Showing posts with label Torture. Show all posts
Showing posts with label Torture. Show all posts

January 10, 2011

DOD AGENCIES HAVE PROHIBITED WATERBOARDING, IG SAYS


Defense agencies have complied with a recommendation to prohibit the use of military survival training techniques -- such as waterboarding -- in prisoner interrogation, the DoD inspector general confirmed in a report (pdf) last year.

In response to a previous Inspector General report (pdf), a 2008 DoD directive (pdf) stated that "Use of SERE [survival, evasion, resistance, and escape] techniques against a person in the custody or effective control of the Department of Defense or detained in a DoD facility is prohibited."  Likewise, a 2009 memorandum for the military services and the Special Operations Command specified that use of "SERE techniques for interrogations of personnel in DoD custody or control is prohibited."

The 2010 IG report found that "all US Air Force, US Army, US Navy, US Marine Corps, and [Joint Personnel Recovery Agency] SERE training programs included, as part of their curriculum, a prohibition against the use of SERE techniques for interrogation of personnel in DoD custody or control."  See "Field Verification-Interrogation and Survival, Evasion, Resistance, and Escape (SERE) Techniques Recommendation," DoD Inspector General Report 10-INTEL-05, April 16, 2010 (released under FOIA in December 2010).

SERE training provides "a reasonable means to train [U.S. military personnel] for the most challenging captivity environment where captors do not abide by the Geneva Conventions," the IG report said.  But "the physical and psychological pressures developed for... SERE training were not intended for real-world interrogations.  Intelligence resistance training does not qualify a SERE Specialist instructor to conduct interrogations or provide subject matter expertise to those who are trained in that specialty."

December 03, 2010

U.N. Special Rapporteur Juan Méndez: Instead of Focusing on Assange, U.S. Should Address WikiLeaks’ Disclosures of Torture




Mendez

One of the leaked U.S. State Department cables released by WikiLeaks urges diplomats to gather intelligence about "plans and intentions of member states or UN Special Rapporteurs to press for resolutions or investigations into US counterterrorism strategies and treatment of detainees in Iraq, Afghanistan or Guantanamo." We speak to Juan Méndez, the new U.N. Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. He has called on the United States to investigate and prosecute torture committed under former President George W. Bush. He also said he hopes to visit Iraq and Guantánamo Bay to probe widespread torture allegations. Méndez says, "We seem to be focusing on whether disclosing these cables ... merits some kinds of action against Julian Assange... I’m very concerned about the documents that show that literally thousands of people were first imprisoned by American forces and then transferred to the control of forces in Iraq and perhaps even in Afghanistan, where they knew that these people were going to be tortured." [includes rush transcript]
Filed under WikiLeaks

November 18, 2010

INFORMED COMMENT: Bush-Cheney Use of Torture Derails Ghailani Prosecution

This is how George W. Bush and Dick Cheney got Ahmed Khalfan Ghailani, suspected of involvement in the bombing of two US embassies in East Africa in 1998, off hundreds of murder charges: They had him tortured.

Ghailani was convicted Wednesday of conspiracy to damage US government property, for which he could well face life imprisonment, but was acquitted of murder charges stemming from the deaths caused by the blowing up of the embassies.

The US right wing is jumping up and down and denouncing Attorney General Eric Holder for trying Ghailani in a civilian court instead of in a military tribunal, and implying that he got off because civilian law is more lax than that of the tribunals would have been.

For instance, Rep. Peter T. King (R-NY) thundered, “This tragic verdict demonstrates the absolute insanity of the Obama administration’s decision to try Al Qaeda terrorists in civilian courts.” King, defended Bush’s commitment to torturing people, saying “Bush deserves credit for what he did.” King should be aware that advocating war crimes itself was considered a crime at the Nuremberg trials.

In fact, the government case against Ghailani was undermined precisely by Bush and Cheney and their foaming-at-the-mouth supporters on the Right, which increasingly deserves to be called simply American Fascism. The case was undermined by the use of torture.

When Bush admitted in his memoirs to torturing people, he may as well have just grabbed the key from Ghailani’s prison guard and stuck it in the jail door and yelled for the Tanzanian to make a run for it.

Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who in turn provided the most damaging testimony against Ghailani.

As FDL perceptively wrote, it is possible that Abebe’s own testimony against Ghailani was itself coerced.

On Oct. 5, Judge Lewis Kaplan [pdf] excluded Abebe’s testimony, on the grounds that it was a a fruit of a poisonous tree, i.e. was only available to the prosecution because Bush had had Ghailani tortured (and maybe had had Abebe tortured, as well!)

That was why Ghailani could not be convicted of murder, as he from all accounts ought to have been. Had his connection to Abebe been discovered by ordinary questioning or by good police work, then the latter could have freely taken the witness stand. In fact, it seems to me very likely that Abebe would in fact have been discovered in other ways– from the record, e.g., of Ghailani’s cell phone calls, or even just from his own account of his activities.

King’s and others’ assertion that a military tribunal could have gotten a conviction on the murder charges is simply incorrect, as Judge Kaplan himself pointed out (h/t FDL):

‘ It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding.

Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the “MCA”). Evidence in such proceedings is governed by the Military Commission Rules of Evidence (“MCRE”). U.S. DEP’T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.).

MCA 948r(a) and MCRE 304 preclude or restrict the use of “statements obtained by torture or cruel, inhuman, or degrading treatment,” and evidence derived threrefrom, and could require exclusion of Abebe’s testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.’

The military tribunal still has to operate within the terms of the US Constitution, however much Bush and Cheney (and Peter King) may despise that document, and it is the constitution that would force any judge, military or civilian, to invalidate evidence obtained by torture.

