Military Attorney Testifies "No Acceptable Basis" for Military Commissions Proposal

Andy Worthington has published excerpts from Lt. Col. David Frakt’s July 30 testimony (PDF) to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, House of Representatives Judiciary Committee. I'm reposting the concluding remarks of Lt. Col. Frakt to the committee, but the entire article and testimony are definitely worth reading. (H/T to Jason Leopold, who reposted Worthington's article at The Public Record.)

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try.

If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000.

But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war.

In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law.

The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates, the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative.

The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years.

Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration.

We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

David Frakt was the military attorney for Guantanamo prisoners Mohamed Jawad and Ali Hamza al-Bahlul. He is also a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

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The Foreign Press, Salon.com, & the Army Field Manual

On September 7, 2006, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons showed up at a State Department foreign press briefing on the then-new DoD Directive 2310.10E (on its detainee program) and the also then brand-new Army Field Manual on interrogations. Only the day before, Kimmons and Stimson had held a news briefing for U.S. reporters at the Department of Defense on the same subjects, which I covered in a recent article at AlterNet.

While few bloggers paid attention to the September 6 DoD briefing (except one noted reporter, as I'll note later), most likely that was because President Bush had one of his infrequent news conferences the same day, and this one was a blockbuster. Bush acknowledged the existence of a secret CIA prison network. He also announced he was ordering the transfer of Khalid Sheikh Mohammed and 13 other "high-value detainees" to Guantánamo Bay to be put on trial.

As the Guardian UK described it:

Mr Bush's disclosure was intended to put pressure on the US Congress to support draft legislation put forward by the White House yesterday for a system of military tribunals for the Guantánamo detainees.

The US supreme court struck down the military tribunals established by the administration for the 450 inmates at Guantánamo last June, ruling that they had no basis in US law and violated the Geneva Convention [Hamdan v. Rumsfeld].

The pressure of the Bush administration to get a military commissions process in place, to replace the one thrown out as unconstitutional by the Supreme Court, resulted later that year in Congressional passage of the Military Commissions Act. As described by the ACLU, this infamous legislation, passed with the support of the vast majority of the GOP and certain key Democrats, eliminated "the constitutional due process right of habeas corpus for detainees at Guantánamo Bay and elsewhere." It also:

...[gave] any president the power to declare — on his or her own — who is an enemy combatant, decide who should be held indefinitely without being charged with a crime and define what is — and what is not — torture and abuse.

With so much going on at Bush's news conference, who would notice the goings on at DoD, with the decidedly less glamorous Kimmons and Stimson? But one reporter did notice the confluence of events that day. In an article for Salon.com, journalist Mark Benjamin, who had been covering the torture beat for awhile, noted the "mixed messages on torture" emanating from the White House and DoD. While Bush was defending "tough interrogation tactics" and "black site" secret prisons, the DoD spokesmen were lauding the new Army Field Manual as "designed to fit squarely within the protections of the Geneva Conventions." Benjamin quoted Kimmons approvingly, describing the AFM as "humane" and in accord with the views of "conventional senior generals."

Benjamin failed to notice, or report, that the bulk of the Q&A session with reporters at that news conference concentrated on serious questions about whether the Army Field Manual allowed abuse itself, particularly in its Appendix M, which describes an omnibus "technique" called "Separation." Appendix M allows the use of isolation, sleep deprivation, and various forms of sensory deprivation on prisoners, mostly to be used with other AFM "approaches," like "Fear Up," "Ego Down," and "Futility."


The reporters grilled Kimmons and Stimson on the AFM and its use of solitary confinement and sensory deprivation. But you wouldn't know that from Benjamin, the alternative and progressive reporter, whose coverage of the event was as obtuse as that of the mainstream press. (See here or here for the full story of that news conference.)

The Foreign Press Have Their Say

The same day Salon.com was publishing Benjamin's article, and the mainstream press was assessing Bush's news conference, Stimson and Kimmons traipsed over to the State Department to give their briefing to the foreign press on 2310.10E and the Army Field Manual. Also in attendance were Brigadier General Thomas L. Hemingway, Legal Adviser to the Appointing Authority, Office of Military Commissions, and Sandra Hodgkinson, State Department Deputy Director, Office of War Crimes Issues.

During the State Dept. news conference, Reymer Luever, from the German newspaper Suddeutche Zeitung, tried to nail down Lt. Gen. Kimmons on the use of the "Separation" technique and the applicability of Geneva Common Article Three. As we will see, skepticism from the press was met with double-talk, and a misrepresentation of the situation of "unlawful enemy combatants" and Geneva protections (bold emphasis added):

QUESTION: Thank you very much General Kimmons. You mentioned the 19 interrogation techniques and the 19 interrogation technique [S]eparation. You mentioned that this isn't covered by -- or is an exception from the Geneva Convention. Are there other exceptions from the Convention, the new manual?

