, is unthinkable. It would mean a further degeneration of U.S. democracy into something unrecognizable, into out and out tyranny.
The Balcony
For the pleasure of it, because we are, at least, human...
Le Balcon, by Charles Baudelaire
(ca. 1856)
Mère des souvenirs, maîtresse des maîtresses,
Ô toi, tous mes plaisirs! ô toi, tous mes devoirs!
Tu te rappelleras la beauté des caresses,
La douceur du foyer et le charme des soirs,
Mère des souvenirs, maîtresse des maîtresses!
Les soirs illuminés par l’ardeur du charbon,
Et les soirs au balcon, voilés de vapeurs roses.
Que ton sein m’était doux! que ton coeur m’était bon!
Nous avons dit souvent d’impérissables choses
Les soirs illuminés par l’ardeur du charbon.
Que les soleils sont beaux dans les chaudes soirées!
Que l’espace est profond! que le coeur est puissant!
En me penchant vers toi, reine des adorées,
Je croyais respirer le parfum de ton sang.
Que les soleils sont beaux dans les chaudes soirées!
La nuit s’épaississait ainsi qu’une cloison,
Et mes yeux dans le noir devinaient tes prunelles,
Et je buvais ton souffle, ô douceur! ô poison!
Et tes pieds s’endormaient dans mes mains fraternelles.
La nuit s’épaississait ainsi qu’une cloison.
Je sais l’art d’évoquer les minutes heureuses,
Et revis mon passé blotti dans tes genoux.
Car à quoi bon chercher tes beautés langoureuses
Ailleurs qu’en ton cher corps et qu’en ton coeur si doux?
Je sais l’art d’évoquer les minutes heureuses!
Ces serments, ces parfums, ces baisers infinis,
Renaîtront-ils d’un gouffre interdit à nos sondes,
Comme montent au ciel les soleils rajeunis
Après s’être lavés au fond des mers profondes?
— Ô serments! ô parfums! ô baisers infinis!
The Balcony
(in English translation, Frank Pearce Sturm, 1906)
Mother of memories, mistress of mistresses,
O thou, my pleasure, thou, all my desire,
Thou shalt recall the beauty of caresses,
The charm of evenings by the gentle fire,
Mother of memories, mistress of mistresses!
The eves illumined by the burning coal,
The balcony where veiled rose-vapour clings —
How soft your breast was then, how sweet your soul!
Ah, and we said imperishable things,
Those eves illumined by the burning coal.
Lovely the suns were in those twilights warm,
And space profound, and strong life’s pulsing flood;
In bending o’er you, queen of every charm,
I thought I breathed the perfume of your blood.
The suns were beauteous in those twilights warm.
The film of night flowed round and over us,
And my eyes in the dark did your eyes meet;
I drank your breath, ah! sweet and poisonous,
And in my hands fraternal slept your feet —
Night, like a film, flowed round and over us.
I can recall those happy days forgot,
And see, with head bowed on your knees, my past.
Your languid beauties now would move me not
Did not your gentle heart and body cast
The old spell of those happy days forgot.
Can vows and perfume, kisses infinite,
Be reborn from the gulf we cannot sound;
As rise to heaven suns once again made bright
After being plunged in deep seas and profound?
Ah, vows and perfumes, kisses infinite!
Sunday, February 15, 2009
Will ICC Prosecute War Crimes in Gaza Attack?
Let us note that prosecution of war crimes is not solely a U.S. issue.
According to a recent report in the International Herald Tribune, "the Palestinian Authority is pressing the International Criminal Court in The Hague to investigate potential war crimes committed by Israeli commanders during the recent war in Gaza." There have been over over 200 referrals to the ICC for investigation of Israeli atrocities in the attack on Gaza, which killed many hundreds, including a high percentage of civilians. An example of such a war crime would be the accusation that Israeli forces hindered Red Cross teams from helping victims. Not all referrals will be against Israelis, while some may be asking for investigation of Hamas, who shot rockets into civilian areas, and was recently accused of extra-judicial killings of Palestinian political opponents in Gaza.
According to a recent report in the International Herald Tribune, "the Palestinian Authority is pressing the International Criminal Court in The Hague to investigate potential war crimes committed by Israeli commanders during the recent war in Gaza." There have been over over 200 referrals to the ICC for investigation of Israeli atrocities in the attack on Gaza, which killed many hundreds, including a high percentage of civilians. An example of such a war crime would be the accusation that Israeli forces hindered Red Cross teams from helping victims. Not all referrals will be against Israelis, while some may be asking for investigation of Hamas, who shot rockets into civilian areas, and was recently accused of extra-judicial killings of Palestinian political opponents in Gaza.
On the U.S. Duty to Prosecute War Crimes (Part I)
Oh, beat the drum slowly and play the fife lowly...In the United States, questions around prosecution of war crimes revolve around the use of torture by Bush Administration officials, as well as the illegality of the U.S. attack on Iraq, which resulted in over a million deaths.
As regards torture, the Bush administration's head judge at Guantanamo has already admitted that torture was used at that facility, and dropped the charges against one high-profile detainee, Mohammad al-Qatani, as a result.
When it comes to the attack on Iraq, there was this report in the Guardian late last year:
Addressing the British Institute of International and Comparative Law last night, [former British senior judge, retired, Lord] Bingham said: "If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law. "For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council ..."If you read for awhile the various blog and mainstream press opinion pieces on the issue of prosecuting American officials, you will come across a good deal of pessimism and ignorance. Some of the critics of prosecuting are well-informed, but present one-sided views of the difficulties involved in making such a prosecution. But UN officials seem to find the issue quite straightforward.
From The Jurist:
[A]ccording to a statement made by UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak in an interview Tuesday with German television program ZDF Frontal 21. Nowak said that such actions constituted a violation of the UN Convention Against Torture, to which the US is a party. Nowak noted that although evidence is available to press charges, he does not know whether US law would recognize the interrogation techniques used as forms of torture.There are a number of instruments whereby U.S. officials are vulnerable to war crimes charges. The UN Convention Against Torture required implementing laws to be established in signatory states. Consequently, the U.S. "enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder)" (see CRS report).
Besides CAT, the U.S. has a duty to prosecute Bush administration officials, both civilian and military (and intelligence), for torture and cruel, inhuman and degrading treatment of prisoners. H/T to Charles Gittings (emphasis added):
“The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.The issue seems clear. But opponents of prosecution, or sometimes just political pessimists who deem themselves "realists," cite the issue of prosecutorial discretion, believing there is no provision within, for instance, the CAT treaty, that requires prosecution. U.S. prosecutors are free to use their discretion in selecting whom they investigate and charge. This is not entirely wrong, although this passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment, puts the issue of prosecutorial discretion into greater legal context (H/T Kevin Jon Heller -- emphases added):
“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.”
Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).
Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture. The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only. In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment. The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture. If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.As a matter of principle, the duty to prosecute is well established in international law. Ironically, it was the United States, along with its World War II allies, that pushed to establish this principle.
From University of Queensland Law Journal re "The United Nations and International Criminal Law" (emphases added):
In the NurembergTrial of the Major War Criminals, the International Military Tribunal held that ‘international law imposes duties and liabilities upon individuals as well as states’ and that ‘individuals can be punished for violations of international law.’[33] The Tribunal went on to proclaim:The next period will determine whether the U.S. will continue to alibi U.S. war criminals. The calls for some kind of investigatory commission should not be definitively ruled out, but any decision on such must follow a determination of whether to prosecute Bush, Cheney, Rumsfeld, Addington, Yoo, Rice, Haynes, and all the gang for crimes against humanity. To fail to do so, especially for lame excuses such as prosecutorial discretion, is in itself a crime and a violation of treaty obligations. Any use of "Truth" or "Truth and Reconciliation" commissions as a way to bypass the necessary prosecutions, as some fear is the plan of establishment Democratic Party liberals, should be opposed.Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.The Nuremberg Tribunal even went so far as to hold that the doctrine of nullim crimen sine iure must not be allowed to stand in the way of bringing persons to justice for acts which they must have known amounted to criminal conduct under international law:To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.
As Glenn Greenwald put it so well in an article last month:
The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke ("we were dealing with real threats; there were 'exceptional circumstances' that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on").For more on this issue, please click here to read Part II, which looks at relevant Supreme Court decisions, and the intervention of the notorious John Yoo into the treaty issue.
International treaties which the U.S. signs and ratifies aren't cute little left-wing platitudes for tying the hands of America. They're binding law according to the explicit mandates of Article VI of our Constitution. Thus, there simply is no way to (a) argue against investigations and prosecutions for Bush officials and simultaneously (b) claim with a straight face to believe in the rule of law, that no one is above the law, and that the U.S. should adhere to the same rules and values it attempts to impose on the rest of the world.
Friday, February 13, 2009
Obama's DoJ: A Pattern of Obstruction in Torture, Wiretapping Cases
Obama's Department of Justice, seeking once again to invoke national security secrets as a means to throw out a lawsuit claiming damages, met opposition today in the person of Chief U.S. District Judge Judge Vaughn Walker.
The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:
the intervention by Secretary of State Hillary Clinton's State Department warnings to the British government not to reveal in court information on torture in the Binyam Mohamed case, nor from the decision to invoke "state secrets privilege" last Tuesday on the Jeppesen CIA rendition lawsuit.
[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]
Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":
This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.
And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the Australian paper, The Age?
Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.
But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:
H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure
The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:
This case alleges targeting of the leaders of an Islamic charity and their lawyers by the admitted, targeted warrantless wiretapping by the NSA. It is based on a document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates that they were subjected to warrantless wiretapping (the exact facts are held under tight seal).SF Gate picks up the story, describing a combative group of government attorneys warning Judge Walker that they would take their appeal to federal appeals court if he didn't order a stay in his January 5 order allowing the wiretapped plaintiffs to "to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit."
Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do'"....To the government's likely chagrin, Judge Walker denied the government request for a stay, and even seemed to get a little testy with the government in his denial order (emphasis added):
Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.
Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech.
First, the January 5 order is not a “final decision” and, therefore, not appealable pursuant to 28 USC § 1291. Second, the court is fully aware of its obligations with regard to classified information. The court’s January 5 order stated that it would prioritize two interests: “protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action"....Obama's promises are proving as empty, especially when it comes to exposing or prosecuting national security crimes. DoJ's actions in the al Haramain case must be seen in the context of
The court seeks from the government implementation of the steps necessary to afford that “both parties have access to the material upon which the court makes a decision.” That is the procedure the January 5 order seeks to put in place. That order is, therefore, entirely interlocutory and an “immediate appeal will not materially advance ultimate termination of the litigation.” An appeal under 28 USC § 1292(b) and stay are not appropriate and are, therefore, DENIED.
[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]
Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":
On Wednesday, the Justice Department requested a 90-day stay so it could have more time to review three torture memos that we’ve specifically re-requested for release through our five-year-old Freedom of Information Act request. These three memos, written by then-head of the department’s Office of Legal Counsel (OLC), contain authorizations to subject detainees in CIA custody to harsh interrogation methods that amount to torture, and the legal opinions that justify them.This kind of behavior by the Obama administration beyond unacceptable. Obama and his Justice Department are using Bush's old play card, and his promises about "change" and "hope" are revealed as false. How quickly the national security establishment puts their stamp upon the new president!
