Rarely Seen Video of U.S.-style water torture in action

Former president of the National Lawyers Guild, Marjorie Cohn, commented on recent statements by two GOP presidential candidates who created a stir by defending waterboarding:

[Herman] Cain said, “I don't see it as torture. I see it as an enhanced interrogation technique,” which is what the Bush administration used to call its policy of torture and abuse. [Michelle] Bachman declared, “If I were president, I would be willing to use waterboarding. I think it was very effective. It gained information for our country.” And after the debate, Mitt Romney’s aides told CNN that he does not think waterboarding is torture.

Cohn notes at the end of her article, "Unfortunately, during his hearing to be confirmed as CIA director, David Petraeus told Congress there might be occasions in which we must return to “enhanced interrogation” to get information. Alarmingly, that comment signaled that the Obama administration may return to the use of torture and abuse." Petraeus was confirmed as the new CIA director last August on a 94-0 vote of the U.S. Senate.

Evidence of Torture in the Obama Administration

Despite President Obama's own comments criticizing Cain and Bachman's statements, Cohn points out that Obama's own nominated candidate for CIA director is willing to support waterboarding and the other torture techniques designated "enhanced interrogation" during the Bush/Cheney regime. But there's no "unfortunately" about it. The Obama administration does support torture, but it does so in the old-fashioned U.S. way, through official and/or plausible denial.

But anyone who looks at what the U.S. does, rather than what it says, will know that the torture never ended. Waterboarding may or may not have been ceased, but in the U.S. official Army Field Manual on interrogation, numerous commentators have found clear evidence of the use of torture, including use of debilitating isolation, sleep deprivation, sensory deprivation, manipulation of phobias, use of drugs, and other "techniques." Some of these techniques, such as use of isolation and sleep deprivation are limited to supposed "illegal" combatants, such as those captured in the "war on terror," as discussed in the AFM's Appendix M (PDF).

The use of controlled suffocation, such as in the water torture used in the video below, was documented to be endemic across the field of Defense Department operations in a series of articles published at Truthout.org recently. Also published at Truthout was an analysis of the possible use of "dryboarding", another suffocation torture technique that may have been used by U.S. interrogators and implicated in the deaths of three prisoners at Guantanamo in 2006.

"Dryboarding"

The "dryboarding" hypothesis was developed by Almerindo Ojeda at the University of California at Davis’s Center for the Study of Human Rights in the Americas. Ojeda is also principal investigator for the Center’s Guantánamo Testimonials Project. He discovered that Ali Saleh Al-Marri, a purported Al Qaeda "sleeper" agent, who was held for years in solitary confinement at the Navy Brig in Charleston, North Carolina, like fellow domestic internee and U.S. citizen Jose Padilla, had been tortured by having a sock shoved stuffed in his mouth and then having his lips taped shut with duct tape. Al-Marri almost suffocated.

Ojeda noted that all of the dead supposed suicides at Guantanamo had socks stuffed in their mouths or down their throats.

Scott Horton, who wrote an award-winning article on the Guantanamo "suicides," noted in a recent review of Ojeda's work that socks were not allowed for prisoners at Guantanamo. He added:

The “dryboarding” disclosures do not resolve the questions about the Guantánamo deaths, but they give rise to important new questions about interrogation practices that may also have been used at Guantánamo. They also further justify the call for a thorough and independent investigation of the three deaths and underscore the severe credibility issues with the government’s claims about “suicides.”

The investigation of the Guantanamo "suicides" by Horton and Seton Hall University School of Law, Center for Policy and Research (PDF) was the subject of a slur campaign in the media last May, with Horton's article in particular attacked by former Bush Administration officials. Then, strangely, Adweek writer Alex Koppelman and his former Salon.com collaborator Mark Benjamin, jumped in to defend Guantanamo Defense Department authorities' version of events.

