Statement on Prosecution of Former High Officials
NEW 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
Center for Constitutional Rights
The National Lawyers Guild
After Downing Street
American Freedom Campaign
Ann Wright, retired US Army Reserve Colonel and US diplomat
Cities for Peace
CODE PINK: Women for Peace
Daniel Ellsberg, Truth-Telling Project
Defending Dissent Foundation
Delaware Valley Veterans for America
Global Network Against Weapons & Nuclear Power in Space
Gold Star Families for Peace
Grandmothers Against the War
High Road for Human Rights Advocacy Project
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
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
Progressive Democrats of America
Republicans for Impeachment
United for Peace and Justice
Veteran Intelligence Professionals for Sanity
Veterans for Peace
Voters for Peace
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.orgCONTACT: National Lawyers Guild (NLG)
Marjorie Cohn, NLG President, firstname.lastname@example.org
Heidi Boghosian, NLG Executive Director, email@example.com
Friday, February 27, 2009
Thursday, February 26, 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
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.
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
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:
(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
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.
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
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.
-- 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.
* 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".
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 the 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.
Tuesday, February 17, 2009
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
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....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.
Le Balcon, by Charles Baudelaire
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!
(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
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.
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.’ 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
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
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