Monday, March 10, 2008


By William Fisher

Here’s the good news:

As reported in a Washington Post editorial Monday morning, China is prepared to renew its human rights dialogue with the U.S. after a five-year hiatus – triggered by China’s repeated objections to international interventions in its domestic affairs.

The Post opined that China’s turnabout was generated by “growing international criticism of its pre-Olympics crackdown on dissent and of its relationships with Sudan and Burma.”

Of course, this is good news. The Post headline got it right: “Let’s Talk.”

But here’s the bad news:

The United States no longer has the credibility to influence any substantive change in Chinese human rights practices.

We squandered it at Abu Ghraib.

We squandered it at Guantanamo.

We squandered it by bedding down with some of the world’s most repressive and authoritarian regimes – Saudi Arabia and Egypt, for example.

And we squandered it at home.

We made endless and as yet unfulfilled promises to find safe haven for the Iraqis forced by our occupation to flee their country.

We rounded up Muslims and others who we thought looked like Muslims, jailed them without charges or lawyers, and then convicted no one.

We engaged in “extraordinary renditions” – shipping people to countries quite likely to torture them.

We authorized our CIA to run secret prisons full of ghost prisoners, unknown even to the Red Cross.

Our president used his “signing statements” to trash the Constitution and rule of law.

He used his veto pen to give the CIA free reign to engage in waterboarding and other “enhanced interrogation” techniques, while piously claiming “America doesn’t torture.”

Our National Security Agency listens to our phone calls and intercepts our emails – and then demands immunity for the telecom companies who helped the Administration break the law.

The Chinese know all this. And so does the rest of the world.

If China agrees to restart its human right talks with the U.S., it will no doubt make all the right noises. It doesn’t dare jeopardize the billions it has invested in its Olympics infrastructure and image makeover.

But, at the end of the day, the United States will find itself hoisted by its own petard. The Chinese will go right on violating the human rights of its people.

Because our own behavior has stolen our credibility. It has robbed us of the leverage we once had. Our State Department can continue to put out its annual reports of human rights abuses around the world – and it should. But, next year, it needs to include us.

Getting another country to change anything has always been a tough sell. But it’s a lot tougher when the salesman is pitching a tainted product.


By William Fisher

At a pretrial hearing at Guantanamo Bay, Cuba, next month, the Pentagon will take its first public step toward a Military Commission trial for Osama bin Laden’s alleged driver and bodyguard. And one of the witnesses for the defense will be the military’s former chief prosecutor.

He is Col. Morris Davis, now head of the Air Force judiciary, who resigned as prosecutor in October over alleged political interference in the U.S. military tribunals. His resignation was triggered by his being placed under the direction of the then Pentagon general counsel, William Haynes.

Unless the Pentagon blocks his appearance, Col. Davis will testify at the hearing for Salim Ahmed Hamdan. Hamdan faces up to life in prison if the tribunal convicts him of conspiracy and supporting terrorism.

Davis is expected to testify that Haynes told him in August 2005 that any acquittals of terrorism suspects at Guantanamo would make the United States look bad. Davis has said Haynes told him, “We can't have acquittals, we've got to have convictions," raising doubts about the fairness of the trial.

Hamdan's defense team plans to argue that the charges should be dismissed because the political interference alleged by Davis violates the Military Commissions Act.

But Col. Davis may never get to testify. Last December, two months after he resigned as the chief prosecutor for the Guantanamo war crimes tribunals, the Defense Department barred him from testifying before a Senate Judiciary subcommittee.

Davis said he believes “the problem is having political appointees injected into the system. They are looking for a political outcome, not justice."

Haynes resigned as the Pentagon’s top legal official late last month. He has long been under fire for his role in crafting the Bush Administration's policies regarding the interrogation and detention of prisoners captured in the "war on terror."

Haynes was a principal architect of memos and public statements advocating torture and the denial of habeas corpus for detainees. In a 2002 memo, he recommended techniques such as "twenty-hour interrogations, isolation for up to thirty days, deprivation of light and auditory stimuli...and stress positions such as the proposed standing for four hours." He also recommended keeping such “enhanced interrogation techniques” as death threats, waterboarding, and exposure to extreme temperatures. He argued that detainees currently held at Guantanamo Bay are not protected by the Geneva Conventions.

These positions led to international condemnation and a stalemate in the prosecution of Guantánamo detainees. Only one case -- that of Australian David Hicks -- has been adjudicated in six years.