It isn’t the fault of American civil justice, still among the best and most upright in the world. It isn’t Obama’s fault, or Eric Holder’s fault. It is the fault of the profound betrayal of American law and values by vapid thugs who want to take us back to absolute monarchy, to bills of attainder, star chambers, divine right of kings, and drawing and quartering and breaking at the wheel.

King and other members of Congress, who wish to make an end run around the constitution with their ‘military tribunals,’ are essentially violating the separation of powers, since the artificial tribunals operating beyond the bill of rights are a way for the legislative and executive branches to sidestep the judicial system so as to administer arbitrary ‘justice.’ This way of proceeding is essentially a bill of attainder:

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not.”

The actually existing constitution of the United States of American forbids bills of attainder (Article I, Section 9 ), as an abuse of the British Old Regime. If Tea Partiers had any integrity and actually stood for the values that their tricorner hats imply, they’d be denouncing arbitrary tribunals themselves.

Terrorism, like any other social pathology, can best be fought with a rule of law, not by trampling on the very framework of our democratic system. We don’t have to become al-Qaeda to fight al-Qaeda. In fact, in America’s struggle to win over the Muslims of the world, adherence to our constitution is among our most effective weapons. Gallup found that:

‘ When asked what they admire most about the West, citizens of Muslim countries ranked technology first and liberty and democracy second. They expressed widespread admiration for the freedom of expression and assembly, rule of law, and government accountability they see in the West. ‘

Muslims already know all about military tribunals and torture and arbitrarily tossing people in jail. They are yearning for something better, which we, at least used to, have.

Bush and the Bushies screwed up, and they are blaming it on the liberties enshrined in the constitution by men a thousand times their betters, for which generations of Americans have fought and died, and whose memory is being desecrated by the sad likes of George W. Bush, Richard Bruce Cheney, Peter King and the rest of our would-be Anglophone Francisco Francos.


October 23, 2010

JURIST - Paper Chase: UN investigator calls for inquiry into Iraq rights abuses

Daniel Makosky at 11:44 AM ET

Photo source or description
[JURIST] UN Special Rapporteur on torture Manfred Nowak [official website] called fSaturday or the Obama administration to launch an inquiry into the role of US in human rights violations allegedly committed in Iraq [JURIST report] Nowak's comments follow the release of government information on WikiLeaks [website] that included thousands of previously classified documents. Many of the documents purportedly illustrate instances of abuse, torture and murder carried out by US and Iraqi forces. He stated that the US is party to UN human rights treaties that compel the investigation of such allegations and the criminalization of any form of torture. He also claimed that the incidents documented in the release may constitute violations [Guardian report] of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [texts and materials]. In addition to abuses allegedly committed by coalition forces, Nowak stressed that the US must investigate instances where transferring detainees into the custody of other countries exposed them to an increased risk of facing torture [JURIST news archive]. Absent a full investigation, Nowak claims that the US would be in breach of its international obligations.

Last month, Nowak's predecessor called for a similar investigation regarding an additional WikiLeaks release [JURIST reports]. The request involved war crimes allegedly committed by Taliban [CFR backgrounder], US and British forces in Afghanistan. Unlike the US, Afghanistan is a party to the Rome Statute [text, PDF], giving the International Criminal Court (ICC) [official website] jurisdiction over war crimes committed in Afghan territory. Earlier this week Chairperson of the UN Committee Against Torture (CAT) [official website] Claudio Grossman [official profile] urged nations to "reconnect with the values" of the Convention Against Torture and increase efforts to combat torture [JURIST report]. Grossman stated that the need for heightened measures is particularly important in emergency situations where interrogators have little time to gain information from captives. The UN claimed that reports of rights abuse were found worldwide and that countries have grown increasingly apathetic to the use of torture as an interrogation technique.

March 16, 2009

Torture: interesting NYT editorial today (about time!)

Op-Ed Contributor

Tales From Torture’s Dark World

Published: March 14, 2009

ON a bright sunny day two years ago, President George W. Bush strode into the East Room of the White House and informed the world that the United States had created a dark and secret universe to hold and interrogate captured terrorists.

“In addition to the terrorists held at Guantánamo,” the president said, “a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.”

At these places, Mr. Bush said, “the C.I.A. used an alternative set of procedures.” He added: “These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.” This speech will stand, I believe, as George W. Bush’s most important: perhaps the only historic speech he ever gave. In his fervent defense of his government’s “alternative set of procedures” and his equally fervent insistence that they were “lawful,” he set out before the country America’s dark moral epic of torture, in the coils of whose contradictions we find ourselves entangled still.

At the same time, perhaps unwittingly, Mr. Bush made it possible that day for those on whom the alternative set of procedures were performed eventually to speak. For he announced that he would send 14 “high-value detainees” from dark into twilight: they would be transferred from the overseas “black sites” to Guantánamo. There, while awaiting trial, the International Committee of the Red Cross would be “advised of their detention, and will have the opportunity to meet with them.”

A few weeks later, from Oct. 6 to 11 and then from Dec. 4 to 14, 2006, Red Cross officials — whose duty it is to monitor compliance with the Geneva Conventions and to supervise treatment of prisoners of war — traveled to Guantánamo and began interviewing the prisoners.

Their stated goal was to produce a report that would “provide a description of the treatment and material conditions of detention of the 14 during the period they were held in the C.I.A. detention program,” periods ranging “from 16 months to almost four and a half years.”

As the Red Cross interviewers informed the detainees, their report was not intended to be released to the public but, “to the extent that each detainee agreed for it to be transmitted to the authorities,” to be given in strictest secrecy to officials of the government agency that had been in charge of holding them — in this case the Central Intelligence Agency, to whose acting general counsel, John Rizzo, the report was sent on Feb. 14, 2007.

The result is a document — labeled “confidential” and clearly intended only for the eyes of those senior American officials — that tells a story of what happened to each of the 14 detainees inside the black sites.