LTG KIMMONS: Well, I take issue with you that it's an exception from the Convention. It's the wording in the Geneva -- the third Geneva Convention that causes us to place separation as a restricted technique and not to employ against prisoners of war or lawful combatants. It is the wording and the requirements of Geneva and the definition within Geneva of what is a lawful enemy combatant, what is a prisoner of war. And clearly al-Qaida and the Taliban and the people we are dealing with now in large portions, you know, of the battlefield do not fit the standard established in Geneva for prison of war or other types of lawful enemy combatants. And therefore, according to Geneva, those type of enemy combatants are not -- are just like spies and saboteurs in the older days. And traditionally are not entitled to the same protections under Geneva.

"Like spies and saboteurs"? Where did Kimmons come up with that? The reference is to the Fourth Geneva Convention on "Protection of Civilian Persons in Time of War." Of course, no one from DoD wants to refer to this GC, because they would have to admit that such prisoners had rights even beyond those in Common Article 3, which protect against violence, "cruel treatment and torture." For instance, there's Article 31:

No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Common Article 3 of the Geneva conventions does not explicitly forbid coercion. Kimmons is correct that the POW Geneva convention has a higher standard, forbidding all forms of coercion upon a POW. Unfortunately, the GCs don't define what they mean by "coercion." But the CIA's 1963 Kubark interrogation manual does.

Jennifer Elsen, in an an essay on the "Lawfulness of Interrogation Techniques Under the Geneva Conventions," in The Treatment of Prisoners (ed. R.D. McPhee, 2006, Nova Science Publishers), pointed out that the CIA distinguished between coercive and non-coercive interrogations. Coercive interrogations were those "designed to induce regression," producing a loss of general cognitive capacities, including the ability to deal with complex situations, or the ability to "cope with repeated frustrations." The tools of the coercive interrogator include the induction of fatigue, pain, sleep loss, anxiety, fear, and the "deprivation of sensory stimuli through solitary confinement or similar methods."

According to the Civilian convention, for which any prisoner, "including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause," which definition being part of Common Article 3 the U.S. government accepts for those captured in their "war on terror," spies and saboteurs have "forfeited rights of communication." Does this mean one can lock them up and throw away the key? The Civilian convention goes on:

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

"Full rights and privileges of a protected person"... that doesn't sound like one could be subject to coercive interrogation, does it?

Let's go back to the briefing, and pick up just where we left off. Kimmons, asked if there exceptions to Geneva in the AFM, had noted that unlawful enemy combatants were "not entitled to the same protections under Geneva" as prisoners of war. But in his very next sentence, Kimmons continued, in an entirely different, and confusing vein:

As a matter of law here in the United States, we are going to provide the same single standard for humane treatment to all categories of detainees, both lawful and unlawful combatants.

That same legal requirement does not require us to afford additional privileges above and beyond that standard to unlawful combatants. And that's why separation is placed -- separated to it.

I'm sorry, could you repeat the second part of your question.

QUESTION: My question was are there other -- what I have called exceptions from the Convention in the field manual?

LTG KIMMONS: No. In accordance, as a matter of law, only those interrogation approach techniques that are listed in -- authorized by the Army Field Manual, this field manual, can be employed on any class of category of detainee across the Department of Defense.

The last statement makes no sense when compared with Kimmons remarks during his opening statement, remarks to which Mr. Luever alluded in his question above. For in that statement, Lt. Gen. Kimmons stated (bold emphasis added):

Separation meets the standard for humane treatment, but the Geneva Conventions, specifically the third Geneva Convention, affords prisoners of war, lawful enemy combatants, additional protections above and beyond the single humane standard to which they're entitled. It entitles them to pay, entitles them to send and receive mail and packages, and it also protects them from separation from other prisoners of war with whom they were captured without their expressed consent.

Unlawful combatants are not entitled to those additional protections and privileges above the humane standard. So Geneva -- the common third -- Common Article 3 of the Geneva Conventions applies to all categories of detainees' [there may be missing text in the transcript here] [S]eparation, however, is only authorized for use on a by-exception basis with unlawful enemy combatants.

Threading the eye of the needle, DoD means to say one thing one moment and another thing the next. What's clear is that they believe Separation is not a group of techniques that can be used on regular POWs, only "unlawful enemy combatants." But the privileges enumerated by the third Geneva Convention -- Kimmons lists pay, getting mail and packages -- does not include in its text, as Kimmons maintains, the right not to experience "separation," i.e., solitary confinement, sleep and perceptual deprivation, etc.

This can all get quite confusing, but seems to boil down to this. The Pentagon, and perhaps their CIA mentors, want to slice and dice the Geneva Conventions at their will, in order to allow the core program of coercive interrogation as laid down by the CIA's Kubark manual, using the Army Field Manual and Appendix M as their primary device. Because of the Abu Ghraib scandal, they want to hide or forbid all types of treatment that became notorious due to press exposure, and that includes the revelations around waterboarding. But the induction of regression, of a paradigm the CIA referred to as DDD (Dependency, Debility, Dread), is still at the core of the coercive techniques they intend to rescue for their use.

