By William Fisher
The probability that some Guantanamo detainees will soon be released into the U.S. will place the administration of President Barack Obama in the eye of a major political hurricane.
Republicans and some Democrats in Congress have expressed strong opposition to the administration’s reported plan to allow some of the 17 Chinese Uighurs to resettle in the U.S. as part of Obama’s pledge to shut down the controversial prison within a year.
Secretary of Defense Robert Gates has confirmed the plan for the first time, though he added that a final decision had not been made. He said he understood that almost any administration move on Guantanamo was likely to be controversial. Seven has been the reported as the number of Uighurs the administration wants to release into the U.S.
Gates told a Senate appropriations subcommittee last week, "I fully expect to have 535 pieces of legislation before this is over saying, 'Not in my district, not in my state,' " He was referring to the number of senators and members of the House.
But Gates said the Uighurs would face persecution if they were returned to China. He added, "It's difficult for the State Department to make the argument to other countries they should take these people that we have deemed in this case not to be dangerous if we won't take any of them ourselves."
There are currently 17 Uighurs who have been imprisoned at Guantanamo since they were arrested in Pakistan in 2002. While these Muslim men have been declared to pose no threat to U.S. security and have been cleared for release, they remain at the notorious prison because no other countries have offered them asylum. A U.S. appeals court has ruled that admission to the U.S. is a matter of immigration law over which regular U.S. courts have no jurisdiction. That decision has been appealed to the U.S. Supreme Court, which is now considering the matter.
The Uighurs are primarily from northwestern China. China has been criticized for repressing Uighur religious rights and freedoms.
Before their capture, the Uighurs had traveled to Afghanistan, where they received firearms training at a camp reportedly run by a Uighur separatist.
There are about 240 inmates at Guantánamo. As many as 60, if freed, cannot go back to their homelands because they could face abuse, imprisonment or death. They are from Azerbaijan, Algeria, Afghanistan, Chad, China, Saudi Arabia and Yemen.
Several European nations, including Portugal and Lithuania, have said they will consider taking such detainees. Some nations, such as Germany, are divided on the issue. France has recently agreed to accept one prisoner and the European Union has said it would consider accepting others. British Justice Secretary Jack Straw said last week that his country would consider taking Guantánamo Bay detainees if the U.S. asks for such help to close the detention center.
''We will do our best to help and support the policy of the Obama administration to close Guantánamo Bay,'' Straw said. ''If we're asked, of course we'll consider'' accepting detainees, he said.
Some European leaders argue that if the detainees are to be released anywhere, it should first be in the United States.
Many legal scholars and most human rights advocates are pressing the Obama Administration to release cleared prisoners into the U.S.
Professor Francis A. Boyle of the University of Chicago Law School told IPS, “Obviously the United States government cannot return them to China, where they will be persecuted, which would violate our obligations under international law. And they certainly cannot be detained indefinitely, which would violate their international human rights, which the Bush administration has already done grievously now for a number of years. The lawful and humanitarian alternative would be to grant them political asylum and admit them into the United States.”
And Jonathan Hafetz, an attorney with the American Civil Liberties Union, told IPS, "It is a violation of basic human rights and our Constitution that the United States is continuing to imprison people, such as the Uighurs, who it acknowledges are innocent and present no danger. These men were swept up by mistake, sold to the U.S. for bounty, and rendered to Guantanamo where they have spent years in prison under often brutal conditions."
He added, "If we are to restore the rule of law, the Uighurs must be released in the United States. Keeping innocent people behind bars at an off-shore prison undermines not only our core values but our security as well."
Release of cleared prisoners is seen as a crucial step to the Obama Administration’s plans to close the prison and relocate the detainees.
To win their freedom, the Uighurs filed suit against the government. Last year, a U.S. district court ordered their release. The decision was appealed by the Bush administration, and was overturned by the U.S. Court of Appeals. Lawyers for the Uighurs have now appealed to the Supreme Court.
Members of a Uighur community in Northern Virginia have offered to help the detainees to resettle there.
In 2006, the U.S. released five Uighurs to Albania. After pressure from Beijing, which also urged other countries with Uighur communities not to accept the released detainees, Albania declined to take any more. Four remain in Albania and one has recently been granted asylum in Sweden.
Within Guantanamo, Uighurs are not considered a grave threat and are allowed privileges such as television, that are not available to other detainees.
Meanwhile, the Obama Administration is continuing to struggle with the issue of what to do with the 50 to 100 detainees at Guantanamo who Secretary Gates told Congress were considered too dangerous to release but could not be tried in U.S. civilian courts because evidence against them was based on hearsay or was obtained through torture.
Gates told Congress that the administration might continue to use the controversial military commissions set up by former President Bush, and later approved by Congress, to prosecute some of the detainees. President Obama ordered a 120-day halt to all military commission trials during his first days in office. That moratorium comes to an end in mid-May.
Lawmakers of both political parties have become increasingly vocal in asserting that the administration announced it would close Guantánamo before it had a plan for housing and prosecuting some detainees and releasing others.
“The question of where the terrorists at Guantánamo will be sent is no joking matter,” according to Senator Mitch McConnell of Kentucky, the Republican leader. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.”
Members of Congress were already playing the NIMBY (Not in My Backyard) game, pleading with Gates not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”
Gates has asked for $50 million in case a facility needs to be built quickly to house the detainees. He said he is aware that such a facility would be unpopular with lawmakers.
Republicans in Congress say Guantánamo should remain in operation and are mobilizing to fight the release of any detainees into the United States.
Critics of the administration’s actions have tended to label all Guantanamo detainees as “terrorists,” although many have been cleared for release and there is substantial evidence that other detainees were “sold” to the U.S. military for cash while others were simply “in the wrong place at the wrong time” and should never have been imprisoned in the first place.
Monday, May 04, 2009
Saturday, May 02, 2009
UN: RIGHTS ABUSED IN IRAQ
By William Fisher
Iraqi prisons are torturing detainees, locking people up for months without charges and, in most cases, allowing the perpetrators of these human rights to escape justice, according to a new United Nations report.
“Security may not be sustainable unless significant steps are taken in the area of human rights such as strengthening the rule of law and addressing impunity,” the report warned.
The United Nations Assistance Mission for Iraq (UNAMI) said it “remains concerned about the overall human rights situation in Iraq since indiscriminate attacks remained a frequent occurrence; the targeted killings of security forces, high ranking officials and civil servants, religious and political leaders, professional groups such as journalists, educators, medical doctors, judges and lawyers and other civilians continued at a high rate, as did criminal abductions for ransom.”
It said the last half of 2008 “was also characterized by the attacks against minority leaders and the large displacement of over 12,000 Christians from Mosul in October. Violence against women in the Region of Kurdistan and the rest of Iraq remained one of the issues of serious concern as the pattern of the recorded incidents of suicide often points towards ‘honor’-related homicides.”
UN High Commissioner for Human Rights Navi Pillay, whose staff helped compile the report, said, “The situation of Iraqi women is extremely difficult. Violent actions are taken against them on a daily basis and I urge the authorities to make it a priority to both improve legislation, and law enforcement in order to protect them properly.”
The UN report said the improvement in the security situation “was not accompanied by a full reestablishment of the rule of law and by systematically addressing impunity.”
“Allegations of torture should be promptly and thoroughly investigated, and criminal proceedings taken against officials found to have abused detainees in their custody. Every effort should be made to ensure that juvenile detainees are held at the appropriate and separate locations equipped with rehabilitation facilities, and additional resources devoted to address the issue of overcrowding at detention places,” the report said.
Francis A. Boyle, Professor of Law at the University of Illinois, told us, “Under the Laws of War, the United States still remains the belligerent occupant of Iraq and is therefore vicariously responsible for these war crimes and human rights atrocities.”
He said, “Nothing has changed as a result of the so-called Status of Forces agreement with respect to the Laws of War and the analysis set forth in there except the termination of the Security Council Resolutions with the side letters from the USA indicating a willingness to abide by the Laws of War as a condition for the renewal.”
Prof. Boyle added, “That does not alter the status of the U.S. as the Belligerent Occupant of Iraq and the fact that we are vicariously responsible for these war crimes and human rights atrocities, as indicated by the relevant sections of U.S. Army Field Manual 27-10, which is still valid and binding.”
The UN report found that:
The 26,249 people being held in Iraq prisons in December faced “months or even years in overcrowded cells” and many had not been formally charged.