A short time ago, this document came into my hands and I have set out the stories it tells in a longer article in The New York Review of Books. Because these stories were taken down confidentially in patient interviews by professionals from the International Committee of the Red Cross, and not intended for public consumption, they have an unusual claim to authenticity.

Indeed, since the detainees were kept strictly apart and isolated, both at the black sites and at Guantánamo, the striking similarity in their stories would seem to make fabrication extremely unlikely. As its authors state in their introduction, “The I.C.R.C. wishes to underscore that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.”

Beginning with the chapter headings on its contents page — “suffocation by water,” “prolonged stress standing,” “beatings by use of a collar,” “confinement in a box” — the document makes compelling and chilling reading. The stories recounted in its fewer than 50 pages lead inexorably to this unequivocal conclusion, which, given its source, has the power of a legal determination: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

•

Perhaps one should start with the story of the first man to whom, according to news reports, the president’s “alternative set of procedures” were applied:

“I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4 meters by 4 meters. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket.

“I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time.

“The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

“The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.”

So begins the story of Abu Zubaydah, a senior member of Al Qaeda, captured in a raid in Pakistan in March 2002. The arrest of an active terrorist with actionable information was a coup for the United States.

After being treated for his wounds — he had been shot in the stomach, leg and groin during his capture — Abu Zubaydah was brought to one of the black sites, probably in Thailand, and placed in that white room.

It is important to note that Abu Zubaydah was not alone with his interrogators, that everyone in that white room — guards, interrogators, doctor — was in fact linked directly, and almost constantly, to senior intelligence officials on the other side of the world. “It wasn’t up to individual interrogators to decide, ‘Well, I’m going to slap him. Or I’m going to shake him,’” said John Kiriakou, a C.I.A. officer who helped capture Abu Zubaydah, in an interview with ABC News.

Every one of the steps taken with regard to Abu Zubaydah “had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’”

He went on: “The cable traffic back and forth was extremely specific.... No one wanted to get in trouble by going overboard.”

Shortly after Abu Zubaydah was captured, C.I.A. officers briefed the National Security Council’s principals committee, including Vice President Dick Cheney, the national security adviser, Condoleezza Rice, and Attorney General John Ashcroft, in detail on the interrogation plans for the prisoner. As the interrogations proceeded, so did the briefings, with George Tenet, the C.I.A. director, bringing to senior officials almost daily reports of the techniques applied.

At the time, the spring and summer of 2002, Justice Department officials, led by John Yoo, were working on a memorandum, now known informally as “the torture memo,” which claimed that for an “alternative procedure” to be considered torture, and thus illegal, it would have to cause pain of the sort “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” The memo was approved in August 2002, thus serving as a legal “green light” for interrogators to apply the most aggressive techniques to Abu Zubaydah:

“I was taken out of my cell and one of the interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room.”

The prisoner was then put in a coffin-like black box, about 4 feet by 3 feet and 6 feet high, “for what I think was about one and a half to two hours.” He added: The box was totally black on the inside as well as the outside.... They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”

After this beating, Abu Zubaydah was placed in a small box approximately three feet tall. “They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box; I think I may have slept or maybe fainted.

“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited.

“The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless.”

After being placed again in the tall box, Abu Zubaydah “was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

“I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week.”

•

Walid bin Attash, a Saudi involved with planning the attacks on American embassies in Africa in 1998 and on the Navy destroyer Cole in 2000, was captured in Pakistan on April 29, 2003:

“On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks.... I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural.”

This forced standing, with arms shackled above the head, seems to have become standard procedure. It proved especially painful for Mr. bin Attash, who had lost a leg fighting in Afghanistan:

“After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists.”

Cold water was used on Mr. bin Attash in combination with beatings and the use of a plastic collar, which seems to have been a refinement of the towel that had been looped around Abu Zubaydah’s neck:

“On a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements.

“Also on a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets.... I would be kept wrapped inside the sheet with the cold water for several minutes. I would then be taken for interrogation.”

•

Khalid Shaikh Mohammed, the key planner of the 9/11 attacks, was captured in Pakistan on March 1, 2003.

After three days in what he believes was a prison in Afghanistan, Mr. Mohammed was put in a tracksuit, blindfold, hood and headphones, and shackled and placed aboard a plane. He quickly fell asleep — “the first proper sleep in over five days” — and remains unsure of how long the journey took. On arrival, however, he realized he had come a long way:

“I could see at one point there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet X people. I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had [an] e-mail address ending in ‘.pl.’”

He was stripped and put in a small cell. “I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor,” he told the Red Cross.

“Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrist, resulting in open and bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing.”

For interrogation, Mr. Mohammed was taken to a different room. The sessions lasted for as long as eight hours and as short as four.

“If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe.”

As with Abu Zubaydah, the harshest sessions involved the “alternative set of procedures” used in sequence and in combination, one technique intensifying the effects of the others:

“The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of water boarding. The torture on that day was finally stopped by the intervention of the doctor.”

Reading the Red Cross report, one becomes somewhat inured to the “alternative set of procedures” as they are described: the cold and repeated violence grow numbing. Against this background, the descriptions of daily life of the detainees in the black sites, in which interrogation seems merely a periodic heightening of consistently imposed brutality, become more striking.

Here again is Mr. Mohammed:

“After each session of torture I was put into a cell where I was allowed to lie on the floor and could sleep for a few minutes. However, due to shackles on my ankles and wrists I was never able to sleep very well.... The toilet consisted of a bucket in the cell, which I could use on request” — he was shackled standing, his hands affixed to the ceiling — “but I was not allowed to clean myself after toilet during the first month.... I wasn’t given any clothes for the first month. Artificial light was on 24 hours a day, but I never saw sunlight.”

