On Torture and Forcible Deportations from Guantanamo

Every once in a while, a commenter at one of my articles at Firedoglake writes a comment that deserves wider recognition, and longer shelf-life, because it deepens coverage of the story or adds something special and important for the reader's consideration. That's the case with powwow's comment from my Firedoglake story the other day on the Obama administration's forcible deportation ("refoulement"), against all international law and precedent, of Algerian national and Guantanamo detainee Farhi Saeed bin Mohammed (reposted here at Invictus).

It was the Obama's second such unlawful deportation from Guantanamo in the last six months. While human rights groups took notice and protested, the story dropped into the black hole of current American indifference to the torture story. I'd add that FDL commenter, ondelette, at the same story also added a great link to the ICRC document, Transfers of detainees: legal framework, non-refoulement and contemporary challenges (PDF), where, as she explains, the document shows "how the doctrine came to be, and where it occurs in the laws of war as opposed to Human Rights Law (which is important in this case)."

Powwow's comment:

Well, it inexplicably took six months, but the other shoe has indeed dropped, just where the Supreme Court cleared the way for it to fall...

Tellingly, too, right after the Supreme Court granted the DOJ a last-minute month-long extension of time in which to file its response to Farhi bin Mohammed’s attempted challenge of the U.S. government’s handling of his imprisonment and then-pending release after more than eight years of his unlawful detention by two U.S. presidents. [What's the hurry, eh, Supreme Court? Must be some more corporate favors you can do instead, in the carefree interim...]

Thank you so much for covering this, Jeff. I was hoping that you’d be on the case, and you didn’t disappoint. Your evidence of Congressional complicity in these acts is key to understanding where responsibility for them lies.

…the Pentagon presented “evidence” from unreliable informers to frame Mr. Mohammed as a supporter of Al Qaeda. Presumably, Judge Kessler was unimpressed by this evidence. - Jeff

“Unreliable informers” such as, primarily, the tortured British resident Binyam Mohamed, about whose “evidence” Judge Gladys Kessler minced few words, stating in her November, 2009 habeas decision ordering the release of Farhi bin Mohammed (a release order which the Obama administration did not appeal, but failed to honor until more than a year later, and then only by forcing the detainee to move to Algeria against his will):

In October of 2008, the Government dropped allegations that [witness against bin Mohammed] Binyam Mohamed was involved in any bomb plot.
[...]
In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause [of the Fifth Amendment] because such admissions would run contrary to “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”
[...]
First, Binyam Mohamed’s lengthy and brutal experience in detention weighs heavily with the Court.
[...]
The difference, of course, is that Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
[...]
In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [censored]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being re-interrogated by Special Agent [censored]. See JE 72 (declaration of Binyam Mohamed’s attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005)
[...]
In Bagram, he [Binyam Mohamed] wrote that he trained with three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner [Farhi bin Mohammed] for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed “dominated the mind” of Binyam Mohamed to such a degree that his later statements to interrogators are unreliable.
[...]
Without Binyam Mohamed’s statements implicating Petitioner in training, the Government’s evidence supporting this allegation is severely weakened.

A glimmer of genuine U.S. justice for Farhi bin Mohammed. And then…

After the granting of his habeas petition, [bin Mohammed] fought a repatriation to Algeria, for the reasons stated earlier, and Judge Kessler granted that request. - Jeff

To her enormous credit, Judge Gladys Kessler took heed of Farhi bin Mohammed’s plea not to be further renditioned by the U.S. government, this time from eight years in a Guantanamo lock-up to a native country he’d voluntarily left behind him more than twenty years earlier for fear of his safety.

It was Kessler’s honorable concerns about the fate of this unjustly-held prisoner, which the United States Department of Justice headed by Eric Holder quickly appealed, and D.C. Circuit Appellate Judges Thomas Griffith, Brett Kavanaugh and (mostly) David Tatel in response quickly spurned, while hiding behind secret court filings, soon followed by Justices Alito, Kennedy, Roberts, Scalia & Thomas, who immediately concurred in telling the district court judge: Take a flying leap, Judge Kessler. No, you won’t test the State Department’s “boilerplate” representations about the future of Petitioner in Algeria, because we won’t let you. The predictable result, six unexplained months later, was this week’s rendition to Algeria, by the U.S. government, of Farhi bin Mohammed, the Convention Against Torture be damned.

