Thursday, January 29, 2009

What You May Not Know About That Famous Manual

By William Fisher

While applauding President Barack Obama’s recent executive orders banning torture and other harsh interrogation practices, medical authorities are calling attention to a little-reported section of the Army’s Field Manual on Interrogation that they say still allows the use of tactics that can constitute torture or cruel, inhuman or degrading treatment under U.S. and international law.

The suspect section of the Manual is known as Annex M, which allows the use of sleep deprivation, sensory deprivation, and isolation, termed “separation” in the Manual. Obama’s executive orders directed all government agencies, including the Central Intelligence Agency (CIA), to follow the Manual for interrogations.

But Physicians for Human Rights (PHR), a Nobel laureate not-for-profit organization, is calling on the task force appointed by the president to review U.S. interrogation and transfer policies to revoke the Appendix and consult with human rights organizations as part of the review process.

John Bradshaw, Director of PHR’s office in Washington, DC, told IPS, “The technique of separation allowed by Appendix M sounds innocuous, but in reality it allows the use of sleep deprivation, sensory deprivation and isolation.”

“Particularly when used in combination, these techniques amount to psychological torture. The Obama Administration must close this loophole in the Army Field Manual by eliminating Appendix M, which leaves the door open to torture,” he said.

Legal experts agree. Marjorie Cohn, President of the National Lawyers Guild, told IPS, “President Obama’s announcement that the United States will not engage in torture is commendable. But cruel, inhuman and degrading treatment or punishment also violate U.S. law, as specified by three treaties we have ratified. The new administration should not use the Army Field Manual as the gold standard for interrogations since Appendix M sanctions techniques, including isolation and prolonged sleep deprivation, that amount to cruel, inhuman or degrading treatment.”

PHR also called on President Obama and Congress to “immediately authorize a non-partisan commission to investigate the authorization, legal justification, and implementation of the Bush Administration’s regime of psychological and physical torture.” It added that “any accountability mechanism must include a subgroup tasked with investigating the participation of health professionals in detainee abuse.”

PHR also urged the Obama Administration to end the use of Behavioral Science Consultants (BSCs) in interrogations. “The continued use of BSCs violates medical ethics and subverts the traditions of the healing professions. Any procedures currently in place involving health professionals in interrogations which violate medical ethics should be prohibited,” said PHR’S Chief Executive Officer, Frank Donaghue.

“The past administration’s weaponization of the health professions to inflict harm on detainees constitutes a war crime unto itself,” said Donaghue. He added, “Despite all that has been disclosed so far about abuses committed by health professionals, many questions remain, chief among which is whether there will be any accountability for gross violations of medical ethics and the law.”

"The desire to turn the page on the past seven years of detainee abuse and torture by U.S. forces is understandable," Donaghue said. But he noted that "President Obama, Congress and the health professions will not have fulfilled their obligation to the Constitution and medical ethics if we settle only for reform without accountability."

Other health professionals are taking similar positions. One of the most outspoken, psychologist Dr. Jeffrey Kaye, points out that the AFM’s Appendix M “continues to allow use of isolation (called ‘separation’) on so-called ‘unlawful enemy combatants’.”

He told IPS, “After the Abu Ghraib scandal exploded, the U.S. government wanted to hide or forbid all types of treatment that became notorious due to press exposure, including the revelations around waterboarding. They pared down their torture program to the model laid down by the CIA's Kubark manual of the early 1960s. They twisted the meaning of the Geneva Conventions at their will, in order to implement this program of coercive interrogation, using the Army Field Manual and Appendix M as their primary device.”

He added, “This program relies on the production of psychological regression by using a combination of solitary confinement, fatigue, sleep deprivation, sensory deprivation, and feelings of fear to produce dependency upon the interrogator. These techniques, allowed by the Army Field Manual, and implemented with the assistance of doctors and behavioral health specialists, like psychologists, are totally antithetical to existing law, and amount to torture and/or cruel, inhumane treatment of prisoners.”

Kaye contends that, “In many senses, isolation is the essence of U.S. detainee abuse. All else follows. Isolation can cause serious mental deterioration in many individuals.”

He adds that “This deterioration can occur within days, well under the 30 day initial period allowed by Appendix M. This 30 days can be followed by additional periods, if the proper approval is obtained.”