•

Abu Zubaydah, Walid bin Attash, Khalid Shaikh Mohammed — these men almost certainly have blood on their hands. There is strong reason to believe that they had critical parts in planning and organizing terrorist operations that caused the deaths of thousands of people. So in all likelihood did the other “high-value detainees” whose treatment while secretly confined by the United States is described in the Red Cross report.

From everything we know, many or all of these men deserve to be tried and punished — to be “brought to justice,” as President Bush vowed they would be. The fact that judges, military or civilian, throw out cases of prisoners who have been tortured — and have already done so at Guantánamo — means it is highly unlikely that they will be brought to justice anytime soon.

For the men who have committed great crimes, this seems to mark perhaps the most important and consequential sense in which “torture doesn’t work.” The use of torture deprives the society whose laws have been so egregiously violated of the possibility of rendering justice. Torture destroys justice. Torture in effect relinquishes this sacred right in exchange for speculative benefits whose value is, at the least, much disputed.

As I write, it is impossible to know definitively what benefits — in intelligence, in national security, in disrupting Al Qaeda — the president’s approval of use of an “alternative set of procedures” might have brought to the United States. Only a thorough investigation, which we are now promised, much belatedly, by the Senate Intelligence Committee, can determine that.

What we can say with certainty, in the wake of the Red Cross report, is that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact. We can also say that the decision to torture, in a political war with militant Islam, harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us. The consequences of this choice, legal, political and moral, now confront us. Time and elections are not enough to make them go away.

Mark Danner, a professor of journalism at the University of California, Berkeley, and Bard College, is the author of "Torture and Truth: America, Abu Ghraib and the War on Terror.” This essay is drawn from a longer article in the new issue of The New York Review of Books, available at www.nybooks.com.

March 10, 2009

Will Bush Ever Face World Court? (update)

The International Criminal Court recently issued an arrest warrant for Sudanese President Omar al-Bashir, a move Sudanese officials denounced as politically motivated. Will it ever be the case that the ICC takes former U.S. President George W. Bush to task?

February 20, 2009

Obama’s War on Terror May Resemble Bush’s in Some Areas

Michael Temchine for The New York Times

Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month

Published: February 17, 2009

WASHINGTON — Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda

Stephen Crowley/The New York Times

Last month, protesters called for the closing of the prison at Guantánamo Bay.

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”

These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.

“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”

Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.

But in more recent weeks, things have become murkier.

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”

To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.

But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.

Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.

Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.

Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”

He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”

Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.

For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.

Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.

“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”

Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.

The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.

Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”

Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.

“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”

February 03, 2009

Prosecute torture crimes and send Karl Rove to jail

What will Obama do?

Obama can go after the criminals who authorized torture.

He can also instruct the Justice Department to go after Karl Rove. Unprotected by Bush, Rove has a good shot at seeing jail time.

But we'll see. So far, Obama has been a good Republicrat.


Take a look at this great video I found called:

"Prosecute torture crimes and send Karl Rove to jail "

You can view it here:

http://www.brasschecktv.com/page/547.html

Leading Human Rights Groups Request Full Access To Guantánamo Prison
(1/30/2009)


Outside Review Needed To Ensure Transparency And Full Compliance With The Law

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – Four leading human rights and civil liberties organizations asked President Obama to grant them full access to the Guantánamo Bay detention center so that they can review the conditions of confinement and make recommendations for revising U.S. detention policies. The American Civil Liberties Union, Amnesty International USA, Human Rights First and Human Rights Watch have had permission to observe the military commissions at Guantánamo since August 2004, but have thus far only been offered a guided tour of the detention camp without access to detainees.

On January 22, President Obama issued an executive order requiring a review of detention conditions at Guantánamo to ensure compliance with the Geneva Conventions and all other applicable laws. According to today's letter, also allowing the groups full access to the prison "will be welcomed as another break from the prior administration's policies on detainees, and set an example that will help advance human rights worldwide."

The full text of the letter is as follows and available online at: www.aclu.org/safefree/detention/38600res20090130.html


January 30, 2009

Dear President Obama,

As heads of four prominent civil liberties and human rights organizations, we greatly appreciate your decisive action in restoring U.S. commitment to the rule of law and respect for human rights by issuing executive orders to close Guantánamo, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture. We eagerly await your continued actions to renew American justice.

Today, we write to request full access to the Guantánamo Bay detention camps so that we may independently review and report on the conditions of confinement there and make concrete recommendations for change. In August 2004, our four organizations were granted observer status to observe the military commissions, but for years the Bush administration has denied our organizations' repeated requests for full access to the detention camps. We have only been offered the VIP tour to observe a model Guantánamo detention camp, which was far from adequate access.

Section 6 of your January 22, 2009 executive order, "Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities," addresses the issue of conditions of confinement and orders Secretary of Defense Gates to "immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with [Common Article 3 of the Geneva Conventions]."

Our presence can assist this effort. We will provide an outside assessment of current conditions and, as improvements are made, credibly, independently, and publicly report them to the world. Such access and reporting would further the objectives of the current Department of Defense (DoD) review and amplify the international benefits of improving conditions at the camps. Our presence itself will be welcomed as another break from the prior administration's policies on detainees, and set an example of transparency that will help advance human rights worldwide.

We ask you to reconsider our organizations' request for full access to the Guantánamo Bay detention camps and honor it in light of the current DoD review. According to your executive order, the DoD review "shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter." We ask that, if granted full access, our independent review should take place within the next few weeks, to allow time for us to finalize our report and recommendations before the completion of the DoD's review.

