Friday, July 07, 2006


By William Fisher

In the aftermath of the Supreme Court decision canceling the blank check President Bush gave himself, the Bush Administration may finally forced into trying to get Congress to pass legislation establishing a Constitutional way to bring Guantanamo Bay detainees to trial – or free them.

But it may also find itself having to deal with another huge headache: the prisoners we don’t know about.

These are the people held at Bagram airbase in Afghanistan, and in the CIA’s so-called “black sites” in Eastern Europe and elsewhere.

The Pentagon chose Guantanamo because they thought it was a law-free zone beyond the reach of the US justice system, and they now know that is unacceptable. And that, according to the Court’s decision, means they were also wrong about prisoners they now hold in other overseas locations.

As long as prisoners are under US control, they are subject to the same protections as the Supreme Court has now said must be afforded to those at GITMO.

The Supreme Court ruled that the military tribunals set up by President Bush were unlawful because Congress hadn't expressly authorized the Administration to establish them. The justices also said the tribunals violate the 1949 Geneva Conventions governing the treatment of war prisoners and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial. Lawyers for detainees said this may allow all of the 450 inmates held at Guantanamo access to federal courts, which until now have refused to hear their cases.

But the Supreme Court has now made the issue a lot broader than Guantanamo. US military and intelligence services continue to carry out interrogations in other locations, including at the US base at Bagram, Afghanistan, where, according to news sources, "interrogators are sometimes able to use more aggressive and creative tactics in questioning detainees than their counterparts at Guantanamo Bay can employ."

If human rights groups can be believed, there are some 500 people held at Bagram alone. As far as we know, these prisoners have been designated as “enemy combatants” and some have been held for as long as three or four years without access to lawyers, no information about the charges against them, and only hit-and-miss reviews of their status.

Even after New York Times reporters Tim Golden and Eric Schmitt first exposed Bagram, the subject has received virtually no public attention.

Golden and Schmitt wrote, ““Some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.”

They added, “Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the international Red Cross and refuses to make public the names of those held there…From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its Cuban counterpart. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.”

The Times reported that the detainee population at Bagram rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures. The increase was in part the result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights under United States law.

A number of detainees are known to have died in US custody in Afghanistan. American military investigations have determined that homicide was the cause of death in four of them. The cause of death of the others remains undetermined. Nor is it known how many others may have died in US-controlled military camps in other Afghan areas where conflict was taking place, known as Forward Operating Bases.

Bagram has often been described by the US military as a temporary “screening center” from which some detainees would be released and others transferred to Guantanamo. But as Guantanamo. became a lightning rod for worldwide criticism of Bush Administration detention policies, transfers to Cuba were cancelled.

In recent months, there have been increasing press reports describing physical and psychological mistreatment of those who are being interrogated.

In contrast to the detention center at Guantanamo Bay, where military lawyers, news reporters and the Red Cross received occasional access to monitor prisoner conditions and treatment, the CIA's overseas interrogation facilities are off-limits to outsiders, and often even to other government agencies.

In addition to Bagram, prisoners from Afghanistan and other countries were believed to be detained at two other facilities in Afghanistan -- "the Salt Pit" in Kabul and "the Discotheque," north of Kabul. With these two facilities now closed, Bagram has become the main detention site.

In addition, the US is believed to house detainees in what Dana Priest of The Washington Post described as the CIA’s “black sites,” and on Diego Garcia, an Indian Ocean island leased by the US from Britain.

The hundreds of detainees currently held in these US-controlled facilities have no recourse to human rights safeguards such as the right to challenge their arrest or detention. Some have been detained without charge or trial for extended periods, without access to lawyers or relatives.

The International Committee of the Red Cross has been able to visit detainees in Bagram, but not in other unacknowledged places of detention.

US military commanders in Afghanistan have also refused to let a United Nations’ human rights investigator visit ‘secret’ American prisons there or interview detainees, despite widespread reports of abusive practices, including torture.

The Egyptian-born UN official, Cherif Bassiouni, issued a report critical of US and other Coalition human rights abuses. Shortly after that, the UN eliminated his position, reportedly under pressure from Washington to change his mandate to remove investigation of the US military.

The indefinite, incommunicado or virtually incommunicado, and arbitrary detention of these people may in itself amount to cruel, inhuman or degrading treatment and leaves them at risk of further ill-treatment and torture during interrogations.

In all these locations, the CIA and its intelligence service allies are free from the scrutiny of military lawyers steeped in the international laws of war, and thus have the leeway to exert physically and psychologically aggressive techniques, according to national security officials and US and European intelligence officers.

"Stress and duress" techniques reportedly described by US national security officers include keeping prisoners standing or kneeling for hours in black hoods; binding them in awkward, painful positions; depriving them of sleep with 24-hour lights; subjecting them to loud noises; "softening up" by beating; throwing them blindfolded into walls; and depriving wounded prisoners of adequate pain control

Brad Adams, Asia Director for Human Rights Watch, says, the US “appears to want to sweep human rights problems in Afghanistan under the carpet." The Supreme Court has now ruled that unacceptable.