This is how Judge Gladys Kessler conscientiously expressed her concerns last year, on June 10, 2010, in response to bin Mohammed’s plea not to be sent to Algeria:

On June 1, 2010, Petitioner [Farhi Saeed bin Mohammed] filed an Emergency Motion to Compel Compliance With This Court’s [Habeas Release] Order of November 19, 2009 and For TRO [Temporary Restraining Order] and Injunction Against Transfer of Petitioner to Algeria. The matter is now fully briefed.

In its Opposition to the Motion, the Government relies heavily on the representations made in three declarations, one of which was submitted ex parte so that Petitioner has not had an opportunity to read it, of Daniel Fried, the Special Envoy for the Closure of the Guantanamo Bay Detention Facility. Two of those declarations appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions (including Petitioner’s) filed before Judge Thomas F. Hogan of this Court, for an injunction against the transfer of certain petitioners held at Guantanamo Bay to other countries, including Algeria.1 Moreover, both of those two declarations are relatively old in that one was filed on July 9, 2009, and the second was filed on November 25, 2009. Obviously, the first two declarations are more than six months old. The classified ex parte declaration was filed much more recently.

Petitioner [bin Mohammed] has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.

These allegations are of great concern. It is essential that the representations of the United States Government that it has received assurances from the Algerian Government that any Guantanamo Bay prisoner who is transferred to that country will receive “humane treatment and treatment in accordance with the international obligations of the foreign government accepting transfer” be tested. November 25, 2009 Decl. of Special Envoy Fried at ¶ 6. Given the centrality of those representations and assurances to the future of Petitioner and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.

Unlike his D.C. District colleague Judge Kessler, Judge Reggie Walton shamefully (if secretly) did not heed a similar plea at about the same time from fellow Algerian and Guantanamo detainee Abdul Naji.

Naji, who quickly thereafter received the same treatment from the D.C. Circuit and the Supreme Court as bin Mohammed, was thus, as Jeff reported at the time, the first forcible rendition out of Guantanamo by the Obama administration, six months ago, in July, 2010 (not in 2002, as Jeff inadvertently wrote above in this post), without benefit of any habeas corpus order on the merits of his case. Last summer, as reported by Josh Gerstein, this was the reaction of David Remes, attorney for both men, to the forcible transfer of Naji to Algeria – a reaction that applies equally today to the D.C. Circuit-contrived, Supreme Court-blessed, Obama administration-effected refoulement this week of Farhi bin Mohammed, an unlawful U.S. prisoner for the last eight years, to Algerian custody:

“It’s tragic, the human dimensions here,” an attorney for Naji, David Remes, said early Saturday. “The court wouldn’t even pause long enough to consider the claims of these men who face torture or death if they return to Algeria. Our only recourse now is diplomatic and political and that’s by no means a sure thing.... We have reason to believe that the military will transfer these men as soon as Sunday or Monday. The Supreme Court has left them to the awful fate that awaits them.”

New Video Trailer for Powerful Documentary -- "Outside the Law: Stories from Guantanamo"

I'm thrilled that Andy Worthington has posted links to a YouTube video trailer for the powerful documentary he did with Polly Nash on Guantánamo. (See the video below.)

No one has done more than Andy in bringing the truth about what has happened to every one of the prisoners held at Guantánamo since the United States opened the torture camp to its first prisoners at Camp X-ray in January 2002.

“Outside the Law: Stories from Guantánamo” is a new documentary film, directed by Polly Nash and Andy Worthington, telling the story of Guantánamo (and including sections on extraordinary rendition and secret prisons) with a particular focus on how the Bush administration turned its back on domestic and international laws, how prisoners were rounded up in Afghanistan and Pakistan without adequate screening (and often for bounty payments), and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism (as missionaries or humanitarian aid workers, for example).

The film is based around interviews with former prisoners (Moazzam Begg and, in his first major interview, Omar Deghayes, who was released in December 2007), lawyers for the prisoners (Clive Stafford Smith in the UK and Tom Wilner in the US), and journalist and author Andy Worthington, and also includes appearances from Guantánamo’s former Muslim chaplain James Yee, Shakeel Begg, a London-based Imam, and the British human rights lawyer Gareth Peirce.