The Bush administration's past policy of secrecy regarding detention conditions at Guantánamo makes it critically important for your administration to open Guantánamo to independent review as part of a new government policy of transparency. Full and independent review of conditions of confinement by human rights organizations is urgently needed because of the secrecy regarding detention conditions at Guantánamo Bay as a whole. The ACLU and other organizations continue to struggle for production of materials requested pursuant to the Freedom of Information Act (FOIA) regarding Guantánamo Bay. The Bush administration denied full access to several UN independent human rights experts who insisted on confidential interviews with the detainees as dictated by UN protocol for such visits.

While the International Committee of the Red Cross (ICRC) has had access to Guantánamo detainees, its access has been restricted in the past and the extent of its current access is unclear to us. A leaked version of the Camp Delta Standard Operation Procedures (SOP) from March 2003 revealed that the ICRC was denied access to various groups of detainees at the camp, and a leaked version of the SOP manual from 2004 revealed continued restrictions on ICRC access.

Regardless of the ICRC's present level of access, its role is distinct from that of our organizations. While the ICRC plays an important role in visiting prisoners under the Geneva Conventions, the ICRC maintains full confidentiality in order to preserve the exclusively humanitarian nature of its work. The role of our human rights organizations in reviewing and reporting on conditions at Guantánamo would be distinct and equally important.

Granting human rights organizations full and unfettered access to a detention facility where torture and abuse have occurred will send a powerful message to the world regarding your administration's commitment to transparency and openness, consistent with your January 21, 2009 FOIA directive, which noted, "A democracy requires accountability, and accountability requires transparency." Opening Guantánamo to full review by human rights organizations would help to restore American legitimacy and standing in the world, and place pressure on other governments to open their detention centers for independent inspections.

Furthermore, independent review of conditions of confinement by human rights organizations will assist your administration in revising its policies and improving detention conditions in the camps. If granted full access, our independent human rights delegation would include experts on detention conditions and medical professionals, and would offer your administration concrete recommendations on how to improve conditions of confinement in order to comply with relevant national and international standards and guidelines on persons in detention.

We hope that you will act quickly on this matter in the interest of transparency and the protection of human rights.


Sincerely,


Anthony D. Romero, Executive Director, American Civil Liberties Union

Larry Cox, Executive Director, Amnesty International USA

Elisa Massimino, Executive Director, Human Rights First

Kenneth Roth, Executive Director, Human Rights Watch


cc:
Secretary of Defense Robert Gates
White House Counsel Gregory B. Craig


November 21, 2008

Federal judge orders five Guantanamo detainees released

Jaclyn Belczyk at 12:37 PM ET


Photo source or description
[JURIST] A judge for the US District Court for the District of Columbia [official website] on Thursday ordered the release [order, PDF] of five Algerian Guantanamo Bay [JURIST news archive] detainees. In the first ruling on detainees' rights since the June Supreme Court decision in Boumediene v. Bush [opinion, PDF; JURIST report], Judge Richard Leon [official profile] decided [Washington Post report] that the government's evidence was insufficient to persuade him that the men were planning to travel to Afghanistan to join al Qaeda and therefore properly classed as "enemy combatants:"
[W]hile the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention. [emphasis in original]

Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government's evidence against him was sufficient to label him an enemy combatant. US Justice Department officials issued a statement [text] indicating that they were "pleased" with the court's decision to detain ben Sayah, but "disappointed" with the court's decision to release the other detainees.

Leon began habeas corpus hearings [JURIST report] for the six Algerians earlier this month. In October, he ruled [order, PDF; JURIST report] that in order to be validly held as "enemy combatants," Guantanamo Bay detainees [JURIST news archive] must have directly supported hostilities against the US or its allies, setting the standard which the government must use to justify their detention.

In a related development Wednesday, a military judge at Guantanamo Bay rejected [ACLU press release] evidence against detainee Mohammed Jawad [DOD materials; JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded [JURIST report] in October, also because it had allegedly been obtained through torture.

You can read the full decision at this link, too:

http://news.lp.findlaw.com/hdocs/docs/guantanamo/20081120-order-to-release-detainees.pdf

November 17, 2008

Guantanamo Bay news items (sigh)

The number of juveniles held at Guantanamo Bay was revised upwards by US military officials. Twelve juvenile prisoners have been held at the US camp on Cuba, up from eight
reported in May to a United Nations committee on child rights, the Pentagon said.

Obama 'will close Guantanamo Bay

In his first major interview since polling day, President-elect Barack Obama said last night that upon taking office he would close Guantanamo Bay and ban torture by the American military.

'This agreement hands Iraq over (to the US) on a golden platter and for an indefinite period.' Iraq's cabinet agrees deal for US troops to remain for three more years


October 27, 2008

The Case Against a National Security Court: Jordan Paust

The Case Against a National Security Court

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that instituting a special "national security court" to try terrorism and related cases outside of the regular federal court structure would perpetuate illegality and serve neither our traditional values nor the best interests of the United States....


JURIST noted in June that a group of high-level national security experts convened by the Constitution Project had issued a report [PDF] opposing creation of a special national security court because it would pose “a grave threat to our constitutional rights”, and observed that a similar report issued by Human Rights First in May had stated that terrorism cases should be tried in the ordinary federal district courts [PDF]. Shortly afterward, also on JURIST, Professor Ben Davis warned against creating “Star Chamber justice” by establishing such a body.

Now, however, proponents of what Ben termed “un tribunal d’exception” are pushing the matter before Congress. For this reason, it is important to note several additional reasons why a special national security court should not be created.