Haynes was also a Bush judicial nominee for the 4th Circuit Court of Appeals. He was widely opposed, principally because of his role in crafting the Bush Administration's military interrogation policies. A number of prominent military figures weighed in against him, among them retired Real Admiral John Hutson. Hutson wrote to the then chairman of the Senate Judiciary Committee, Pennsylvania Democrat Arlen Specter, saying that Haynes was in “a unique position to ensure (that abusive interrogation) didn't happen in the first place or surely to stop it once it had occurred. He failed to do so.” Haynes’ nomination was rejected by the Judiciary Committee.

In a related development concerning these “high value” detainees, it was recently revealed that several hundred agents of the Federal Bureau of Investigation (FBI) have been re-questioning these detainees for at least two years. Their mission has been to “recreate” the evidence reportedly gained originally from interrogations that employed various forms of coercion. The investigations were requested by the Defense Department, which feared that evidence acquired through coercion would be inadmissible in their Military Commission trials.

But many legal scholars argue that such evidence would amount to “fruit from the poisoned tree” -- by which evidence is inadmissible if it was generated from an unconstitutional or illegal act -- and could therefore not be used against the defendants.

Gabor Rona, International Legal Director for Human Rights First, an advocacy organization, told us, “Consider a confession by someone who has been detained without judicial process, held for years in near isolation, denied contact with family or legal counsel, subjected to prolonged interrogation under circumstances amounting to cruel, inhuman and degrading treatment or torture. Evidence gained under such circumstances cannot be used in a trial, according to both international and domestic law, and for good reason. The idea that this individual, while still in the custody of those same captors, can then be freshly interrogated without the use of coercive interrogation techniques in order to provide an untainted confession is absurd.”

He added, “To assert otherwise is to simply add to mounting evidence that the military commission process is neither designed to provide, nor is capable of providing, justice.”

Col. Davis also contends that the Hamdan incident was not the first time political pressures were applied to the Guantanamo trials process. He said that in March 2007 that senior officials pushed for a plea bargain for Guantanamo detainee David Hicks, dubbed the “Australian Taliban.” The plea allowed him to serve a nine-month sentence in his homeland for aiding the Taliban. Davis said the sentence was orchestrated to help Conservative Party Prime Minister John Howard of Australia, who sanding for reelection and was under domestic criticism for his support of U.S. policies. Hicks was recently released from an Australian prison. Howard lost his reelection bid.

Hamdan became part of U.S. judicial history when the Supreme Court found in his favor in 2006 that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling said Common Article 3 of the Third Geneva Convention was violated.

The case considered whether the U.S. Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.

The court’s decision was a stunning rebuke to the Bush Administration. It led to Congress’ hurried enactment of the Military Commissions Act (MCA) of 2006, which set up new procedures and structures for bringing Guantanamo detainees to trial, and limited detainees’ access to habeas corpus. The MCA still faces court challenges as being unconstitutional.

The U.S. Government has called for the death penalty for the six “high value detainees,” who were transferred to Guantanamo from secret CIA prisons in Eastern Europe, where they were reportedly subjected to harsh interrogations. Those charged include Khalid Shaikh Mohammed, an alleged former senior aide to Osama bin Laden, who is said to have admitted to being the principal planner of the plot.

The U.S. currently holds about 275 men at Guantanamo and says it plans to prosecute approximately 80 before military commissions.


By William Fisher

President George W. Bush appeared headed toward another train wreck with Congress as he carried out his threat to veto an intelligence bill that would have banned the Central Intelligence Agency from using waterboarding and other ‘enhanced interrogation techniques’ in questioning terrorism suspects.

The bill, passed by both the House of Representatives and the Senate, would have limited the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would have ended the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.

Congress does not appear to have the votes to override the Bush veto, which he announced in his weekly radio address on Saturday. His support comes principally from Senate Republicans, including the Republican presidential nominee, Senator John McCain.

McCain was one of the principal authors and champions of the Detainee Treatment Act of 2006, which banned harsh interrogation techniques by the U.S. military, but did not cover the CIA. President Bush signed the bill into law, but issued a ‘signing statement’ claiming executive authority to ignore the law if it was necessary for national security purposes.

"Staging a mock execution by inducing the misperception of drowning is a clear violation" of laws and treaties, McCain said at the time.

But McCain sided with the Bush administration on the waterboarding ban by the CIA. He said the measure went too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding.