And because of the ignorance or indifference, or in some cases, collusion, of the press and politicians, it appears that they will get their way.

Tale of a Broken Link

I had wanted to go back and review the entire foreign press briefing again, but, as described below, the webpages for it were gone. I tried to use the handy Wayback Machine, but it apparently was never logged or entered there. [UPDATE: Edger at Docudharma has successfully negotiated the Wayback Machine when I apparently couldn't. The URL for the State Department briefing is here, via a cache of the page. The State Department webpages themselves are still gone, and I've left the old links in for documentary purposes. So please read the following keeping that in mind. Big H/T to Edger!]

[Update, 1/13/2014: The following paragraphs were written to describe my difficulties finding the press conference transcript. However, I have since found a copy of that in archives section of the State Department's website. I am leaving the following paragraphs as written because historically it is what was written, but the link to the transcript has been fixed in the story above. For reference, again, here is the link.]

As this story "goes to press," I discovered that the link to the transcript of the State Department/Kimmons/Stimson briefing for the foreign press, hosted at State Department servers, is now defunct. A search of the site brings up old links to the appropriate html file, but the file itself is gone. The file I used was titled thus (found only now through a Google cache, where it was listed along with other foreign press briefings):

--09/07/06 Department of Defense Directive on Detainee Operations, the Release of the Army Field Manual for Human Intelligence Collection and an Update on Military Commissions; Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs; Foreign Press Center Briefing; Washington, DC -- Official Transcript

I should note this does not appear to be a global deletion of State Department files by date, as a different State Department document, that is, yet another briefing to the foreign press earlier on the same date (9/7/06) as the Kimmons/Stimson briefing, this time with State Department Legal Advisor John Bellinger, is available on State Department servers under the title "Press briefing on detainee issues and military commission legislation."

The difference between these two briefings? While the foreign press asked good hard questions during the Bellinger briefing, none concerned specifics about the Army Field Manual -- no embarrassing questions about "separation" or sensory deprivation.

Yet, I cannot conclude there is any grand conspiracy regarding any missing webpages, since, upon looking, there appear to be plenty of other missing or scrubbed files from the Bush years, through 2008. Is this routine house-cleaning, or something else? I honestly don't know. I only know that the transcript to the briefing was there a few months back, and I apologize to readers for quoting and reporting upon an event that one cannot now fact-check for accuracy.

After the Election: a Preview

Glenn Greenwald at Salon.com has succinctly made the point about the pending Obama victory, saving me the trouble of writing it out in my own strained syntax:

It certainly seems, by all appearances, that Barack Obama and Joe Biden will win on Tuesday (though anything can happen, don't assume anything, etc. etc.). For reasons I've explained many times before, I consider that to be a good and important outcome (principally due to the need to excise the Right from power for as long as possible). But the virtually complete absence from the presidential campaign of any issues pertaining to the executive power abuses of the last eight years -- illegal eavesdropping, torture, rendition, due-process-less detentions, the abolition of habeas corpus, extreme and unprecedented secrecy, general executive lawlessness -- reflects how much further work and effort will be required to make progress on these issues no matter what happens on Tuesday.

It doesn't help that Obama has already voted with the national security fetishists on FISA expanded wiretapping.

On the other hand, Barack Obama came out publicly and strongly against the 2006 Military Commissions Act (which McCain supported). The MCA established the unfair military commissions that allowed evidence obtained by torture, upheld indefinite detention of prisoners, and in general gave a green light to U.S. torture. Yes, Obama spoke out against the MCA, but consider his reasoning:

But politics won today. Politics won. The Administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.

* And yet, we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we may have accidentally rounded up and mistaken for terrorists - people who may stay in prison for the rest of their lives....

* And yet, we have Al Qaeda and the Taliban regrouping in Afghanistan while we look the other way. We have a war in Iraq that our own government's intelligence says is serving as Al Qaeda's best recruitment tool. And we have recommendations from the bipartisan 9/11 commission that we still refuse to implement five years after the fact.

The problem with this bill is not that it's too tough on terrorists. The problem with this bill is that it's sloppy.

Note Obama's insistence on being even rougher or smarter with the "terrorists" than Bush. He's repeated this numerous times during the election. He has to know that the Global War on Terror, like its antecedent and policy cousin, the War on Drugs, is a cover for imperialistic control and covert operations by the U.S., including intervention in the sovereign affairs of other states, often engaging in terrorist actions of our own (assassinations, sabotage, etc.). (Liliana Segura made much the same points in her more extended, and interesting article on "Obama and Torture" last February.)