Focusing on the stories of Shaker Aamer, Binyam Mohamed and Omar Deghayes, “Outside the Law: Stories from Guantánamo” provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.

Throughout the tour, Omar, Andy and Polly (and other speakers) will be focusing on the plight of Shaker Aamer, the only one of the film’s main subjects who is still held in Guantánamo, despite being cleared for release in 2007, and despite the British government asking for him to be returned to the UK in August 2007.

“Outside the Law: Stories from Guantánamo”was launched in October 2009, and has already been screened as part of the Human Rights, Human Wrongs Film Festival in Oslo in February. It is a featured film in the forthcoming London International Documentary Festival in London at the end of April (date tbc), and is currently on a UK tour, with Andy and former prisoner Omar Deghayes (who are both featured in the film) travelling to the venues for post-screening Q&A sessions.

Forthcoming screenings are as follows (and a more detailed list can be found here):

Monday March 22, 5.30 pm: University of Dundee, Dalhousie Building, Old Hawkhill/Balfour Street, Dundee.

Tuesday March 23, 6 pm: University of Aberdeen, Lecture Theatre Fraser Nobel 1 (FN1), King’s College, Aberdeen.

Wednesday March 24, 7.30 pm: Augustine United Church, 41 George IV Bridge, Edinburgh.

Thursday March 25, 7 pm: Adelaides, 209 Bath Street, Glasgow.

Monday March 29, 5.45 pm: London South Bank University, London.

Wednesday March 31, 6.30 pm: The University of Nottingham, Room B63, Law and Social Sciences Building, University Park, Nottingham.

Tuesday April 20: Cardiff University.

Tuesday April 27, 6 pm: The University of Essex, Wivenhoe Park, Colchester.

Tuesday May 4: Aston University, Aston Triangle, Birmingham.

Wednesday May 5, 6 pm: Birmingham Library Theatre, Paradise Place, Birmingham.

Tuesday May 11, 5.30 pm: Newcastle University, Lecture Theatre 3, Herschel Building, Newcastle-upon-Tyne.

Further dates will be added. Please bookmark the main tour page to keep up to date.

Andy Worthington is the author of The Guantánamo Files. “Outside the Law: Stories from Guantánamo” is a Spectacle Production (74 minutes, 2009), and copies of the DVD are now available. 

“Outside the Law” is essential viewing for anyone interested in Guantánamo and other prisons. The film explores what happens when a nation with a reputation for morality and justice acts out of impulse and fear. To my mind, Andy Worthington is a quintessential force for all things related to the journalism of GTMO and its inhabitants. As a military lawyer for Fayiz al-Kandari, I am constantly reminded that GTMO is ongoing and that people still have an opportunity to make history today by becoming involved. “Outside the Law” is a fantastic entry point into the arena that is GTMO.
Lt. Col. Barry Wingard, attorney for Guantánamo prisoner Fayiz al-Kandari

Silence from the White House on Guantanamo Abuse

Andy Worthington has a timely and important article today, titled "Who's Running Guantanamo?"

On Jan. 20, the answer to that question seemed obvious. In his inaugural speech, with George W. Bush standing just behind him, President Obama pointedly pledged to "reject as false the choice between our safety and our ideals" – a clear indication that, as he promised in a speech in August 2007, he would dismantle the extralegal aberrations of the Bush administration's "War on Terror"....

President Obama requested the military judges at Guantánamo to call a halt for four months to all proceedings in the military commissions at Guantánamo....

The day after, he signed his first executive orders, stating that Guantánamo would be closed within a year, upholding the absolute ban on torture, ordering the CIA to close all secret prisons, establishing an immediate review of the cases of the remaining 242 prisoners in Guantánamo, and requiring Defense Secretary Robert Gates to ensure, within 30 days, that the conditions at Guantánamo conformed to the Geneva Conventions....

Worthington goes on to describe a struggle within the Pentagon to defy Obama's stay on prosecutions as it pertained to Saudi prisoner Abdul Rahim al-Nashiri. Ultimately, the convening authority of the military commissions at Guantanamo dismissed charges against al-Nahiri, though he is charges can be re-filed again later.

As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.