Links to the Torturers

The following video was posted at both LiveLeak.com and You Tube, and provides "a glimpse of what went on during interrogations of [Afghan] insurgents by Jonathan Idema," who worked in conjunction with NATO forces in Afghanistan "counterterror" operations.

Idema is a controversial figure. He was arrested by Afghan authorities in July 2004 in Kabul, where according to a New York Times report, he had been holding eight men prisoner. Some of these men "said they were kicked and beaten, had scalding water poured on them, and had their heads repeatedly dunked in a bucket of water." Idema was pardoned by Afghan President Karzai in March 2007. He had claimed all along that he was working at the behest of U.S. authorities. The U.S. denied this, though admittedly he did work with international forces on counterterrorism operations.

In a well-documented examination of his career at Wikipedia, Idema's connections with U.S. Special Forces is dissected. Idema's various disgraces and problems with the military never kept him from working at various times with U.S. Special Forces, and interestingly, he has been connected to private contracting firms associated with the "war on terror," including Star America Aviation Company, Ltd. (SAAC).

One of the latter company's executives is retired Major General Jack Holbein, a former leading commander at U.S. Special Forces Command. SAAC is linked to a shell company, Isabeau Dakota, Inc., that listed Idema's father as president and sole officer, in that both are registered as corporations by the same individual, William L. London, who appears to be an attorney in Sanford, North Carolina. There is some evidence, given the connections noted in his Wikipedia entry, that Idema served as an off-the-record asset or operative of U.S. Special Forces.

Major General Holbein was listed in the 2008 Senate Armed Services Committee (SASC) report on detainee abuse (large PDF) as one of the recipients of the Defense Department's interrogation-torture proposal developed by James Mitchell and John "Bruce" Jessen at Joint Personnel Services Agency (JPRA). Holbein was then Chief of Staff at U.S. Joint Forces Command (JFCOM), and JPRA was under command authority of JFCOM at that time. The implication of the SASC report is that Holbein and others helped send the torture proposal up the chain of command.

JFCOM was disbanded last August, "the first time a Defense Department combatant command has been dissolved" one news account explained. According to the article, by Hugh Lessig at The Daily Press:

The military is keeping the core mission of JFCOM: training the military to operate and fight together. But instead of maintaining a separate four-star command and all the overhead it entails, personnel will report directly to the Joint Staff.

The former JFCOM functions remaining in Hampton Roads include those related to joint training, developing new concepts and doctrine, experimentation and what the military calls "lessons learned."

A Tale of Two Videos

The video below is from As Sahab, a supposedly Al Qaeda linked media outlet, though reposted at LiveLink, and apparently was discovered in the raid on Idema's Afghanistan headquarters in Kabul in 2004. (Other As Sahab videos of torture have been aired by ABC news, and posted at You Tube.) Whether or not Idema was working directly for the Americans or not, the video provides a sickeningly vivid display of the kind of water torture during interrogation that has been documented previously as used by U.S. forces. (See here and here.)



The refusal by either the Obama administration or the U.S. Congress to hold torturers accountable, or to eliminate the torture embedded in the Army Field Manual, means that the torture program continues. It may be more hidden, but it operates nevertheless continuously. While the U.S. puts out propaganda about its "humane" treatment of detainees at Guantanamo and elsewhere (see this story by Jason Leopold on the latest video issued in the U.S. propaganda effort), the real truth is hidden as much as possible.

The cozening of torturers, and the successful continuation in one form of the U.S. torture program has found its domestic analogue in the vicious state repression being unleashed upon the reform-minded protesters of the Occupy Wall Street movement. Indeed, the attacks on peaceful protesters demonstrates as much as the history of the torture program that the U.S. government is not an entity to be bargained with, and that new political forms must arise to challenge the social and political status quo. Their first demand must be an end to state violence against peaceful protest.

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 torturingdemocracy.org, 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.

Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri

As posted on the website of Andy Worthington, author of The Guantánamo Files. I saw the following important article reposted over at Michael Otterman's American Torture website. I think it's so important, I'm reproducing it here in full.