While ostensibly banning it, the AFM also allows sensory deprivation, he says. “As a last resort, when physical separation of detainees is not feasible, goggles or blindfolds and earmuffs may be utilized as a field expedient method to generate a perception of separation.“

In the Bush Administration’s only admission that it inflicted torture on a prisoner, a senior Pentagon official recently disclosed to the Washington Post that a combination of permissible techniques used on a Guantanamo detainee, plus the intensity and duration of these techniques, seriously endangered the health of a prisoner and constituted torture. She declined to refer him to Guantanamo Military Commission authorities for trial.

During the Bush Administration, a number of leading medical organizations called on the president to end the participation of health care professionals in detainee interrogations. The American Medical Association (AMA) adopted a resolution opposing “participation by physicians in the torture or inhuman treatment or punishment of individuals in relation to detention and imprisonment.”

Similar positions have been adopted by other organizations, including the American Psychiatric Association, the American Psychological Association, and the American Nurses Association.

However, there is ample evidence that some military medical personnel have participated in torture and abuse of detainees. Reports indicate, for example, that so-called Behavioral Science Consultation Teams -- known as "biscuit" teams – included medical personnel who were aware of prisoner abuse but failed to report or properly document it; that interrogators were given access to detainees’ confidential medical records; that health professionals participated directly in the development and implementation of abusive interrogation plans; and that doctors, other medical personnel, and “biscuit” teams of psychiatrists and psychologists may have facilitated abuse by giving interrogators information about detainees’ mental health and vulnerabilities.

The International Committee of the Red Cross described what it observed at the U.S. military detention center at Guantanamo Bay, Cuba, in June 2004 as a “flagrant violation of medical ethics.”

Tuesday, January 27, 2009

Obama’s Executive Orders: Is Egypt Listening?

By William Fisher

You may have missed it because it was ignored by virtually the entire the American mainstream press, but there’s a really creepy irony that accompanied President Obama’s decision to close Guantanamo and end torture, secret prisons and extraordinary rendition.

The irony is that some of the most lavish praise for Obama came from the press in countries that most of us would find, what shall we say, paradoxical. Countries that for many years have been the poster boys for unlawful detention, torture, secret prisons and “disappeared” prisoners. Countries in a part of the world that has been a consistent destination for those rendered by our CIA.

That would be the Middle East, where most of the press is owned or controlled by authoritarian governments. Countries in which political dissent is about as welcome as a pandemic of the Black Plague.

Top of the poster-boy list has to be Egypt, a beautiful country full of gracious, hospitable people – and some not so much -- where my family and I lived for several years.

Egypt has been ruled by Hosni Mubarak since 1981, when the then vice-president took on the top job following the assassination of Anwar Sadat. Since then, the country’s now 80-year-old president has been a kind of caricature of old-style Arab potentates.

For all those years, Egypt has lived under so-called Emergency Laws. These laws give the government sweeping powers and give the citizens no powers. Public gatherings are banned unless they get government permits. And until recently -- when Bush’s democracy promotion mantra finally began exerting ever-so-gentle pressure on the Mubarak regime to clean up its act -- political parties were banned or otherwise prevented from participating in the annual referendums that reelected the president with math-like precision.

Egypt’s security services are omnipresent. Public intellectuals – including journalists and bloggers -- who dare to express dissent with the government wait, literally, for the knock at the door at 3 A.M. And the knock comes all too often. The security cops can and do take you away, destination often unknown, and can hold you indefinitely. You may never be charged with anything, nor have a lawyer represent you. The “justice system,” as we understand justice, is virtually non-existent. The security courts are in Hosni Mubarak’s pocket.

Since 1995, when Bill Clinton was president, Egypt has been one of the CIA’s favorite destinations for victims of “extraordinary rendition,” which is government-ese for kidnapping. Since that time, by the most conservative estimate, U.S. authorities have spirited at least twenty people off to Egyptian prisons. Many have been tortured. Some have died. Others have simply disappeared. Little wonder then that each and every year Egypt’s abuses are high on the list in our State Department’s annual human rights reports.

But, at the same time, in some other place in our government, foreign policy-makers are drafting the latest request to Congress for more billions in U.S. military and economic aid. U.S. aid to Egypt has averaged more than $2 billion every year 1979. It is second only to Israel.

U.S. aid to Egypt is its reward for making peace with Israel in 1979, following the Camp David Accords. And it continues because Egypt has been playing a peacemaker role between the warring Palestinian factions, Hamas and Fatah, as well as between Israelis and Palestinians.