Worthington concludes:

... although Bradley's account indicates that the crisis in Guantánamo is such that ongoing discussions about implementing the Geneva Conventions should be replaced by urgent intervention to address the prisoners' complaints (and alleviating the chronic isolation in which most of the prisoners are held would be a start), the conditions in Guantánamo have been met with a resolute silence from the Pentagon and the White House.

Will it really take another death in Guantánamo – the sixth – to provoke a response?

Reactions to Obama/Holder Injustice in Jeppesen Case

Ateqah Khaki, from the National Security Project, in an article posted at ACLU Blog of Rights, has described the significant press reaction following the Obama Administration's decision to claim "state secrets" in their argument to the Ninth Circuit Court of Appeals to drop plaintiffs' plea to let their suit against Boeing subsidiary Jeppesen Dataplans, Inc. go forward. ACLU attorneys argued the case for plaintiffs.

It is public record that Jeppesen knowingly participated in the CIA extraordinary rendition program, providing critical flight planning and logistical support services and aircraft crews. Jeppesen employees were even known to brag about their services to the CIA program. One managing director told Jane Mayer of The New Yorker:

"We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way."

The five men involved in the lawsuit, which was dismissed by a lower court in February 2008 thanks to the Bush administration's inappropriate assertion of "state secrets privilege," that release of information in court regarding the case would supposedly harm national security. The men had been forcibly disappeared by the Jeppesen-serviced CIA program and sent from countries like Sweden, Gambia, Pakistan, and Jordan and flown to secret detention and torture in CIA prisons, or by CIA proxies in Morocco and Egypt, or elsewhere.

One of these five, Binyam Mohamed, lies near death on hunger strike in Guantanamo prison, where U.S. authorities are pondering his release to return to Britain. One of Mohamed's attorney's, Lieutenant-Colonel Yvonne Bradley, an American military lawyer, has written an appeal for his release, published in today's UK Guardian. She describes some of what her client is currently suffering. This, not yesterday's Obama press conference, displays the real face of American power and how it is used:

Guards told Binyam that he was going home in December, and so he is on hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day – he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.

The Joint Task Force, which runs Guantánamo Bay, gives me no information about Binyam. When I called to enquire about his condition, they said first, that they would look into it and then that they would tell me nothing and that I should make a Freedom of Information request, which would have taken months to process. Therefore, whenever I want information about Binyam, I have to make the 5-hour trip to Guantánamo. Each time, he asks why he is still there.

It is worth bearing in mind that all charges against Binyam have been dropped and that Binyam's chief prosecutor resigned, citing the unfairness of the system.

Meanwhile, outrage continues to pour out regarding the injustice of the Obama administration's actions in court on Monday. The Los Angeles Times highlighted the incredulity of one judge regarding the government's argument to dismiss the Jeppesen case:

At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government’s lawyer that he was not convincing.

"So any time the executive branch of the government says the fact is classified, it means it cannot be examined?" Hawkins asked Letter.

Letter, noting that national security was at stake, told the court it should "not play with fire" by permitting the suit to go forward.

"Nor should the government in asserting [secrecy] privilege," Hawkins shot back.

The New York Times editorialized today against the Obama Department of Justice actions:

The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law....

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred....

The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

The simple truth is this: the government has had years to make their cases against the Guantanamo detainees. If they cannot bring a case today, the detainees should be released. They could be given provisional residency status in the United States, pending final disposition. Those for whom their is acceptable evidence of crimes could be turned over to federal courts and charged and tried accordingly. Binyam Mohamed should be released immediately. Britain has already indicated they are ready to accept him.

The news last week that President Obama is still considering some kind of modified version the hated military commissions to try Guantanamo prisoners should be dropped. The U.S. courts can handle any appropriate prosecutions. Whether its bogus military commissions or "state secrets privilege" to torpedo accountability lawsuits, why doe the U.S. government want to keep these issues out of American courts? One good reason: their actions and programs would not withstand legal scrutiny.

FYI: The ACLU has posted a link so everyone can hear the oral arguments made last Monday in the Jeppesen case.

Obama Reneges on Justice for Torture Victims, Embraces Bush Secrecy Doctrine

Today, new Attorney General Eric Holder's Justice Department embraced Bush administration claims of "state secrets" in the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. Jeppesen's involvement in the "torture flights" of an undetermined number of terror suspect abductees, making a tidy profit for themselves in the meantime.