We sent the judge on the case a letter asking him to deny the request for a 90-day stay. We’ll be back before the judge on February 18 arguing against the stay.
This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.
And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the Australian paper, The Age?
THREE human rights groups have obtained documents that confirm US Department of Defence involvement in the CIA's "ghost" detention program, and the existence of secret prisons at Bagram air base in Afghanistan and in Iraq.It is evident that the U.S. will do whatever it can to protect its own terror apparatus, one which kidnaps people without cause or legal right from foreign countries, or even from U.S. airports, and sends them to be tortured in CIA or foreign prisons, that bullies other countries, that falsifies or "cooks" intelligence information to justify "shock and awe" bombings and the invasion and occupation of other countries (Iraq, Afghanistan), etc.
The groups said these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the Defence Department's co-operation with the CIA's "ghost" detention program....
The groups said the documents also revealed that Defence had a policy not to register prisoners with the Red Cross for 14 days and sometimes for 30 days in the interests of collecting intelligence and that this policy was known to the Joint Chiefs of Staff.
"These newly released documents confirm our suspicion that the tentacles of the CIA's abusive program reached across agency lines," said Margaret Satterthwaite, director of New York University's International Human Rights Clinic. "In fact, it is increasingly obvious that Defence officials engaged in legal gymnastics to find ways to co-operate with the CIA's activities."
Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.
But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:
Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”In the end, President Obama may not be able but to play out his role to the end: commander-in-chief of a corrupted military and CIA, bound to defend them, because he cannot trust in the people he said he would lead, and is beholden to those who he feels hold all the power around him. But he is wrong. Paraphrasing a slogan from forty years ago: the People are the Power. We the People.
A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates. There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”
H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure
Thursday, February 12, 2009
"Hiding Torture" from Obama & Others, Also Killing Prisoners
Scott Horton has followed up on the UK Guardian story, which I also wrote on last night, describing how Reprieve attorney Clive Stafford Smith, whose organization is helping defend Guantanamo detainee and British resident Binyam Mohamed, had information he was sending to President Obama on Mohamed's torture censored by the U.S. Department of Defense.
At Daily Kos, a number of readers were incredulous at the claims I, and by implication, Stafford Smith was making about Obama being kept out of the information loop, suggesting that I was prone to conspiracy theories, or a dupe for grandstanding by Mohamed's attorneys. Some suggested either the Guardian or myself or both had completely misunderstood the situation.
But Horton, who has been following this story carefully, and is known to have excellent sources, reported on the Guardian article much as I had, and added this:
Worthington comments on the circumstances that unfolded around the Binyam Mohamed case this week:
Jason Leopold has published an article describing the latest batch of declassified documents obtained from the ACLU in its FOIA suite against the government. (H/T Scott Horton)
ACLU has released a two-page previously unseen portion of the Church Report that describes the torture and murdering of prisoners by U.S. armed forces, as well as by contract interrogation personnel.
The effects of the torture crimes will not go away. The torture virus has become firmly embedded in the political corpus of this society, and it will take strenuous efforts to extirpate it. Wishful thinking will not be enough. Even a "Truth and Reconciliation" Commission will not be enough (although it may have its importance after the big wigs are indicted). The reestablishment of the rule of law, and the end of torture, which is still practiced by the United States, demands the prosecutions of those who have seriously broken national and international law. Only deterrence of this sort, in this instance, will have the needed effect.
At Daily Kos, a number of readers were incredulous at the claims I, and by implication, Stafford Smith was making about Obama being kept out of the information loop, suggesting that I was prone to conspiracy theories, or a dupe for grandstanding by Mohamed's attorneys. Some suggested either the Guardian or myself or both had completely misunderstood the situation.
But Horton, who has been following this story carefully, and is known to have excellent sources, reported on the Guardian article much as I had, and added this:
During the transition period, Obama staffers were regularly denied access to information relating to the Bush Administration’s torture programs. Stafford Smith notes that a number of Bush Administration officials involved in administering these programs, although political appointees, subsequently “burrowed” into career positions where they continue to have on-going responsibility and appear to be obstructing disclosure of what has happened.Horton goes on to describe the continuing fallout around the Mohamed case in Britain, where
Today the High Court in London agreed to reopen the most recent case, involving British Guantánamo detainee Binyam Mohamed, making clear that it was highly dissatisfied with Foreign Secretary David Miliband.For those looking to understand the timeline and characters associated with Binyam's case, which has engendered controversies from London to San Francisco -- where the other day, Obama's Department of Justice invoked, Bush-style, state secrets to throw a case out of court where Binyam was one of five plaintiffs in a rendition/torture civil suit -- the interested reader should check out Andy Worthington's excellent article, "Hiding Torture And Freeing Binyam Mohamed From Guantánamo".
Worthington comments on the circumstances that unfolded around the Binyam Mohamed case this week:
However, bitter though the truth may be, when it came down to it President Obama and his team must, I think, have been literally besieged by supplicants — from the CIA, from Boeing, from Jeppesen, and from countless other government departments and contractors involved in “extraordinary rendition” and torture in the last seven years — urging them not to open up the floodgates to what David Miliband has been striving, on a smaller scale, to prevent in the UK: prosecution for complicity in war crimes.ACLU Suit's Bitter Fruit: More Evidence of Prisoner Killings
Quite where this leaves the struggle for the disclosure of evidence relating to “extraordinary rendition” and torture is unclear, although from my point of view, the most appropriate course of action would be for those directly responsible for implementing America’s “War on Terror” policies — a list that includes George W. Bush, Dick Cheney, Donald Rumsfeld, David Addington, John Yoo, Alberto Gonzales, and William J. Haynes II, to name but a few — to be pursued for the prosecutions that President Obama is obliged to follow up on, after the admission in February 2008 by Gen. Michael Hayden, the director of the CIA, that waterboarding — a form of torture — was used on a number of “high-value detainees,” and last month’s confession by Susan Crawford, the Convening Authority of the Military Commission trial system at Guantánamo, that she had dropped the charges against Mohammed al-Qahtani, the alleged 20th hijacker for the 9/11 attacks, because “His treatment met the legal definition of torture.”
Jason Leopold has published an article describing the latest batch of declassified documents obtained from the ACLU in its FOIA suite against the government. (H/T Scott Horton)
ACLU has released a two-page previously unseen portion of the Church Report that describes the torture and murdering of prisoners by U.S. armed forces, as well as by contract interrogation personnel.
According to the declassified Church Report documents, on Dec. 4, 2002, a prisoner died while in U.S. custody in Afghanistan. Six days later, another prisoner died. Two days before the detainees were tortured and died, on Dec. 2, 2002, Rumsfeld authorized “aggressive interrogation techniques,” leading to “interrogation policies and plans approved by senior military and civilian officials [that] conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody,” the Senate Armed Services Committee report said.Senator Patrick Leahy is pushing for a congressional "Truth and Reconciliation Commission" to investigate the Bush Administration's crimes. Meanwhile, others are pushing for indictments and prosecutions. Obama keeps saying he wants to look ahead and not backward, even as his own people pull the rug out from under him.
Both deaths, the documents say, "share some similarities."
"In both cases, for example, [the prisoners] were handcuffed to fixed objects above their heads in order to keep them awake," the documents say. "Additionally, interrogations in both incidents involved the use of physical violence, including kicking, beating, and the use of "compliance blows" which involved striking the [prisoners] legs with the [interrogators] knees. In both cases, blunt force trauma to the legs was implicated in the deaths. In one case, a pulmonary embolism developed as a consequence of the blunt force trauma, and in the other case pre-existing coronary artery disease was complicated by the blunt force trauma."
"In both instances, the [detainee] deaths followed interrogation sessions in which unauthorized techniques were allegedly employed, but in both cases, these sessions were followed by further alleged abusive behavior outside of the interrogation booth," the declassified documents say....
Moreover, the declassified documents names a private contractor, David Passaro, who conducted at least one interrogation that allegedly led to the death of a prisoner
The effects of the torture crimes will not go away. The torture virus has become firmly embedded in the political corpus of this society, and it will take strenuous efforts to extirpate it. Wishful thinking will not be enough. Even a "Truth and Reconciliation" Commission will not be enough (although it may have its importance after the big wigs are indicted). The reestablishment of the rule of law, and the end of torture, which is still practiced by the United States, demands the prosecutions of those who have seriously broken national and international law. Only deterrence of this sort, in this instance, will have the needed effect.
Wednesday, February 11, 2009
Pentagon Hiding Torture Evidence from Obama
Originally posted at Daily Kos
In a shocking revelation just posted at UK Guardian, Binyam Mohamed's attorney Clive Stafford Smith, who is also director of the legal charity Reprieve, reports that "substantial parts" of a memo, attached to a letter to Barack Obama, documenting evidence of Mohamed's torture at the hands of CIA agents and their extraordinary rendition proxies, were blanked out so the president could not read them. Who did that?
Scott Horton at Harpers reviewed the known and published history of Binyam Mohamed in a column today criticizing the Obama administration's decision to use "state secrets privilege" in arguments before the Ninth District Court of Appeals in order to dismiss a lawsuit by Mohamed and four others against Jeppesen Dataplans, Inc., the aircraft company that worked with the CIA on the latter's extraordinary rendition program.
What the hell is going on here? Is Obama in charge of the military or not? The Guardian article explains:
This news comes only days after some other news from Guantanamo throws some doubt over who exactly is in control of U.S. military detainee and torture policy.
In an article today, Andy Worthington asks "Who's Running Guantanamo?"
As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.
Worthington concludes:
Besides the injustice and substantial issues involved in the Binyam Mohamed case, something bigger seems at stake here. The stink around this case grows and grows larger and larger with every day. With the passage of the stimulus bill (for better or worse), let us hope more attention will be drawn to what is going on with national security, as the government scrambles, or so it seems, to cover up crimes of hideous magnitude.
In a shocking revelation just posted at UK Guardian, Binyam Mohamed's attorney Clive Stafford Smith, who is also director of the legal charity Reprieve, reports that "substantial parts" of a memo, attached to a letter to Barack Obama, documenting evidence of Mohamed's torture at the hands of CIA agents and their extraordinary rendition proxies, were blanked out so the president could not read them. Who did that?
US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner's lawyer said last night, as campaigners and the Foreign Office prepared for the man's release in as little as a week....Smith's letter to Obama can be read here (PDF).
Stafford Smith tells Obama he should be aware of the "bizarre reality" of the situation. "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command."
Scott Horton at Harpers reviewed the known and published history of Binyam Mohamed in a column today criticizing the Obama administration's decision to use "state secrets privilege" in arguments before the Ninth District Court of Appeals in order to dismiss a lawsuit by Mohamed and four others against Jeppesen Dataplans, Inc., the aircraft company that worked with the CIA on the latter's extraordinary rendition program.