The use of torture as an interrogation method and the ill-treatment of detainees remains “a serious challenge to Iraq’s criminal justice system.”
There is no known case in which any official in the powerful Ministry of Defense, which has its own jails, “has been held accountable for human rights abuses.”
The report also criticized jails in the semi-autonomous Kurdish region for poor treatment including beatings and electric shock.
Kurdistan also came under fire for its high rate of so-called “honor killings” of women and the many cases of women burned or coerced into suicide in honor cases. It said, “The vast majority of women still face at least one form of domestic violence.”
The report also charged that the amnesty law, which was promoted by the U.S. to encourage reconciliation, has largely failed to have it intended affect. Only 7,500 detainees were released from prison out of a total of some 127,431.
The report also faulted U.S. forces for detaining people “for prolonged periods without judicial review” and urged U.S. officials to continue investigations into two shootings by guards for the American embassy working for Blackwater Worldwide, now known as Xe.
In December, five Blackwater guards were charged with manslaughter in the deaths of 17 Iraqi civilians in a shooting incident at a busy Baghdad intersection. A sixth Blackwater guard has pleaded guilty to manslaughter in a U.S. court.
As of December 2008, the number of detainees under Iraqi control was 26,249 and those under the control of the Multinational Force Iraq (MNF-I) was 15,058, the report said. It raised concerns about the conditions of detainees, many of whom have been deprived of their liberty for months or even years in overcrowded cells, and about violations of the minimum rules of due process as many did not have access to defense counsel, or were not formally charged with a crime or appeared before a judge.
The report recommended that the Government of Iraq “ensure the effective implementation of the legislation regulating prisons and bring all detention facilities and prisons under the authority of the Ministry of Justice.”
The Iraqis “should address urgently all allegations of abuse of detainees, including juveniles. And law enforcement personnel and detaining officials known or suspected of having tortured or ill-treated detainees in their custody should not enjoy immunity from prosecution.”
The report called on the Iraqi government to “increase efforts to alleviate overcrowding in prisons and detention facilities and improve sanitation and hygiene conditions; in particular, institute urgent measures to examine conditions at juvenile detention facilities in respect of overcrowding and lack of adequate rehabilitation programs.”
It urged the Iraqi government to “investigate incidents involving gender-based violence, in particular the so-called ‘honor crimes’ perpetrated against women, and take measures to ensure that persons found responsible for committing these crimes are held accountable and brought to justice.”
And it urged MNF-I and U.S. Government authorities to investigate reports of deaths caused by privately hired contractors working on behalf of the US Government, and strengthen effective mechanisms for holding these contractors accountable for unlawful killings.
The U.S. must “ensure that offenses committed in Iraq by all categories of U.S. contractor employees are subject to prosecution under the law.”
Iraqi prisons are torturing detainees, locking people up for months without charges and, in most cases, allowing the perpetrators of these human rights to escape justice, according to a new United Nations report.
“Security may not be sustainable unless significant steps are taken in the area of human rights such as strengthening the rule of law and addressing impunity,” the report warned.
The United Nations Assistance Mission for Iraq (UNAMI) said it “remains concerned about the overall human rights situation in Iraq since indiscriminate attacks remained a frequent occurrence; the targeted killings of security forces, high ranking officials and civil servants, religious and political leaders, professional groups such as journalists, educators, medical doctors, judges and lawyers and other civilians continued at a high rate, as did criminal abductions for ransom.”
It said the last half of 2008 “was also characterized by the attacks against minority leaders and the large displacement of over 12,000 Christians from Mosul in October. Violence against women in the Region of Kurdistan and the rest of Iraq remained one of the issues of serious concern as the pattern of the recorded incidents of suicide often points towards ‘honor’-related homicides.”
UN High Commissioner for Human Rights Navi Pillay, whose staff helped compile the report, said, “The situation of Iraqi women is extremely difficult. Violent actions are taken against them on a daily basis and I urge the authorities to make it a priority to both improve legislation, and law enforcement in order to protect them properly.”
The UN report said the improvement in the security situation “was not accompanied by a full reestablishment of the rule of law and by systematically addressing impunity.”
“Allegations of torture should be promptly and thoroughly investigated, and criminal proceedings taken against officials found to have abused detainees in their custody. Every effort should be made to ensure that juvenile detainees are held at the appropriate and separate locations equipped with rehabilitation facilities, and additional resources devoted to address the issue of overcrowding at detention places,” the report said.
Francis A. Boyle, Professor of Law at the University of Illinois, told us, “Under the Laws of War, the United States still remains the belligerent occupant of Iraq and is therefore vicariously responsible for these war crimes and human rights atrocities.”
He said, “Nothing has changed as a result of the so-called Status of Forces agreement with respect to the Laws of War and the analysis set forth in there except the termination of the Security Council Resolutions with the side letters from the USA indicating a willingness to abide by the Laws of War as a condition for the renewal.”
Prof. Boyle added, “That does not alter the status of the U.S. as the Belligerent Occupant of Iraq and the fact that we are vicariously responsible for these war crimes and human rights atrocities, as indicated by the relevant sections of U.S. Army Field Manual 27-10, which is still valid and binding.”
The UN report found that:
The 26,249 people being held in Iraq prisons in December faced “months or even years in overcrowded cells” and many had not been formally charged.
The use of torture as an interrogation method and the ill-treatment of detainees remains “a serious challenge to Iraq’s criminal justice system.”
There is no known case in which any official in the powerful Ministry of Defense, which has its own jails, “has been held accountable for human rights abuses.”
The report also criticized jails in the semi-autonomous Kurdish region for poor treatment including beatings and electric shock.
Kurdistan also came under fire for its high rate of so-called “honor killings” of women and the many cases of women burned or coerced into suicide in honor cases. It said, “The vast majority of women still face at least one form of domestic violence.”
The report also charged that the amnesty law, which was promoted by the U.S. to encourage reconciliation, has largely failed to have it intended affect. Only 7,500 detainees were released from prison out of a total of some 127,431.
The report also faulted U.S. forces for detaining people “for prolonged periods without judicial review” and urged U.S. officials to continue investigations into two shootings by guards for the American embassy working for Blackwater Worldwide, now known as Xe.
In December, five Blackwater guards were charged with manslaughter in the deaths of 17 Iraqi civilians in a shooting incident at a busy Baghdad intersection. A sixth Blackwater guard has pleaded guilty to manslaughter in a U.S. court.
As of December 2008, the number of detainees under Iraqi control was 26,249 and those under the control of the Multinational Force Iraq (MNF-I) was 15,058, the report said. It raised concerns about the conditions of detainees, many of whom have been deprived of their liberty for months or even years in overcrowded cells, and about violations of the minimum rules of due process as many did not have access to defense counsel, or were not formally charged with a crime or appeared before a judge.
The report recommended that the Government of Iraq “ensure the effective implementation of the legislation regulating prisons and bring all detention facilities and prisons under the authority of the Ministry of Justice.”
The Iraqis “should address urgently all allegations of abuse of detainees, including juveniles. And law enforcement personnel and detaining officials known or suspected of having tortured or ill-treated detainees in their custody should not enjoy immunity from prosecution.”
The report called on the Iraqi government to “increase efforts to alleviate overcrowding in prisons and detention facilities and improve sanitation and hygiene conditions; in particular, institute urgent measures to examine conditions at juvenile detention facilities in respect of overcrowding and lack of adequate rehabilitation programs.”
It urged the Iraqi government to “investigate incidents involving gender-based violence, in particular the so-called ‘honor crimes’ perpetrated against women, and take measures to ensure that persons found responsible for committing these crimes are held accountable and brought to justice.”
And it urged MNF-I and U.S. Government authorities to investigate reports of deaths caused by privately hired contractors working on behalf of the US Government, and strengthen effective mechanisms for holding these contractors accountable for unlawful killings.
The U.S. must “ensure that offenses committed in Iraq by all categories of U.S. contractor employees are subject to prosecution under the law.”
Obama Lawyers: Military Commissions Tweaked?
By William Fisher
Reports circulating in Washington suggest that President Barack Obama may try to revive the military commission system for prosecuting Guantánamo detainees, which Obama himself criticized during the administration of his predecessor, former President George W. Bush.
While some detainees would be tried in federal courts, administration lawyers are reportedly concerned that some terrorism suspects could not be prosecuted in this way because they were subjected to brutal interrogations or because some of the evidence against them is based on hearsay.