The New York Times reported on how the deal went down in San Francisco earlier today:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Even the judges seemed surprised by the government's seeming apostasy from its previous public proclaimations about openness.

It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.

Justice Department spokesman Matt Miller shook off criticisms of the government's actions:

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.

Meanwhile, ACLU executive director Anthony Romero had a few choice words for the administration:

"Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

Barack Obama has gotten quite a free ride from the "change" and "hope" crowd. When he quickly issued executive orders closing the CIA "black site" prisons and shutting down the CIA's "enhanced interrogation" torture, including waterboarding, much of the liberal and human rights world shouted, "Torture is over." Guantanamo would be closed (within a year), and the whole world could rest easy that the humane and totally vetted Army Field Manual would guide interrogators and protect vulnerable prisoners from the brig at the Naval Base at Charleston, South Carolina to the U.S. run prison at Baghram Air Base in Afghanistan.

Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."

But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.

Yesterday, I wrote this:

Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documentation secret.

This is almost exactly the same point Ben Wizner of ACLU made to Glenn Greenwald, regarding the claims of state secrets in the Jeppesen case:

Wizner noted one last fact that is rather remarkable. The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?

The question is, of course, rhetorical in nature, because I think only the blind do not know the answer to that.

It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.

This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.

What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?

US/UK Cover-up on Torture, While Conditions Worsen at Guantanamo (Updated)

Controversy continues to mount over the suppression of key evidence of U.S. torture in the case of Ethiopian national, Binyam Mohamed, at the suspected behest of the Obama administration. UK High Court judges in the case wanted to release the evidence, but Foreign Secretary David Miliband prevented this, saying it would harm UK intelligence cooperation with the United States. The U.S. reputedly threatened a break in cooperation with British intelligence services if the torture evidence, which is part of a CIA file, was released. (Update: The Age has now published documentary evidence of the U.S. threat -- see below. H/T to Patriot Daily News Clearinghouse.)

Whatever threats were made, after the suppression of the evidence, and in the face of the protest by the UK judges, the Obama administration told BBC News it was grateful for the cooperation, i.e., the cover-up.

In a statement, the White House said it "thanked the UK government for its continued commitment to protect sensitive national security information".

It added that this would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens".

The UK ruling on the torture evidence was made in response to a legal challenge to the secrecy made by Associated Press, the Guardian, BBC and The New York Times, among other news organizations.

The controversy has made headlines in the UK, but U.S. media has remained compliantly mute, and that includes much of the blogging community. I could find almost no references to the Obama administrations response to BBC, except at Raw Story, and inside a blistering protest statement made ACLU's Anthony Romero. And among top name bloggers, only Chris Floyd and Glenn Greenwald noted the heavy-handed U.S. attempt. Floyd rightly assailed the supposedly liberal Democratic administration for acting "to preserve the presidential 'prerogatives' that Bush asserted to justify torture, eavesdropping and aggression."

But the story won't die, and today's Sunday Telegraph reports that, as suspected by some, the British were only too happy to suppress torture evidence because it clearly reveals the cooperation of British intelligence officers in the torture interrogation.

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain....

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

Update

The British newspaper The Age has published excerpts from copies of letters from the U.S. State Department to the British Foreign Service. The letters were apparently obtained by Britain's Channel 4.

"I write with respect to proceedings … regarding Mr Binyam Mohamed," the letter said. "We note the classified documents identified in your letters of June 16 and August 1, 2008, to the acting general counsel of the Department of Defence … the public disclosure of these documents or of the information contained therein is likely to result in serious damage to US national security and could harm … intelligence information sharing arrangements between our two governments."

Channel 4 revealed that a week later the State Department wrote again to the Foreign Office to make clear the consequences if British courts released the paperwork detailing allegations of torture by US and British intelligence services.

"To the extent the UK proceedings are currently aimed at ensuring that the documents at issue will be before the convening authority before she makes her referral decision, this development further demonstrates the relief sought through these proceedings has been otherwise accomplished and no further action by the court is required," the letter said.