Binyam Mohamed is a 30-year-old Ethiopian who was granted political asylum in Britain in 1994. In 2002, he was seized by Pakistani authorities and turned over to American intelligence officials in connection with the Bush Administration’s extraordinary renditions program. He was shuttled between CIA-operated facilities in Afghanistan, Pakistan and Morocco. During this period of American-sponsored detention, according to court papers, Binyam Mohamed was “routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution, and death.” He is now reported to be close to death in a prison cell in Guantánamo.In his letter to Obama, dated February 9, 2009, Smith wrote (I have transcribed from the PDF -- and a big H/T to skdadl at FDL/Emptywheel.):
Dear President Obama:And the memo was censored. I can't reproduce it here, but you can see it at the link above. But I can tell you that everything is blacked out after the header, a full two pages worth of black paragraphs. The recipient to the memo is also redacted. The title of the memo is "Re: Torture of British resident Binyam Mohamed by US personnel."
I am writing with great urgency concerning the rendition and torture of a Guantanamo Bay prisoner represented by our charity. His name is Binyam Mohamed, and he is a British resident.
You will doubtless have been informed about Mr. Mohamed's torture -- he was abused in truly medieval ways over a period of more than two years in Pakistan (at the behest of the US), then again in Morocco (where he had been rendered by the CIA), and then in the Dark Prison in Kabul.
There has been a firestorm in the media of our closest ally, the United Kingdom because, according to two British judges, the Bush Administration "threatened" to withdraw national security cooperation with the UK if the judges ordered the release of materials concerning the torture of Mr. Mohamed in US custody.
The British judges bowed to this 'threat'-- but suggested at the end of their judgment that your administration might reconsider the position taken by your predecessors....
Since we, at Reprieve, are US lawyers with appropriate security clearances, we have access to this classified material. We have therefore assembled a memorandum that collates the evidence of torture in question. It is attached.
... for now, to deal with the British judges' request, we are submitting this information to you with no reference to any agent's name, or even the location of the abuse. Thus, as the British judges suggested, there is nothing in the memo that divulges material that should be considered classified.
We are submitting this letter and attachment to the Privilege Review Team established by the Department of Defense to deal with these issues....
If the DOD is unwilling to forward this material to you, then we will send you only what we are allowed to send you -- which will be a copy of this letter and a redacted version of the memo illustrating the extent to which it has been censored.
What the hell is going on here? Is Obama in charge of the military or not? The Guardian article explains:
It is understood US defence officials might have censored the evidence to protect the president from criminal liability or political embarrassment.Understood by whom?
This news comes only days after some other news from Guantanamo throws some doubt over who exactly is in control of U.S. military detainee and torture policy.
In an article today, Andy Worthington asks "Who's Running Guantanamo?"
On Jan. 20, the answer to that question seemed obvious. In his inaugural speech, with George W. Bush standing just behind him, President Obama pointedly pledged to "reject as false the choice between our safety and our ideals" – a clear indication that, as he promised in a speech in August 2007, he would dismantle the extralegal aberrations of the Bush administration's "War on Terror"....Worthington goes on to describe a struggle within the Pentagon to defy Obama's stay on prosecutions as it pertained to Saudi prisoner Abdul Rahim al-Nashiri. Ultimately, the convening authority of the military commissions at Guantanamo dismissed charges against al-Nahiri, though he is charges can be re-filed again later.
President Obama requested the military judges at Guantánamo to call a halt for four months to all proceedings in the military commissions at Guantánamo....
The day after, he signed his first executive orders, stating that Guantánamo would be closed within a year, upholding the absolute ban on torture, ordering the CIA to close all secret prisons, establishing an immediate review of the cases of the remaining 242 prisoners in Guantánamo, and requiring Defense Secretary Robert Gates to ensure, within 30 days, that the conditions at Guantánamo conformed to the Geneva Conventions....
As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.
Worthington concludes:
... although Bradley's account indicates that the crisis in Guantánamo is such that ongoing discussions about implementing the Geneva Conventions should be replaced by urgent intervention to address the prisoners' complaints (and alleviating the chronic isolation in which most of the prisoners are held would be a start), the conditions in Guantánamo have been met with a resolute silence from the Pentagon and the White House.We must start asking some serious questions about how the transfer of power is really going. To what degree is the Pentagon and CIA, or elements within these organizations, obedient to the command of the putative commander-in-chief? What will Obama do, if anything, about such blatant flouting of authority? The press has already had public reports of ongoing abuse at Guantanamo, and yet the White House remains silent. What did Obama think when he saw the redacted memo addressed to... him? What are we to make of this?Will it really take another death in Guantánamo – the sixth – to provoke a response?
Besides the injustice and substantial issues involved in the Binyam Mohamed case, something bigger seems at stake here. The stink around this case grows and grows larger and larger with every day. With the passage of the stimulus bill (for better or worse), let us hope more attention will be drawn to what is going on with national security, as the government scrambles, or so it seems, to cover up crimes of hideous magnitude.
Silence from the White House on Guantanamo Abuse
Andy Worthington has a timely and important article today, titled "Who's Running Guantanamo?"
As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.
Worthington concludes:
On Jan. 20, the answer to that question seemed obvious. In his inaugural speech, with George W. Bush standing just behind him, President Obama pointedly pledged to "reject as false the choice between our safety and our ideals" – a clear indication that, as he promised in a speech in August 2007, he would dismantle the extralegal aberrations of the Bush administration's "War on Terror"....Worthington goes on to describe a struggle within the Pentagon to defy Obama's stay on prosecutions as it pertained to Saudi prisoner Abdul Rahim al-Nashiri. Ultimately, the convening authority of the military commissions at Guantanamo dismissed charges against al-Nahiri, though he is charges can be re-filed again later.
President Obama requested the military judges at Guantánamo to call a halt for four months to all proceedings in the military commissions at Guantánamo....
The day after, he signed his first executive orders, stating that Guantánamo would be closed within a year, upholding the absolute ban on torture, ordering the CIA to close all secret prisons, establishing an immediate review of the cases of the remaining 242 prisoners in Guantánamo, and requiring Defense Secretary Robert Gates to ensure, within 30 days, that the conditions at Guantánamo conformed to the Geneva Conventions....
As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.
Worthington concludes:
... although Bradley's account indicates that the crisis in Guantánamo is such that ongoing discussions about implementing the Geneva Conventions should be replaced by urgent intervention to address the prisoners' complaints (and alleviating the chronic isolation in which most of the prisoners are held would be a start), the conditions in Guantánamo have been met with a resolute silence from the Pentagon and the White House.Will it really take another death in Guantánamo – the sixth – to provoke a response?
Reactions to Obama/Holder Injustice in Jeppesen Case
Ateqah Khaki, from the National Security Project, in an article posted at ACLU Blog of Rights, has described the significant press reaction following the Obama Administration's decision to claim "state secrets" in their argument to the Ninth Circuit Court of Appeals to drop plaintiffs' plea to let their suit against Boeing subsidiary Jeppesen Dataplans, Inc. go forward. ACLU attorneys argued the case for plaintiffs.
It is public record that Jeppesen knowingly participated in the CIA extraordinary rendition program, providing critical flight planning and logistical support services and aircraft crews. Jeppesen employees were even known to brag about their services to the CIA program. One managing director told Jane Mayer of The New Yorker:
One of these five, Binyam Mohamed, lies near death on hunger strike in Guantanamo prison, where U.S. authorities are pondering his release to return to Britain. One of Mohamed's attorney's, Lieutenant-Colonel Yvonne Bradley, an American military lawyer, has written an appeal for his release, published in today's UK Guardian. She describes some of what her client is currently suffering. This, not yesterday's Obama press conference, displays the real face of American power and how it is used:
The news last week that President Obama is still considering some kind of modified version the hated military commissions to try Guantanamo prisoners should be dropped. The U.S. courts can handle any appropriate prosecutions. Whether its bogus military commissions or "state secrets privilege" to torpedo accountability lawsuits, why doe the U.S. government want to keep these issues out of American courts? One good reason: their actions and programs would not withstand legal scrutiny.
FYI: The ACLU has posted a link so everyone can hear the oral arguments made last Monday in the Jeppesen case.
It is public record that Jeppesen knowingly participated in the CIA extraordinary rendition program, providing critical flight planning and logistical support services and aircraft crews. Jeppesen employees were even known to brag about their services to the CIA program. One managing director told Jane Mayer of The New Yorker:
"We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way."The five men involved in the lawsuit, which was dismissed by a lower court in February 2008 thanks to the Bush administration's inappropriate assertion of "state secrets privilege," that release of information in court regarding the case would supposedly harm national security. The men had been forcibly disappeared by the Jeppesen-serviced CIA program and sent from countries like Sweden, Gambia, Pakistan, and Jordan and flown to secret detention and torture in CIA prisons, or by CIA proxies in Morocco and Egypt, or elsewhere.
One of these five, Binyam Mohamed, lies near death on hunger strike in Guantanamo prison, where U.S. authorities are pondering his release to return to Britain. One of Mohamed's attorney's, Lieutenant-Colonel Yvonne Bradley, an American military lawyer, has written an appeal for his release, published in today's UK Guardian. She describes some of what her client is currently suffering. This, not yesterday's Obama press conference, displays the real face of American power and how it is used:
Guards told Binyam that he was going home in December, and so he is on hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day – he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.Meanwhile, outrage continues to pour out regarding the injustice of the Obama administration's actions in court on Monday. The Los Angeles Times highlighted the incredulity of one judge regarding the government's argument to dismiss the Jeppesen case:
The Joint Task Force, which runs Guantánamo Bay, gives me no information about Binyam. When I called to enquire about his condition, they said first, that they would look into it and then that they would tell me nothing and that I should make a Freedom of Information request, which would have taken months to process. Therefore, whenever I want information about Binyam, I have to make the 5-hour trip to Guantánamo. Each time, he asks why he is still there.
It is worth bearing in mind that all charges against Binyam have been dropped and that Binyam's chief prosecutor resigned, citing the unfairness of the system.
At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government’s lawyer that he was not convincing.The New York Times editorialized today against the Obama Department of Justice actions:
"So any time the executive branch of the government says the fact is classified, it means it cannot be examined?" Hawkins asked Letter.
Letter, noting that national security was at stake, told the court it should "not play with fire" by permitting the suit to go forward.
"Nor should the government in asserting [secrecy] privilege," Hawkins shot back.
The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law....The simple truth is this: the government has had years to make their cases against the Guantanamo detainees. If they cannot bring a case today, the detainees should be released. They could be given provisional residency status in the United States, pending final disposition. Those for whom their is acceptable evidence of crimes could be turned over to federal courts and charged and tried accordingly. Binyam Mohamed should be released immediately. Britain has already indicated they are ready to accept him.
Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred....
The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
The news last week that President Obama is still considering some kind of modified version the hated military commissions to try Guantanamo prisoners should be dropped. The U.S. courts can handle any appropriate prosecutions. Whether its bogus military commissions or "state secrets privilege" to torpedo accountability lawsuits, why doe the U.S. government want to keep these issues out of American courts? One good reason: their actions and programs would not withstand legal scrutiny.
FYI: The ACLU has posted a link so everyone can hear the oral arguments made last Monday in the Jeppesen case.
