Friday, February 24, 2006


By William Fisher

A major human rights advocacy group is charging that of the 98 detainees who have died in U.S. custody in Iraq and Afghanistan since August 2002, 34 are suspected or confirmed homicides, another 11 suggest that death was a result of physical abuse or harsh conditions, but only 12 deaths have resulted in punishment of any kind for any U.S. official.

In close to half the deaths surveyed in a new report by Human Rights First, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.

The report, entitled “Command’s Responsibility”. says that of the 34 homicide cases so far identified by the military, investigators recommended criminal charges in fewer than two thirds, and charges were actually brought (based on decisions made by command) in less than half.

While the CIA has been implicated in several deaths, no CIA agent has faced a criminal charge, the report says, adding, “Among the worst cases -- detainees tortured to death – only half have resulted in punishment and the harshest sentence for anyone involved in a torture-related death has been five months in jail.”

Among the report’s other findings: Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations; investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution; record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution; overlapping criminal and administrative investigations have compromised chances for accountability; overbroad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability; agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined; effective punishment has been too little and too late.

Charging that there is an “accountability gap”, HRF says closing it will require “a zero-tolerance approach to commanders who fail to take steps to provide clear guidance, and who allow unlawful conduct to persist on their watch.”

The report recommends that the President, as Commander-in-Chief, “move immediately to fully implement the ban on cruel, inhuman and degrading treatment (known as the McCain Amendment) passed overwhelmingly by the U.S. Congress and signed into law on December 30, 2005”.

It also demands that “the President, the U.S. military, and relevant intelligence agencies should take immediate steps to make clear that all acts of torture and abuse are taken seriously – not from the moment a crime becomes public, but from the moment the United States sends troops and agents into the field”.

Congress, the report suggests, “should at long last establish an independent, bipartisan commission to review the scope of U.S. detention and interrogation operations worldwide in the ‘war on terror’. Such a commission could investigate and identify the systemic causes of failures that lead to torture, abuse, and wrongful death, and chart a detailed and specific path going forward to make sure those mistakes never happen again. The proposal for a commission has been endorsed by a wide range of distinguished Americans from Republican and Democratic members of Congress to former presidents to leaders in the U.S. military. Human Rights First urges Congress to act without further delay.”

In response to a question from IPS, Deborah Pearlstein, Director of HRF’s U.S. Law and Security Program, said the Pentagon’s detention policies have repeatedly been criticized by military lawyers and health officials, but their objections have largely been ignored.

Most recently, it was revealed that one of the Pentagon's top civilian lawyers repeatedly challenged the Bush administration's policy on the coercive interrogation of terror suspects, arguing that such practices violated the law, verged on torture and could ultimately expose senior officials to prosecution.

Mora's campaign underscores how contrary views were often brushed aside in administration debates on the subject.

"Even if one wanted to authorize the U.S. military to conduct coercive
interrogations, as was the case in Guantánamo, how could one do so without
profoundly altering its core values and character?" Mr. Mora asked the
Pentagon's chief lawyer, William J. Haynes II, in a 22-page memorandum.

The Pentagon has declined to comment on specific assertions in Mr. Mora's memorandum.

"Detainee operations and interrogation policies have been scrutinized under a microscope, from all different angles," a spokesperson said. "It was found that it was not a Department of Defense policy to encourage or condone torture."

The HRF report notes that “It is difficult to assess the systemic adequacy of punishment when so few have been punished, and when the deliberations of juries and commanders are largely unknown. Nonetheless, two patterns clearly emerge and are documented in Command’s Responsibility: (1) because of investigative and evidentiary failures, accountability for wrongdoing has been limited at best, and almost non-existent for command; and (2) commanders have played a key role in undermining chances for full accountability.”

It adds, “In dozens of cases documented in the report, grossly inadequate reporting, investigation, and follow-through have left no one at all responsible for homicides and other unexplained deaths. Commanders have failed both to provide troops clear guidance, and to take crimes seriously by insisting on vigorous investigations. And command responsibility itself – the law that requires commanders to be held liable for the unlawful acts of their subordinates about which they knew or should have known – has been all but forgotten.”

Which reminds me that “Command Responsibility” ought to begin with the Commander-in-Chief.


By William Fisher

A few months ago – particularly after The Washington Post broke the story of secret U.S. “black sites” in Eastern Europe – it would have been difficult to pick up a newspaper or watch television without hearing the words “extreme rendition”.