So the Obama legal team is said to be developing a plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
While Obama himself has said in the past that he was not ruling out prosecutions in the military commission system, senior officials have made it clear that their preference is to prosecute terrorism suspects in existing American courts.
During the presidential campaign, Obama was critical of the commissions. He said, “By any measure our system of trying detainees has been an enormous failure,” and declared that as president he would “reject the Military Commissions Act.”
Court challenges and repeated delays have made the military commissions virtually dysfunctional. The result has been that detainees were denied basic rights of American law.
Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.
The administration is likely to make it more difficult for prosecutors to admit hearsay, while not excluding it entirely, government lawyers reportedly said. The hearsay issue is central to many Guantánamo cases because the hearsay is based on secret intelligence reports and detainees may never be allowed to cross-examine the sources of those reports.
Continuing the military commissions in any form has already drawn sharp criticism from human rights advocates, who say that they would curtail the protections defendants would routinely receive in civilian courts.
Jonathan Hafetz, an ACLU attorney, told us, “Military commissions to try Guantanamo detainees have been a failed experiment in lawlessness. No effort by a new administration to provide ‘window dressing’ will change that. The only reason to perpetuate to military commissions in any form would be to circumvent the protections of the criminal justice system and insulate torture and other abuses from review. The criminal justice system is fully adequate to prosecute terrorism cases while remaining faithful to the Constitution and American values.”
David Cole of Georgetown University, a widely recognized constitutional authority, told us, “The critical issue is that any war crimes trials be meticulously fair. I think what they are called matters less than whether they meet fundamental principles of fairness. But one has to wonder why, if they are planning on fair trials, they cannot use the military justice system we use for our own servicemen.”
An even harsher view came from Prof. Francis A. Boyle of the University of Chicago law school. He told us, “These Kangaroo Courts violate the Geneva Conventions and are thus a war crime, even as determined by the United States Supreme Court itself in the Hamdan decision. There is no way they can be reformed.”
He added that the Geneva Conventions “require the use of regular, organized courts, which in this case would mean prosecution in United States Federal District Courts or else prosecution by means of formal U.S. military court-martial proceedings with all the protections of the Uniform Code of Military Justice. To do otherwise is a war crime.”
Shane Kadidal, an attorney with the Center for Constitutional Rights, told us, “One could read some of Eric Holder's statements about the Commissions (from months ago) as not being categorical rejections of the idea of military trials or even of the present system, but instead implying that layering on extra due process protections would allow the currently temporarily-stayed trials to continue. But doing so would be a legal mistake because it would not solve the retroactivity problem -- the fact that the offenses defendants are charged with were created by the military commissions act years after they were arrested.”
He added, “It would also be a policy mistake: trials before any kind of non-civilian court will be viewed by the rest of the world as the sort of thing that military dictatorships have done throughout history; they'll be assumed to be completely lacking in fairness. Moreover, using military courts to try terrorists plays into their hands. It allows them to portray themselves as warriors rather than criminals, and their victims as collateral casualties in a political struggle rather than murder victims.”
Gabor Rona, international legal director of Human Rights First, said, “The administration is making a huge mistake if they believe getting convictions through suspect methods is more valuable than letting justice take its course.”
The four-month suspension of military commission proceedings ordered by Obama is due to end May 20.
At a news conference last week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”
But, referring to detainees whom American officials have accused of involvement in major terrorist plots, Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”
As many as 100 of Guantanamo’s remaining 241 detainees could end up held without trial on American soil, Defense Secretary Robert M. Gates suggested last week. He acknowledged that this situation would create widespread opposition in Congress.
Defense Secretary Robert Gates told Congress last week that discussions had started with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in civilian courts because evidence against them was obtained through torture or is hearsay.
“What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?” Gates asked in a hearing before the Senate Appropriations Committee.
Lawmakers of both political parties have become increasingly vocal in asserting that the administration announced it would close Guantánamo before it had a plan for housing and prosecuting some detainees and releasing others.
“The question of where the terrorists at Guantánamo will be sent is no joking matter,” according to Senator Mitch McConnell of Kentucky, the Republican leader. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.”
Critics of the administration’s actions have tended to label all Guantanamo detainees as “terrorists,” although many have been cleared for release and there is substantial evidence that other detainees were “sold” to the U.S. military for cash while others were simply “in the wrong place at the wrong time” and should never have been imprisoned in the first place.
Meanwhile, the Obama administration is still trying to decide what to do with detainees who have been cleared for release.
At the hearing, Gates said he had asked for $50 million in supplemental financing in case a facility needed to be built quickly for the detainees. He acknowledged that such a facility would be unpopular in most places.
Members of Congress were already playing the NIMBY (Not in My Backyard) game, pleading with Gates not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”
In Berlin last week, Attorney General Eric H. Holder Jr. said the legal basis for holding any detainees was still under review.
“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”
Emi Maclean, an attorney with the Center for Constitutional Rights – which has mobilized dozens of lawyers to defend Guantanamo detainees – said, “It is long past time for the prison to close and for these men to have their lives restored. The time for promises is over; the time for real action is now.”
She raised the possibility that some of the detainees would need to be freed to enter the U.S. “The U.S. must open its doors to some of these men who need safe haven from torture, and other countries must as well if Guantanamo is to close,” she said.
Most prominent among this group are 17 Uighurs from China. While these Muslim men have been cleared for release after years of imprisonment at Guantanamo, they remain there because no other countries have come forth to offer them asylum and a U.S. court has ruled that it does not have jurisdiction to release them into the U.S.
Reports circulating in Washington suggest that President Barack Obama may try to revive the military commission system for prosecuting Guantánamo detainees, which Obama himself criticized during the administration of his predecessor, former President George W. Bush.
While some detainees would be tried in federal courts, administration lawyers are reportedly concerned that some terrorism suspects could not be prosecuted in this way because they were subjected to brutal interrogations or because some of the evidence against them is based on hearsay.
So the Obama legal team is said to be developing a plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
While Obama himself has said in the past that he was not ruling out prosecutions in the military commission system, senior officials have made it clear that their preference is to prosecute terrorism suspects in existing American courts.
During the presidential campaign, Obama was critical of the commissions. He said, “By any measure our system of trying detainees has been an enormous failure,” and declared that as president he would “reject the Military Commissions Act.”
Court challenges and repeated delays have made the military commissions virtually dysfunctional. The result has been that detainees were denied basic rights of American law.
Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.
The administration is likely to make it more difficult for prosecutors to admit hearsay, while not excluding it entirely, government lawyers reportedly said. The hearsay issue is central to many Guantánamo cases because the hearsay is based on secret intelligence reports and detainees may never be allowed to cross-examine the sources of those reports.
Continuing the military commissions in any form has already drawn sharp criticism from human rights advocates, who say that they would curtail the protections defendants would routinely receive in civilian courts.
Jonathan Hafetz, an ACLU attorney, told us, “Military commissions to try Guantanamo detainees have been a failed experiment in lawlessness. No effort by a new administration to provide ‘window dressing’ will change that. The only reason to perpetuate to military commissions in any form would be to circumvent the protections of the criminal justice system and insulate torture and other abuses from review. The criminal justice system is fully adequate to prosecute terrorism cases while remaining faithful to the Constitution and American values.”
David Cole of Georgetown University, a widely recognized constitutional authority, told us, “The critical issue is that any war crimes trials be meticulously fair. I think what they are called matters less than whether they meet fundamental principles of fairness. But one has to wonder why, if they are planning on fair trials, they cannot use the military justice system we use for our own servicemen.”
An even harsher view came from Prof. Francis A. Boyle of the University of Chicago law school. He told us, “These Kangaroo Courts violate the Geneva Conventions and are thus a war crime, even as determined by the United States Supreme Court itself in the Hamdan decision. There is no way they can be reformed.”
He added that the Geneva Conventions “require the use of regular, organized courts, which in this case would mean prosecution in United States Federal District Courts or else prosecution by means of formal U.S. military court-martial proceedings with all the protections of the Uniform Code of Military Justice. To do otherwise is a war crime.”
Shane Kadidal, an attorney with the Center for Constitutional Rights, told us, “One could read some of Eric Holder's statements about the Commissions (from months ago) as not being categorical rejections of the idea of military trials or even of the present system, but instead implying that layering on extra due process protections would allow the currently temporarily-stayed trials to continue. But doing so would be a legal mistake because it would not solve the retroactivity problem -- the fact that the offenses defendants are charged with were created by the military commissions act years after they were arrested.”