Monday, February 9, 2009
Obama Reneges on Justice for Torture Victims, Embraces Bush Secrecy Doctrine
Today, new Attorney General Eric Holder's Justice Department embraced Bush administration claims of "state secrets" in the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. Jeppesen's involvement in the "torture flights" of an undetermined number of terror suspect abductees, making a tidy profit for themselves in the meantime.
The New York Times reported on how the deal went down in San Francisco earlier today:
It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.
Justice Department spokesman Matt Miller shook off criticisms of the government's actions:
Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."
But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.
Yesterday, I wrote this:
It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.
This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.
What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?
The New York Times reported on how the deal went down in San Francisco earlier today:
During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.Even the judges seemed surprised by the government's seeming apostasy from its previous public proclaimations about openness.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.
Justice Department spokesman Matt Miller shook off criticisms of the government's actions:
"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.Meanwhile, ACLU executive director Anthony Romero had a few choice words for the administration:
"Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."Barack Obama has gotten quite a free ride from the "change" and "hope" crowd. When he quickly issued executive orders closing the CIA "black site" prisons and shutting down the CIA's "enhanced interrogation" torture, including waterboarding, much of the liberal and human rights world shouted, "Torture is over." Guantanamo would be closed (within a year), and the whole world could rest easy that the humane and totally vetted Army Field Manual would guide interrogators and protect vulnerable prisoners from the brig at the Naval Base at Charleston, South Carolina to the U.S. run prison at Baghram Air Base in Afghanistan.
Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."
But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.
Yesterday, I wrote this:
Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documentation secret.This is almost exactly the same point Ben Wizner of ACLU made to Glenn Greenwald, regarding the claims of state secrets in the Jeppesen case:
Wizner noted one last fact that is rather remarkable. The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?The question is, of course, rhetorical in nature, because I think only the blind do not know the answer to that.
It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.
This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.
What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?
Sunday, February 8, 2009
"You may say that I ain't free, but it don't worry me"
Barbara Harris singing Keith Carradine's lyrics, from the end of Nashville (1975), directed by Robert Altman
U.S. Drops Charges Against al-Nahiri
ACLU Blog of Rights reported yesterday that Susan Crawford, the Convening Authority for Guantanamo's Military Commissions, has withdrawn all changes against Abdul al-Rahim al-Nashiri, one of the alleged attackers of the USS Cole. The charges can be reinstated later, and al-Nashiri remains in custody at Guantanamo.
In an executive order issued earlier this month, President Obama had suspended all military commissions hearing, pending a review of their procedures, which have been heavily criticized by human rights and legal groups. But in a rebellion of sorts against Obama's policy, chief military judge at Guantanamo, Col. James L. Pohl, had refused the administration's order for a delay in the al-Nahiri proceedings. The stage was set for a confrontation between the Obama adminstration and the Pentagon, until Judge Crawford stepped in.
Crawford explained:
If Obama even intends to really change how the U.S. military and intelligence agencies operate -- and it's unclear that he really does -- then he will have to fight forces inside his own Pentagon who are dead set on seeing such change defeated. He can start first with lifting his administration's position asking "a San Francisco federal judge to throw out a lawsuit brought against [Bush attorney John] Yoo by Jose Padilla." At the same time, they can drop the Bush-initiated claims of "state secrets" privilege in the Jeppesen and al-Haramain cases.
Within the next few weeks, any pretense the Obama administration has about seriously changing Bush torture/detention/secrecy policy will be put to the test. Failing such tests will mean a fight within the progressive movement between those who will defend the Obama administration at all costs, and those who will oppose it when it goes off the rails. A similar battle will probably occur over military policy, as the war in Afghanistan heats up, fueled by U.S. determination to carry the fight into Pakistan.
In an executive order issued earlier this month, President Obama had suspended all military commissions hearing, pending a review of their procedures, which have been heavily criticized by human rights and legal groups. But in a rebellion of sorts against Obama's policy, chief military judge at Guantanamo, Col. James L. Pohl, had refused the administration's order for a delay in the al-Nahiri proceedings. The stage was set for a confrontation between the Obama adminstration and the Pentagon, until Judge Crawford stepped in.
Crawford explained:
I considered carefully the 5 February 2009 request by the prosecution to withdraw charges and specifications in the case of United States v. A d al-Rahim Hussein Muhammed Abdu al-Nashiri. I find that withdrawal is in the best interests of justice. Pursuant to my authority under Rule for Military Commissions 604, I hereby withdraw without prejudice all charges and specifications referred to trial by military commission in this case.Jake Trapper, at ABC's blog Political Punch, describes some of the pressures the military is exerting on the administration in this case (and by extension, on Obama's basic policies on torture and interrogations):
The original plan was for the announcement not to be made until after President Obama meets with the families of victims of terrorist attacks on 9/11 and on the U.S.S. Cole Friday afternoon, where he will assure them that this step was not done to be lenient towards al-Nashiri.Whether it's Col. Pohl, or Commander Lippold (Ret.), we are hearing more and more the voices of career military men who are upset that any substantive change in their operations will be effected by Obama's reforms. While Obama tacks far to the right to placate these Pentagon types, nothing seems to make them happy, and capitulation to these forces would mean the Bush/Rumsfeld Pentagon will continue on their merry way, with military commission trials that allow torture evidence, and interrogation techniques that amount to torture. These policies will be maintained by waving the bloody shirt of U.S. deaths in the "war on terror." Never mind that the U.S. has killed hundreds of thousands and tortured untold thousands over this same period.
The move is being done to stop the continued prosecution of al-Nashiri in a court system that his administration may ultimately find illegitimate, not for any other reason, sources told ABC News....
Asked for reaction to the news, Commander Kirk Lippold (Ret.), former Commander aboard the U.S.S. Cole when it was bombed on October 12, 2000, told ABC News that he was "concerned" about the move.
"For some reason the administration says what's been expressed through the legislature is not sufficient," Lippold said of the military commissions, which he said had "undergone extensive legal and legislative review...They need to allow the process to go forward."
The 26-year Navy veteran said he found the decision to close the detention facility at Guantanamo Bay "disappointing," but he seemed willing to hear the president out.
If Obama even intends to really change how the U.S. military and intelligence agencies operate -- and it's unclear that he really does -- then he will have to fight forces inside his own Pentagon who are dead set on seeing such change defeated. He can start first with lifting his administration's position asking "a San Francisco federal judge to throw out a lawsuit brought against [Bush attorney John] Yoo by Jose Padilla." At the same time, they can drop the Bush-initiated claims of "state secrets" privilege in the Jeppesen and al-Haramain cases.
Within the next few weeks, any pretense the Obama administration has about seriously changing Bush torture/detention/secrecy policy will be put to the test. Failing such tests will mean a fight within the progressive movement between those who will defend the Obama administration at all costs, and those who will oppose it when it goes off the rails. A similar battle will probably occur over military policy, as the war in Afghanistan heats up, fueled by U.S. determination to carry the fight into Pakistan.
US/UK Cover-up on Torture, While Conditions Worsen at Guantanamo (Updated)
Controversy continues to mount over the suppression of key evidence of U.S. torture in the case of Ethiopian national, Binyam Mohamed, at the suspected behest of the Obama administration. UK High Court judges in the case wanted to release the evidence, but Foreign Secretary David Miliband prevented this, saying it would harm UK intelligence cooperation with the United States. The U.S. reputedly threatened a break in cooperation with British intelligence services if the torture evidence, which is part of a CIA file, was released. (Update: The Age has now published documentary evidence of the U.S. threat -- see below. H/T to Patriot Daily News Clearinghouse.)
Whatever threats were made, after the suppression of the evidence, and in the face of the protest by the UK judges, the Obama administration told BBC News it was grateful for the cooperation, i.e., the cover-up.
The controversy has made headlines in the UK, but U.S. media has remained compliantly mute, and that includes much of the blogging community. I could find almost no references to the Obama administrations response to BBC, except at Raw Story, and inside a blistering protest statement made ACLU's Anthony Romero. And among top name bloggers, only Chris Floyd and Glenn Greenwald noted the heavy-handed U.S. attempt. Floyd rightly assailed the supposedly liberal Democratic administration for acting "to preserve the presidential 'prerogatives' that Bush asserted to justify torture, eavesdropping and aggression."
But the story won't die, and today's Sunday Telegraph reports that, as suspected by some, the British were only too happy to suppress torture evidence because it clearly reveals the cooperation of British intelligence officers in the torture interrogation.
The British newspaper The Age has published excerpts from copies of letters from the U.S. State Department to the British Foreign Service. The letters were apparently obtained by Britain's Channel 4.
Worsening Brutality at Guantánamo
Meanwhile, the UK Guardian is reporting that conditions are worsening for inmates at Guantanamo in the first weeks of Obama's administration.
U.S. anti-torture and human rights activists, and progressives of all kinds, must demand the immediate closure of Guantanamo. Prisoners who have been imprisoned for years must be released, lacking any evidence of their danger, which can be reviewed promptly by a U.S. judge. Those for whom there may be evidence of crimes can be turned over to the U.S. justice system for timely and swift trial under the laws of the country's standing courts.
The Difficulty of Eradicating Torture
Torture is more than just the destruction of a human being's body or psyche. It destroys whole nations and cultures. The Bush administration accelerated trends in U.S. use of torture and coercion that go back over fifty years, from the CIA MK-ULTRA program to the joint U.S./South Vietnamese torture-assassination Phoenix Program in Vietnam that killed tens of thousands and tortured tens of thousands more, to the training of foreign torturers by the U.S. military.
Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documention secret. Names, if necessary, can always be blacked out.
All too often the news about torture takes on an unreal air, as the dark irrationalities behind it are obscured by legalistic arguments and political infighting. Hence, I want to close with an up-close look at the man whose name is most in the news about torture right now, Binyam Mohamed. The biography that follows is from the the British human rights group Reprieve, who has provided legal representation for Mr. Mohamed in the United Kingdom. While a horrifying story, it can also be read as tale of remarkable survival against barbaric treatment and torture by the United States and their rendition proxies. Currently Mr. Mohamed, still a prisoner at Guantanamo, is on a hunger strike. It is expected by many that he will be released from Guantanamo next week... if he doesn't die first.
Whatever threats were made, after the suppression of the evidence, and in the face of the protest by the UK judges, the Obama administration told BBC News it was grateful for the cooperation, i.e., the cover-up.
In a statement, the White House said it "thanked the UK government for its continued commitment to protect sensitive national security information".The UK ruling on the torture evidence was made in response to a legal challenge to the secrecy made by Associated Press, the Guardian, BBC and The New York Times, among other news organizations.
It added that this would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens".
The controversy has made headlines in the UK, but U.S. media has remained compliantly mute, and that includes much of the blogging community. I could find almost no references to the Obama administrations response to BBC, except at Raw Story, and inside a blistering protest statement made ACLU's Anthony Romero. And among top name bloggers, only Chris Floyd and Glenn Greenwald noted the heavy-handed U.S. attempt. Floyd rightly assailed the supposedly liberal Democratic administration for acting "to preserve the presidential 'prerogatives' that Bush asserted to justify torture, eavesdropping and aggression."