I don't think I've heard one word in this election about reining in the CIA's use of torture, or about extraordinary rendition. When Obama was asked during the campaign if he would support the prosecution of Bush administration figures for crimes such as torture, he famously replied:

"If crimes have been committed, they should be investigated," he said. But he quickly added, "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems to solve."

The economic crisis has polished Obama's liberal credentials, mainly through the popularity of the tax-the-rich, and make jobs/build infrastructure program proposed by the Democratic candidate. But in so many ways, thus far Obama promises little will change in U.S. military policy. Bush's swagger and bellicosity may soon be gone -- and thank god for that! -- but the logic of events will continue to bring U.S. "interests" into conflict with those of other countries, especially economic interests. At such times, the political elite is fond of reminding us of Clausewitz's dictum that "War is a continuation of politics (Politik) by other means."

Perhaps the unfolding of the coming crises in Central and South Asia, Africa, and South America will push the American president to the left. But I wouldn't count on it. Perhaps it will be the political genius of Barack Obama that he can put off the day of reckoning, in which the thrust of U.S. influence to be supreme around the globe will meet its catastrophic confrontation. Again, though, I think not. Here's Obama's own take on projecting national security interests abroad, highlighting the need to

create a more robust capacity to train, equip, and advise foreign security forces, so that local allies are better prepared to confront mutual threats.

The U.S. has actually been doing that for years. The program is called "School of the Americas," and is based in Fort Benning, Georgia. I don't hear anyone talking about shutting it down, not even "socialist" Obama.

SOA/ WHINSEC [Western Hemisphere Institute for Security Cooperation, the "new" name for SOA, since 2001] graduates have included some of the worst and most notorious human rights abusers in Latin American history, and for much of the world, the school, under any name, is synonymous with torture and impunity. SOA graduates have led military coups and are responsible for massacres of hundreds of people. Among the SOA's more than 60,000 alumni are notorious dictators Manuel Noriega and Omar Torrijos of Panama, Leopoldo Galtieri and Roberto Viola of Argentina, Juan Velasco Alvarado of Peru, Guillermo Rodriguez of Ecuador and Hugo Banzar Suarez of Bolivia. SOA graduates were responsible for the Uraba massacre in Colombia, the El Mozote massacre of 900 civilians in El Salvador, the assassination of Archbishop Oscar Romero and the massacre of 14-year-old Celina Ramos, her mother Elba Ramos and six Jesuit priests in El Salvador and hundreds of other human rights abuses. Closing the school would send a strong human rights message to Latin America and the world.

It will be an important moment in U.S. history for an African-American to be elected president. But after all the celebrations die down, the same old issues will be there. The political awakening of the U.S. population has barely begun. The forms of struggle against the entrenched power of the national security state and the military-industrial-technological complex that supports it have yet to be worked out.

However you look at it, the defeat of Bush acolyte McCain, and his right-wing populist-cum-demagogue Alaskan running mate, will be a good thing. But much struggle lies ahead, and the election of Obama does not necessarily portend a major change in U.S. foreign or military policy. A President Obama will get his honeymoon, but what comes after remains to be seen.

How You Can Help: A Letter to the Convening Authority, Guantanamo

The following letter has been faxed to the defense counsel of Mohammed Jawad, currently due to stand trial as part of the military tribunal process at Guantanamo. A juvenile when arrested in Afghanistan, Jawad's likely innocence, and his abuse at the hands of both Afghan and U.S. captors has been well documented. His attorney, Major David Frakt, is asking interested individuals and organizations to write similar letters on his client's behalf.

There is also a petition covering the primary details of the case, and asking for withdrawal and dismissal of charges against the former teenage combatant. I urgently ask my readers to at least consider signing the petition. A great wrong can be undone, if you help and take action.

The text of my letter:

September 7, 2008

The Honorable Susan J. Crawford
Convening Authority
Office of Military Commissions
1600 Defense Pentagon
Washington DC 20301-1600

Dear Madam Convening Authority,

I am writing in regards to the case of Mohammad Jawad. It is my understanding that you are currently considering a defense request for withdrawal and dismissal of charges on Mr. Jawad. I strongly support the defense motion.

This case has particular interest for me, as in my professional role as a licensed psychologist, I have worked with victims of torture from multiple countries around the world, both as a psychotherapist, and in a forensic role. I have been certified as an expert witness in the immigration court of the Department of Homeland Security.

According to multiple sources I have perused, Mr. Jawad has suffered from coercive interrogation and abusive conditions of incarceration, including during such time as he was a minor. I am not accusing the authorities of deliberately abusing Mr. Jawad at this time, but I am concerned about his mental condition. I believe he is held in solitary confinement in a windowless cell, subjected to 24-hour lighting and constant observation.