During an actual armed conflict to which the laws of war apply, a national security court would have to comply with the customary and treaty-based requirements set forth in common Article 3 of the 1949 Geneva Conventions which, as noted in my book Beyond the Law, are absolute and minimum requirements applicable with respect to any person detained during either an internal or an international armed conflict. These mandate that a court be “regularly constituted” and afford “all the judicial guarantees” of due process that are reflected in customary international law – which include, at a minimum, those mirrored in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The Supreme Court aptly affirmed in Hamdan v. Rumsfeld that the “core meaning” of the phrase “regularly constituted” has been authoritatively set forth in general commentary by the International Committee of the Red Cross and excludes “‘all special tribunals’” and requires that courts be “‘established ... [and] already in force in a country.’” While concurring in Hamdan, Justice Kennedy noted that there is little doubt that the phrase relates to “standards deliberated upon and chosen in advance.” As Hamdan recognized, a court (1) must not be a “special” tribunal, and (2) must already be in existence. A special national security court simply could not meet the first test and, if otherwise proper, could only operate prospectively with respect to incidents arising after its creation.

Additionally, a national security court would comply with common Article 3 only if it provides “all the judicial guarantees” of due process reflected in customary international law. As the Supreme Court stated in Hamdan, “[i]nextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal,” and “the phrase ‘regularly constituted court’ ... must be understood to incorporate the barest of those trial protections that have been recognized by customary international law.” The Supreme Court correctly added that “[m]any of these [due process requirements] are described in Article 75 of [Geneva] Protocol I” and in “the same basic protections set forth” as minimum human rights to due process in Article 14 of the ICCPR. Importantly, customary minimum human rights to due process reflected in Article 14 of the ICCPR apply in any social context and pertain, therefore, even when the laws of war are not applicable.

As documented in Beyond the Law and recognized by the Supreme Court in Hamdan, violations of customary rights to due process would include: (1) preclusion of the accused and defense counsel from learning what evidence was presented in closed hearings, (2) admission of hearsay evidence, (3) admission of unsworn statements, (4) denial of access by an accused and defense counsel to evidence in the form of classified information, (5) denial of confrontation of all witnesses against an accused, (6) use of “evidence obtained through coercion,” (7) denial of the right to be tried in one’s presence (absent disruptive conduct or consent), and (8) denial of review by a competent, independent, and impartial court of law (i.e., an Article III court). It seems unavoidable that a special national security court with special procedures that deviate from the federal rules of criminal procedure would not be designed to enhance fairness, fully meet bilateral and multilateral treaty requirements of equality of treatment, or provide more general equal protection of the law to criminal accused.

It is likely that some will propose the creation of a special court in order to facilitate convictions that would not be possible in a regular federal district court, especially through use of “evidence obtained through coercion” as part of what John Yoo and President Bush have admitted was a “common, unifying” plan or “program” of coercive interrogation that most know involves several manifest violations of customary and treaty-based international law and that can form the basis for criminal prosecution of (1) direct perpetrators, including those who authorized or ordered coercive interrogation; (2) leaders who were also or merely derelict in duty; (3) those who participated in a “joint criminal enterprise;” and (4) those who aided and abetted coercive interrogation or who were otherwise complicit (through memos or elsewise) in denials of rights under the laws of war, other violations of the laws of war, and violations of other international criminal law such as violations of the Convention Against Torture and customary prohibitions of secret detention. Quite clearly, lack of an intent to commit a crime would not obviate such forms of criminal responsibility and orders or authorizations will not lessen criminal responsibility for conduct that is manifestly unlawful. For example, an aider and abettor need only be aware that his or her conduct would or does assist that of a direct perpetrator. It is pertinent in this regard that there are reports that during multiple sessions in the White House beginning in 2002 Condoleezza Rice, Dick Cheney, George Tenet, Donald Rumsfeld, John Ashcroft, John Bellinger, and others viewed simulations of and/or discussed and approved use of waterboarding, the “cold cell,” use of dogs to instill intense fear in detainees, and stripping naked, among other patently illegal tactics that were to be used as part of the admitted program of coercive interrogation.

Perpetuating illegality with a national security court would not serve our traditional values and the best interests of the United States, especially as we seek to regain our honor and international stature during a new Administration committed to the rule of law.



Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

September 29, 2008

How to Put the Torturers in Prison: David Swanson

U.S. politics has become something previously only found in science fiction, an intersection of parallel universes. One universe is the one on television and in Congress. In this universe there are suspicions that someone in the U.S. military may have used some technique bordering on torture, but there's just no way to know for sure. Perhaps an investigation would be a good idea. Or maybe a better solution would be to elect a new president, especially one who's been a victim of torture and opposes it. But the whole topic is very minor one, and the correct position is unclear since torture is both frowned on and useful for getting tough on terrorists.

In the other universe, John McCain has been supporting torture for years now, but virtually every informed observer recognizes that torture serves no practical purpose and is dragging world opinion of the United States into the gutter, making us less safe. In this other world, we encounter information like that collected in a new book by Michael Ratner called "The Trial of Donald Rumsfeld." We discover that there is voluminous evidence in the form of photographs and first-hand testimony that our nation has been engaged in using a wide array of the most abusive torture techniques possible for years now, resulting in many known cases of murder -- of the torture resulting in death.

U.S. politics has become something previously only found in science fiction, an intersection of parallel universes. One universe is the one on television and in Congress. In this universe there are suspicions that someone in the U.S. military may have used some technique bordering on torture, but there's just no way to know for sure. Perhaps an investigation would be a good idea. Or maybe a better solution would be to elect a new president, especially one who's been a victim of torture and opposes it. But the whole topic is very minor one, and the correct position is unclear since torture is both frowned on and useful for getting tough on terrorists.

In the other universe, John McCain has been supporting torture for years now, but virtually every informed observer recognizes that torture serves no practical purpose and is dragging world opinion of the United States into the gutter, making us less safe. In this other world, we encounter information like that collected in a new book by Michael Ratner called "The Trial of Donald Rumsfeld." We discover that there is voluminous evidence in the form of photographs and first-hand testimony that our nation has been engaged in using a wide array of the most abusive torture techniques possible for years now, resulting in many known cases of murder -- of the torture resulting in death.

