Where's the "Pathway" for Closure of Guantanamo?

Last Friday, November 9, Elisa Massimino, President and CEO of Human Rights First (HRF), hosted a press call with retired Rear Admiral Don Guter. HRF, along with a number of other human rights and legal groups, are calling upon President Barack Obama to fulfill his January 2009 pledge to close Guantanamo's detention facility.

Admiral Guter was the Navy's Judge Advocate General in 2000-2002. Last January, along with 14 other high-ranking former officers, Guter signed an open letter to President Obama calling for the immediate closure of Guantanamo.

The retired military officers were willing to put the blame on Obama's failure to keep his promise on a recalcitrant Congress.

"We recognize the political opposition you have faced in attempting to honor your commitment," Guter and the others wrote. "Congress has repeatedly restricted your ability to transfer detainees held there who have been cleared for release. Congress has also restricted your authority to bring criminal suspects held at Guantanamo to justice in our time-honored federal criminal courts. However, despite these restrictions, we are asking you to act within the discretion available to you to move our nation forward in closing Guantanamo once and for all."

But according to a question I posed to Guter last Friday, neither Obama nor anyone in his administration even bothered to reply to the 15 former "high-ranking former officers," which included General Joseph Hoar (USMC, ret.), former Commander in Chief of U.S. Central Command, and Major General Antonio Taguba, who headed the Army's investigation into the Abu Ghraib torture scandal.

But this didn't deter Admiral Guter, who maintains that Guantanamo is "still the symbol of the torture and the other horrific acts that took place down there, and still a symbol of delayed justice which we’re still experiencing." He added that Guantanamo's ongoing detention program has become a "recruiting tool" for U.S. enemies abroad. [Quote updated on 11/14 from an earlier version of this article, thanks to a transcript of the press call provided by HRF]

A Pathway?

Both Guter and Massimino maintained that there was a "pathway" for the closure of Guantanamo and the release of the 86 cleared detainees. But they would not be more specific about what it would be. Massimino indicated that a "policy blueprint" on the topic would be released during an HRF summit in the the first week of December.

I asked whether such a "pathway" would include the use of recent changes in the NDAA guidelines that would allow the Secretary of Defense to issue waivers that would guarantee the necessary security assurances for release. (For those who want Shaker Aamer released, for instance, such an action, long desired, is only a Leon Panetta signature away.)

It seemed that HRF's "pathway" would include such "flexibility in the waiver process", but more specifics were frustratingly withheld, no doubt awaiting the full roll-out of the programmatic call next month. However, Massimino did indicate that HRF will ask Obama to "task someone" to work specifically on the Guantanamo issue.

Despite the perspicacity of HRF and Admiral Guter in sticking with the Guantanamo issue, the reliance on faith in President Obama appears to be misplaced. Not only has he ignored those who have implored him on the issue in the past two years (including Admiral Guter himself), but his administration continues to do what it can to go after whistleblowers on torture (like John Kiriakou), who file suit against administration officials for torture (the latest defeat was in the Vance-Ertel suit against Rumsfeld), and press the Bush-era military commissions invention, only slightly modified from that of the previous administration.

No Accountability for Torture

The list of those who have escaped accountability for torture is getting to be a very long one, as attorney Jesselyn Radack wrote in an article recently about the Kiriakou guilty plea, noting the cover-ups have  spanned two administrations. (I'd note that her list mostly comes from the CIA and DoJ, but there are plenty of DoD operatives who could have been mentioned, too.)

Jose Rodriguez, Enrique "Ricky" Prado, Deuce Martinez, Alfreda Bikowsky, all of the lawyers who said it was legal, including my law school contemporary John Yoo (enjoying his tenured professorship) and now-federal judge Jay Bybee, twisted psychiatrists, including criminal contractors James Mitchell and Bruce Jessen, not to mention all of the names we still don't know of the anonymous masked brutes who kidnapped, rendered, beat, waterboarded, and deprived prisoners of the basic human dignities mandated by the Geneva Conventions.