But the story won't die, and today's Sunday Telegraph reports that, as suspected by some, the British were only too happy to suppress torture evidence because it clearly reveals the cooperation of British intelligence officers in the torture interrogation.
Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.Update
Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain....
The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.
The British newspaper The Age has published excerpts from copies of letters from the U.S. State Department to the British Foreign Service. The letters were apparently obtained by Britain's Channel 4.
"I write with respect to proceedings … regarding Mr Binyam Mohamed," the letter said. "We note the classified documents identified in your letters of June 16 and August 1, 2008, to the acting general counsel of the Department of Defence … the public disclosure of these documents or of the information contained therein is likely to result in serious damage to US national security and could harm … intelligence information sharing arrangements between our two governments."The Democratic Party backers of both Hillary Clinton and Barack Obama had better ponder the meaning of these words, and ponder carefully. Do you really want to sell out torture victims and justice for good feelings and a handful of favorite programs?
Channel 4 revealed that a week later the State Department wrote again to the Foreign Office to make clear the consequences if British courts released the paperwork detailing allegations of torture by US and British intelligence services.
"To the extent the UK proceedings are currently aimed at ensuring that the documents at issue will be before the convening authority before she makes her referral decision, this development further demonstrates the relief sought through these proceedings has been otherwise accomplished and no further action by the court is required," the letter said.
Worsening Brutality at Guantánamo
Meanwhile, the UK Guardian is reporting that conditions are worsening for inmates at Guantanamo in the first weeks of Obama's administration.
[U.S. military attorney Lieutenant-Colonel Yvonne] Bradley, a US military attorney for 20 years, will reveal [in court on Monday] that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a "critical list", according to Bradley....Even more, the Guardian reports suspicions that some in the U.S. intelligence community would prefer to see Binyam die, so he can not testify to what he has seen and endured, and to prevent a lawsuit against U.S. and British authorities. One wonders if, like the Nazis who turned even more savagely against concentration camp prisoners as Allied armies bore down upon the fascist forces, JTF at Guantanamo isn't becoming more brutal in anticipation of its own less fiery, more juridical form of Götterdämmerung.
"The JTF [the Joint Task Force running Guantánamo] are not commenting because they do not want the public to know what is going on," [Bradley said].
"Binyam has witnessed people being forcibly extracted from their cell. Swat teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantánamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening.
U.S. anti-torture and human rights activists, and progressives of all kinds, must demand the immediate closure of Guantanamo. Prisoners who have been imprisoned for years must be released, lacking any evidence of their danger, which can be reviewed promptly by a U.S. judge. Those for whom there may be evidence of crimes can be turned over to the U.S. justice system for timely and swift trial under the laws of the country's standing courts.
The Difficulty of Eradicating Torture
Torture is more than just the destruction of a human being's body or psyche. It destroys whole nations and cultures. The Bush administration accelerated trends in U.S. use of torture and coercion that go back over fifty years, from the CIA MK-ULTRA program to the joint U.S./South Vietnamese torture-assassination Phoenix Program in Vietnam that killed tens of thousands and tortured tens of thousands more, to the training of foreign torturers by the U.S. military.
Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documention secret. Names, if necessary, can always be blacked out.
All too often the news about torture takes on an unreal air, as the dark irrationalities behind it are obscured by legalistic arguments and political infighting. Hence, I want to close with an up-close look at the man whose name is most in the news about torture right now, Binyam Mohamed. The biography that follows is from the the British human rights group Reprieve, who has provided legal representation for Mr. Mohamed in the United Kingdom. While a horrifying story, it can also be read as tale of remarkable survival against barbaric treatment and torture by the United States and their rendition proxies. Currently Mr. Mohamed, still a prisoner at Guantanamo, is on a hunger strike. It is expected by many that he will be released from Guantanamo next week... if he doesn't die first.
Binyam Mohamed was born in Ethiopia and came to Britain in 1994, where he lived for seven years, sought political asylum and was given leave to remain while his case was resolved.Late additions to this posting: A video interview with Shami Chakrabarti, Director of Liberty (formerly the British National Council for Civil Liberties), talking on the Binyam Mohamed case (see embed), and an editorial from the L.A. Times blasting the government on rendition and the "state secrets" privilege. Thanks to buhdydharma for these links!
While travelling in Pakistan, Binyam was arrested on a visa violation and turned over to the US authorities. When they refused to let him go, he asked what crime he had committed, and insisted on having a lawyer if he was going to be interrogated. The FBI told him, ‘The rules have changed. You don’t get a lawyer.’
Binyam refused to speak to them. British agents then confirmed his identity to the US authorities and he was warned that he would be taken to a Middle Eastern country for harsh treatment.
On 21 July 2002, Binyam was rendered to Morocco on a CIA plane. He was held there for 18 months in appalling conditions. To ensure his confession, his Moroccan captors tortured him, stripping him naked and cutting him with a scalpel on his chest and penis. Despite this, Binyam said that his lowest point came when his interrogators asked him questions about his life in London, which he realized could only have been provided by the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum.
Binyam’s ordeal in Morocco continued for about 18 months until January 2004, when he was transferred to the ‘Dark Prison’ near Kabul, Afghanistan, a secret prison run by the CIA, which resembled a medieval dungeon with the addition of extremely loud 24-hour music and noise.
Speaking of his time in the ‘Dark Prison’, Binyam said:
“It was pitch black, no lights on in the rooms for most of the time. They hung me up for two days. My legs had swollen. My wrists and hands had gone numb. There was loud music, Slim Shady [by Eminem] and Dr. Dre for 20 days. Then they changed the sounds to horrible ghost laughter and Halloween sounds. At one point, I was chained to the rails for a fortnight. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.”
From there he was taken to the US military prison at Bagram airbase, and finally, in September 2004, to Guantánamo Bay, where he remains.
In June 2008, the US Department of Defense put Binyam forward for trial by military commission, a novel legal system, conceived in November 2001, which was described by Lord Steyn, a British law lord, as a “kangaroo court.”
In the same month, lawyers at Reprieve, working with colleagues at Leigh Day & Co., sued the British government, demanding that they turn over evidence that could help prove both his innocence and the extent of his torture.
Clive Stafford Smith, Reprieve’s Director, said:
“I visited Binyam in Guantanamo just a week ago and he is in a very bad state. Surely the least the British government can do is insist that no British resident be charged in a kangaroo court based on evidence tortured out of him with a razor blade. If Binyam’s trial by military commission proceeds, all it will produce is evidence not of terrorism, but of torture, which will embarrass both the British and the American governments.”
A judicial review of Binyam’s case took place in the high court at the end of July 2008. The result, which will determine whether or not the British government is obliged to hand over evidence relating to Binyam’s rendition and torture, is expected in mid-August.
Letters to Binyam should be sent to:
Binyam Mohamed
ISN 1458
Camp Delta
US Naval Base Guantánamo Bay
Washington, DC 20355
USA
Friday, February 6, 2009
Democracy Now! Debate: Horton vs Ratner on Renditions, Appendix M
A fascinating debate took place at Democracy Now! yesterday. With Amy Goodman as host, Harpers Magazine's Scott Horton, and President of Center for Constitutional Rights, Michael Ratner, went at it on the subject of Obama's renditions and interrogation policies, including the existence of coercive interrogation instructions in the Army Field Manual. These policies have been a matter of some debate ever since Obama issued his executive orders regarding the issues a few weeks ago.
(An excellent companion piece to this debate would be the interviews Goodman did with former CIA analyst Melvin Goodman and Michael Ratner last November, when it was announced that Obama was staffing his transition team with John Brennan and Jami Miscik. The former was a supporter of wireless wiretapping and extraordinary rendition, while the latter was involved in the scandals around "faulty" intelligence in the run-up to the war in Iraq.)
If you haven't clicked away already to view these important interviews, here's a few snippets from the Horton/Ratner interchange to whet your appetite:
(An excellent companion piece to this debate would be the interviews Goodman did with former CIA analyst Melvin Goodman and Michael Ratner last November, when it was announced that Obama was staffing his transition team with John Brennan and Jami Miscik. The former was a supporter of wireless wiretapping and extraordinary rendition, while the latter was involved in the scandals around "faulty" intelligence in the run-up to the war in Iraq.)
If you haven't clicked away already to view these important interviews, here's a few snippets from the Horton/Ratner interchange to whet your appetite:
MICHAEL RATNER: I think what’s really crucial here is that, yes, there’s executive orders and, yes, there’s a lot of wiggle room, but I think the role of citizens, of all of us as human rights people, particularly, is to focus on the wiggle room and make sure that that wiggle room is not used to violate fundamental rights.And while you're in the mood to dig into the politics around the rendition controversy, Darren Hutchinson has a new posting at his blog, Dissenting Justice, dissecting the testimony of Leon Panetta before Congress on both torture and rendition. Again, a snippet (please go read the entire thing):
So when Scott talks about closing all the secret sites, I don’t think it’s sufficient to say, “Close all the secret sites, but let the CIA continue to hold people for short-term transitory purposes,” because I don’t know what that means. Does it mean a week? Does it mean a month? Does it mean two months? Does it mean six months? I don’t know. And so, that’s a big problem.
Secondly, when you ban the CIA from using torture, then—and we’ve spoken on it here once before on your program; it’s been addressed—this Annex M to the Army Field Manual. The Army Field Manual is what controls interrogations of the military, and it has now been applied to the CIA. There’s an annex in it that a number of human rights people, including myself, are very concerned by that allows isolation for periods of thirty days, that can be extended more, and allows sleep deprivation, where you can only give the person four hours of sleep. That kind of stuff could, under certain circumstances—certainly could constitute easily inhumane treatment and possibly torture. Now, there’s an argument that Obama may have banned that in some way in the executive order, but there’s also what he should have done, and what should be done is that should be gotten rid of it. Annex M should be taken out of the Army Field Manual.
AMY GOODMAN: When was it added?
MICHAEL RATNER: It was added in nineteen—it was added two years ago—
SCOTT HORTON: 2006.
MICHAEL RATNER: Yeah, 2006, two years ago, by the Bush administration as a way of saying, “Well, we can treat enemy combatants differently than prisoners of war.” It ought to be gotten rid of. You ought to close the CIA’s [inaudible] hole. You ought to get rid of Annex M.
And then, I think the issues you’re raising about rendition versus extraordinary rendition—you know, I think it has to end. Rendition has to end. Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence. And let’s put it in another situation. Let’s say we were planning at some point to attack Iran. Could Iran have come in here and kidnapped the people planning the attack on Iran? Could we tomorrow go down to Cuba and kidnap Assata Shakur, who is—you know, escaped a murder charge out of New Jersey? Could we do that? Could Cuba come here tomorrow and take Posada out of Florida, the man who blew up the airliner, killing seventy-six people? Once you open the door to rendition, you’re opening the door, essentially, to all lawless world. I don’t accept that.
AMY GOODMAN: Scott Horton, why not end rendition?
SCOTT HORTON: Well, I think there has been an historical rule for rendition. My own view is that it’s acceptable only in really extraordinary cases. I mean, we look at the case involving Eichmann right after the end of World War II, who was seized when he was in Argentina and brought back to be tried. That’s an example of a rendition which I think can be justified.