Since 9/11, the government has used George W. Bush’s “global war on terror” to suppress dissent from its leading opposition group, the Muslim Brotherhood. But denial of the most basic human rights is not directed only at the Brotherhood; it applies to every Egyptian citizen.

Given that background, I found it more than a bit ironic that one of Egypt’s leading newspapers, Al Ahram, would be trumpeting President Obama’s GITMO executive orders as a huge victory for human rights.

Calling Guantanamo “a dark spot in U.S. history” and “a symbol of injustice and oppression,” the newspaper wrote, “The prison is arguably one of the worst mockeries of international law, which was itself drafted partly by American legal experts. Past U.S. administrations may not have been devoted followers of the Geneva Conventions, but neither have they ever discarded international treaties as openly and as arrogantly as the current one.”

“Former attorney-general Alberto Gonzales, a personal friend of President Bush, mastered this art in a way that allowed his bosses to adorn their gratuitous actions with the air of legitimacy. Guantanamo was his ultimate masterpiece,” its story concluded.

There is little dispute among those of us George Bush has not terrorized into a perpetual state of fear that GITMO and what happened there is a disgrace to the United States. But offhand I can’t think of a hypocrisy greater than its denunciation by a country that invented its own Guantanamos many years before ours – and arguably even more brutal and law-free.

That said, there may yet be an upside for the Egyptian people in Obama’s decision to close the place down. Beirut’s Daily Star newspaper – one of the best in the region – captured the possible gain.

It wrote of the negative effects U.S. interrogation practices have had on the observance of human rights by Arab governments. “With public knowledge of the American use of waterboarding in Guantanamo and elsewhere, why would Arab leaders promote human rights and political reforms? The closing of Guantanamo will send an important message that torture will not be tolerated by the Obama administration,” the paper said.

Will Obama’s actions rob Mr. Mubarak of one of his most useful fig leaves? Maybe. But it’s a real longshot.

I wouldn’t take it to the bank just yet.

Monday, January 26, 2009

News From The Countries that Trash Press Freedom

By William Fisher

While the decision of President Barack Obama to close the prison at Guantanamo Bay Cuba, and end the practice of interrogation techniques that violate international law, made front page news throughout America, press reaction in the Middle East was far less extensive – but generally favorable.

One reason is that, while in the U.S., Obama’s actions topped all other news on January 22, the day he signed his landmark executive orders, the attention of most of the Arab world was still riveted on Israel’s assault on Gaza.

Nonetheless, the Guantanamo story was addressed in news reports or editorials by most of the major media in Arab and other Muslim countries, and many government spokespersons and human rights advocates spoke out on the subject.

Under the headline, “News of Guantanamo's closure welcomed worldwide,” the Jordan Times wrote, “Former detainees, human-rights advocates and government officials around the world welcomed President Barack Obama's decision to close the Guantanamo Bay detention center.” Obama’s actions, it said, “helped restore their faith in the United States.”

Beirut’s Daily Star wrote of the negative effects U.S. interrogation practices have had on the observance of human rights by Arab governments. “With public knowledge of the American use of waterboarding in Guantanamo and elsewhere, why would Arab leaders promote human rights and political reforms? The closing of Guantanamo will send an important message that torture will not be tolerated by the Obama administration,” the paper said.

Calling Guantanamo “a dark spot in U.S. history” and “a symbol of injustice and oppression,” Egypt’s Al Ahram wrote, “The prison is arguably one of the worst mockeries of international law, which was itself drafted partly by American legal experts. Past U.S. administrations may not have been devoted followers of the Geneva Conventions, but neither have they ever discarded international treaties as openly and as arrogantly as the current one. Former attorney-general Alberto Gonzales, a personal friend of President Bush, mastered this art in a way that allowed his bosses to adorn their gratuitous actions with the air of legitimacy. Guantanamo was his ultimate masterpiece.”

In the United Arab Emirates, the newspaper Al-Bayan reported that President Obama “began his era of reform yesterday by signing two executive orders to shut down the notorious U.S Guantanamo U.S. prison within a year, immediately closing all secret detention centers abroad and banning torture of suspects. Obama said at the Oval Office that the message in these decisions was to tell the world that the United States plans to continue the struggle against terror and violence, but with caution and in line with American values.”

In Dubai, the leading newspaper wrote that Obama’s “swift action on the Guantanamo Bay military prison in Cuba and the Middle East on his first day in office that sent out the message to the world that change has indeed come to America and it’s already started showing concrete results.”