Nor is it clear that a closure of Guantanamo -- should it indeed come -- wouldn't be primarily to cover-up on-going U.S. interrogation and detention crimes at Bagram, or other U.S. black sites from Somalia and Libya to Afghanistan. Indeed, Moon of Alabama has tied the current David Petraeus scandal and resignation to revelations about a CIA detention site in Benghazi, Libya.

But the clearest sign of political weakness on the torture issue lies in the relative disinterest in the topic by the vast majority of the press. During the press call with HRF, mine was the only question by the press. I can't know how many were present during the press call, but I wouldn't be shocked if the turnout was very low.

So, I don't have much faith in the Obama administration doing the right thing. But maybe HRF, Guter, and others will be successful in the long run. Unfortunately, I believe it will take a massive social struggle to change the torture policy of the U.S., as it has long been linked to a military and political policy of support for dictatorial regimes abroad, to such a degree that the problem has become systemic.

The U.S. cannot give up its torture habit, one that goes back decades now, way before Bush and Obama, even if Guter and his co-thinkers believe they can make U.S. military practice more ethical. I wish them luck, but I just don't have the requisite faith they have.

More Cover-up? Senate Committee Renews Hearings on SERE Torture

There will be a meeting of the Senate Armed Services Committee [SASC] this Thursday, September 25, 9:30 AM in Room SD-106, Dirksen Senate Office Building. The meeting represents "Part II of the Committee's inquiry into the treatment of detainees in U.S. custody." The full committee, in open hearing, will "receive testimony on the authorization of Survival Evasion Resistance and Escape (SERE) techniques for interrogations in Iraq."

My readers will remember that in the Part I of the SASC SERE-related hearings last June, Lt. Col. Daniel Baumgartner revealed in his prepared statement that Richard Shiffrin, a Deputy General Counsel in the Department of Defense, had approached him in his capacity as Chief of Staff, Joint Personnel Recovery Agency (JPRA), in December 2001. Mr. Shiffrin apparently asked the now-retired Baumgartner for information related to "exploitation" processes, and the effects of captivity upon prisoners.

For those unfamiliar with this controversy, and the cast of characters involved, JPRA is the umbrella organization with the Pentagon for dealing with captured military personnel. The SERE program -- standing for Survival, Evasion, Resistance, Escape -- operates in all branches of the military to train soldiers how to withstand torture and abusive detention. The SERE program has been accused of sending psychologists to train special operations, prison psychologists and psychiatrists, military psychologists and god knows who else how to mistreat and even torture prisoners in order to gain information. Such techniques include "fear up harsh," forced nudity, stress positions, hooding, slapping, sleep deprivation, sexual humiliation, sensory overload, and even waterboarding. This was made clear in a memo that accompanied the SERE Standard Operating Procedures manual at Guantanamo in 2002 (emphasis added):

The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to "break" SERE detainees. The same tactics and techniques can by used to break real detainees during interrogation operations.

Timelines and Smokescreens

The timeline regarding when Shiffrin contacted Baumgartner regarding information that could be used to abusively treat prisoners is crucial. Senator Carl Levin concentrated on a later contact between Shiffrin and JPRA, in late July 2002. The vast majority of the media followed suit. Even stalwart Mark Benjamin at Salon.com, who has reported so well on much of the torture controversy, followed Levin's emphasis when constructing his own "Timeline to Bush Government Torture."

But Baumgartner says that SASC staff convinced him with documentary proof that he talked to Shiffrin about these issues approximately eight months earlier!

This places DoD interest in possibly reverse-engineering of SERE techniques prior to the January 9 memo by John Yoo providing legal cover to Bush administration assertions that the Geneva Conventions did not apply to detainees held in the new war in Afghanistan. In addition, it predates the January 25 memo by Alberto Gonzales, then a presidential counsel, approving the Yoo argument, and stating that when it came to interrogation of enemy prisoners, the Geneva conventions' "strict limitations on questioning" such prisoners was now obsolete.

Why does this matter? Because if DoD, and by implication Rumsfeld, Cheney, Bush, Rice, or whomever, were seeking guidance on torture before even their poorly-written and largely derided cover-your-ass memos were written, supposedly allowing torture or cruel, inhumane treatment of detainees, then DoD/Rumsfeld/Bush/et al. have no defense any more. They are war criminals in violation of both international and federal law. One would almost have to prosecute them, if the system is to have any credibility at all. Bush would have to be impeached.