He added, “It would also be a policy mistake: trials before any kind of non-civilian court will be viewed by the rest of the world as the sort of thing that military dictatorships have done throughout history; they'll be assumed to be completely lacking in fairness. Moreover, using military courts to try terrorists plays into their hands. It allows them to portray themselves as warriors rather than criminals, and their victims as collateral casualties in a political struggle rather than murder victims.”
Gabor Rona, international legal director of Human Rights First, said, “The administration is making a huge mistake if they believe getting convictions through suspect methods is more valuable than letting justice take its course.”
The four-month suspension of military commission proceedings ordered by Obama is due to end May 20.
At a news conference last week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”
But, referring to detainees whom American officials have accused of involvement in major terrorist plots, Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”
As many as 100 of Guantanamo’s remaining 241 detainees could end up held without trial on American soil, Defense Secretary Robert M. Gates suggested last week. He acknowledged that this situation would create widespread opposition in Congress.
Defense Secretary Robert Gates told Congress last week that discussions had started with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in civilian courts because evidence against them was obtained through torture or is hearsay.
“What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?” Gates asked in a hearing before the Senate Appropriations Committee.
Lawmakers of both political parties have become increasingly vocal in asserting that the administration announced it would close Guantánamo before it had a plan for housing and prosecuting some detainees and releasing others.
“The question of where the terrorists at Guantánamo will be sent is no joking matter,” according to Senator Mitch McConnell of Kentucky, the Republican leader. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.”
Critics of the administration’s actions have tended to label all Guantanamo detainees as “terrorists,” although many have been cleared for release and there is substantial evidence that other detainees were “sold” to the U.S. military for cash while others were simply “in the wrong place at the wrong time” and should never have been imprisoned in the first place.
Meanwhile, the Obama administration is still trying to decide what to do with detainees who have been cleared for release.
At the hearing, Gates said he had asked for $50 million in supplemental financing in case a facility needed to be built quickly for the detainees. He acknowledged that such a facility would be unpopular in most places.
Members of Congress were already playing the NIMBY (Not in My Backyard) game, pleading with Gates not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”
In Berlin last week, Attorney General Eric H. Holder Jr. said the legal basis for holding any detainees was still under review.
“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”
Emi Maclean, an attorney with the Center for Constitutional Rights – which has mobilized dozens of lawyers to defend Guantanamo detainees – said, “It is long past time for the prison to close and for these men to have their lives restored. The time for promises is over; the time for real action is now.”
She raised the possibility that some of the detainees would need to be freed to enter the U.S. “The U.S. must open its doors to some of these men who need safe haven from torture, and other countries must as well if Guantanamo is to close,” she said.
Most prominent among this group are 17 Uighurs from China. While these Muslim men have been cleared for release after years of imprisonment at Guantanamo, they remain there because no other countries have come forth to offer them asylum and a U.S. court has ruled that it does not have jurisdiction to release them into the U.S.
Wednesday, April 29, 2009
RIGHTS GROUPS ASSESS OBAMA’S FIRST 100 DAYS
By William Fisher
While human rights and open-government groups are generally pleased with President Barack Obama’s rhetoric during his first 100 days, some are skeptical that he will deliver on his promises.
Typical is Amnesty International. The group says, “President Obama has made a promising start in improving the United States' human rights record in his first 100 days in office, but he must now deliver on his promises.”
The London-based rights group praised Obama for declaring that he will close the Guantanamo Bay prison, but it said after an "auspicious start" in making a swift announcement, more than 240 detainees are no closer to freedom.
"The bottom line is that... unlawful detentions at Guantanamo Bay continue, and for the vast majority of the detainees, the change in administration has so far meant no change in their situation," Amnesty said.
The group also expressed concerns about suspects held at Bagram airbase in Afghanistan, which it said remained "shrouded in secrecy." Obama had inherited a "unique opportunity" to dismantle the Bush administration's apparatus for the war on terror which had produced "brutal practices and broken lives," Amnesty said.
"The closure of Guantanamo must mark the end of the policies and practices it embodies, not merely shift those violations elsewhere, whether to Bagram... or anywhere else," Amnesty said.
The Center for Constitutional Rights – which has mobilized a small army of pro-bono lawyers to defend Guantanamo detainees – praised Omaba’s rhetoric but cautioned that “in many areas of critical importance – like human rights, torture, rendition, secrecy and surveillance – his words have been loftier than his actions.”
Vince Warren, CCR executive director, says, “On Obama's very first day in office, his administration ordered a 120-day suspension of the military commissions for Guantanamo detainees. The commissions were widely assailed for allowing evidence obtained through coercion and torture, secret evidence and hearsay evidence, all in violation of the U.S. Constitution. But Obama did not abolish the military commissions; he only hit the ‘pause’ button.”
Warren faulted Obama for not moving more quickly to close the U.S. military prison at Guantanamo Bay, Cuba.
He said, “The new president's most dramatic moment came on day three when he issued executive orders to close Guantanamo's prison camp within one year. But Guantanamo isn't yet closed. The hundreds of men held there still haven't won their freedom, nor will they necessarily have their day in fair court. Another year for men who have been held in abusive and inhuman conditions for seven years already is simply too long.”
Warren said that “secrecy was the hallmark of the Bush administration. It classified more documents than any administration in history, restricted Freedom of Information Act requests and tried to protect government officials and military contractors from being held liable for illegal actions, such as torture and wrongful death.”
“It invoked the state secrets privilege to avoid scrutiny in court and
responsibility for government action more times than any other administration,” he said, but added:.
“Obama has come down on both sides of this issue, ordering far more transparency through cooperation with Freedom of Information Act requests, while at the same time invoking state secrets in a case charging an aviation corporation with complicity in rendering a detainee to torture.”
Warren was also critical of Obama on the issue of electronic surveillance. He said, “The U.S. government used to need a warrant before it could spy on its own people. In 2002, President George W. Bush issued a secret executive order illegally authorizing the National Security Agency to wiretap Americans without a warrant. When the program was exposed, the administration secured immunity from Congress for the telecommunications companies that participated in the program. Obama still has not repudiated the executive orders supporting warrantless wiretapping and the legal opinions used to support them.”
Warren said that release of the “torture memos” prepared by lawyers in the Bush Justice Department was “welcome,” but he noted that “Obama has indicated he will not prosecute former officials who broke the law and committed crimes, saying he would rather look forward than back. For there to be no consequences for creating a torture program not only calls our system of justice into question, but it also could allow the nightmare to happen all over again.”
He said, “After the Sept. 11 attacks, Bush quickly squandered the world's enormous goodwill toward the United States. The goodwill Obama has inspired can evaporate if the rest of the world begins to see his administration continuing too many of Bush's policies.”
At the same time, a leading open-government advocacy organization, OMB Watch, said, “The president and his team have made significant progress in both the right-to-know and regulatory areas.”
But it added that “there is still much work to be done as we move deeper into Obama's term in office.”
“Overall, the Obama administration has set a strong tone on transparency, but a true assessment cannot occur until the development of agency-wide policies are put in place and fully implemented,” the group said.
“During his first full day in office, Obama successfully communicated the importance of transparency to agencies and the public by issuing memorandums on the Freedom of Information Act (FOIA) and on transparency and open government.
The FOIA memo gave instructions and guidance to the attorney general on issuing new policies on the implementation of FOIA. The transparency memo directed agencies to harness new technologies to make information available to the public and for top officials to draft a blueprint Open Government Directive. These immediate actions were followed by steps to bring greater transparency to the regulatory process and to how scientific actions in government are handled,” the group said.
But it was critical of the new president on the issues of “signing statements” and use of the “state secrets privilege” to keep cases out of court on national security grounds.
It said, “Many groups considered Obama's signing statement on the 2009 omnibus appropriations bill to be an affront to whistleblower protections. These groups have interpreted Obama's signing statement as impeding the ability of government employees to communicate with Congress. Further, in repeated court cases, Obama administration officials have insisted on maintaining the Bush administration's broad interpretation of executive branch power on the issue of state secrets. There has been no public discussion of reviewing these policies for possible revision.”
OMB Watch noted that “Despite a fierce internal debate, the Obama administration has released four Bush-era ‘torture memos’ from the Department of Justice.