Then, almost as suddenly as the issue appeared, it vanished. The world’s press stopped focusing on the U.S. practice of sending detainees to countries where they would likely be tortured or abused.

Last week, the rendition issue was back, but not in a way likely to please its opponents.

Rendition returned when a U.S. federal court dismissed a lawsuit against the Bush administration brought by Ottawa engineer Maher Arar, a Syrian-born Canadian citizen who was detained by U.S. authorities as a suspected terrorist during a stopover in New York as he returned from a vacation in September 2002. He was held virtually incommunicado by U.S. officials, and then sent to Syria, where he said he was tortured and held in a tiny cell he likened to a "grave" for nearly a year. He was never charged before Syria returned him to Canada.

Brooklyn District Court Judge David Trager cited the need for national security and secrecy in making his decision, but also raised the possibility of Canadian complicity in the decision to send Arar to Syria.

As in other recent cases, the U.S. government asserted the "state secrets" privilege, arguing the lawsuit must be dismissed because allowing it to proceed would necessarily involve the disclosure of sensitive information that would threaten national security or diplomatic relations if made public.

"The need for much secrecy can hardly be doubted," Trager wrote in an 88-page judgment. "One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria."

Canadian officials have always denied complicity in the decision to send Arar to Syria after he was held in U.S. custody for 13 days, but Arar said Justice Dennis O'Connor, who is examining the role Canadian officials played in the affair, should make special note of the judge's comments.

Arar also vowed he would never give up his quest to reverse the "evil'' done against him. "If the courts will not stop this evil act, who is going to stop this administration? Where do we go? The United Nations? We — me and others who have been subjected to this — are normal citizens who have done no wrong.”

He said, "They have destroyed my life. They have destroyed other lives. But the court system does not listen to us. The court system is what distinguishes the West from the Third World. When a court will not act because of `national security,' there is no longer any difference between the West and the Third World." His lawyers said they would continue the fight.

In Canada, Justice O'Connor is expected to issue an interim report next month.

The Arar suit was the first court test of the Bush administration policy of "extraordinary rendition," a practice often referred to as the outsourcing of torture.

Critics of the practice said the U.S. court’s decision gives Washington a green light to continue its practice of sending terrorist suspects to third countries where they could be tortured.

Arar's is just one of a number of well-documented cases in which suspects have been shipped to third countries with dubious human rights records where interrogation methods outlawed in the U.S. can be used.

In his decision, Judge Trager acknowledged Arar's fears of torture in Syria were real and cited the U.S. State Department's own report on human rights abuses there.

But he said such decisions were beyond the realm of his court. "A judge who declares on his or her own ... authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious of consequences to our foreign relations or national security or both," he wrote.

The U.S. and other countries that practice extreme rendition often hide behind what critics call “the fig leaf of diplomatic assurances”. This means the rendering government asks the receiving government to promise not to torture or abuse prisoners.

But, critics say, documented evidence shows such assurances to be a sham. According to Dr. Beau Grosscup, professor of international relations at California State University and an expert on terrorism, “Diplomatic assurances are trumped by the military, police and intelligence 'counter-insurgency' programs that the two Cold War superpowers instituted and still run in many of these countries that train police and military personnel in torture.” Grosscup says, “The real attitude driving the 'rendition' efforts is: ‘Having paid to train them in torture, why not get our monies worth’.”

Ron Daniels, Executive Director of the Center for Constitutional Rights (CCR), a legal advocacy group based in New York which is helping in Arar’s defense, told IPS, “Torture is against the law in the United States. The Bush administration should not be attempting to avoid the laws of this country by sending people to be tortured over seas where other countries will do their dirty work out of the public eye. This is a barbaric practice with no place in the 21st Century.”

A Justice Department official said the ruling pleased the government.

At least one other rendition lawsuit has been filed in U.S. courts. Khaled Al-Masri, a German citizen born in Lebanon, took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.

He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan.

U.S. Secretary of State Condoleezza Rice has defended the practice of rendition, saying it was a vital tool in the war on terror. But Ms. Rice said the U.S. does not "send anyone to a country to be tortured."

"The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured," she said. "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."

However, on a trip to Europe shortly after making these comments, Secretary Rice admitted to German Chancellor Angela Merkel that the rendition of Al-Masri was “a mistake”.

Does this mean renditions will not stop?

I wouldn't count on it!