But I think these cases really are quite rare. I mean, Michael is correct to point to the fact that many governments are going to view snatching a person and carrying him away as a kidnapping. That’s a criminal act. And the government should really refrain from that. We see already in Italy, we see twenty-six Americans—CIA agents, diplomats, a military attaché—being tried for kidnapping and conspiracy there because of their implementation of the extraordinary renditions program. And it’s -—
AMY GOODMAN: Meaning they took a sheikh off the streets of Milan, they kidnapped him and took him away. They flew him where? To Egypt?
MICHAEL RATNER: Yes.
SCOTT HORTON: Well, first he was taken -—
AMY GOODMAN: Where he was tortured.
SCOTT HORTON: —- to Majorca, but ultimately he wound up in Egypt, that’s correct, yeah.
AMY GOODMAN: And they’re being tried in absentia.
SCOTT HORTON: They’re being tried in —- I mean, it looks pretty clearly they’ll be convicted. I mean, it’s a major embarrassment for the United States.
Yesterday, Leon Panetta, Obama's nominee to head the CIA, echoed the allegations of many members of the human rights community when he said that Bush outsourced torture through the rendition program. Today, however, Panetta has retreated from this position and says that "On that particular quote, that people were transferred for purposes of torture, that was not the policy of the United States. . . ."Hutchinson doesn't mention Appendix M or the problems with the Army Field Manual, relying, I suppose on mainstream descriptions and received wisdom about what is in that document. I plan to contact him soon about this.
Panetta also says that rendition will continue under the Obama administration but that he will try to guarantee through the State Department that rendered individuals are not tortured by officials in other countries. During the Bush administration, however, many leading human rights organizations rejected the argument that diplomatic assurances could effectively protect rendered individuals from torture.
Although the following position does not backtrack from previous statements, it is worth noting that Panetta has also indicated that the Obama administration will not prosecute Bush administration officials who utilized torture, despite the demands of many liberals. Panetta explained that the officials operated under assurances from the Justice Department that they were acting within the law (although it is doubtful that the these assurances could immunize them from violations of human rights)....
Panetta also stated during the hearing that he would ask President Obama to authorize CIA agents to utilize harsher interrogation methods than the Army Field Manual permits if necessary. Human rights activists and other liberals have insisted that governmental interrogators adhere to the manual, and Obama has issued an executive order that mandates such compliance.
Thursday, February 5, 2009
Old Nazis Update
One of the top missing Nazi war criminals, Aribert Heim, who the sadistic SS doctor from Mauthausen concentration camp, who was captured by U.S. forces after World War II and then mysteriously released, is not reported dead. From Associated Press:
Over sixty years since the end of World War II and we still are trying to clean up the mess left over by the orgy of fascism and totalitarian war and genocide. How long will it take us to clean up the mess left over by the imperialist war-mongering and torture fest that was the Bush Administration. Many members of the latter are pushing to keep the new Obama Administration prosecuting the "Global War on Terror." And if the latter will not carry all the bells and whistles of the Bush effort -- a large extraordinary rendition program, torture, indefinite detention -- then some are pushing to save at least some lesser version of those old polices.
Horst Haug, spokesman for the Baden-Wuerttemberg state police unit that investigates Nazi-era crimes, said his office received word earlier this week from a person "close to Aribert Heim" confirming the most-wanted fugitive died in Egypt in 1992.But other investigators are disputing the reports of Heim's death. The Simon Wiesenthal Center, for one, is dubious. From a BBC report:
He would not identify the informant, saying only that "it was a serious source that we take earnestly." He added that his office is now working on a request to Egyptian authorities for German investigators to search there for definitive proof of Heim's death.
"There's no body, no corpse, no DNA, no grave," Efraim Zuroff, the centre's leading Nazi hunter, told AP agency....Meanwhile, in another part of Europe, German broadcaster DW-World reports on the backlash from German Pope Benedict's reinstatement of a Catholic bishop who denied the extent of the holocaust.
"WWe can't sign off on a story like this because of some semi-plausible explanation," he said.
"Keep in mind these people have a vested interest in being declared dead - it's a perfectly crafted story; that's the problem, it's too perfect," Mr Zuroff told the AP.
In its report, ZDF quoted witnesses, including Heim's son, as confirming that Aribert Heim, who was also known as Doctor Death, died in 1992.
Pope Benedict XVI has taken heat from all sides, including German Chancellor Angela Merkel, for reinstating a bishop who denied the Holocaust. Many readers are angry at the pope, while others take aim at Merkel.One reader from Australia wrote:
Pope Benedict has checkmated himself with this crazy bishop move. Benedict is morally and politically crippled as a result of his invitation to Williamson and his nefarious associates. If Benedict pleads ignorance of the anti-Semitic smell then he condemns himself as either a fool or a liar: 10 minutes on the Web gives you the odor and Benedict has spent a considerable proportion of his career immersed in Catholic power machinations -- more often than not, sitting in the cockpit. If Benedict pleads pastoral healing then he condemns himself as either a fool or a sympathizer. His invitation has given oxygen to hate-mongering lies of the worst kind -- a sin several orders of magnitude worse than the internal Catholic power play that caused the original excommunication. The chief shepherd has opened the gate to wolves -- he's lost the plot and must either resign or be sacked.Now, the Pope, who says he was unaware of British Bishop Richard Williamson's views on the holocaust, i.e., there were no gas chambers, only 300,000 died, not 6 million, etc., is demanding the Bishop, who belongs to the ultra-conservative Society of Saint Pius X, recant his views.
Over sixty years since the end of World War II and we still are trying to clean up the mess left over by the orgy of fascism and totalitarian war and genocide. How long will it take us to clean up the mess left over by the imperialist war-mongering and torture fest that was the Bush Administration. Many members of the latter are pushing to keep the new Obama Administration prosecuting the "Global War on Terror." And if the latter will not carry all the bells and whistles of the Bush effort -- a large extraordinary rendition program, torture, indefinite detention -- then some are pushing to save at least some lesser version of those old polices.
ACLU: Obama on Torture, Secrecy -- "More of the same"
Times Online reported that United Kingdom judges in the case of Binyam Mohamed have were told they had to keep evidence of Binyam's torture. ACLU has now accused Obama of "a complete turn-around and undermining of the restoration of the rule of law" and "hiding the abuses of its predecessors" in the Binyam Mohamed case. Anthony D. Romero, Executive Director of the American Civil Liberties Union, said in a statement today: "Hope is flickering. The Obama administration's position is not change. It is more of the same."
From the ACLU's statement:
From the ACLU's statement:
After the British High Court ruled that evidence of British resident Binyam Mohamed's extraordinary rendition and torture at Guantánamo Bay must remain secret because of threats made by the Bush administration to halt intelligence sharing, the Obama administration told the BBC today in a written statement: "The United States thanks the UK government for its continued commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens."And here is the money quote from Romero's letter to HRC:
The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:
"Hope is flickering. The Obama administration's position is not change. It is more of the same. This represents a complete turn-around and undermining of the restoration of the rule of law. The new American administration shouldn't be complicit in hiding the abuses of its predecessors."
When the ACLU learned of the High Court's ruling earlier today, it sent a letter to Secretary of State Hillary Rodham Clinton urging her to clarify the Obama administration's position relating to the Mohamed case and calling on her to reject the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
The court's opinion specifically stated that attorneys for British Foreign Secretary David Miliband told the court that the United States' threat on the effect of publication on intelligence cooperation was continued by the United States, despite the inauguration of President Obama.See Raw Story article
Specifically, the justices stated that, "it was submitted to us by Mr. David Rose that the situation had changed significantly following the election of President Obama who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment and to close Guantanamo Bay. We have, however, been informed by counsel for the Foreign Secretary that the position has not changed."
The claims made by the British justices that the United States continues to oppose publication of the judgment in the Binyam Mohamed case--to the point of threatening the future of U.S.-British intelligence cooperation--seems completely at odds with both the anti-torture and transparency executive orders signed by the President. We strongly urge you to clarify the position of the United States and remove any threat related to the publication of the court's full judgment.
Wednesday, February 4, 2009
Bitter Truth on Guantanamo
Andy Worthington has a new article asking the public not to forget the prisoners at Guantanamo, where a hunger strike involving approximately 70 detainees (out of 242 overall) remains in force. Despite well-known principles of medical ethics, Guantanamo medical personnel are force-feeding detainees, who are held down by up to 16 straps, as they try to exercise "the only power they have in a place that has been dedicated to isolating and dehumanizing them for seven years."
Another example of this disturbing fact is the inclusion of abusive techniques in the Army Field Manual, the document which covers interrogation policy at Guantanamo (and by executive order, now all military and CIA personnel), which also allows for up to 30 days of isolation, sleep deprivation, and forms of sensory deprivation. Although it prohibits certain torture techniques like waterboarding, sexual humiliation and forced nudity, it fails to prohibit other, such as stress positions.
In addition... those who refuse to leave their cells to be force-fed voluntarily are “beaten and forcibly extracted from their cells,” another hideous procedure that is part of the very fabric of Guantánamo, carried out by teams of five heavily armored guards, responsible for quelling even the most minor infringements of the rules, who, over the years, have been responsible for attacks so severe that prisoners have ended up with broken limbs.Worthington analyzes the situation in Guantanamo, post Obama's order to shut down the facility within a year. Inside Gitmo, little has changed. Despite Obama's order to suspend the military commissions trials, Military Judge Col. James Pohl ruled the arraignment of "high-value" detainee, Abdul Rahim al-Nashiri, accused of involvement in bombing of the USS Cole, will take place as scheduled. Worthington's conclusion, "the bitter truth as I write these words is that Guantánamo is still being run as if the Bush administration remains in control."
This is, I’m sure you’ll agree, a far cry from the “humane treatment of prisoners” required by the Geneva Conventions, and it is crucial, therefore, that those concerned with the treatment of the prisoners at Guantánamo maintain the pressure on the new President to demonstrate that he is keeping to his word.
Another example of this disturbing fact is the inclusion of abusive techniques in the Army Field Manual, the document which covers interrogation policy at Guantanamo (and by executive order, now all military and CIA personnel), which also allows for up to 30 days of isolation, sleep deprivation, and forms of sensory deprivation. Although it prohibits certain torture techniques like waterboarding, sexual humiliation and forced nudity, it fails to prohibit other, such as stress positions.
How much the inclusion of these loopholes in the Presidential orders was influenced by the Pentagon or by the CIA is as yet unknown, but their existence indicates that the struggle to ensure that America is, genuinely, a country that does not torture, is not yet over.
Tuesday, February 3, 2009
More Confusion on Renditions: The Role of Ostensibly Liberal Bloggers
There's a lot of smoke spewing up from the bits and pieces of Bush's leftover torture program, as the Obama administration is trying to refashion policies around apprehension, detention and interrogation of prisoners in what used to be called (or still is) the "Global War on Terror."
The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.
While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.
But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.
These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.
In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.
According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).
Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.
"Expert" Opinions and the Rendition Question
Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.
There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.
When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.
What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:
What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?