But, it added, “It remains to be seen if the administration will adopt a systematic approach to releasing other important documents that have been withheld from the public.”
The group noted that, in his first 100 days in office, President Obama “has made transparency a high priority and has started significant efforts in what will be a long process of getting government to be more open.”
But, it added, “Concerns and complaints have been raised by right-to-know advocates about various activities of the administration, including the usability of the White House website, transparency of legislation before the president signs it, and more. Additionally, it is difficult to accomplish much substantive change in just 100 days; much of the real test for this administration's commitment to transparency lies ahead. However, when measured against the yardstick of the five recommendations described above, it is impossible to view the administration's accomplishments as anything other than a success.”
Overall, the group concluded, Obama “has set a positive tone for the administration with his calls for increased transparency and renewed scientific integrity throughout government, his appointments of well qualified people to serve in regulatory agencies, his reversal of harmful regulatory practices and rushed deregulatory actions, and his initiation of an open process to reform the executive order that governs the rulemaking process. For these actions, the president deserves high marks.”
While human rights and open-government groups are generally pleased with President Barack Obama’s rhetoric during his first 100 days, some are skeptical that he will deliver on his promises.
Typical is Amnesty International. The group says, “President Obama has made a promising start in improving the United States' human rights record in his first 100 days in office, but he must now deliver on his promises.”
The London-based rights group praised Obama for declaring that he will close the Guantanamo Bay prison, but it said after an "auspicious start" in making a swift announcement, more than 240 detainees are no closer to freedom.
"The bottom line is that... unlawful detentions at Guantanamo Bay continue, and for the vast majority of the detainees, the change in administration has so far meant no change in their situation," Amnesty said.
The group also expressed concerns about suspects held at Bagram airbase in Afghanistan, which it said remained "shrouded in secrecy." Obama had inherited a "unique opportunity" to dismantle the Bush administration's apparatus for the war on terror which had produced "brutal practices and broken lives," Amnesty said.
"The closure of Guantanamo must mark the end of the policies and practices it embodies, not merely shift those violations elsewhere, whether to Bagram... or anywhere else," Amnesty said.
The Center for Constitutional Rights – which has mobilized a small army of pro-bono lawyers to defend Guantanamo detainees – praised Omaba’s rhetoric but cautioned that “in many areas of critical importance – like human rights, torture, rendition, secrecy and surveillance – his words have been loftier than his actions.”
Vince Warren, CCR executive director, says, “On Obama's very first day in office, his administration ordered a 120-day suspension of the military commissions for Guantanamo detainees. The commissions were widely assailed for allowing evidence obtained through coercion and torture, secret evidence and hearsay evidence, all in violation of the U.S. Constitution. But Obama did not abolish the military commissions; he only hit the ‘pause’ button.”
Warren faulted Obama for not moving more quickly to close the U.S. military prison at Guantanamo Bay, Cuba.
He said, “The new president's most dramatic moment came on day three when he issued executive orders to close Guantanamo's prison camp within one year. But Guantanamo isn't yet closed. The hundreds of men held there still haven't won their freedom, nor will they necessarily have their day in fair court. Another year for men who have been held in abusive and inhuman conditions for seven years already is simply too long.”
Warren said that “secrecy was the hallmark of the Bush administration. It classified more documents than any administration in history, restricted Freedom of Information Act requests and tried to protect government officials and military contractors from being held liable for illegal actions, such as torture and wrongful death.”
“It invoked the state secrets privilege to avoid scrutiny in court and
responsibility for government action more times than any other administration,” he said, but added:.
“Obama has come down on both sides of this issue, ordering far more transparency through cooperation with Freedom of Information Act requests, while at the same time invoking state secrets in a case charging an aviation corporation with complicity in rendering a detainee to torture.”
Warren was also critical of Obama on the issue of electronic surveillance. He said, “The U.S. government used to need a warrant before it could spy on its own people. In 2002, President George W. Bush issued a secret executive order illegally authorizing the National Security Agency to wiretap Americans without a warrant. When the program was exposed, the administration secured immunity from Congress for the telecommunications companies that participated in the program. Obama still has not repudiated the executive orders supporting warrantless wiretapping and the legal opinions used to support them.”
Warren said that release of the “torture memos” prepared by lawyers in the Bush Justice Department was “welcome,” but he noted that “Obama has indicated he will not prosecute former officials who broke the law and committed crimes, saying he would rather look forward than back. For there to be no consequences for creating a torture program not only calls our system of justice into question, but it also could allow the nightmare to happen all over again.”
He said, “After the Sept. 11 attacks, Bush quickly squandered the world's enormous goodwill toward the United States. The goodwill Obama has inspired can evaporate if the rest of the world begins to see his administration continuing too many of Bush's policies.”
At the same time, a leading open-government advocacy organization, OMB Watch, said, “The president and his team have made significant progress in both the right-to-know and regulatory areas.”
But it added that “there is still much work to be done as we move deeper into Obama's term in office.”
“Overall, the Obama administration has set a strong tone on transparency, but a true assessment cannot occur until the development of agency-wide policies are put in place and fully implemented,” the group said.
“During his first full day in office, Obama successfully communicated the importance of transparency to agencies and the public by issuing memorandums on the Freedom of Information Act (FOIA) and on transparency and open government.
The FOIA memo gave instructions and guidance to the attorney general on issuing new policies on the implementation of FOIA. The transparency memo directed agencies to harness new technologies to make information available to the public and for top officials to draft a blueprint Open Government Directive. These immediate actions were followed by steps to bring greater transparency to the regulatory process and to how scientific actions in government are handled,” the group said.
But it was critical of the new president on the issues of “signing statements” and use of the “state secrets privilege” to keep cases out of court on national security grounds.
It said, “Many groups considered Obama's signing statement on the 2009 omnibus appropriations bill to be an affront to whistleblower protections. These groups have interpreted Obama's signing statement as impeding the ability of government employees to communicate with Congress. Further, in repeated court cases, Obama administration officials have insisted on maintaining the Bush administration's broad interpretation of executive branch power on the issue of state secrets. There has been no public discussion of reviewing these policies for possible revision.”
OMB Watch noted that “Despite a fierce internal debate, the Obama administration has released four Bush-era ‘torture memos’ from the Department of Justice.
But, it added, “It remains to be seen if the administration will adopt a systematic approach to releasing other important documents that have been withheld from the public.”
The group noted that, in his first 100 days in office, President Obama “has made transparency a high priority and has started significant efforts in what will be a long process of getting government to be more open.”
But, it added, “Concerns and complaints have been raised by right-to-know advocates about various activities of the administration, including the usability of the White House website, transparency of legislation before the president signs it, and more. Additionally, it is difficult to accomplish much substantive change in just 100 days; much of the real test for this administration's commitment to transparency lies ahead. However, when measured against the yardstick of the five recommendations described above, it is impossible to view the administration's accomplishments as anything other than a success.”
Overall, the group concluded, Obama “has set a positive tone for the administration with his calls for increased transparency and renewed scientific integrity throughout government, his appointments of well qualified people to serve in regulatory agencies, his reversal of harmful regulatory practices and rushed deregulatory actions, and his initiation of an open process to reform the executive order that governs the rulemaking process. For these actions, the president deserves high marks.”
RELIGIOUS GROUPS URGE COMMISSION, PROSECUTOR
By William Fisher
A coalition of 19 human rights, faith-based, and justice organizations is calling on President Barack Obama to investigate torture they charge was sanctioned by the administration of former President George W. Bush.
The group, led by the National Religious Campaign Against Torture (NRCAT), is proposing both a special prosecutor and an “independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman and degrading treatment of detainees in the period since September 11, 2001.”
The campaign’s call for accountability comes just days after the release of the Senate Armed Services Committee report on interrogation and torture and the Justice Department legal memos sanctioning torture and inhumane treatment.
Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture, told us, “NRCAT supports both the establishment of an independent, non-partisan Commission of Inquiry to investigate the use of torture and a Department of Justice investigation for criminal culpability of those who authorized or carried out acts of torture. Each process is important and can be pursued independently.”
He added, “A Commission will help us understand how the illegal interrogation policies came into effect and how they were implemented so that we can ensure that safeguards are in place to prevent future administrations from following the same path. A criminal investigation will send the clear message that government officials cannot violate laws against torture without facing serious criminal sanctions. If we hope to end the practice of torture by agents of the United States once and for all, we must pursue both avenues.”