The Democratic Party backers of both Hillary Clinton and Barack Obama had better ponder the meaning of these words, and ponder carefully. Do you really want to sell out torture victims and justice for good feelings and a handful of favorite programs?

Worsening Brutality at Guantánamo

Meanwhile, the UK Guardian is reporting that conditions are worsening for inmates at Guantanamo in the first weeks of Obama's administration.

[U.S. military attorney Lieutenant-Colonel Yvonne] Bradley, a US military attorney for 20 years, will reveal [in court on Monday] that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a "critical list", according to Bradley....

"The JTF [the Joint Task Force running Guantánamo] are not commenting because they do not want the public to know what is going on," [Bradley said].

"Binyam has witnessed people being forcibly extracted from their cell. Swat teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten. Binyam has seen this and has not witnessed this before. Guantánamo Bay is in the grip of a mass hunger strike and the numbers are growing; things are worsening.

Even more, the Guardian reports suspicions that some in the U.S. intelligence community would prefer to see Binyam die, so he can not testify to what he has seen and endured, and to prevent a lawsuit against U.S. and British authorities. One wonders if, like the Nazis who turned even more savagely against concentration camp prisoners as Allied armies bore down upon the fascist forces, JTF at Guantanamo isn't becoming more brutal in anticipation of its own less fiery, more juridical form of Götterdämmerung.

U.S. anti-torture and human rights activists, and progressives of all kinds, must demand the immediate closure of Guantanamo. Prisoners who have been imprisoned for years must be released, lacking any evidence of their danger, which can be reviewed promptly by a U.S. judge. Those for whom there may be evidence of crimes can be turned over to the U.S. justice system for timely and swift trial under the laws of the country's standing courts.

The Difficulty of Eradicating Torture

Torture is more than just the destruction of a human being's body or psyche. It destroys whole nations and cultures. The Bush administration accelerated trends in U.S. use of torture and coercion that go back over fifty years, from the CIA MK-ULTRA program to the joint U.S./South Vietnamese torture-assassination Phoenix Program in Vietnam that killed tens of thousands and tortured tens of thousands more, to the training of foreign torturers by the U.S. military.

Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documention secret. Names, if necessary, can always be blacked out.

All too often the news about torture takes on an unreal air, as the dark irrationalities behind it are obscured by legalistic arguments and political infighting. Hence, I want to close with an up-close look at the man whose name is most in the news about torture right now, Binyam Mohamed. The biography that follows is from the the British human rights group Reprieve, who has provided legal representation for Mr. Mohamed in the United Kingdom. While a horrifying story, it can also be read as tale of remarkable survival against barbaric treatment and torture by the United States and their rendition proxies. Currently Mr. Mohamed, still a prisoner at Guantanamo, is on a hunger strike. It is expected by many that he will be released from Guantanamo next week... if he doesn't die first.

Binyam Mohamed was born in Ethiopia and came to Britain in 1994, where he lived for seven years, sought political asylum and was given leave to remain while his case was resolved.

While travelling in Pakistan, Binyam was arrested on a visa violation and turned over to the US authorities. When they refused to let him go, he asked what crime he had committed, and insisted on having a lawyer if he was going to be interrogated. The FBI told him, ‘The rules have changed. You don’t get a lawyer.’

Binyam refused to speak to them. British agents then confirmed his identity to the US authorities and he was warned that he would be taken to a Middle Eastern country for harsh treatment.

On 21 July 2002, Binyam was rendered to Morocco on a CIA plane. He was held there for 18 months in appalling conditions. To ensure his confession, his Moroccan captors tortured him, stripping him naked and cutting him with a scalpel on his chest and penis. Despite this, Binyam said that his lowest point came when his interrogators asked him questions about his life in London, which he realized could only have been provided by the British intelligence services, and he realized that he had been betrayed by the country in which he had sought asylum.

Binyam’s ordeal in Morocco continued for about 18 months until January 2004, when he was transferred to the ‘Dark Prison’ near Kabul, Afghanistan, a secret prison run by the CIA, which resembled a medieval dungeon with the addition of extremely loud 24-hour music and noise.

Speaking of his time in the ‘Dark Prison’, Binyam said:

“It was pitch black, no lights on in the rooms for most of the time. They hung me up for two days. My legs had swollen. My wrists and hands had gone numb. There was loud music, Slim Shady [by Eminem] and Dr. Dre for 20 days. Then they changed the sounds to horrible ghost laughter and Halloween sounds. At one point, I was chained to the rails for a fortnight. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.”