Wake up, America! On July 15, the Court of Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v. Pucciarelli (PDF) that the President can arrest US citizens and legal residents inside the United States and imprison them indefinitely, without charge or trial, based solely on his assertion that they are “enemy combatants.” Have a little think about it, and you’ll see that the Fourth Circuit judges have just endorsed dictatorial powers.

In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”

As was pointed out by Judge Diana Gribbon Motz, who was steadfastly opposed to the majority verdict (and whose opinion was endorsed by Judges M. Blane Michael, Robert B. King and Roger L. Gregory), “the duration of the relevant hostilities” is a disturbingly open-ended prospect. After citing the 2007 State of the Union Address, in which the President claimed that ‘[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,’” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”

The Court of Appeals made its extraordinary ruling in relation to a habeas corpus claim in the case of Ali Saleh Kahlah al-Marri, whose story I reported at length here. To recap briefly, al-Marri, a Qatari national who had studied in Peoria, Illinois in 1991, returned to the United States in September 2001, with his US residency in order, to pursue post-graduate studies, bringing his family -- his wife and five children -- with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead.

He was then moved to a naval brig in Charleston, South Carolina, where he has now been held for five years and one month in complete isolation in a blacked-out cell in an otherwise unoccupied cell block. For the first 14 months of this imprisonment, he was subjected to sleep deprivation and extreme temperature manipulation, frequently deprived of food and water, and interrogated repeatedly.

In August 2003, representatives of the International Red Cross were finally allowed to visit al-Marri, and two months later he was permitted to meet with a lawyer, when he finally had the opportunity to explain that his interrogators had “threatened to send [him] to Egypt or to Saudi Arabia where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.”

Based on advice given to Donald Rumsfeld by Defense Department lawyers regarding the use of isolation at Guantánamo, when the lawyers warned that it was “not known to have been generally used for interrogation purposes for longer than 30 days,” al-Marri has now been held in solitary confinement for 67 times longer than the amount of time recommended by the Pentagon’s own lawyers (this figure includes the six months that he spent in isolation in Peoria County Jail and the Metropolitan Correction Center in New York, before being transferred to Charleston).

It is, therefore, unsurprising that his lawyer, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, has explained that he is suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”

So what is Ali al-Marri supposed to have done to justify being held in solitary confinement for almost as long as the duration of the Second World War? The presidential order declaring him an “enemy combatant” stated simply that he was closely associated with al-Qaeda and presented “a continuing, present, and grave danger to the national security of the United States.” Elaborating, in subsequent statements, the government has claimed that he was part of an al-Qaeda sleeper cell, who had been instructed to carry out further terrorist attacks in the United States, targeting reservoirs, the New York Stock Exchange and military academies.

What’s particularly worrying about these charges is that, by the government’s own admission, the primary sources for its supposed evidence against al-Marri are confessions made by Khalid Sheikh Mohammed (KSM), the alleged architect of the 9/11 attacks, during the three months following his capture in March 2003, when, as even the CIA has admitted, he was subjected to waterboarding, a form of controlled drowning, which the torturers of the Spanish Inquisition at least had the honesty to call “tortura del aqua.”

As I discussed at length in an article last summer, KSM stated during his tribunal at Guantánamo in March 2007 that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with KSM to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.

As I also stated last November, “It’s possible, therefore, that al-Marri is another victim of KSM’s tangled web of tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, and not in leaks and proclamations from an administration that appears to be intent on holding him without charge or trial for the rest of his life.”

When I wrote these words, it seemed possible that the Fourth Circuit judges would act to prevent al-Marri from having the dubious distinction of being the last “enemy combatant” on the US mainland, and would put pressure on the government to transfer him to a federal prison to face a trial in a US court, as happened with Jose Padilla, a US citizen and one of two other “enemy combatants” imprisoned without charge or trial -- the other being Yaser Hamdi, a US-born Saudi, who was held in Guantánamo until it was ascertained that he held US citizenship. In Hamdi’s case, however, a brief stay at the Charleston brig was followed by a deal that allowed him to return to Saudi Arabia.