The following is my understanding of the treatment Mr. Jawad endured since his capture as a child soldier in Afghanistan in December 2002:

According to a recently released report by Amnesty International, USA: From ill-treatment to unfair trial. The case of Mohammed Jawad, child ‘enemy combatant', Afghan police coerced a confession out of the 16 or 17-year-old prisoner. He was transferred to U.S. custody at Baghram Airbase, where he put his thumbprint to a confession written in a language (Pashto) he could neither speak nor write. Jawad then, as a teenager, was "subjected to isolation, sleep deprivation, cruel use of restraints, hooding, forced standing, stress positions, and physical assaults as part of the interrogation process." Transferred to Guantanamo Naval Air Base, he was placed in isolation and repeatedly interrogated, all without recourse to legal counsel.

As a psychologist myself, I was horrified to read that young Jawad endured multiple episodes of 30-day isolation upon the "recommendation of a psychologist with Guantánamo’s Behavioral Science Consultation Team (BSCT) who suggested that he was feigning homesickness and depression as a technique to resist interrogations." Even after Mr. Jawad reportedly made a suicide attempt in December 2003, he was subjected to Guantanamo's "frequent flyer" program, which, according to a Washington Post article I read last month, consisted of moving Jawad and other prisoners "repeatedly from cell to cell to cause sleep deprivation and disorientation as punishment and to soften detainees for subsequent interrogation."

While I am not an attorney, Madam Convening Authority, there are elements of the law under which Mr. Jawad is held that seem to advocate for a withdrawal of charges against him. I have heard that the Acting Chief Prosecutor responsible for swearing and forwarding the charges against Mohammad Jawad has testified he was unaware of any abuse of Mr. Jawad at the time charges were initially sworn, and has said since that, as a matter of personal ethics, he would not swear charges against someone he believed to have been tortured.

Then, there is the matter of Mr. Jawad's status as a child at the time the alleged crimes took place. (I say "alleged," since recent events call into question whether Mohammad's very culpability. Additionally, the charges were only filed against him five years after his incarceration.) Under international law, child soldiers are considered primarily to be victims of war, not war criminals (even unto age 18). The United Nations Committee on the Rights of the Child has emphasized that the right to be promptly charged and brought to trial within a reasonable time is something that should be especially emphasized in the case of a child. Mr. Jawad's rights have been violated as function of U.S. detention policy.

Nor is there any reason to believe Mr. Jawad is a "war criminal" (the primary purpose of the Military Tribunals being to prosecute "war crimes"). As the Amnesty report cited above makes clear, throwing a grenade is like any other attempt to kill a soldier in an armed conflict. It is not a crime of war unless the attempt to murder is "hors de combat," that is, against someone "not engaged in military action as a result of illness, injury, capture or surrender, or unless the method used to carry out the attempted killing violates the law of war." While I am no soldier, I believe use of a grenade, by whatever side of an armed conflict, against an armed opponent, is not a war crime.

Finally, I respectfully ask that you consider the following points:

· Mohammad Jawad is the only person charged under the Military Commissions Act (MCA) who has not been charged with terrorism, nor material support for terrorism, or even with conspiracy.

· Unique among those charged under the MCA, Mohammad Jawad is the only person is not even alleged to have any affiliation with al Qaida or the Taliban

· No one died in the attack allegedly perpetrated by Mohammad Jawad.

It is difficult for me to understand what purpose the prosecution of this young man currently serves. I believe the defense motion to withdraw and dismiss charges against Mohammad Jawad has legal merit, and certainly makes sense from a humanitarian point of view. I further hope that the Convening Authority will respond fairly and reasonably in the matter of any new evidence that comes to light which casts doubt on earlier decisions.

I thank you for your attention in this matter, and am confident that when you review all of the matters in extenuation and mitigation of Mr. Jawad's case, you will rule in favor of withdrawal and dismissal of charges.

Sincerely yours,

J---- K-----, Ph.D.
San Francisco, CA
September 7, 2008

Please, don't wait. GO SIGN THE PETITION NOW. And please note, if you are moved to write your own letter, please do not send it directly to Susan Crawford at the address I've noted in the letter. Instead, letters are to be sent to:

Major David Frakt
Office of Military Commissions - Defense
1099 14th St. NW. Ste 2000D
Washington DC 20005

Major Frakt will be delivering all materials, including letters and petition signatures directly to the Convening Authority after Friday, September 12 (the deadline). Letters can be faxed to (202)761-0510 (Attn: Major Frakt).

McCain, POWs, & the Stab in the Back

I have never been tortured. But I have worked clinically with those who have, including U.S. POWs. I can tell you it breaks the mind and the body, the soul and the spirit, in a way that can never be forgotten.

Now John McCain cites his experience as a POW and torture victim as an anodyne to every mildly injurious political attack. While his painful experience as a POW matters in the history of the man, in our nation's history, what matters now is that McCain has betrayed that experience, and the lives of thousands he could both know and not know. In doing so, he also betrayed the ideals of American fair-play and justice, going back to George Washington (who forbid his revolutionary army to engage in torture, even if the British did). As everyone should know, those ideals were not realized fully, and we are still fighting for them today. But McCain has trampled them in the mud.