From there he was taken to the US military prison at Bagram airbase, and finally, in September 2004, to Guantánamo Bay, where he remains.

In June 2008, the US Department of Defense put Binyam forward for trial by military commission, a novel legal system, conceived in November 2001, which was described by Lord Steyn, a British law lord, as a “kangaroo court.”

In the same month, lawyers at Reprieve, working with colleagues at Leigh Day & Co., sued the British government, demanding that they turn over evidence that could help prove both his innocence and the extent of his torture.

Clive Stafford Smith, Reprieve’s Director, said:

“I visited Binyam in Guantanamo just a week ago and he is in a very bad state. Surely the least the British government can do is insist that no British resident be charged in a kangaroo court based on evidence tortured out of him with a razor blade. If Binyam’s trial by military commission proceeds, all it will produce is evidence not of terrorism, but of torture, which will embarrass both the British and the American governments.”

A judicial review of Binyam’s case took place in the high court at the end of July 2008. The result, which will determine whether or not the British government is obliged to hand over evidence relating to Binyam’s rendition and torture, is expected in mid-August.

Letters to Binyam should be sent to:
Binyam Mohamed
ISN 1458
Camp Delta
US Naval Base Guantánamo Bay
Washington, DC 20355
USA

Late additions to this posting: A video interview with Shami Chakrabarti, Director of Liberty (formerly the British National Council for Civil Liberties), talking on the Binyam Mohamed case (see embed), and an editorial from the L.A. Times blasting the government on rendition and the "state secrets" privilege. Thanks to buhdydharma for these links!

ACLU: Obama on Torture, Secrecy -- "More of the same"

Times Online reported that United Kingdom judges in the case of Binyam Mohamed have were told they had to keep evidence of Binyam's torture. ACLU has now accused Obama of "a complete turn-around and undermining of the restoration of the rule of law" and "hiding the abuses of its predecessors" in the Binyam Mohamed case. Anthony D. Romero, Executive Director of the American Civil Liberties Union, said in a statement today: "Hope is flickering. The Obama administration's position is not change. It is more of the same."

From the ACLU's statement:

After the British High Court ruled that evidence of British resident Binyam Mohamed's extraordinary rendition and torture at Guantánamo Bay must remain secret because of threats made by the Bush administration to halt intelligence sharing, the Obama administration told the BBC today in a written statement: "The United States thanks the UK government for its continued commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens."

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"Hope is flickering. The Obama administration's position is not change. It is more of the same. This represents a complete turn-around and undermining of the restoration of the rule of law. The new American administration shouldn't be complicit in hiding the abuses of its predecessors."

When the ACLU learned of the High Court's ruling earlier today, it sent a letter to Secretary of State Hillary Rodham Clinton urging her to clarify the Obama administration's position relating to the Mohamed case and calling on her to reject the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.

And here is the money quote from Romero's letter to HRC:

The court's opinion specifically stated that attorneys for British Foreign Secretary David Miliband told the court that the United States' threat on the effect of publication on intelligence cooperation was continued by the United States, despite the inauguration of President Obama.

Specifically, the justices stated that, "it was submitted to us by Mr. David Rose that the situation had changed significantly following the election of President Obama who was avowedly determined to eschew torture and cruel, inhuman and degrading treatment and to close Guantanamo Bay. We have, however, been informed by counsel for the Foreign Secretary that the position has not changed."

The claims made by the British justices that the United States continues to oppose publication of the judgment in the Binyam Mohamed case--to the point of threatening the future of U.S.-British intelligence cooperation--seems completely at odds with both the anti-torture and transparency executive orders signed by the President. We strongly urge you to clarify the position of the United States and remove any threat related to the publication of the court's full judgment.

See Raw Story article

Death of a "Dirty Bomb" Frame-up

Andy Worthington has an excellent article at AlterNet analyzing the recent decision by Bush's Justice Department to drop "dirty bomb" charges against British resident and Guantánamo prisoner Binyam Mohamed, the so-called co-conspirator with Jose Padilla to construct and detonate a "dirty bomb" on U.S. soil.