The coalition proposes a commission, “comparable in stature to the 9/11 Commission,” to “look into the facts and circumstances of such abuses, report on lessons learned and recommend measures that would prevent any future abuses.”
The group’s online petition says that a commission is “necessary to reaffirm America’s commitment to the Constitution, international treaty obligations and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.”
Organizations endorsing the effort include Amnesty International USA, the Constitution Project, Human Rights First, Human Rights Watch, the Open Society Institute, and Physicians for Human Rights.
NRCAT and its partner organizations say they have “worked together to end U.S.-sponsored torture. During 2008, the religious community advocated for a Presidential Executive Order ending torture. It happened. On January 22, President Obama issued an Executive Order halting torture.”
The coalition says the task now is “to make sure that U.S.-sponsored torture never happens again. To accomplish this goal, our nation needs to put safeguards in place to prevent its recurrence. We will better understand what safeguards are needed if we have a comprehensive understanding of what happened – who was tortured, why they were tortured, and who ordered the torture. As a nation we need the answers to those questions.”
In a letter to Attorney General Eric Holder the coalition also urges the
appointment of a Special Counsel to investigate criminal acts relating to the confinement and interrogation of detainees since Sept. 11, 2001.
The letter notes that excerpts of a recently released report from the International Committee of the Red Cross (ICRC) concluded that detainees “had been subjected to torture – a crime under both domestic and international law.”
It says, “The ICRC report, which describes conduct of shocking brutality, shows that a limited investigation is simply insufficient in this case. Government officials, from the lowest CIA officer, to the highest levels of the Executive Branch may be criminally culpable for the use of torture. Because such an investigation will include a review of the conduct of very top officials of the previous administration, and because the appearance of absolute impartiality in determining whether and whom to prosecute is critical to the public's support and understanding of such prosecutions and the laws at issue, we believe it is both wise and necessary for you to refer this investigation to a Special Counsel.”
NRCAT twice asked former Attorney General Michael Mukasey to appoint a Special Counsel to investigate both the destruction of the CIA videotapes that documented the use of “harsh” interrogation techniques against suspected terrorists and whether such techniques violated U.S. and international law.
“While an investigation was initiated into the destruction of the tapes, the investigator, John Durham, was not given the independent status of Special Counsel. Further, Attorney Durham’s investigation was limited to the destruction of the tapes; he apparently does not have the authority to investigate the lawfulness of the interrogation conduct depicted on said tapes,” the group said.
“A full, independent and public investigation into possible violations of U.S. law by high-ranking government officials in the use of ‘enhanced interrogation techniques’ is necessary.”
“The American people need to know how detainees have been treated in Iraq, Afghanistan, Guantánamo and elsewhere around the world. And they need to know that every measure has been taken to ensure that no violations of U.S. law with respect to torture and ‘cruel, inhuman and degrading treatment’ will be permitted in the future. An independent investigation is a necessary part of achieving this goal,” the group said.
A coalition of 19 human rights, faith-based, and justice organizations is calling on President Barack Obama to investigate torture they charge was sanctioned by the administration of former President George W. Bush.
The group, led by the National Religious Campaign Against Torture (NRCAT), is proposing both a special prosecutor and an “independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman and degrading treatment of detainees in the period since September 11, 2001.”
The campaign’s call for accountability comes just days after the release of the Senate Armed Services Committee report on interrogation and torture and the Justice Department legal memos sanctioning torture and inhumane treatment.
Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture, told us, “NRCAT supports both the establishment of an independent, non-partisan Commission of Inquiry to investigate the use of torture and a Department of Justice investigation for criminal culpability of those who authorized or carried out acts of torture. Each process is important and can be pursued independently.”
He added, “A Commission will help us understand how the illegal interrogation policies came into effect and how they were implemented so that we can ensure that safeguards are in place to prevent future administrations from following the same path. A criminal investigation will send the clear message that government officials cannot violate laws against torture without facing serious criminal sanctions. If we hope to end the practice of torture by agents of the United States once and for all, we must pursue both avenues.”
The coalition proposes a commission, “comparable in stature to the 9/11 Commission,” to “look into the facts and circumstances of such abuses, report on lessons learned and recommend measures that would prevent any future abuses.”
The group’s online petition says that a commission is “necessary to reaffirm America’s commitment to the Constitution, international treaty obligations and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.”
Organizations endorsing the effort include Amnesty International USA, the Constitution Project, Human Rights First, Human Rights Watch, the Open Society Institute, and Physicians for Human Rights.
NRCAT and its partner organizations say they have “worked together to end U.S.-sponsored torture. During 2008, the religious community advocated for a Presidential Executive Order ending torture. It happened. On January 22, President Obama issued an Executive Order halting torture.”
The coalition says the task now is “to make sure that U.S.-sponsored torture never happens again. To accomplish this goal, our nation needs to put safeguards in place to prevent its recurrence. We will better understand what safeguards are needed if we have a comprehensive understanding of what happened – who was tortured, why they were tortured, and who ordered the torture. As a nation we need the answers to those questions.”
In a letter to Attorney General Eric Holder the coalition also urges the
appointment of a Special Counsel to investigate criminal acts relating to the confinement and interrogation of detainees since Sept. 11, 2001.
The letter notes that excerpts of a recently released report from the International Committee of the Red Cross (ICRC) concluded that detainees “had been subjected to torture – a crime under both domestic and international law.”
It says, “The ICRC report, which describes conduct of shocking brutality, shows that a limited investigation is simply insufficient in this case. Government officials, from the lowest CIA officer, to the highest levels of the Executive Branch may be criminally culpable for the use of torture. Because such an investigation will include a review of the conduct of very top officials of the previous administration, and because the appearance of absolute impartiality in determining whether and whom to prosecute is critical to the public's support and understanding of such prosecutions and the laws at issue, we believe it is both wise and necessary for you to refer this investigation to a Special Counsel.”
NRCAT twice asked former Attorney General Michael Mukasey to appoint a Special Counsel to investigate both the destruction of the CIA videotapes that documented the use of “harsh” interrogation techniques against suspected terrorists and whether such techniques violated U.S. and international law.
“While an investigation was initiated into the destruction of the tapes, the investigator, John Durham, was not given the independent status of Special Counsel. Further, Attorney Durham’s investigation was limited to the destruction of the tapes; he apparently does not have the authority to investigate the lawfulness of the interrogation conduct depicted on said tapes,” the group said.
“A full, independent and public investigation into possible violations of U.S. law by high-ranking government officials in the use of ‘enhanced interrogation techniques’ is necessary.”
“The American people need to know how detainees have been treated in Iraq, Afghanistan, Guantánamo and elsewhere around the world. And they need to know that every measure has been taken to ensure that no violations of U.S. law with respect to torture and ‘cruel, inhuman and degrading treatment’ will be permitted in the future. An independent investigation is a necessary part of achieving this goal,” the group said.
Court Rebukes Bush, Obama Administrations
By William Fisher
In what may become a landmark decision, a federal appeals court ruled yesterday that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.
The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.
The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).
During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. Yesterday, the appeals court reversed that decision.
But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.
"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said.
Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.
The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.
"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.
"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
He told us that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime. Al-Rawi, now back in the U.K., told Watt, “It’s like winning the lottery.”
Yesterday’s Appeals Court ruling means that the government can assert the “state secrets” privilege for any specific piece of evidence, but not to end a case before it begins.
That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.
The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.
Al-Rawi, an Iraqi citizen and long-term British permanent resident, was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. He was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba. He was imprisoned there for more than four years until his release on March 30, 2007. He returned to his home in London where he currently resides freely. No charges were ever brought against him.
Ethiopian citizen Binyam Mohamed was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. Then he was once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo. He was released without charge in February and is currently suing the British Government for being complicit with the CIA in his rendition.
Abou Elkassim Britel, an Italian citizen, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents.
In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
In October 2003, Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated. In October 2003, he was turned over to CIA agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base at Bagram, Afghanistan. He was freed in March 2006, having never faced any charges related to terrorism.
Clive Stafford Smith, director of the U.K. legal charity Reprieve, which represents Binyam Mohamed in his British suit, told us, “This is a tremendous step forward in the battle to stop corporations making money off the rendition, torture and suffering of the prisoners we represent.”
He said, “Binyam Mohamed, and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit."
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.
In recent years, the government has asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.