But, the general response to these revelations has been... silence. When I was able to ask Senator Levin why the documents related to Baumgartner's Dec. 2001 discussions with Shiffrin were not made public, he replied (via Firedoglake "liveblog" discussion):

Lt. Col. Baumgartner did so testify at our hearing. However information relating to his discussions with Shiffrin remains classified. When our report is finalized we will press the DoD to declassify this matter.

I say these documents are too important to wait to ask nicely for declassification. They represent potential evidence of a serious felony and war crime.

This Thursday, the witnesses are Colonel Steven M. Kleinman, USAFR, the Former Director of Intelligence, JPRA; and Colonel John R. Moulton II, USAF (Ret.), former Commander, JPRA. These witnesses should be asked specifically about their knowledge of any and all contacts between DoD, the CIA, or the White House and JPRA or SERE regarding "exploitation" of detainees. They should be specifically asked about the December 2001 calls from Shiffrin.

The Lindh Connection

It seems very possible that the requests from Shiffrin in late 2001 were related to the interrogation of John Walker Lindh, a young American captured with Taliban forces in late November 2001. According to a June 2004 Los Angeles Times report, Lindh was interrogated for days, naked and tied to a stretcher, confined in a large metal container, and subjected to sleep and food deprivation. His wounds were not treated. Military intelligence officers were not freelancing Lindh's interrogation, however, but getting instructions, sometimes hourly, from Secretary of Defense Rumsfeld's office.

According to the LA Times report:

The instructions from Rumsfeld’s legal counsel in late 2001, contained in previously undisclosed government documents, are the earliest known evidence that the Bush administration was willing to test the limits of how far it could go legally to extract information from suspected terrorists....

The documents, read to The Times by two sources critical of how the government handled the Lindh case, show that after an Army intelligence officer began to question Lindh, a Navy admiral told the intelligence officer that “the secretary of Defense’s counsel has authorized him to ‘take the gloves off’ and ask whatever he wanted.”

The memos regarding Lindh and the Baumgartner Dec. 2001 documents all remain classified. Jesselyn Radack has said in her book, The Canary in the Coalmine, that she has a copy of the Lindh memo, but nothing has been made public yet.

[Adding to the mystery, Ms. Radack's website promoting her book has gone off line or been purchased by someone else. Here's the cache of the page promoting her book; here's the current (broken) link. The book is not available or even listed at Amazon.com, either. This sudden disappearance comes only weeks after I ordered my own copy of Radack's book online at her website. Hmmm....]

I don't hold out much hope that anything but a sanitized version of the truth awaits us at September 24 hearings, but that doesn't mean we shouldn't put the heat on. But we'll have to have a better showing from the press than we have had thus far, if anything is to come from all this "investigation" but more cynicism and despair.

"The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings."

Radack on OIG/FBI Whitewash; Kurnaz on Life Inside Gitmo

Former Justice Department ethics advisor, Jesselyn Radack, who blew the whistle on illegal abuse in the case of John Walker Lindh back in the early days of the U.S. war in Afghanistan, has a blistering article up at Daily Kos, castigating the Office of the Inspector General for its "demi-candor" whitewash on the FBI role in "war on terror" interrogations. U.S. citizen Lindh was beaten seriously, "duct-taped naked to a board, and had government officials posing with him for pictures." Radack explains:

In 2001, I told the Criminal Division, which was advising the FBI in Afghanistan, that Lindh could not be interrogated without his counsel. That was on a Friday. The Criminal Division called back on Monday and said that the FBI had interrogated him anyway. They wanted to know what to do. I advised that the interview would have to be sealed and used only for national security purposes or intelligence-gathering, not criminal prosecution. Again, my advice was ignored.

Three months later, I inadvertently learned of a discovery order, which had been deliberately concealed from me, for all Justice Department correspondence related to Lindh's interrogation. When I went to comply, my e-mails had been purged from the file. With the help of technical support, I recovered them from my computer, turned them over to my boss, took home a copy in case they "disappeared" again, and resigned.