In June 2007, a panel of three Fourth Circuit judges dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’” Last week’s decision followed a successful appeal by the government, but when the Fourth Circuit court met en banc to reconsider al-Marri’s case in October, it seemed possible that they would uphold the panel’s June verdict. When Judge Michael asked the government’s representative, Gregory J. Barre, “How long can you keep this man in custody?” and Garre replied that it could “go on for a long time,” depending on the duration of the “war” with al-Qaeda, Judge Michael stated, “It looks like a lifetime.”

I now realize, of course, that it was always highly improbable that the Fourth Circuit court -- widely regarded as the most right-wing court in the country -- would end Ali al-Marri’s legal limbo, although it was somewhat ironic that, in a separate ruling, the swing-voting Judge Traxler ruled in al-Marri’s favor when it came to a decision to grant him some as yet unspecified ability to challenge the basis of his definition as an “enemy combatant.”

This, at least, earned him the gratitude of Judge Motz, who stated that “the evidentiary proceedings envisaged by Judge Traxler will at least place the burden on the Government to make an initial showing that ‘the normal due process protections available to all within this country’ are impractical or unduly burdensome in al-Marri’s case and that the hearsay declaration that constitutes the Government’s only evidence against al-Marri is ‘the most reliable available evidence’ supporting the Government’s allegations.”

In other respects, however, the court only added to its reputation as a defender of the indefensible. Not content with endorsing the President’s dictatorial right to imprison “enemy combatants” without charge or trial on the US mainland, the judges responsible for the majority verdict ruled that the President did not even have to allege, as he did with Yaser Hamdi and Jose Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.

The injustice of this was pointed out in the opinion of Judge Motz, who stated that, “unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict, and not alleged to have engaged in combat with United States forces anywhere in the world.”

Judge Motz added, however, “With regret, we recognize that this view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone -- including an American citizen -- even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.”

Disturbingly, as Judge Motz mentioned above, the court also indicated its presumption that its ruling applies not just to legal residents like Ali al-Marri, but to US citizens as well. Judge Traxler noted, “it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances,” and Judge Motz explained that the lack of distinction between citizens and residents had become apparent at oral argument, when the government “finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.”

We have, to be honest, been here before. In September 2005, a three-member panel upheld, in Padilla’s case, the President’s power to hold US citizens indefinitely without charge or trial (PDF). This verdict was never tested, as the government took Padilla out of the brig and into the court system (where he was convicted in January) before the Supreme Court could rule on his case, but as Glenn Greenwald noted in an article in Salon, the upshot is that the 2005 Padilla verdict still stands. To that extent, all that has changed now is that the Fourth Circuit court has reinforced its former ruling en banc.

Al-Marri’s lawyers will doubtless appeal, and, if justice still counts for anything, his case will go all the way to the Supreme Court. However, it remains incomprehensible to me that the whole sorry saga has lasted for so long already. As Jonathan Hafetz and his colleagues explained last November when they presented their arguments to the Fourth Circuit judges (and as Judge Motz noted last week), the President “lacks the legal authority to designate and detain al-Marri as an ‘enemy combatant’ for two principal reasons”: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

That seems pretty clear to me. In the “War on Terror,” however, as I have learned during my research over the last two and a half years, all forms of logical thought -- sometimes in the courts, most of the time in military custody, and as a permanent fixture in the war rooms where torture was endorsed -- have been engulfed in a fog of fear and barbarism.

I leave the final words to Judge Motz, and her clear-eyed awareness of the injustice of the al-Marri verdict. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution – and the country,” Judge Motz wrote. “For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.’ We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

Unless Ali al-Marri is allowed a meaningful review of his status as an “enemy combatant,” Judge Motz’s fears have already come true.