Assertion of the privilege has denied access to U.S. courts in a number of high profile cases, most notably the cases of Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, and whistleblower Sibel Edmonds, a linguist for the Federal Bureau of Investigation (FBI) who charged that national security was being breached at the agency.
In what may become a landmark decision, a federal appeals court ruled yesterday that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.
The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.
The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).
During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. Yesterday, the appeals court reversed that decision.
But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.
"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said.
Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.
The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.
"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.
"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
He told us that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime. Al-Rawi, now back in the U.K., told Watt, “It’s like winning the lottery.”
Yesterday’s Appeals Court ruling means that the government can assert the “state secrets” privilege for any specific piece of evidence, but not to end a case before it begins.
That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.
The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.
Al-Rawi, an Iraqi citizen and long-term British permanent resident, was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. He was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba. He was imprisoned there for more than four years until his release on March 30, 2007. He returned to his home in London where he currently resides freely. No charges were ever brought against him.
Ethiopian citizen Binyam Mohamed was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. Then he was once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo. He was released without charge in February and is currently suing the British Government for being complicit with the CIA in his rendition.
Abou Elkassim Britel, an Italian citizen, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents.
In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
In October 2003, Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated. In October 2003, he was turned over to CIA agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base at Bagram, Afghanistan. He was freed in March 2006, having never faced any charges related to terrorism.
Clive Stafford Smith, director of the U.K. legal charity Reprieve, which represents Binyam Mohamed in his British suit, told us, “This is a tremendous step forward in the battle to stop corporations making money off the rendition, torture and suffering of the prisoners we represent.”
He said, “Binyam Mohamed, and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit."
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.
In recent years, the government has asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.
Assertion of the privilege has denied access to U.S. courts in a number of high profile cases, most notably the cases of Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, and whistleblower Sibel Edmonds, a linguist for the Federal Bureau of Investigation (FBI) who charged that national security was being breached at the agency.
Sunday, April 26, 2009
Happy Anniversary, Abu Ghraib!
By William Fisher
This Tuesday, April 28, will mark five years since Americans got their first look at the sickening photographs from Abu Ghraib on “60 Minutes.”
And a month after that, on May 28, the Department of Justice, acting under a court order, will release several thousand never-before-seen-in-public photographs of U.S. prisoner abuse from Afghanistan and from elsewhere in Iraq.
The recent “torture memos” -- which will inform our reaction to these new photos in a way not possible at the time of the Abu Ghraib scandal -- were also released as the result of what President Obama called an unwinnable lawsuit – by the same plaintiff, the American Civil Liberties Union, and under the same law, the Freedom of Information Act, or FOIA.
We don’t yet know what we’ll see in these new images. Some members of Congress, who viewed them in a classified setting, have said they are far worse than the Abu Ghraib images.
So on May 28 we will get to see these new photos. We will again be outraged. There will be cries for investigations. Politicians will make statements. Doubtless, they will hold hearings.
But the question is “what comes next?”
To help answer that question, it might be instructive to remember what happened after Abu Ghraib.
In what has to be one of the most iconic – and absurd – statements made since the terrorist attacks of 9/11, Army Lt. Col. Mark Ballesteros told the press back in 2005 that humane treatment of detainees "is and always has been the Department of Defense standard."
Ballesteros was commenting on the so-called “Church Report,” one of more than a dozen major reviews, assessments or investigations related to the detention and treatment of war-on-terror detainees.
And Ballesteros added: "None of them found that there was a governmental policy directing, encouraging or condoning abuse."
And that has pretty much been the history of all these investigations of abuse.
They are full of sentences like, “Clearly abuses occurred at the prison at Abu Ghraib. There is no single, simple explanation for why this abuse at Abu Ghraib happened. The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers… and a failure or lack of leadership….”
Or try this one: “The abuses at Abu Ghraib primarily fall into two categories: a) intentional violent or sexual abuse and, b) abusive actions taken based on misinterpretations or confusion regarding law or policy.”
Or this: “Senior level officers did not commit the abuse at Abu Ghraib (but) they did bear responsibility for lack of oversight of the facility, failing to respond in a timely manner to the reports from the International Committee of the Red Cross and for issuing policy memos that failed to provide clear, consistent guidance for execution at the tactical level.”
Or this “No policy, directive or doctrine directly or indirectly caused violent or sexual abuse. In these cases, soldiers knew they were violating the approved techniques and procedures.”
Or this, from the investigation led by former Defense Secretary James Schlesinger:
“The events of October through December 2003 on the night shift of Tier 1 at Abu Ghraib prison were acts of brutality and purposeless sadism. We now know these abuses occurred at the hands of both military police and military intelligence personnel. The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. Department of Defense reform efforts are underway and the Panel commends these efforts.”
In not a single one of these reports was the name of any high-ranking Pentagon official ever uttered.
President Bush described the perpetrators in the Abu Ghraib photos as “a few American troops who dishonored our country and disregarded our values.” He meant grunts like Lynddie England and Charles Graner – the folks who got blamed for carrying out what we now know was U.S. policy
Why could the reports of these mostly honorable officers and public servants have all gotten it so wrong?
For starters, the scope of each of these investigative assignments was determined by the Pentagon. Thus, the officer heading up the first investigation was ordered to find out what happened within the 800th Military Police (MP) Brigade in our military prisons in Iraq– and only in Iraq.
That’s how Major General Antonio Taguba came to conclude:
“I find that the 800th MP Brigade was not adequately trained for a mission that included operating a prison or penal institution at Abu Ghraib Prison Complex… I also concur that units of the800th MP Brigade did not receive corrections-specific training during their mobilization period. MP units did not receive pinpoint assignments prior to mobilization and during the post mobilization training, and thus could not train for specific missions. The training that was accomplished at the mobilization sites were developed and implemented at the company level with little or no direction or supervision at the Battalion and Brigade levels, and consisted primarily of common tasks and law enforcement training.”
But even given this limitation, Gen.Taguba concluded that the torture of prisoners at Abu Ghraib went far beyond the actions of a few sadistic military police officers -- the administration's chosen culprits. His report said 27 military intelligence soldiers and civilian contractors committed criminal offenses, and that military officials hid prisoners from the Red Cross.
And it’s worth noting that for his candor, Gen. Taguba was forced into retirement by civilian Pentagon officials because he had been ''overzealous.'' ''They always shoot the messenger,'' Taguba said.
Then, there’s the limitation that investigators can only probe down from their rank, not up the chain of command to their superiors. A Brigadier General (one star) cannot investigate a Lieutenant General (two stars); a Lieutenant General cannot investigate a Major General (three stars). And a Major General cannot investigate a General (four stars).
It was precisely for that reason that Maj. Gen. George R. Fay, one of the Abu Ghraib investigators, told his superiors that he could not complete his inquiry without interviewing more senior-ranking officers, including Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq.
Then there’s the pride factor.Most of the folks who carried out these investigations were career officers. They were proud of the military. One can see that pride in the conclusion of the 2004 report conducted by General Fay:
“Leaders and Soldiers throughout Operation Iraqi Freedom were confronted with a complex and dangerous operational environment. Although a clear breakdown in discipline and leadership, the events at Abu Ghraib should not blind us from the noble conduct of the vast majority of our Soldiers. We are a values based profession in which the clear majority of our Soldiers and leaders take great pride. A clear vote of confidence should be extended by the senior leadership to the leaders and soldiers who continue to perform extraordinarily in supporting our Nation’s wartime mission. Many of our soldiers have paid the ultimate sacrifice to preserve the freedoms and liberties that America and our Army represent throughout the world.”
So we saw the photos and learned nothing.
But the principal reason we learned nothing is that the Bush Administration wanted us to learn nothing. And a largely compliant media forgot to ask the right questions soon enough.
Remember that it was an ordinary soldier who was troubled enough by what he saw at Abu Ghraib to photograph it and put it on a CD that he turned over to his superiors. And remember that it was the military itself that announced, in 2003, that an investigation by the U.S. Army’s Criminal Investigation Command was underway into alleged prisoner abuse at Abu Ghraib.
But also remember that, back then, Donald Rumsfeld was a rock star, the darling of the press. Most of the journalists who attended his briefings were acting like stenographers.
What they didn’t know was that, by the time we got to see the Abu Ghraib photos in 2003, Jay Bybee and John Yoo had already used their contorted legal logic to write their so-called “torture memos” justifying “enhanced interrogation” techniques. By the time the Abu Ghraib photos surfaced on television, the Bush policy was already in place and being implemented. It would be five years before most of the American public began to get a glimmer of what that policy was.