The Eichmann Case
Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):
Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?
The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.
While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.
But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.
These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.
In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.
According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).
Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.
"Expert" Opinions and the Rendition Question
Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.
There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.
When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.
What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:
Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European States often granted asylum to fugitives from other States, with the result that "a sovereign could enforce the return of fugitives only by force of arms . . . . Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974)If you are enforcing your New World Order, I suppose you don't care about friendly cooperation between states. But how would Americans react if Afghanis kidnapped Bush or Cheney for crimes and brought them back to Afghanistan for trial, or even more to the point, delivered them over to the North Koreans for interrogation? Or how about Cubans kidnapping Luis Posada Carriles, who bombed Cubana flight 455 in September 1976 (with CIA foreknowledge, by the way), and today resides in the U.S.? Why not just junk all treaties and let the rule of might makes right the ultimate arbiter?
When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: " `Can you imagine us going into Paris and seizing some person we regard as a terrorist . . .? [H]ow would we feel if some foreign nation--let us take the United Kingdom--came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, . . . because we refused through the normal channels of international, legal communications, to extradite that individual?' " Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985).The Congressional Research Service, which produces material so that Congress can understand important legislative issues, has made it clear that its own analysis of rendition was about extrajudicial seizures. So did Amnesty International in a document on "'Rendition' and secret detention.' I think AI really described the salient problems I have with rendition, whether it's rendition to torture or not (assuming one can really determine what will happen to a prisoner who has been kidnapped and delivered to a foreign, or even domestic, penal or governmental or intelligence agency). I will quote it here somewhat at length (emphases added):
Amnesty International uses the term "rendition" to refer to a variety of practices by the US authorities involving transfers of individuals from one country to another, without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring "war on terror" detainees into the custody of other states, assuming custody of individuals from foreign authorities and abducting suspects on foreign soil.Do you hear that, Scott Horton? Under international law. If you want more detailed legal discussion, please see Matteo M. Winkler's article, When ‘Extraordinary’ Means Illegal: International law and the European Reactions to the United States Rendition Program, Section 3.1 - Can Abduction Be Justified? (Yale Law School Student Scholarship Series, Paper 46). Also see Justice Stevens' dissent in U.S. v. Alvarez Machain, as well as F.A. Mann, "Reflections on the Prosecution of Persons Abducted in Breach of International Law", in International Law at a Time of Perplexity, 1988, Martinus Nijhoff Publishers:
The practice of transferring a detainee from US custody to the custody of a foreign state is usually called "extraordinary rendition" in the USA, and appears to have been carried out by the Central Intelligence Agency (CIA) since 1995....
Some victims of "rendition" have later turned up in official US detention centres, such as Guantánamo Bay. Others have simply "disappeared" after being arrested by US agents or turned over to US custody.
It has been reported that the CIA, often using covert aircraft leased by front companies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these individuals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation and that detainees have been threatened by US interrogators that they will be sent to such states.
It has also been reported that victims of "rendition" transferred to US custody from other countries have been held in US-run secret detention centres outside US territory (sometimes called "black sites")....
The US administration has acknowledged it uses "rendition", maintaining that the practice is aimed at transferring "war on terror" detainees from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these transfers are carried out in accordance with US law and treaty obligations....
Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.
A State which authorizes the abduction of a person from the territory of another sovereign State is guilty of a violation of public international law. This principle is supported by considerable State practice, numerous decisions of municipal courts, and a large body of doctrinal opinion. Its basis is the incontrovertible rule that exercise of physical force by one State without the latter's consent constitutes an excess of international jurisdiction or a violation of the 'principle of respect, which is guaranteed by not only Article 2 of the Charter of the United Nations and other texts, because these merely respond to firmly established and longstanding tenets of customary international law.'But let us now return to Amnesty International's discussion:
Moreover, most victims of "rendition" were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. Many victims of "rendition" have been or continue to be held in prolonged arbitrary detention and they have been or continue to be subjected to enforced disappearance. All of the victims of "rendition" Amnesty International has interviewed have also said they were subjected to torture and other ill-treatment.We are left with this quandry: why the wide gulf of opinions on rendition? Horton and others can point to ill-informed bloggers, constructing strawmen which they can then easily tear down, all the better to strut their expertise before the admiring crowd. But you won't see them tearing down Amnesty International or Reprieve, who totally oppose all renditions as ignoble and illegal acts of extrajudicial power and injustice. That might alienate some of their readers, who then might investigate for themselves.
"Rendition" usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of "rendition" have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country.
"Rendition" is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.
What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?
The Eichmann Case
Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):
The election of Arturo Frondizi as president of Argentina in February 1958 was welcome news to both the Israeli embassy in Buenos Aires and the leaders of the local Jewish community. And he had not lived in the presidential palace for long before their expectations appeared to have been justified. The Jews of Argentina felt a growing sense of security and well-being, and relations between Jerusalem and Buenos Aires grew closer. The kidnapping of Adolf Eichmann in May 1960, however, interrupted this idyll, precipitating a crisis that nearly severed the ties between the two countries and threatened Argentine Jews' sense of personal security. The Argentine Jewish community, which was then just marking the hundredth anniversary of its existence, became the target of a wave of antisemitic terror and nationalist attacks that sought to cast doubt on Jewish citizens' loyalty to the Argentine republic.Thus, the "appropriate rendition" by one party causes untold suffering and unforeseen political consequences for a vulnerable population. One wonders if Horton knows also that both the West Germans and the U.S. knew the location of Eichmann for two years before the Israeli kidnapping and did nothing to induce Argentina to arrest or otherwise extradite the man.
Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?
The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."I'm not saying that Eichmann shouldn't have been tried, nor that he didn't receive justice. But that's poetic or moral justice... not law. My problem with the use of kidnapping by states is a simple one. Who decides when a person is beyond the legal pale? Who makes the justice? Who decides that abduction is acceptable? How will our civilization rule itself, by the law of talion, or the law of due process?
New Attorney General Addresses "Secret Law" & "State Secrecy"
The new Attorney General, confirmed just the other day, Eric Holder, gave some written answers to Senator Russ Feingold concerning the latter's questions regarding review of Bush administration policies concerning promulgation of "secret laws" and claims of "state privilege" in legal cases. I'm reproducing the exchange by Holder and Feingold, as it bears upon significant pending issues, not least the Jeppesen and al-Haramain cases.
It seems we'll have to await Holder's review of the state secrets privilege claims to really understand how Obama's Justice Department will operate in this area. As ACLU noted the other day, the first real test of Holder's intentions will come February 9th, when oral arguments are scheduled at the Ninth Circuit in Mohamad v Jeppensen.
Most promising is Holder's pledge to release as many of the formerly secret legal memos produced by Bush's Office of Legal Counsel as possible.
As reported in FAS Secrecy News:
From the Executive Order, 1/22/2009 (bold emphases added):
Unfortunately, it is not enough, as recognized by the Center for Constitutional Rights:
Secret LawHere's a link to the full exchange, posted by the Senate Judiciary Committee.
2. I held a hearing last year on what I have been calling the problem of "secret law." Our legal system is based on the premise that the public has a right to know what the law is. But we now know that for the past seven years, bodies of executive and judicial law were kept secret from the public, and too often from Congress as well. The prime examples of this were binding opinions of the Office of Legal Counsel, and decisions of the Foreign Intelligence Surveillance Court interpreting the Foreign Intelligence Surveillance Act. Certainly there are times when these opinions and decisions may discuss sensitive operational information, and this type of properly classified information should not be made public. But that shouldn’t extend to an explanation of what the law is. Do you agree that, as a general matter, the Justice Department should be committed to more public access to OLC opinions and to FISA Court decisions? And will you work with me on legislation such as the OLC Reporting Act (S. 3501 in the 110th Congress) and Executive Order Integrity Act (S. 3405), to create some statutory protections against this problem?I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law. Public scrutiny also provides an important check against unpersuasive legal reasoning – reasoning that is biased toward a particular conclusion. Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns.State Secrets
In that regard, I support the principles behind the proposed OLC Reporting Act. I believe that the Department should notify Congress when it concludes that a provision of a statute is unconstitutional or when it interprets a statute in a manner that is manifestly at odds with its intent. As your question indicates, such notice is subject to the legitimate privilege and other secrecy concerns of the executive branch. I will commit to work with Congress to satisfy Congress's legitimate interest in notice and the executive branch's legitimate interests in efficiency and confidentiality.
3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.
[...]
It seems we'll have to await Holder's review of the state secrets privilege claims to really understand how Obama's Justice Department will operate in this area. As ACLU noted the other day, the first real test of Holder's intentions will come February 9th, when oral arguments are scheduled at the Ninth Circuit in Mohamad v Jeppensen.
Most promising is Holder's pledge to release as many of the formerly secret legal memos produced by Bush's Office of Legal Counsel as possible.
As reported in FAS Secrecy News:
“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.In many ways, these missing memos constitute the ostensibly legal framework upon which the Bush regime constructed their apparatus of governmental repression and torture. In particular, I'd love to read John Yoo and Robert Delahunty's OLC 10/23/2001 memo to Alberto Gonzales (then counsel to Bush), Fourth Amendment doesn't apply to military operations abroad or in U.S.:
Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.
“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.
The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration. See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.
This memo, titled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, concludes that the Fourth Amendment's protections against warrantless search and seizure don't apply to military operations, even when the operations take place on U.S. soil.Kind of sends a chill up your spine, doesn't it, knowing the U.S. Constitution was suspended about eight years ago, and by secret fiat no less. Luckily for us, Obama, by executive order, recently rendered null and void all of these so-called legal OLC opinions that were issued regarding detention and interrogation after 9/11/01.
From the Executive Order, 1/22/2009 (bold emphases added):
Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.While I have been adamant that standing "as is", the Army Field Manual allows for abusive treatment that can amount to torture, by limiting interpretations of its protocols to CA3, CAN, etc., and forbidding use of the Bush era legal "interpretations" of the law, a minimal amount of protection is provided. It is likely upon this thin reed that many liberals, especially in the administration, are resting their support of the AFM as the "single standard" for interrogations (and I mean people like Glenn Greenwald and Scott Horton).
Unfortunately, it is not enough, as recognized by the Center for Constitutional Rights:
Much like John Yoo's infamous "torture memos" at the Office of Legal Counsel attempted to provide a legal cover for the authorization of torture by high-ranking Bush administration officials, the addition of Appendix M attempts to provide the same cover, utilizing the Army Field Manual. President Obama's executive order repudiates Yoo's memos - but it is not sufficient to do so without also repudiating this appendix, drafted in light of those memos.H/T to Emptywheel. Also, a posting at Docudharma/Daily Kos by Patriot Daily succinctly explains some of the more abstruse aspects of the state secrets issue, and proposes a solution, utilizing criteria criminal courts use when classified material is part of the case. It's worth reading, for those following this important issue.
Monday, February 2, 2009
Obama Backpedals on Torture, Renditions, State Secrecy
The Los Angeles Times had an article over the weekend by Greg Miller, describing the decision by the Obama administration to maintain, in some form, the secret rendition program of the CIA. The program began under the Clinton administration, and was accelerated President Bush. Full details of the program are classified.