Fourth Circuit Alibis Torture Confession in Abu Ali Case

Also posted at The Public Record

Last Friday, the Fourth Circuit Court of Appeals, long considered one of the most conservative courts in the the nation, rejected the appeal of Ahmed Omar Abu Ali, who was sentenced in 2005 for conspiracy to assassinate President Bush and make other terror attacks upon U.S. targets on behalf of Al Qaeda. Abu Ali, who is a U.S. citizen and the son of naturalized Jordanian parents, was arrested in June 2003 in Saudi Arabia and held there until the U.S. requested his extradition almost two years later. He was 23 years old and attending a Saudi university at the time of his arrest.

During his incarceration, the Saudis refused his repeated requests to see an attorney. At no time has Abu Ali ever been linked to an actual terrorist event or action. In 2003, the government secretly broke into his parents' home, utilizing provisions of the U.S.A. Patriot Act that allows warrantless search and seizure to go fishing for evidence of Abu Ali's "dangerousness."

Human rights groups such as Amnesty International and the ACLU have publicized the Abu Ali case, particularly as it highlighted the admissibility of coerced confessions in the trial of individual prosecuted in the government's so-called "war on terror". The controversy over admitting evidence obtained via torture, whether by domestic police or intelligence agencies, or by foreign governments, has roiled the government campaign to try high-profile prisoners held by the U.S. at in military tribunals at Guantanamo Bay, Cuba. Use of torture evidence lead to the resignation of government prosecutors in protest, and testimony last month from the former chief prosecutor of the tribunals that "higher-ranking officers exerted illegal influence over the process, pushing prosecutors to use coerced evidence."

A Dangerous Precedent

A statement by Amnesty International in March 2006 described the salient issue in the Abu Ali case:

Amnesty International remains seriously concerned that the trial of Ahmed Abu Ali was flawed as the jury was not allowed to hear evidence supporting his claim that he was tortured into confessing while he was held for one and a half years without charge or trial in Saudi Arabia. Amnesty International is seriously concerned that the case may have set a worrying precedent on the admissibility of torture evidence in US courts. Amnesty International urges that, if appealed, the courts will address this issue.

Now that the case has been appealed, and a decision rendered, we will see how the courts chose to "address this issue." But first, let's consider what occurred at the initial Abu Ali trial. Again, from Amnesty International:

Judge Gerald Bruce Lee ruled that only evidence that related directly to Ahmed Abu Ali's interrogation would be admissible, thus denying the defence the opportunity to present relevant contextual evidence. Judge Lee had ruled during pre-trial proceedings that the US government had shown by a "preponderance of evidence" that the statements made by Ahmed Abu Ali in Saudi Arabia were "voluntary", and that his incriminating statements were admissible at trial. During the trial, general statements from Saudi Arabian officials were used to undermine Ahmed Abu Ali's allegations whilst his defence lawyers were not allowed to present any evidence pertaining to Saudi Arabia's human rights record on torture....

Amnesty International is seriously concerned that the trial of Ahmed Abu Ali may have set a precedent in US courts of according unqualified support to the declarations of a foreign government regarding its human rights record as a means of rendering evidence admissible, including statements obtained by torture and ill-treatment.

What was the evidence that Ali's lawyers sought to present? It included documentation of Saudi human rights violations and use of torture, and the psychiatric evaluations done on Mr. Abu Ali himself, which supported the contention that his mental and emotional state was consistent to someone who had been tortured as he alleged. According to an ACLU document, Abu Ali was held in solitary confinement. "During the first three days of interrogation, he was punched, kicked in the stomach, struck with a hard object more than ten times, whipped while he was chained to the floor, and threatened with amputation or beheading." He did not see a U.S. embassy official for his first month of captivity. His "confession" came about three weeks later.

As for evidence of Saudi Arabian use of torture to obtain confessions, the court could have used documentation from the U.S. State Department Report on Saudi Arabia human rights practices released in March 2002, just one year prior to Abu Ali's arrest.