As the criminal case barreled toward trial, the Justice Department continued to assert that Lindh was never represented by counsel and that his rights had been "carefully, scrupulously guarded." I did not believe the Justice Department would have the temerity to make public statements contradicted by its own court filings if my e-mails had indeed reached the court. So I blew the whistle, which unleashed a torrent of retaliation....

In 2002, my lawyer made it abundantly clear to the OIG that I took several steps to thwart efforts to conceal material regarding Lindh's interrogation from the court. In January 2003, Inspector General Glenn Fine, who issued the recent FBI report, told my attorney that the OIG had looked into my whistleblower allegations and was not going to pursue them. (OIG did not look too searchingly because it did not even bother to interview me, the complainant.) To add insult to injury, OIG turned my case over for criminal prosecution, which eventually closed with no charges ever being brought. But the Justice Department was not through with me yet. It put me on the "No-Fly List" and referred me to the state bars in which I'm licensed as an attorney, based on a secret report - by the OIG - to which I did not have access. [emphasis in original]

The Justice Department OIG is a limited hangout, i.e., an admission of some crimes, but a cover-up of the total barbaric scenario unfolding in Bush's torture prisons. For a heart-rending but comprehensive look at what these detainees have endured, I strongly recommend Murnat Kurnaz's memoir, Five Years of My Life: An Innocent Man in Guantanamo.

A few excerpts from Kurnaz's book:

I looked around. This was truly nothing more than a ship's container with a door. The walls were reinforced by corrugated metal sheeting like the one in fairground stalls. Every surface -- the walls, the floor, the ceiling -- was covered with it. There was no mattress or wool blanket. A toilet and a sink were sunk into the floor. If I stared for too long at any one point of the metal sheeting I got dizzy....

The light went off. It was cold. The metal on the floor felt like ice.... I heard a rumbling. It was an air-conditioning unit mounted above the door. Icy air streamed in.... They've put me in a giant refrigerator.

After a while, I couldn't feel my hands or legs....

Sometimes I had to move to stop the cold, but I tried not to. I needed to save my energy since all I was given to eat was a piece of toast and a bit of apple, three times a day. but I had to move around sometimes, when it got colder.....

In late 2002, General Geoffrey Miller took over command of Guantanamo, and our situation dramatically worsened. The interrogations got more brutal, more frequent, and longer....

I was moved from one block to the next. The escort team would storm in, put me in chains, run with me through the corridors, push me to my knees, and leave me there. The whole procedure would be repeated an hour later.... I had to stand and kneel -- twenty-four hours a day....

In between transfers, I was interrogated... I estimated the sessions lasted up to fifteen hours.... I sat chained to my chair, or kneeling on the floor, and as soon as my eyelids drooped, soldiers would wake me with a couple of blows. (pp. 161-177)

Gov't Should Commute John Lindh Sentence

Earlier today, Jesselyn Radack asked, in a recommended diary, that Daily Kos readers "keep the heat up concerning the [John Walker] Lindh case, especially now that so many more people know (and can get the specifics from her book) and can start pushing the media on this."

Lindh's parents' hometown paper tells the story of their petition to George W. Bush to commute their son's sentence, in the wake of the David Hicks verdict.

Lindh, now 26, joined the Taliban in Afghanistan in the summer of 2001 after converting to Islam and was captured there and turned over to the U.S. military in late 2001.

He was the first person to be charged in a U.S. court in the post-Sept. 11 war on terrorism.

Lindh, who grew up in Marin, was initially charged with 10 counts but in a plea bargain pleaded guilty in federal court in Virginia in 2002 to two lesser counts of serving in the Taliban army and carrying weapons while doing so. Under the agreement, he was sentenced to 20 years in prison.