This is about how John McCain, a victim of years of incarceration and of torture during the Vietnam War, helped pass the Military Commissions Act, working to leave prisoners, including prisoners he knew were innocent, in solitary confinement as "enemy combatants", and subjected to CIA torture, which was the diabolical program of George W. Bush and Dick Cheney. Only a few months ago, one could find McCain railing against a Supreme Court decision that gave Guantanamo detainees the right to challenge their detention in a U.S. court. For McCain, who languished for years in prison, it is okay if America's prisoners rot in jail forever.

McCain betrayed the rights of prisoners established by the Geneva conventions, maybe rights he did not enjoy fully as a POW himself, so all the more awful when he betrayed them and turned captives of American military power into long-term prisoners and victims of torture.

One can honor the suffering of an individual, any individual, for no man is an island, and every person's suffering diminishes me. Therefore, one can honor John McCain's suffering and the hell he endured -- as we would any human being who experienced what he did.

But no one can honor the machinations of a shameless politician who prostitutes his own suffering, turns the moral lessons of his own torture on its head, and sells out all those who would endure what he endured... for the modern equivalent of thirty pieces of silver -- electoral office.

McCain stabbed his fellow POWs in the back. This isn't about whether he confessed under torture, or whether he funded veterans issues, or not. This is about how he took the lessons it was his sad destiny to suffer, and turned them into their opposite.

In pushing and voting for the MCA, with its provisions against habeas corpus, and its endorsement of so-called "enhanced" interrogation techniques, such as waterboarding, McCain has committed a great moral sin. He has done this in the name of pride and power.

His defeat, his fall should be a lesson to all who would cynically pander their own hard suffering, and abandon those brothers and sisters in pain and loss, his fellow prisoners, captured in war or during civil conflict, held captive in nation after nation, by guerrilla or terrorist group, by the West or the East, by believer or infidel, prisoners both male and female, of all religions, creeds, and nationalities.

In the end it all comes down to this. When all eyes were upon him, McCain supported torture. And in doing so, he stabbed all prisoners in the back.

Also posted at Daily Kos

Supreme Court Slaps Bush, Congress on Habeas Corpus

By a 5-4 vote, the Supreme Court has 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." The MCA was pushed by Bush, and overwhelmingly approved by Congress, including both supposed anti-torture politician John McCain and many Democrats.

From Justice Kennedy's majority opinion:

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....

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law....

Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. [Thanks to Phil at Daily Kos for the quotes]

The decision was a defeat for the attack on civil liberties championed by the Bush administration, which has led to years of indefinite detention and torture of prisoners at Guantanamo and other prisons in the U.S. gulag established in the wake of 9/11 and Bush's invasions of Iraq and Afghanistan. While championed by Bush, Cheney, et al., this tyrannical program of rights suspension and abuse has been backed by the Democratic Party, or at least a significant section of the party, which voted for MCA, the Patriot Act, and other anti-democratic legislation, and has also failed to hold the Bush Administration to account for any of their crimes.

The latest example of the failure of the Democratic Party leadership was the shameful suppression of Congressman Dennis Kucinich's resolution to impeach George W. Bush. Despite a throrough vetting of the crimes of the Bush administration in a speech that lasted over four hours on the House floor, the Democrats voted practically unanimously to send the bill to an ignominious fate: a referral to committee, where the bill could languish unheard and ignored for eternity, if need be. Democratic Party chair Howard Dean explained, "The American people sent us there [to Congress] to get things done... They didn't send us there to impeach the President." The failure to get anything of note done in this current Congress belies Dean's statement, and stands as mute testimony to the impotence of the mainstream Democratic Party's opposition policies.

To remind us of the Democrats role in the habeas controversy, let's refer back to an excellent article Glenn Greenwald wrote in May 2007:

It is worthwhile to review briefly the history of how this legislative atrocity came to be. When the White House proposed this bill, Democrats were as meek and as silent as could be. They literally disappeared from the debate, allowing the illusion of "negotiations" between the White House on the one hand, and a handful of allegedly principled and independent Republican Senators (McCain, Warner and Graham) on the other.

When -- as was both painfully predictable and predicted -- those Republican Senators capitulated almost in full to the White House, "winning" only the most meaninglessly symbolic linguistic changes to the bill while acquiescing to its most Draconian provisions, the fate of the bill was sealed because Democrats had ceded their authority to those "rebel" GOP Senators....

It is true that most Democrats in both the House and Senate ultimately voted against this law (though 12 Democratic Senators out of 44 voted in favor). But even among the Senate Democrats who did vote against its enactment, many of them did not even reveal how they would vote until -- literally -- the very day before the vote occurred, and many such Democratic Senators announced their opposition only once it became clear that it would pass....