Shar'ia (Islamic law) prohibits any judge from accepting a confession obtained under duress; however, there were credible reports that the authorities abused detainees, both citizens and foreigners. Ministry of Interior officials are responsible for most incidents of abuse of prisoners, including beatings, whippings, sleep deprivation, and at least three cases of drugging of foreign prisoners. In addition there were allegations of torture, including allegations of beatings with sticks, suspension from bars by handcuffs, and threats against family members. Torture and abuse are used to obtain required confessions from prisoners (see Section 1.e.). There were reports that in detention centers some boys and young men were flogged, forced constantly to lie on hard floors, deprived of sleep, and threatened with whipping and other abuse.

The government report also notes that Saudi Arabia "has refused to recognize the mandate of the U.N. Committee Against Torture to investigate alleged abuses". Furthermore, the Saudis do not allow international observers to investigate complaints of torture. Interestingly, even in the Abu Ali case, FBI agents were not allowed to see or interview the prisoner while he was held in Saudi custody. (The FBI ultimately submitted a list of nine questions they wanted the Saudis to ask.)

Implausibility and Credibility Turned Upside Down

The unanimous decision by the Fourth Circuit to uphold the Abu Ali conviction (there was one dissent over the question of resentencing guidelines) rubber-stamps the decision by the trial court to suppress evidence that Abu Ali's confession was elicted under torture. This is their reasoning (from Friday's ruling -- I quote extensively, as it is a remarkable document, with emphases in bold my own editorial emendation):

Initially, the court properly recognized that "torture, and evidence obtained thereby, have no place in the American system of justice." Abu Ali, 395 F. Supp. 2d at 380. But, based on its evaluations of "the credibility of the witnesses," and "the quality of the evidence presented," id. at 374, the district court found itself "left with lingering questions concerning the credibility of Mr. Abu Ali and his claim that he was tortured," id. at 378. The court credited the testimony of the Saudi Arresting Officer and the Lieutenant Colonel (the Warden at the Medina detention facility where Abu Ali was held for two days following his arrest) that no Saudi official used coercive interrogation techniques on Abu Ali. The court found that the Lieutenant Colonel’s testimony that Abu Ali was never abused was believable while Abu Ali’s contrary testimony "raise[d] questions that bear on the defendant’s credibility." Id. at 373.

In addition, the court relied on the testimony of two other Saudi officials, the Brigadier General and the Captain, that the interrogation of Abu Ali in Riyadh "was conducted in the absence of threats or torture." Id. at 373. The court found "implausible" Abu Ali’s "claim about having been whipped" during the early period of his detention because several Saudi and American witnesses who observed him during this period reported behavior "that do[es] not coincide with how a recently beaten person would behave." Id. at 374. Moreover, the court found that "[s]ome aspects" of Abu Ali’s testimony "just do not flow logically," id. at 378, and observed that "during his testimony, there were times where Mr. Abu Ali seemed to deflect the question," id. Finally, the court considered, but found deficiencies in, the testimony of Abu Ali’s medical experts who supported his torture claim, crediting instead the testimony of the government’s experts that Abu Ali showed no physical or psychological signs of mistreatment.

The district court largely rested its legal conclusion that Abu Ali’s statements were voluntary on its factual findings concerning his claims of torture and abuse. Our thorough review of the record provides no basis for finding clear error in any of those findings. This, however, does not end our inquiry. We must evaluate the voluntariness of Abu Ali’s confessions de novo, looking to the totality of the circumstances to determine whether his will was "overborne." See Schneckloth, 412 U.S. at 225.

In making this evaluation, we consider that Abu Ali was not provided the legal protections — including prompt presentment and Miranda warnings — that the Constitution requires be provided to suspects by United States law enforcement officers. Saudi Arabia is a sovereign nation with its own legal system, and the failure to provide Abu Ali these protections does not, in and of itself, require exclusion of the statements Abu Ali made in Saudi custody. At the same time, we do consider the absence of these protections as one factor in the totality of circumstances in evaluating whether Abu Ali made his statements voluntarily....