Human rights activists have been sharply critical of McCain’s vote. Typical is Michael Ratner of the Center for Constitutional Rights, a legal advocacy group that has defended a number of detainees at Guantanamo Naval Base in Cuba, and mobilized pro-bono legal representation for many others.

He told us, “That Senator McCain voted against the legislation ending torture -- which included a ban on water torture -- gives lie to the assertion that he cares about fundamental human rights. He is a craven opportunist and worse -- an aider and abettor of torture.”

The two Democratic presidential contenders, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), have said waterboarding is clearly illegal and should be banned, but neither voted on the Senate measure because they were campaigning elsewhere.

The Senate passed the bill during the same week in which the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.

Bush’s veto is the latest battle in the Administration’s war with Congress on the limitations placed by the U.S. Constitution on the executive branch of government. Under the Constitution, Congress is a co-equal branch, as is the Judiciary. Bush has claimed that the Constitution requires him to protect and defend the American people, and that this responsibility requires greatly expanded powers for the White House.

Another ongoing power battle with Congress involved the President’s authorization of the National Security Agency (NSA), one of 16 U.S. intelligence organizations, to conduct surveillance of telephone and email messages without court approval. In 1978, Congress passed the Foreign Surveillance Act (FISA), which set up a special court and required the Administration to secure warrants from that court based on a showing of probable cause. Without approval from the FISA Court, President Bush launched a “terrorist surveillance” program shortly after the attacks of 9/11, recruiting private telecommunications companies to assist in that effort.

Congressional action on a FISA revision is currently being blocked by a debate about whether these telecom companies should receive “retroactive immunity” from prosecution, though President Bush claims they broke no laws.

Waterboarding has become a proxy for these types of expanded executive branch powers. A Justice Department (DOJ) senior official, Steven G. Bradbury, acting head of the DOJ’s Office of Legal Counsel, recently joined his boss, Attorney General Michael Mukasey, in testifying to congress that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

Waterboarding, a form of mock drowning, has been prosecuted as torture in the U.S. for more than a century. After World War Two, the U.S. prosecuted Japanese soldiers who used the technique against American prisoners of war.

But human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture.

Prof. David Cole of the Georgetown University law school told us, “It is a tragedy of historic dimensions that the President of the United States has now stood up for torture. After repeatedly insisting that ‘we don't torture’, President Bush has vetoed a bill that would have held the executive branch accountable to that promise. We can only hope that Congress has the will to override this bill, and that the American people have the will to elect a President who is truly committed to getting the CIA out of the torture business.” Cole is one of the nation’s preeminent Constitutional scholars.

His view is echoed by Mary Shaw of Amnesty International USA, who told us that “Use of waterboarding and other ‘enhanced interrogation techniques’ is in clear violation of several domestic and international laws and treaties. The Bush administration must be stopped from using the ‘war on terror’ as an excuse to violate basic human rights. Congress must not let the veto stand.”

A view about what Congress can do in the face of the President’s veto was expressed by the CCR’S Ratner. He told IPS that Congress “does not need a veto proof two-thirds majority to cut funds off from any U.S. agency, e.g. the CIA that engages in practices not authorized by the Army Field Manual. It simply does not need to fund torture -- 51 votes are enough to end funding in the Senate or a similar bare majority in the House. People should not fall for the excuse that Congress needs a veto proof two-thirds to ban torture. It can do it tomorrow without Bush standing in the way. Its failure to do so and its continued furnishing of money for the program implicates Congress in the criminality of torture. The charade of a Democratic congress blaming Bush alone for the torture program is just that—a charade.”

The Army manual forbids eight harsh techniques, including waterboarding, mock executions, use of beatings and electric shocks, forced nakedness and sexual acts, and causing hypothermia or heat injuries.

Some of the most vocal criticism of the Bush administration’s stance on torture has come from former military leaders. More than 30 three- and four-star retired generals have urged the adoption of a single interrogation standard, and warned that the use of abusive interrogation techniques is both ineffective and unwise.

The latest to take this position is Brigadier General James Cullen (Ret.), former Chief Judge of the U.S. Army Court of Criminal Appeals. He recently told Amy Goodman, a radio talk show host, “We hear a lot of arguments to try to justify ‘enhanced interrogation techniques,’ but we know exactly what we’re talking about. It’s torture in different packaging.” He said “torture is just a stupid way of going about it.”

Other military leaders have taken similar positions. General David Petraeus, commanding general of multinational forces in Iraq, recently called the military’s interrogation techniques an effective and humane way to gather information from the enemy.