Far worse, many Democrats -- led by Harry Reid (who at the last minute announced his opposition) -- even spoke favorably of the MCA in the days immediately preceding the vote.

In all the disgust and even hatred that Bush's bellicose and autocratic and illegal policies have engendered, it becomes easy to forget that the Democrats acted way too often as a handmaiden to Bush, beginning with the Patriot Act, and further to the Iraq War. Even today, the supplemental funding bills for the continuation of U.S. military adventures and occupation policies in Iraq and Afghanistan are seen by the Democrats as opportunities to bargain for concessions on other issues, e.g., unemployment insurance, rather than as opportunities to secure principled opposition to a failed war policy. Along these lines, Speaker Pelosi now promises she'll deliver Bush's $170 billion war funding bill by July 4 (how patriotic of her).

The euphoria in certain circles over Obama's candidacy masks some very important political realities that cannot be ignored. The recent Supreme Court decision in the consolidated cases of Boumediene v. Bush and Al-Odah v. Bush is very welcome news. But in very important ways, it also points out how very, very far off the track politics in America has gone.

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.

Action Diary! Your help needed RIGHT NOW to stop torture

Politics is about timing and tactics. By a unique confluence of events, and the way the CIA and military organized their methods of interrogation, a serious weakness in their ability to conduct torture has been discovered. If we strike now -- with letters, faxes, emails, etc. -- we can put a great deal of pressure on a particular vulnerable group who has the ability to greatly hamper the ability of the U.S. government to torture.

When the government researched coercive interrogation in the 1950s and 1960s, they put a great deal of emphasis on the psychological means of understanding human beings, and then using this knowledge to break human beings down. Now, psychologists at the American Psychological Association are trying to stop members from participating in this criminal process, just as members of other health organizations have so prohibited their members.

The psychologists are fighting what seems like a losing battle. But the struggle isn't finished. It is time to reach out to the public to exert their influence on the insular APA leadership. What follows is a brief description of the situation, followed by a direct action call for messages to be sent to key figures at APA.

A Moratorium Against Psychologist Participation in Torture

Stephen Soldz has a good diary up right now at Daily Kos that explains how the American Psychological Association is trying to deep-six a resolution that calls for a moratorium on psychologist participation in torture interrogations at places like Guantanamo Bay prison.

One year ago (!), Neil Altman, an APA psychologist, presented a resolution that was non-binding, but called for APA to take a stand against psychologist participation in foreign intelligence interrogations, after the passing of the Military Commissions Act of 2006 made clear that cruel and unusual methods of interrogation, if not outright torture, would be allowed, and that Bush would decide what met Geneva treaty norms and what didn't.

APA leadership could have fast-tracked this resolution, but they sunk it under a thousand tons of bureaucratic verbiage and the full weight of the serpentine process that is approval of a proposal at APA. Here's a snippet of the response to Dr. Altman's resolution by the Ethics Chair of APA, Dr. Stephen Behnke, dated 11/1/06:

In reviewing the item, the Ethics Committee had several points of observation that it offers for your consideration and on which it requests your feedback.

First, the Committee noted the phrase “U.S. detention centers.” The Committee was uncertain as to the intended scope of this term, which interpreted broadly could include any facility where individuals are detained, for example psychiatric hospitals, jails and prisons, or INS centers....

Second, the Committee noted the term “foreign detainees” and was unclear what group of individuals you wished to identify. Do you, for example, mean individuals who are not
citizens of the United States?

Uh, well, what's the definition of a "detention center"? What's a "foreign detainee"? -- Behnke and the APA leadership seek to bury the resolution the way a high priced lawyer destroys a poor litigant by filing multiple motions. They would make a simple statement of honest integrity, a statement easily made, for instance by the American Psychiatric Association and the American Medical Association, into a case as dense and eternal as Jarndyce vs. Jarndyce.

We have been through all this before with APA. Avila wrote a great diary back in 2006 explaining how APA reversed an earlier stand on torture to make their membership available for Guantanamo and similary interrogations. I followed up with an explanation of how phony legal arguments inserted into an anti-torture resolution at an APA conference rescued the use of torture for the CIA and Pentagon.

According to the U.S. Declaration to the UN Convention on Torture, psychological harm or suffering is defined as NOT COMING from psychological forms of torture. -- Of course, it doesn't SAY this outright, but that's what IT'S MEANT to allow, by art of legal definition.

I don't want to rehash the entire controversy here. Suffice it to say -- and please go read more, following the links -- both the U.S. government and the American Psychogical Association leadership have consprired to keep the legal and organizational justifications in place to allow psychological forms of torture to continue.