In legal terms, extraordinary rendition is the "extrajudicial transfer of a person from one State to another." But for most of us, rendition remains a fancy term for kidnapping, and involves snatching suspected "terrorists" off the streets, or from airports, as in the case of innocent Canadian citizen Maher Arar, snatched out of JFK airport, and secretly flown to Syria. Maher spent over ten months in a "grave-like" cell, and was beaten and tortured into making a false confession.
Miller notes, in his article:
According to Times Online today, "hundreds of terrorist suspects have been abducted and transferred to prisons in countries with questionable human rights records such as Egypt, Morocco or Jordan." The European parliament and human rights groups around the world have condemned the rendition policy. But according to an anonymous administration official:
Despite the protests and controversies that attended Bush's use of rendition, in his article, Miller notes the relative silence of human rights groups. As in the case of the campaign to gain acceptance for the abuse-laden Army Field Manual, some human rights agencies are eager to braintrust the Obama administration on this:
While this last point is a branch onto which those hoping for Obama to really dismantle all U.S. torture policies, cling, the statements attributed to current administration officials are not promising. And then there is the unasked question: do you really trust the CIA to police itself on this? The task force called to assess interrogation policy over the next six months, has no human rights or congressional members at all, and is stacked with the leadership of military and intelligence agencies, while headed by Attorney General Eric Holder.
"State Secrets" and Torture
Meanwhile, as a recent article by Suzanne Ito at the ACLU's Blog of Rights explains that the Obama administration's vaunted promise of transparency in government and opposition to torture gets it first real test in court later this month, when oral arguments are scheduled in Mohamed v. Jeppesen Dataplan, Inc. As explained by Daphne Eviatar at The Washington Independent:
For those who are hoping that Obama's promises of change around torture will be more than partial (he's shut down CIA prisons and practices of "enhanced" CIA torture), the time is growing short. Support for CIA renditions; support for use of isolation, sleep deprivation, and sensory deprivation, among other cruel, inhumane and degrading techniques in the Army Field Manual; support for "state secrets" privileges in order to stop victims of torture from getting their day in court; support for CIA secret prisons, if used for prisoners in "facilities used only to hold people on a short-term, transitory basis."
Clive Stafford Smith, the director of the British human rights group, Reprieve, was trying to be gracious to Obama when he was quoted in Times Online today:
Update:Scott Horton's column is cited by my many critics [at the Daily Kos posting of this essay] because he notes what I supposedly fail to -- the qualitative difference between plain old rendition, and extraordinary rendition. Gee, how did I get so confused? Perhaps I followed the analysis in the Congressional Research Service report for Congress, Renditions: Constraints Imposed by Laws on Torture, who sets out the following definitions:
Horton, Sullivan and Greenwald can say whatever they like. The heat's on, and they don't want to be perceived as too far off the mainstream. But the truth is also the truth, no matter how bitter or inconvenient it may be.
In legal terms, extraordinary rendition is the "extrajudicial transfer of a person from one State to another." But for most of us, rendition remains a fancy term for kidnapping, and involves snatching suspected "terrorists" off the streets, or from airports, as in the case of innocent Canadian citizen Maher Arar, snatched out of JFK airport, and secretly flown to Syria. Maher spent over ten months in a "grave-like" cell, and was beaten and tortured into making a false confession.
Miller notes, in his article:
Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.Et tu, Obama?
According to Times Online today, "hundreds of terrorist suspects have been abducted and transferred to prisons in countries with questionable human rights records such as Egypt, Morocco or Jordan." The European parliament and human rights groups around the world have condemned the rendition policy. But according to an anonymous administration official:
“Obviously you need to preserve some tools. You still have to go after the bad guys,” said the official. “It is controversial in some circles. But if done within certain parameters, it is acceptable.”But another anonymous "senior CIA official" dryly noted:
"Once you turn them over to another service, you lose control."The Bush administration always maintained, too, that it took the requisite precautions regarding sending prisoners to states that torture. It had to do this, of course, to keep up any pretense to following the law. According to a Congressional Research Service report in October 2007:
The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and its domestic implementing legislation (the Foreign Affairs Reform and Restructuring Act of 1998) impose the primary legal restrictions on the transfer of persons to countries where they would face torture. Both CAT and U.S. implementing legislation generally prohibit the rendition of persons to countries in most cases where they would more likely than not be tortured, though there are arguably limited exceptions to this prohibition. The State Department has taken the position that CAT’s provisions concerning the transfer of persons do not apply extraterritorially, though as a matter of policy the United States does not transfer persons in its custody to countries where they would face torture (U.S. regulations and statutes implementing CAT, however, arguably limit the extraterritorial transfer of individuals nonetheless). Under U.S. regulations implementing CAT, a person may be transferred to a country that provides credible assurances that the rendered person will not be tortured. Neither CAT nor implementing legislation prohibits the rendition of persons to countries where they would be subject to harsh interrogation techniques not rising to the level of torture. Besides CAT, additional obligations may be imposed upon U.S. rendition practice via the Geneva Conventions, the War Crimes Act (as amended by the Military Commissions Act (P.L. 109-366)), the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration on Human Rights.For more on the illegality of extraordinary rendition by the tenets of international law, see this excellent briefing paper by an "All-Party" UK Parliamentary Group, published a little over three years ago, Torture by proxy: International law applicable to ‘Extraordinary Renditions.'
Despite the protests and controversies that attended Bush's use of rendition, in his article, Miller notes the relative silence of human rights groups. As in the case of the campaign to gain acceptance for the abuse-laden Army Field Manual, some human rights agencies are eager to braintrust the Obama administration on this:
"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."Miller goes on to note that Obama's executive order on interrogations, which also made the Army Field Manual the new "single standard" of U.S. interrogation, included the formation of a task force to re-examine policy in this area, and as regards renditions, "to make sure that they 'do not result in the transfer of individuals to other nations to face torture' or otherwise circumvent human-rights laws and treaties."
Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said.
While this last point is a branch onto which those hoping for Obama to really dismantle all U.S. torture policies, cling, the statements attributed to current administration officials are not promising. And then there is the unasked question: do you really trust the CIA to police itself on this? The task force called to assess interrogation policy over the next six months, has no human rights or congressional members at all, and is stacked with the leadership of military and intelligence agencies, while headed by Attorney General Eric Holder.
"State Secrets" and Torture
Meanwhile, as a recent article by Suzanne Ito at the ACLU's Blog of Rights explains that the Obama administration's vaunted promise of transparency in government and opposition to torture gets it first real test in court later this month, when oral arguments are scheduled in Mohamed v. Jeppesen Dataplan, Inc. As explained by Daphne Eviatar at The Washington Independent:
Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.Eviatar contacted the Obama administration, asking if it intended to file any new briefs, or change their position on "state secrets," and they declined to comment. Oral arguments are scheduled for February 9 in the Ninth Circuit Court of Appeal. The Fourth Circuit Court of Appeals dismissed a somewhat similar case ACLU in 2006 on behalf of rendition victim Khaled El-Masri, citing the "privileged" nature of the entire case, and the Supreme Court upheld the dimissal last year.
The ACLU filed suit on behalf of this group of victims in May 2007, but the Bush administration quickly swooped in, waving the flag of the state secrets privilege. Insisting that the very subject of the lawsuit – the CIA’s rendition program – is itself a state secret, the Justice Department convinced the federal court in California, where Jeppesen is based, to dismiss the case on the grounds that it would harm national security....
In fact, by the time this lawsuit was filed, the CIA’s rendition of suspected terrorists to foreign countries to be tortured had become an international scandal. Foreign countries such as Egypt, Switzerland, the UK and others that had cooperated with the CIA had been forced to investigate; those investigations had corroborated many of the allegations that are the subject of the case pending against Jeppesen.
Still, the U.S. government, now under President Obama, continues to insist in a brief filed with the U.S. Court of Appeals for the Ninth Circuit that “[t]he sensitivity of the information at issue in this litigation, and the serious harms that would result from its disclosure, compel the Government to assert the state secrets privilege.” The Obama administration has not filed any new briefs or amendments in the case.
For those who are hoping that Obama's promises of change around torture will be more than partial (he's shut down CIA prisons and practices of "enhanced" CIA torture), the time is growing short. Support for CIA renditions; support for use of isolation, sleep deprivation, and sensory deprivation, among other cruel, inhumane and degrading techniques in the Army Field Manual; support for "state secrets" privileges in order to stop victims of torture from getting their day in court; support for CIA secret prisons, if used for prisoners in "facilities used only to hold people on a short-term, transitory basis."
Clive Stafford Smith, the director of the British human rights group, Reprieve, was trying to be gracious to Obama when he was quoted in Times Online today:
“Western liberals are totally deluded at the moment. Like George Bush, who declared ‘mission accomplished’ on Iraq six years ago, they need to realise that the job is far from done. I believe that Obama’s heart is in the right place but he is surrounded by people in the US intelligence and military who don’t want either themselves or their policies subjected to too much scrutiny.”Smith is right. It's up to us to make this administration, and a Congress usually subordinate to intelligence and military needs, do the right thing. That means, dear reader, it's up to you, and what are you doing about it. You could start with supporting (and that means $$$) the ACLU, Reprieve, Physicians for Human Rights, Center for Constitutional Rights, and any other human rights or legal group fighting to stop torture. Just make sure that they really are. In human rights groups, as elsewhere, caveat emptor: make sure they oppose the Army Field Manual's torture-approving Appendix M, and make sure they oppose the criminal policy of extraordinary renditions, and call for total adherence to the Convention Against Torture and all other U.S. and international laws against torture and cruel, inhuman, or degrading treatment of prisoners.
Update:Scott Horton's column is cited by my many critics [at the Daily Kos posting of this essay] because he notes what I supposedly fail to -- the qualitative difference between plain old rendition, and extraordinary rendition. Gee, how did I get so confused? Perhaps I followed the analysis in the Congressional Research Service report for Congress, Renditions: Constraints Imposed by Laws on Torture, who sets out the following definitions:
Persons suspected of criminal or terrorist activity may be transferred from one State (i.e., country) to another for arrest, detention, and/or interrogation. Commonly, this is done through extradition, by which one State surrenders a person within its jurisdiction to a requesting State via a formal legal process, typically established by treaty. Far less often, such transfers are effectuated through a process known as “extraordinary rendition” or “irregular rendition.” These terms have often been used to refer to the extrajudicial transfer of a person from one State to another. In this report, “rendition” refers to extraordinary or irregular renditions unless otherwise specified.In other words, all renditions are "extraordinary renditions." The use of the latter to render suspects to torture is what is at issue. But note, all renditions are extrajudicial, i.e., outside established law.
Although the particularities regarding the usage of extraordinary renditions and the legal authority behind such renditions are not publicly available, various U.S. officials have acknowledged the practice’s existence. Recently, there has been some controversy as to the usage of renditions by the United States, particularly with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture, purportedly with the knowledge or acquiescence of the United States.
Horton, Sullivan and Greenwald can say whatever they like. The heat's on, and they don't want to be perceived as too far off the mainstream. But the truth is also the truth, no matter how bitter or inconvenient it may be.
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