Wednesday, October 8, 2008

Battle Over Habeas -- Torture Inc. Comes to America

The decision today by the D.C. Court of Appeals to reverse Judge Ricardo Urbina's decision yesterday to release 17 Uighur Muslim prisoners held indefinitely at Guantanamo Naval Base prison can best be understood in the light of an important related news story.

Over at Associated Press, Pamela Hess has an exclusive regarding revelations around the torture of U.S. citizens and residents at the U.S. naval brigs at Charleston, South Carolina and Norfolk, Virginia. According to documents obtained via FOIA by the ACLU, the Pentagon was warned that a prisoner in the naval brig, Yaser Hamdi, "was being driven nearly insane by months of punishing isolation and sensory deprivation." Hamdi was a U.S. citizen, as were two other prisoners held incommunicado, tortured, and interrogated by the CIA and Defense Intelligence Agency officials. (Hamdi renounced his U.S. citizenship as a condition of his release from custody.)

The other prisoners held were Jose Padilla, a U.S. citizen, and Ali Saleh Kahlah al-Marri, a legal resident. Both are still in custody: Padilla convicted of supporting terrorism, and al-Marri still appealing his detention.

What the ACLU documents reveal is that military facilities on U.S. soil adopted the Standard Operating Procedure at Guantanamo prison, with its emphasis on isolation, painful stress positions, sleep deprivation, threats, and indefinite detention, among other indignities and forms of psychological torture.

As has so often been the case, some members of the military blanched at being drawn into Bush/Cheney/Rumsfeld's Torture Inc. Per the AP story:
The documents show that some officials at the Charleston brig were deeply skeptical about the mandate that Guantanamo rules should apply in the United States, a decision made by the defense secretary's office, according to the documents.

"You have every right to question the 'lash-up' between GTMO and Charleston — it was the first thing I ask (sic) about a year ago when I checked on board," wrote one official to another in 2006. "In a nutshell, they gave the Charleston detainee mission to (Joint Forces Command) who promptly gave it to (Fleet Forces Command) with a 'lots of luck' and nothing else."
One "frustrated officer" wrote to unnamed government officials in June 2003 that replicating the Gitmo SOP at the naval brig actually made conditions worse there than at Guantanamo because of the near-total isolation of the brig detainees from any other prisoners. (One wonders, if the fact they were legal U.S. citizens or residents, held as "enemy combatants" in total disregard of their constitutional rights, may have also contributed to their complete sense of hopelessness and breakdown.)

Jonathan Freiman, an attorney with the Lowenstein Clinic at Yale, described the importance of the new revelations:
"The application of Guantánamo protocols on U.S. soil is incredibly significant and indicates how far the administration has gone in terms of suspending the law.... The Bush administration has long argued that detainees held in Guantánamo are not entitled to any constitutional protections – an argument the Supreme Court has recently rejected. But this is not even Guantánamo – we are talking about creating prisons beyond the law right here in America."
Legal Battle Over Habeas Corpus

The administration was "deeply concerned" about the decision the other day by Judge Urbina to release the Uighurs. Not because it believes the Uighurs are "enemy combatants" any more. (Smintheus over at Never In Our Names has written an excellent article on the history of the Uighurs case.) The New York Times reports (emphasis added):
The White House press secretary, Dana Perino, said the administration was “deeply concerned by, and strongly disagrees with” the decision. She added that the ruling, “if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.”
The importance to the government of maintaining the suspension of habeas corpus -- the right of a prisoner to seek legal redress for his or her imprisonment, and to demand what charges under which they are held -- is rarely discussed in terms of its importance to the U.S. torture protocols. The use of isolation and the inculcation of helplessness and fear is key to the "success" of the U.S. version of psychological torture. I elaborated on this last August when discussing the verdict in the Hamdan military commission trial:
Demonstrating omnipotence and total control, by the way, is why the military, CIA and Bush are so insistent in denying detainee rights, especially habeas corpus. As Jane Mayer reports in her new book, The Dark Side, administration stalwarts Dick Cheney and David Addington were incensed by 2004 Supreme Court rulings granting "enemy combatants" due process rights, such as having an attorney, or challenging their detention in court, convinced by "CIA arguments that any outside contact might jeopardize the psychological control necessary to interrogate terror suspects" (p. 302, emphasis added).
Bringing Bush to Runnymede

Bush's lackey attorney general, Mukasey, had a spokesman express the pleasure the government took in the DC courts issuance of a temporary stay in Urbina's decision. When making his decision, Judge Urbina had said, denying the executive branch had the right to suspend the centuries-long practice of habeas corpus, "I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention."

It's hard to believe the DC court thought it had any leg to stand on, given that the Supreme Court last June ruled unconstitutional the provision of the Military Commissions Act of 2006 that suspended the use of habeas corpus by detainees in Bush's "war on terror." Passage of the MCA is one of the great shames of this nation. The bill was passed with the support of presidential candidate John McCain, who voted for it despite the fact it endorsed torture and suspension of habeas corpus. Repeal of this law should be one of the first priorities of the next Congress. The new ACLU documents, revealing how torture treatment abroad migrated to the United States, and then its use on U.S. citizens, demonstrate how slippery is the slope that leads from so-called national security exigency to the destruction of basic domestic civil liberties.

Here's the link to the Supreme Court decision -- BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. -- provided here for befuddled appeals court judges. Speaking for the majority, Justice Kennedy wrote:
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives....
"Chief among these..." The stay of Urbina's decision is a setback, but the tide is turning against Torture Inc. Their business is widely exposed as a barbaric and reprehensible practice, and the day is coming when its proponents and practitioners will themselves have to stand before the bar of justice to answer for their crimes against humanity, against freedom, and against democracy.

"Torturing Democracy"

Speaking of democracy... an award-winning documentary maker, Sherry Jones, has made a new documentary that examines America's detention and interrogation practices in the "war on terror." Torturing Democracy, premiers Thursday, October 16 at 9 p.m. on Thirteen/WNET. It will also be available to view -- free -- online at, a website the producers are running in tandem with the amazing folks at National Security Archive (George Washington University).

The documentary details how the secret U.S. military interrogation program - "Survival, Evasion, Resistance and Escape" - or SERE - became the basis for many of the harshest methods used in interrogating prisoners in U.S custody. Besides the streaming of the film, the website will include a timeline of key events; extended interviews; and the memos, legal opinions and other documents featured in the film.

Visiting the site and viewing the professionally made film is highly recommended.

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