Which brings me back to the new photos we’re going to see this Tuesday.
According to ACLU attorney Amrit Singh, "These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib."
She says, "Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse."
She is spot on. There is only one purpose in releasing these new photos -- to hold senior officials accountable for the policies that produced the behavior that produced the photos.
So who would these officials be? Well, for openers, such names as Bush, Cheney, Rumsfeld, Tenet and Rice spring to mind. They – not the lawyers who wrote the memos -- were “The Iraq Group” – the engines that powered the policies.
It is a near-certainty that we will never see any of these people in jail or even on trial. But what we have a right to know is who did what to whom and why.
Left to his own inclination and temperament, President Obama is not going to make that happen – unless we force him to make it happen. Unless the public pressure for an independent commission of inquiry becomes strong enough to shape the White House’s perception of political reality.
That should be the next item on our “to do” list.
Yes, we can!
This Tuesday, April 28, will mark five years since Americans got their first look at the sickening photographs from Abu Ghraib on “60 Minutes.”
And a month after that, on May 28, the Department of Justice, acting under a court order, will release several thousand never-before-seen-in-public photographs of U.S. prisoner abuse from Afghanistan and from elsewhere in Iraq.
The recent “torture memos” -- which will inform our reaction to these new photos in a way not possible at the time of the Abu Ghraib scandal -- were also released as the result of what President Obama called an unwinnable lawsuit – by the same plaintiff, the American Civil Liberties Union, and under the same law, the Freedom of Information Act, or FOIA.
We don’t yet know what we’ll see in these new images. Some members of Congress, who viewed them in a classified setting, have said they are far worse than the Abu Ghraib images.
So on May 28 we will get to see these new photos. We will again be outraged. There will be cries for investigations. Politicians will make statements. Doubtless, they will hold hearings.
But the question is “what comes next?”
To help answer that question, it might be instructive to remember what happened after Abu Ghraib.
In what has to be one of the most iconic – and absurd – statements made since the terrorist attacks of 9/11, Army Lt. Col. Mark Ballesteros told the press back in 2005 that humane treatment of detainees "is and always has been the Department of Defense standard."
Ballesteros was commenting on the so-called “Church Report,” one of more than a dozen major reviews, assessments or investigations related to the detention and treatment of war-on-terror detainees.
And Ballesteros added: "None of them found that there was a governmental policy directing, encouraging or condoning abuse."
And that has pretty much been the history of all these investigations of abuse.
They are full of sentences like, “Clearly abuses occurred at the prison at Abu Ghraib. There is no single, simple explanation for why this abuse at Abu Ghraib happened. The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and soldiers… and a failure or lack of leadership….”
Or try this one: “The abuses at Abu Ghraib primarily fall into two categories: a) intentional violent or sexual abuse and, b) abusive actions taken based on misinterpretations or confusion regarding law or policy.”
Or this: “Senior level officers did not commit the abuse at Abu Ghraib (but) they did bear responsibility for lack of oversight of the facility, failing to respond in a timely manner to the reports from the International Committee of the Red Cross and for issuing policy memos that failed to provide clear, consistent guidance for execution at the tactical level.”
Or this “No policy, directive or doctrine directly or indirectly caused violent or sexual abuse. In these cases, soldiers knew they were violating the approved techniques and procedures.”
Or this, from the investigation led by former Defense Secretary James Schlesinger:
“The events of October through December 2003 on the night shift of Tier 1 at Abu Ghraib prison were acts of brutality and purposeless sadism. We now know these abuses occurred at the hands of both military police and military intelligence personnel. The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. Department of Defense reform efforts are underway and the Panel commends these efforts.”
In not a single one of these reports was the name of any high-ranking Pentagon official ever uttered.
President Bush described the perpetrators in the Abu Ghraib photos as “a few American troops who dishonored our country and disregarded our values.” He meant grunts like Lynddie England and Charles Graner – the folks who got blamed for carrying out what we now know was U.S. policy
Why could the reports of these mostly honorable officers and public servants have all gotten it so wrong?
For starters, the scope of each of these investigative assignments was determined by the Pentagon. Thus, the officer heading up the first investigation was ordered to find out what happened within the 800th Military Police (MP) Brigade in our military prisons in Iraq– and only in Iraq.
That’s how Major General Antonio Taguba came to conclude:
“I find that the 800th MP Brigade was not adequately trained for a mission that included operating a prison or penal institution at Abu Ghraib Prison Complex… I also concur that units of the800th MP Brigade did not receive corrections-specific training during their mobilization period. MP units did not receive pinpoint assignments prior to mobilization and during the post mobilization training, and thus could not train for specific missions. The training that was accomplished at the mobilization sites were developed and implemented at the company level with little or no direction or supervision at the Battalion and Brigade levels, and consisted primarily of common tasks and law enforcement training.”
But even given this limitation, Gen.Taguba concluded that the torture of prisoners at Abu Ghraib went far beyond the actions of a few sadistic military police officers -- the administration's chosen culprits. His report said 27 military intelligence soldiers and civilian contractors committed criminal offenses, and that military officials hid prisoners from the Red Cross.
And it’s worth noting that for his candor, Gen. Taguba was forced into retirement by civilian Pentagon officials because he had been ''overzealous.'' ''They always shoot the messenger,'' Taguba said.
Then, there’s the limitation that investigators can only probe down from their rank, not up the chain of command to their superiors. A Brigadier General (one star) cannot investigate a Lieutenant General (two stars); a Lieutenant General cannot investigate a Major General (three stars). And a Major General cannot investigate a General (four stars).
It was precisely for that reason that Maj. Gen. George R. Fay, one of the Abu Ghraib investigators, told his superiors that he could not complete his inquiry without interviewing more senior-ranking officers, including Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq.
Then there’s the pride factor.Most of the folks who carried out these investigations were career officers. They were proud of the military. One can see that pride in the conclusion of the 2004 report conducted by General Fay:
“Leaders and Soldiers throughout Operation Iraqi Freedom were confronted with a complex and dangerous operational environment. Although a clear breakdown in discipline and leadership, the events at Abu Ghraib should not blind us from the noble conduct of the vast majority of our Soldiers. We are a values based profession in which the clear majority of our Soldiers and leaders take great pride. A clear vote of confidence should be extended by the senior leadership to the leaders and soldiers who continue to perform extraordinarily in supporting our Nation’s wartime mission. Many of our soldiers have paid the ultimate sacrifice to preserve the freedoms and liberties that America and our Army represent throughout the world.”
So we saw the photos and learned nothing.
But the principal reason we learned nothing is that the Bush Administration wanted us to learn nothing. And a largely compliant media forgot to ask the right questions soon enough.
Remember that it was an ordinary soldier who was troubled enough by what he saw at Abu Ghraib to photograph it and put it on a CD that he turned over to his superiors. And remember that it was the military itself that announced, in 2003, that an investigation by the U.S. Army’s Criminal Investigation Command was underway into alleged prisoner abuse at Abu Ghraib.
But also remember that, back then, Donald Rumsfeld was a rock star, the darling of the press. Most of the journalists who attended his briefings were acting like stenographers.
What they didn’t know was that, by the time we got to see the Abu Ghraib photos in 2003, Jay Bybee and John Yoo had already used their contorted legal logic to write their so-called “torture memos” justifying “enhanced interrogation” techniques. By the time the Abu Ghraib photos surfaced on television, the Bush policy was already in place and being implemented. It would be five years before most of the American public began to get a glimmer of what that policy was.
Which brings me back to the new photos we’re going to see this Tuesday.
According to ACLU attorney Amrit Singh, "These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib."
She says, "Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse."
She is spot on. There is only one purpose in releasing these new photos -- to hold senior officials accountable for the policies that produced the behavior that produced the photos.
So who would these officials be? Well, for openers, such names as Bush, Cheney, Rumsfeld, Tenet and Rice spring to mind. They – not the lawyers who wrote the memos -- were “The Iraq Group” – the engines that powered the policies.
It is a near-certainty that we will never see any of these people in jail or even on trial. But what we have a right to know is who did what to whom and why.
Left to his own inclination and temperament, President Obama is not going to make that happen – unless we force him to make it happen. Unless the public pressure for an independent commission of inquiry becomes strong enough to shape the White House’s perception of political reality.
That should be the next item on our “to do” list.
Yes, we can!
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