By psychological torture, I mean sensory deprivation and sensory overload, sleep deprivation, isolation, manipulation of time and temperature, inducement of phobic fears and humiliation, forced stress positioning, and the propagation of psychological futility. There is a wealth of evidence that shows such techniques break down the nervous constitution of human beings, inducing psychosis and long-term psychological damage, primarily PTSD.

The Strategic Place of Mental Health Professionals in CIA-style Torture

When the American Psychiatric Association saw fit to forbid its members from participating in Bush's torture interrogations, the Pentagon made it clear it would turn elsewhere -- and by that, they meant psychologists!

Of course, the American Psychological Association was quick to not that its psychiatric sister organization was not proposing a total moratorium, allowing "training to military or civilian investigative or law enforcement personnel... on the possible medical and psychological effects of particular techniques and conditions of interrogation".

That wasn't good enough for the Pentagon, who announced on June 7, 2006:

Pentagon officials said Tuesday that they would try to use only psychologists, and not psychiatrists, to help interrogators devise strategies to get information from detainees at places like Guantánamo Bay, Cuba....

Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, told reporters that the new policy favoring the use of psychologists over psychiatrists was a recognition of differing positions taken by their respective professional groups.

(Yes, this is the same Winkenwerder who had to resign over the Walter Reed scandal.)

As far back as 1963, in the text of its infamous KUBARK counterintelligence interrogation manual, the CIA made clear its need for psychological expertise in interrogations. What follows is from the CIA's "Interrogator's Check List":

The questions that follow are intended as reminders for the interrogator and his superiors....

6. Does the interrogators selected for the task meet the four criteria of (a) adequate training and experience, (b) genuine familiarity with the language to be used, (c) knowledge of the geographical/cultural area concerned, and (d) psychological comprehension of the interrogatee?

7. Has the prospective interrogatee been screened? What are his major psychological characteristics? Does he belong to one of the nine major categories listed in pp. 19-28? Which?...

42. Is solitary confinement to be used? Why? Does the place of confinement permit the practical elimination of sensory stimuli?...

44. If hypnosis or drugs are thought necessary, has Headquarters been given enough advance notice? Has adequate allowance been made for travel time and other preliminaries?

45. Is the interrogatee suspected of malingering? If the interrogator is uncertain, are the services of an expert available?

By the early 21st century, the use of psychological personnel was bureaucratically soldified via the formation of Behavioral Consultant Teams or BSCTs ("biscuits"). As described by Arthur Levine at Washington Monthly:

[Guantanamo Commander] Major General Geoffrey Miller believed strongly in breaking detainees down, and that psychologists were crucial to this effort. (Miller would later be dispatched to Abu Ghraib to “Gitmo-ize” the prison by giving advice on detainee treatment, where, according to one general, he told subordinates that detainees should be “treated like dogs.”)

Miller approved the creation of Behavioral Science Consultation Teams (BSCTs), which would include psychologists and other medical professionals. In theory, these “biscuit teams” would advise interrogators on how to develop a rapport with detainees, but in practice, things were less Dale Carnegie-esque. When one army psychologist and APA member helped interrogate Mohammed al-Khatani, the supposed “20th hijacker,” some of the techniques used included stripping Khatani naked, giving him intravenous fluids to force him to urinate on himself, exercising him to exhaustion, and making him roll over and perform other dog tricks. The interrogation log includes such psychological observations as “detainee seemed too comfortable.”

Anti-torture Psychologists Need Our Help!

Very few psychologists I speak to think they can really get the APA to back down from their pro-government position. And they may be right, if the fight is limited to only a dispute within APA!

We need to broaden this struggle. The blogosphere has responded to other crises with letters, faxes, phone calls and other forms of legitimate political protest when the issue has called for it.

It is time to bring the struggle against torture to the leadership of the APA. They must hear the voices of the society as a whole, shouting NO to torture, and NO to psychologist participation in coercive interrogations.

Here's How

Write or call the APA:

American Psychological Association
750 First Street, NE
Washington, DC 20002-4242
(800) 374-2721
(202) 336-5500

Write and call, now. Let them know how upset you are.

Send an email to the Public Affairs Office of the APA, expressing your outrage:

public.affairs@apa.org

Phone the Ethics Office directly at (202) 336-5930 or use APA's toll free number (800) 374-2721, extension 5930, and give them a piece of your mind.

And finally, write to the President of the APA, Dr. Sharon Stephens Brehm. Be nice, be polite, but be firm (this is true for ALL communications).

Dr. Brehm has a web page, Ask the President. Follow the link to leave an email message directly for her.

If we apply enough pressure, it might make the APA stand up and take notice. Don't forget to write your congressman/congresswoman and senator, too!

WE CAN DO IT!

We don't have to be powerless. We aren't helpless. Write, call, email today. Copy this diary's URL and send it to your friends.

I want to see APA inundated with thousands of messages saying "Stop torture. Stop psychologist participation in coercive interrogations. Support Dr. Altman's moratorium".

Together, we can prevail.