In the Supreme Court decision, one of the justices in the majority, Stephen Breyer, said, "Nothing prevents the president from returning to Congress to seek the authority he believes necessary.''

So the Administration and Congress will have to act, though precisely how they will act is unclear. There is always a possibility that the White House may persuade Congress to craft a law that makes just enough changes in US detention policies to satisfy the Supreme Court’s decision, but which largely endorses what the President has been doing all along.

That is also how Congress may deal with the “warrantless wiretaps” carried out by the National Security Agency. It may simply change FISA, the Foreign Intelligence Surveillance Act, to legalize what the Administration is already doing.

This approach may allow an election-year Congress to crow about reclaiming its rightful power as one of the three coequal branches of our Government, and restored the checks and balances the framers of the Constitution considered so important.

But it will do nothing to force Congress to exercise the rigorous oversight the framers had in mind. Bashing “activist judges” is a lot easier.

We can live in hope, but meaningful oversight is unlikely to happen as long as one political party controls the White House and both houses of Congress.


By William Fisher

President Bush and Vice President Cheney were apoplectic. Publication of the details of U.S. Government surveillance of the SWIFT money-transfer program were “disgraceful,” a threat to national security.

Congressman Peter King suggested that The New York Times – though it was only one of the newspapers to run this story – be charged with treason. Oh, my!

Facts did nothing to quell this press-bashing frenzy. The facts are that the SWIFT program has been reported by numerous media outlets for the past several years.

According to Roger Cressey, a senior White House counter-terrorism official until 2003, “There have been public references to SWIFT before. The White House is overreaching," Cressey told the Boston Globe, when the administration suggests the Times committed ``a crime against the war on terror. It has been in the public domain before."

And if the terrorists were clever enough to hijack four airplanes, surely they would have long since figured out that their money trails were being watched. And would have found less formal financial laundries to carry out their evil venture capitalism.

But for the Bush Administration, the SWIFT story presented a wonderful way to change the subject. From Iraq, where things aren’t going so well. From the Supreme Court, which cancelled the President’s blank check. From immigration, where the President’s tanking poll numbers finally gave our supine House of Representatives the spine to resist the more comprehensive approach proposed by their own party’s Senate colleagues. From rising gasoline prices. From post-Katrina chaos. From our problems with Iran and North Korea, and the Administration’s continuing failure to devote serious resources to the never-ending Israeli-Palestinian issue.

Attacking the messenger is a tried and true Washington tactic. Especially when the messenger is the press.

Democrats didn’t exactly call for Bill Keller’s head, but neither did they distinguish themselves for the political courage to defend the First Amendment.

But the money trail story apparently has legs. Comes now news from the AP that money transfer agencies like Western Union have delayed or blocked thousands of cash deliveries on suspicion of terrorist connections simply because senders or recipients have names like Mohammed or Ahmed.

The AP reports that Western Union Financial Services, Inc., an American company based in Colorado, said its clerks simply are following U.S. Treasury Department guidelines that aim to scrutinize cash flows for terrorist links. Most of the flagged transactions are delayed a few hours. Some are blocked entirely.

"The Treasury program interferes with even the most innocent transactions," said the Council on American-Islamic Relations, CAIR, in Washington. "Just because Ahmed is a common name on (the government’s) list, everyone with that name is suddenly stuck."

CAIR spokesman Corey Saylor said Treasury needs to reform its rules.

Treasury’s aggressive approach dates from 9/11, and Western Union's caution is not surprising. September 11th hijacker Mohammed Atta sent money from two Western Union agencies in Maryland before boarding the plane he helped crash into New York's World Trade Center.

But a Western Union branch manager told the AP he was forced to obey U.S. rules that he and others consider too broad.

"Mohammed and Ahmed have become problematic names because they are so common on the list of terrorists," said Nixon Baby, who runs a Western Union franchise in a Dubai neighborhood packed with South Asian businesses.

"These are regulations that Western Union is required to obey. We do not have any control," he added.

But critics of the program say it is far too broad, the AP reports. “The number of people inconvenienced in the United Arab Emirates alone, which closely cooperates with U.S. counter-terror operations, is thought to be significant. One Western Union clerk said about 300 money transfers from a single Dubai franchise were blocked or delayed each day — none of which ever turned up a terrorist link.”

In Washington, a U.S. Treasury spokeswoman said foreign banks have used the department's list of terrorist names to freeze $150 million in assets since it was released after Sept. 11. The terrorist list, which is available on the Treasury's Office of Foreign Assets Control Website, contains hundreds of people named Mohammed.

"Every Mohammed is a terrorist now?" asked a Western Union customer whose money transfer was blocked.

Critics of the Treasury guidelines say they are sending more people to informal money transfer networks called "hundis" or "hawalas" that circumvent government and bank scrutiny, the AP reports. Hawala networks are known to have been used by gangsters and terrorists.

The Administration cannot be faulted for trying to follow the financial trails of people bent on destroying us, whether they are charitable organizations or money transfer companies like SWIFT and Western Union.

The question is whether broad-brush surveillance cloaked in secrecy is the most effective way to achieve this goal without writing the government another blank check.

We know the government’s counter-terrorism people are working hard. But are they working smart?