In addition, the district court rejected Abu Ali’s testimony that the Saudis subjected him to coercive conditions of confinement. Instead, the court found believable the testimony of Saudi officers that they confined Abu Ali under reasonable conditions, including provision of three meals a day, and a cell with a bed, blanket and pillow. The court further found believable Saudi testimony that Saudi authorities did not question Abu Ali during his initial detention in Medina, and noted that Abu Ali’s own description of the Riyadh interrogation suggested that he was not questioned in Medina....

After consideration of all of the evidence and the extensive factual findings made by the district court, we conclude that Abu Ali’s statements were voluntary. Abu Ali was intelligent, articulate, and comfortable with the language and culture of the country in which he was detained and questioned. The district court found, based upon copious record evidence, that he was not tortured, abused, threatened, held in cruel conditions, or subjected to coercive interrogations. On the basis of the totality of these circumstances, we conclude that Abu Ali’s statements were "the product of an essentially free and unconstrained choice." Culombe, 367 U.S. at 602.

In summation, both the initial trial court and the Federal appeals court chose to believe the stories of the corrupt Saudi high police officialdom, and suppressed any evidence to the contrary. The professional observations and conclusions of medical and psychiatric personnel were ignored while "'Abu Ali’s "claim about having been whipped' during the early period of his detention" is rendered "implausible" because unidentified Saudi and American "witnesses" to the early period of his incarceration thought his behavior inconsistent "'with how a recently beaten person would behave.'" This is truly remarkable. Who were these Saudi and American witnesses? I thought that no American saw Abu Ali in the early days of his arrest. Beyond that, by what criteria were these "witnesses" able to judge how a beaten individual should act? We aren't told, nor are we expected to ask.

Rubber Stamp Court for Bush's Reign of Terror

The Fourth Circuit's decision in the Abu Ali case is a travesty of justice. It positions acceptance of coerced confessions as one of the centerpieces of Bush's planned prosecutions of "terror" suspects in his star chamber military tribunals. For a moment last summer, it looked as if even the arch-conservative Fourth Circuit wouldn't countenance Bush's imperial presidential dragnet. Writing in a decision regarding another U.S. citizen marked as an "enemy combatant," Ali Saleh Kahlah al-Marri, the same court wrote:

The government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

But that was a year ago, and politics never does stand still. The judges reconsidering the Abu Ali case found no problem in ignoring a defendant's Miranda rights (which was another aspect of Abu Ali's appeal), or choosing to believe foreign torturers over examination of medical personnel, or even the studied opinions of the United States' own State Department. (The appeals court's refusal to consider the lack of Miranda and other legal rights as bearing upon the voluntariness of a confession is a further outrage that deserves its own full discussion.)

These judges also ignored obvious precedent. They never referred to United States v. Hall (1996), wherein the Seventh Circuit Court of Appeals reversed a kidnapping conviction when expert testimony relating to police interviews of the defendant were excluded.

The court noted that:

[O]nce the trial judge decided that Hall's confession was voluntary, the jury was entitled "to hear the relevant evidence on the issue of voluntariness and [the trial judge was to] instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances" (p.1344).

Yet, the judge in the Abu Ali trial disallowed psychiatric reports and government documentation of Saudi torture, and the high judges of the Fourth Circuit upheld this suppression of evidence. the Bush Administration and its military and CIA backers were handed a judicial victory in their war against the Constitution and equal justice under the law. As one of Abu Ali's own attorneys, Elaine Cassell, summarized the situation after the initial trial judgment, the Abu Ali case means:

The U.S. can work with a foreign government to arrest and imprison a U.S. citizen and torture him. It can allow the imprisonment to go on indefinitely....

Then, if the U.S. (or allied country) citizen confesses under torture -- and virtually everyone does, even if the confession is a lie -- the U.S. may try to use the confession against him in a U.S. court, as well in a foreign court.