For over three years, Binyam's lawyers at Reprieve, the London-based legal action charity, have been arguing that the allegations against Binyam were extracted through the use of torture -- in Morocco, where Binyam was tortured for 18 months, after being rendered by the CIA, and at the CIA's own "Dark Prison," near Kabul, where he was held for four or five months from January 2004, before his transfer to the U.S. military prison at Bagram airbase, and his eventual arrival at Guantánamo in September 2004.

U.S. authorities got Binyam to "confess" under torture that he had met with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla to discuss the "dirty bomb" plot. Except guess what? Abu Zubaydah and al-Libi were already in U.S. custody on the date of Binyam's "confessed" plot. The U.S. knew this, too, and continued to torture and prosecute Binyam. And now that the Justice Department has dropped its charges, the Department of Defense, which is conducting the notoriously unjust military tribunals at Guantanamo says it's still "reviewing" Binyam's case.

Mohamad was one of five Guantanamo detainees who had charges dropped against them. (They are not free, however, and the U.S. says there are other charges and further investigation and review to be undertaken.) In Binyam's case, it's widely suspected dropping certain charges were meant to forestall the release of documents proving torture and other mistreatment, and British High Court judges have been highly critical of U.S. conduct in the case. "Torturers do not readily hand over evidence of their conduct," the judges are quoted as saying.

The military tribunals are so unfair that one of its chief prosecutors, Lt. Col. Darrel J. Vandeveld, quit over the handling of evidence in the Mohammed Jawad case, and went public with his criticisms of the frame-up trials. He was the fourth prosecutor to resign from Bush's military kangaroo courts. A Los Angeles Times article on Vandeveld described the former prosecutor's actions:

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly convicted without that evidence, Vandeveld testified that he went from being a "true believer to someone who felt truly deceived" by the tribunals. The system in place at the U.S. military facility in Cuba, he wrote in his declaration, was so dysfunctional that it deprived "the accused of basic due process and subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Vandeveld is a hero for trying to expose what he called "the creeping rot of the commissions." The reaction from his military colleagues? While some have been supported, there was also "outrage and condemnation," and now this Army Reserve officer fears for his safety and that of his family.

But then this is the final act of a brazen coven of war criminals. George W. Bush announced the other day that he was not going to close Guantanamo -- in fact, he had never even considered it. Meanwhile, his Defense Department made it clear that if it was up to them, no one would ever be released from that facility. The U.S. government is trying to undo the sentence of Salim Hamdan, whose years at Guantanamo were to be counted in his final five year sentence, administered as part by one of the Pentagon's military commissions. While Hamdan should be freed in December, the government is appealing, hoping to keep Hamdan in prison at least another five years, and maybe forever.

“The length of the sentence is a matter of indifference to us,” Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could resentence him to however many days remained until then.

Marcion has covered the recent events in some depth over at Daily Kos, and his article there is worth reading. His summary makes some essential points:

And for anybody who thinks that the Guantanamo horror stories are the exception, and that after the detention center is closed under the next administration, or after these terror show trials end, that all will be back to normal, I have to say - this is normal. These publicized cases are merely shedding light on an inherently unfair and fixed system. Just as the Trotsky/Bukharin show trials revealed the truth about the entirety of the fixed Soviet justice system, these show trials reveal the same truth about the American system. Our prisons are filled with people whose only crime was attracting the attention of some cop cruising for an arrest. Once somebody is arrested, the prosecutors go to work trying to fix the case so as to get the maximum sentence possible, and the cops cooperate with providing the evidence or testimony that the prosecutor will need to get the conviction, by torturing their prisoner within the bounds of the law (i.e. no permanent bruising). The majority of jurors, being good Americans, are also convinced that justice equals longest sentence possible, and that cops never lie, but defendants always do. Any jurors that show any hesitation or moral qualms are kicked during voir dire. A prosecutor or cop who shows some qualms about pulling out all the stops sees their career come to a grinding halt quickly, while the guys who get convictions get promoted and eventually become judges.

The "justice" of Guantanamo has already come to America, along with the torture and the indefinite detention and obliteration of civil rights. As a follow-up, the reader could go read my recent posting, Battle Over Habeas -- Torture Inc. Comes to America.