In this other world, sometimes known as reality, there is extensive documentary
evidence that torture has been authorized by many top U.S. officials, including George Bush, Dick Cheney, Donald Rumsfeld, George Tenet, Stephen Cambone, Ricardo Sanchez, Geoffrey Miller, Walter Wojdakowski, Thomas Pappas, Barbara Fast, Marc Warren, Alberto Gonzales, William James Haynes II, David Addington, John C. Yoo, and Jay Bybee. There are other names that could be added, but those are the individuals indicted in Ratner's book. Ratner actually leaves out Bush and Cheney, but says he is only doing so because they are still in office.

Ratner presents the evidence against these torturers, and then presents substantial evidence in their defense in the form of memos they've written trying to argue that what is blatantly illegal is legal. Then Ratner debunks their claims. His book does for torture what Elizabeth de la Vega's book ("U.S. v. Bush et alia") did for defrauding a nation into war: it lays out the case to a grand jury, or to a jury. There is sufficient evidence in this book to put these people behind bars. There is sufficient material here to understand how these criminals would defend themselves in court as well. And all of this exists in a world apart from Congress and television.

I'm not arguing for actual conviction by book. While we can guess how people might defend themselves, they must be given a fair chance to actually do so before being convicted. But every book like this that emerges should help us break through the erroneous idea that we need to investigate before we can conclude that torture has been committed, that it is illegal, and that the individuals named above bear legal responsibility for it.

In the parallel universe inhabited by Congress, the furthest reaches of advocacy for justice are inhabited by things like the resolution Rep. Tammy Baldwin introduced on Friday (http://afterdowningstreet.org/baldwinbill ), urging the next president to please stop committing some of the unconstitutional and illegal abuses of the current one, but at the same time urging the next president to investigate whether the current one or any of his subordinates committed any crimes. This eternal demand for investigations (even while acknowledging the crimes) is much like the demand of other politicians for additional proof before they'll believe global warming exists. Both pretenses are motivated by corrupting influences. To admit that no investigations are needed of torture and war crimes would be to admit that Congress could very quickly impeach the president if it chose to. Baldwin is one of a small minority of Congress members who have supported impeachment. She announced her new resolution on a Friday night during a presidential debate when almost nobody would notice and focused it entirely on appealing to the executive branch not to misuse its dictatorial powers, as opposed to stripping those powers away and restoring Congress to its proper place in our government. And 434 other Congress members did even less than that.

Books can't cross from one universe to another. Nobody could pretend further investigations were needed if they held a copy of Ratner's book. Ratner lays out the case on torture, including the evidence, the counter-arguments, and their refutations, exactly as if we were all living in the real world. Prosecution is possible abroad, but courts abroad will be heavily influenced by the amount of public pressure we can create for prosecution within the United States. Strategies for prosecution within the United States and abroad are being organized: http://convictbushcheney.org The trick will be to properly merge this movement with the universe of the media-congressional-military complex.

September 24, 2008

US judge ‘reluctantly’ delays Guantanamo appeals

WASHINGTON (AFP) — A US judge “reluctantly” agreed to request from Washington to delay appeals brought by some 250 Guantanamo detainees challenging the legality of their detention.

Monday’s decision came as four accused 9/11 conspirators, including confessed mastermind Khalid Sheikh Mohammed, appeared for a second preliminary hearing at the US Naval base in Guantanamo Bay, Cuba.

Judge Thomas Hogan, who is coordinating some 200 to 250 appeals in front of the federal courts, said in an order that he was granting the government’s motion.

“The court is satisfied that the government is not dragging its feet in an attempt to delay these matters beyond what is necessary to protect the national security concerns associated with releasing classified information,” the order said.

“Accordingly, the court further orders that the government shall file factual returns and motions to amend factual returns at a rate of at least 50 per month,” he said in the order, a copy of which was obtained by AFP.

Documents for the first 50 “habeas corpus” appeals are due by September 30, Hogan added.

In early June, the US Supreme Court ruled that prisoners detained in the US “war on terror” and held in Guantanamo Bay had the right to know on what charges they are being held.

More than 250 detainees, some of whom have spent several years at the prison in Guantanamo Bay, have submitted habeas corpus petitions to the court, arguing they are being held illegally without charge or trial.

At the beginning of July, Hogan laid out a timetable for ruling on all cases by the end of August.

But at midnight on the eve of the deadline, the administration of President George W. Bush argued it needed more time to review and declassify key documents, and also to obtain security clearances for the roughly 50 attorneys assigned to the cases.

Critics accuse Bush of trying to delay the whole process, which weighs one of the most fundamental US constitutional rights — protection against illegal detention — until he leaves office in January.

In Monday’s hearing, Mohammed and four co-defendants faced the Guantanamo court on charges including conspiracy, murder, attacking civilians, terrorism, and material support for terrorism linked to the 9/11 attacks which killed some 3,000 people.

Four of the defendants were present at the hearing, while Ramzi Binalshibh refused to appear, according to the Pentagon.

At the first preliminary hearing in June, the defendants sought to dismiss their legal teams.

They face the death penalty if convicted, and three of the defendants including Binalshibh demanded to be sentenced to death as they sought martyrdom.

No trial date has been set.

SECRECY NEWS update

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 93
September 24, 2008

Secrecy News Blog: http://www.fas.org/blog/secrecy/

** COURT ORDERS RELEASE OF DETAINEE ABUSE PHOTOGRAPHS
** COURT ORDERS PRESERVATION OF VICE PRESIDENTIAL RECORDS
** NEW LIGHT ON PRIVATE SECURITY CONTRACTORS IN IRAQ
** DEPT OF DEFENSE ROLE IN FOREIGN ASSISTANCE, AND MORE FROM CRS


COURT ORDERS RELEASE OF DETAINEE ABUSE PHOTOGRAPHS

A federal court of appeals this week affirmed that 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan must be disclosed under the Freedom of Information Act.