The Abu Ali decision represents an ominous development in the government's attack on civil liberties, and a blow against those who struggle to end the hideous governmental practice of torture. I fear the decision will be felt from the kangaroo courts of Guantanamo to the asylum hearings of the INS, where applicants from countries across the globe -- many of them tortured by allied U.S. governments such as Saudi Arabia, Jordan, Egypt, Uzbekistan, and others -- seek safety and legal residency, often utilizing psychological evaluations as their only evidence of the torture they endured abroad.

Meanwhile, the decision has barely made a stir in the mainstream press or the so-called blogosphere, where the agony and ecstasy of discussing electoral politics mask the reality of state policies and oppressive actions that day in and day out act as a heavy yoke upon the shoulders of a desperate humanity.

Appellate Court Hands Bush Huge Defeat, Releases "Enemy Combatant" Al-Marri

Reuters is reporting (link here is to the Washington Post) that a U.S. appellate court has ruled that Ali Saleh Kahlah al-Marri must be released from military custody. This is a huge defeat for Bush, as Al-Marri was a test case for Bush's draconian executive powers in the phony "war on terror". The appellate panel ruled 2-1 that there was insufficient evidence to hold Mr. Al-Marri as an "enemy combatant".

Al-Marri was a Quatari student living with his wife and children in Peoria, Illinois. He was in the U.S. legally on a student visa. In December 2001, he was caught up in the post 9/11 dragnet of Arab nationals, and charged with giving false statements to the FBI. He was supposed to be a material witness in the 9/11 attacks. What makes his case unique is what happened next.

A month before Al-Marri's case was to come to trial, in June 2003, the Bush Justice Department swooped down and took the defendent from the criminal system, made the court drop its charges (which it did "with prejudice"), and declared Ali Saleh Kahlah al-Marri an "enemy combatant". He was taken to the Naval Brig in Charleston, South Carolina (where Jose Padilla was also held). Like Padilla, he was held without further charges for years.

As Glenn Greenwald describes it:

Al-Marri was given the "Padilla Treatment" -- kept in solitary confinement, denied all contact with the outside world, including even his own attorneys, not charged with any crimes, and given no opportunity to prove his innocence. Instead, the Bush administration simply asserted the right to detain him indefinitely without so much as charging him with anything....

There is no greater betrayal of the core principles of American political life than to have the federal government sweep people off the streets, throw them into a black hole with no contact with the outside world and no charges asserted of any kind, and simply keep them there for as long as the President desires -- in al-Marri's case, with respect to detention, now five years and counting.

Seems the judge of the appellate court hearing al-Marri's appeal agreed with Mr. Greenwald (from the Reuters' report):

"The government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely," Judge Diana Gribbon Motz wrote. (Emphasis mine)

The ruling does not free Mr. Al-Marri, but it does direct the Secretary of Defense to release him in a "reasonable" period of time. The article notes that the government could choose to criminally charge him (though they can't on the previous charges), initiate deportation hearings, or hold him as part of the Patriot Act for some limited period of time.

Those who wish to follow the legal peregrinations of this legal case, and they are most interesting for the struggles going on within the judicial system over Bush's enemy combatant cases, can read the summary over at Human Rights First, which also has links to the multiple filings in the case.

While not a definitive decision striking down the Bush Administration's warped anti-civil liberties campaign, codified in the Patriot Act and the Military Commissions Act of 2006, it is a great victory against the right of an imperial President to intevene in lawful proceedings, seize people in this country lawfully, and put them in military prisons -- not in Afghanistan, Iraq, Poland or Romania -- but in the United States. It was precisely this type of governmental power that was codified in the Military Commissions Act, a law among the most pernicious ever passes in this country.

Every day that goes by that Bush and Cheney and Gonzales and Rice are not impeached is another day that the moral and political reputation of this country sinks into the sewer. I salute the bravery and integrity of the appellate court in ordering the release of the wrongfully held Mr. Al-Marri.