What the Marin Independent Journal story doesn't mention is that Lindh, who never fought any American troops and was never convicted of a terrorism charge, was tortured by his U.S. captors.
From Radack's book:

Lindh was found barely alive, shot in the leg, and suffering from dehydration, hypothermia and frostbite. Although Lindh was seriously wounded, starving, freezing, and exhausted, U.S. soldiers blindfolded and handcuffed him naked, scrawled “shithead” across the blindfold, duct-taped him to a stretcher for days in an unheated and unlit shipping container, threatened him with death, and posed with him for pictures. Parts of his ordeal were captured on videotape. Sound familiar?

At issue in the petition for commutation of the sentence is the issue of proportionality. Two other individuals were convicted on essentially the same charges -- and also treated with methods of torture and coercive interrogation -- David Hicks and Yaser Hamdi. Hicks received nine months in prison (on a 70-year suspended sentence). Hamdi renounced U.S. citizenship and was allowed to leave the country; he moved to Saudi Arabia.
From the Marin IJ article:

Brosnahan said the new petition has "updated information," but said he could not reveal the details.

Lindh is now being held in a maximum security prison in Florence, Colo., and is not allowed to communicate with the media. Brosnahan said Lindh is a "model prisoner" but said he could give no further information.

Lindh's mother, Marilyn Walker, said, "John has been in prison more than five years and it's time for him to come home."

The Justice Department, thus far, is said to have no comment.
President Bush should commute the sentence of John Walker Lindh.

Judge Rules Government Free to Torture [Updated]

Crossposted at NION and Daily Kos

U.S. District Judge Thomas F. Hogan ruled yesterday that Donald Rumsfeld, former (and reviled) Defense Secretary for George W. Bush, can't be held responsible for the torture he approved, as it was supposedly part of his government job. Three military commanders were also targets in the case and cleared by the court.

Logan began his opinion with the statement, "This is a lamentable case."

It's more than that. It's a goddamn criminal decision that allows the U.S. government to torture foreign nationals abroad at will, with no danger of ever being held accountable.

The case was initiated via a suit by the ACLU and Human Rights First. According to the New York Sun/AP article:

The lawsuit contends the prisoners were beaten, suspended upside down from the ceiling by chains, urinated on, shocked, sexually humiliated, burned, locked inside boxes, and subjected to mock executions.

Jesselyn Radack has posted an impressive legal deconstruction of Judge Hogan's ruling over at Daily Kos: APPEAL: Rumsfeld Cleared in Torture Lawsuit.

A case colloquially called Bivens [link added] authorized personal liability lawsuits against government employees for constitutional tort violations (wrongs that violate the Constitution). Here, for example, it sounds like there were Eighth Amendment excessive force violations, Fifth Amendment due process violations and Sixth Amendment right to counsel violations....

You are only entitled to qualified immunity if there's no violation of clearly established law.

Here, there were violations of clearly established law. Off the top of my head, I can think of domestic legislation (the 1994 federal anti-torture statute, the War Crimes Act of 1996, and the Military Extraterritorial Jurisdiction Act of 2000); human rignts law and treaties (the International Covenant on Civil and Political Rights, the Convention Against Torture, the Universal Declaration of Human Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, etc.); and international law and the Geneva Conventions.

Update 1:20pm PDT

Given the controversy [in the Daily Kos comment thread on this story], which interested readers should pursue there, over the legal jurisdiction for this case, i.e., whether the foreign plaintiffs had a right to bring this tort complaint against Rumsfeld, et al., I reprint my part of my comment answer here:

In their legal rationale posting, ACLU, etc. note:

Torture and Cruel, Inhuman or Degrading Treatment in Violation of the Law of Nations.

Every civilized country in the world recognizes fundamental human rights principles, including the prohibition against torture. These core principles are known as the "law of nations," and they are embodied in many documents that the United States has signed and ratified, including the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984). The prohibition against torture is a "specific, universal, and obligatory" norm, from which no derogation is allowed.

Is their rationale that victims of torture have a special standing because of torture laws?

In the portion of the actual suit that cites jurisdiction and venue, plaintiff's attorneys cite 28 U.S.C. § 1350 (the Alien Tort Statute). The latter states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

I don't know, but it looks to my layman's eyes that the aliens involved have a right to make a civil action when there is a violation in the law or of a treaty, which brings us back to the Bivens issue re government employee culpability.