"The public interest in disclosure of these photographs is strong," the Second Circuit panel concluded in a September 22 ruling in favor of the American Civil Liberties Union and other plaintiffs.

The ruling carefully analyzed and rejected several government arguments against disclosure.

Among other things, the government had contended that the photographs should be exempted from disclosure under FOIA exemption 7(F), which protects law enforcement records that "could reasonably be expected to endanger the life or physical safety of any individual." Government attorneys said that release of the photographs (which were gathered in the
course of an Army criminal investigation) could be used to incite violence against U.S. forces, coalition forces or civilians in Iraq or Afghanistan, and should therefore be withheld.

But even if potential incitement is a valid concern, the court said, it would not provide a basis for invoking FOIA exemption 7(F), which was intended to serve as "a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence." The exemption is not supposed to be "an all-purpose damper on global controversy."

In short, the court ruled, the cited FOIA exemption cannot be used as "an ersatz classification system" to bar access to these unclassified photographs.

Nor can the government legitimately invoke the Third and Fourth Geneva Conventions that protect prisoners "against insults and public curiosity."

"Both of these treaties were designed to prevent the abuse of prisoners," the court explained. "Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it."

At the end of World War II, the court noted, the government itself "widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable."

In the same way, "Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners," the court concluded.

A copy of the 52 page ruling in ACLU et al v. Department of Defense et al is posted here:

http://www.fas.org/sgp/jud/aclu092208.pdf

"These photographs demonstrate that the abuse of prisoners held in U.S. custody abroad was not aberrational and not confined to Abu Ghraib, but the result of policies adopted by high-ranking officials," said Amrit Singh, the ACLU attorney who argued the case.

"Their release is critical for bringing an end to the administration's torture policies and for deterring further prisoner abuse," Ms. Singh said.

http://www.aclu.org/safefree/general/36882prs20080922.html


COURT ORDERS PRESERVATION OF VICE PRESIDENTIAL RECORDS

In a rare judicial rebuff to the Office of Vice President Dick Cheney, a federal court issued a preliminary injunction requiring the preservation of Vice Presidential records over the objections of Administration attorneys.

A lawsuit brought by Citizens for Ethics and Responsibility in Washington (CREW) along with historians and others alleged that the Office of Vice President had improperly limited the scope of records that it said would be preserved under the Presidential Records Act, and that records outside the scope of that definition were liable to be destroyed.

Judge Colleen Kollar-Kotelly agreed that there was no legal basis on the record for the Vice President's position. On September 20, she ordered the government to preserve all official Vice Presidential records "without regard to any limiting definitions that Defendants may believe are
appropriate."

http://www.fas.org/sgp/jud/crew092008.pdf

"It's a pretty strong opinion," said Anne Weismann, chief counsel for CREW. "They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires -- not their narrow interpretation."

http://www.citizensforethics.org/node/34245


NEW LIGHT ON PRIVATE SECURITY CONTRACTORS IN IRAQ

The use of thousands of private security contractors in Iraq represents a quantitatively new feature of U.S. military operations, but relatively little has been publicly disclosed about the contractual arrangements involved.

The war in Iraq "is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment," according to a recently updated Congressional Research Service report.

But "the use of armed contractors raises several concerns, including transparency and accountability," the CRS report said.

"The lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efficiency difficult. The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern," the CRS report said.

Thanks to a Freedom of Information Act request filed by David Isenberg of United Press International, new information is now available on the U.S. State Department's Worldwide Personal Protective Services (WPPS) contract, which provides security services throughout Iraq (as well as Afghanistan, Bosnia and Israel).

UPI obtained the WPPS contract specifications from the State Department and reported on the material in "Dogs of War: WPPS World" by David Isenberg, September 19:

http://www.metimes.com/Security/2008/09/19/dogs_of_war_wpps_world/51b1/

The newly disclosed contract material itself was posted by UPI here:

http://r.m.upi.com/other/12216818791223.pdf

Extensive background information on the issue is available from the Congressional Research Service in "Private Security Contractors in Iraq: Background, Legal Status, and Other Issues," updated August 25, 2008:

http://www.fas.org/sgp/crs/natsec/RL32419.pdf


DEPT OF DEFENSE ROLE IN FOREIGN ASSISTANCE, AND MORE FROM CRS

The structure, development and ramifications of growing U.S. Department of
Defense foreign assistance activities are described in a major new report
from the Congressional Research Service. See "The Department of Defense
Role in Foreign Assistance: Background, Major Issues, and Options for
Congress," August 25, 2008:

http://www.fas.org/sgp/crs/natsec/RL34639.pdf

Other noteworthy new reports from CRS that have not been made readily
available to the public include the following.

"Pay-for-Performance: The National Security Personnel System," September
17, 2008:

http://www.fas.org/sgp/crs/natsec/RL34673.pdf

"The Defense Base Act (DBA): The Federally Mandated Workers' Compensation
System for Overseas Government Contractors," September 15, 2008:

http://www.fas.org/sgp/crs/natsec/RL34670.pdf

"The North Korean Economy: Leverage and Policy Analysis," updated August
26, 2008:

http://www.fas.org/sgp/crs/row/RL32493.pdf

"Presidential Claims of Executive Privilege: History, Law, Practice and
Recent Developments," updated August 21, 2008:

http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

"Periods of War," updated August 19, 2008:

http://www.fas.org/sgp/crs/natsec/RS21405.pdf

"The Manhattan Project, the Apollo Program, and Federal Energy Technology
R&D Programs: A Comparative Analysis," September 3, 2008:

http://www.fas.org/sgp/crs/misc/RL34645.pdf

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