The London-based Al-Hayat newspaper saw Obama’s action as an effort to “accelerate a return to protecting the constitution and civil liberties.” It wrote, “The US Democratic Party political rhetoric in the last eight years was translated into action yesterday with the new US President Barack Obama's decision to suspend the special courts at Guantanamo.”

In Saudi Arabia, Arab News wrote, “To many around the world, the decision by Obama to close the reviled prison within a year is welcome news. But it is especially so in countries such as Saudi Arabia, where the detention facility has become a symbol of U.S. injustice toward Muslims and Arabs around the world.” Several years ago, Saudis were second only to Yemenis as the second largest group of detainees at Guantanamo. According to a Saudi human rights lawyer, at least 13 Saudi families are still awaiting freedom for relatives detained there.

Similar views were also expressed elsewhere. In an editorial, the News of Pakistan wrote that the paper welcomed what it called “Barack Obama's quick decisions on Guantanamo,” and said “they should act as a step that aids him in his hopes to establish a new relationship with the Muslim world.”

In Afghanistan, the press reported that President Hamid Karzai hailed the inauguration of Obama as the start of a "promising new era of understanding" between Kabul and Washington. Its reports said Karzai’s office reiterated calls for Guantanamo to be closed.

In Indonesia, home to more Muslims than any other nation, the media quoted Makarim Wibisono, a former Indonesian ambassador to the United Nations, as saying that Obama's call was "a good sign leading to the closure of the camp."

But other Indonesians were critical of Obama's failure to directly refer to the Palestinian-Israeli conflict and Israel's military onslaught in Gaza in his inaugural address.

Maskuri Abdilah, head of the Nahdlatul Ulama -- Indonesia's largest Muslim organisation with some 60 million followers -- said Obama dodged the one issue at the core of the Muslim world's concerns.

"It is very good that Obama wants to find a 'new way forward' with the Muslim world but first he has to change US policy over Israel and the Palestinian conflict," he told Agence France Press.

Obama’s dramatic action came on his second day in office. He issued three executive orders – one on Guantanamo, a second on interrogation, and a third forming an inter-agency task force to make recommendations regarding the disposition of the estimated 250 prisoners still held at Guantanamo.

The Guantanamo order immediately suspended all military commission proceedings and ordered the closure of the Guantanamo detention facility within one year. It further directed the Attorney General to lead a process of individualized case reviews to determine which prisoners may be transferred to third countries and which detainees may be prosecuted in accordance with U.S. law.

The order on Interrogation put an end to the secret interrogation techniques authorized for use by the Central Intelligence Agency (CIA), such as forced standing, forced nudity and exposure to frigid temperatures. It also ended secret CIA detentions and required that the International Committee of the Red Cross be given access to all prisoners in the custody of U.S. intelligence agencies. And, finally, it sought to clarify any ambiguity created by flawed Justice Department legal memoranda justifying harsh interrogation techniques by ordering all U.S. personnel to immediately cease relying on all such past legal advice.

The Task Force, mandated in the third order, is to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

A fourth order calls for a review of the case of a single prisoner, Ali Saleh Kahlah al-Marri, who has been held by the Defense Department for more than five years in facilities within the United States. Al-Marri is the only individual being held as an enemy combatant within the United States. Because he is not held at Guantánamo Bay, al-Marri is not covered by the review mandated in the Review and Disposition Order.

Where to send detainees who have already been cleared for release, and those found not guilty in subsequent trials, is one of the most contentious problems facing the Obama Administration. There is considerable opposition in Congress to any of the detainees being released into the U.S. Thus far, other countries have been reluctant to take any of the prisoners, who have been described by former Defense Secretary Rumsfeld and other top Bush Administration officials as “the worst of the worst.”

Only Albania and Sweden have taken in a few inmates.

China is demanding the return of Chinese Muslims detained at Guantanamo once the facility is shut down. Some 17 Chinese detainees have been cleared for release but Washington fears they could be mistreated or even tortured if they are turned over to China. Late last year, a Federal judge ordered these prisoners – known as Uighurs – released into the U.S. But the Government appealed his ruling and the case is now pending in the U.S. Circuit Court of Appeals.

Saturday, January 17, 2009


By William Fisher

Human rights advocates and religious leaders are calling on President-elect Barack Obama to use his first hundred days in office to close the military prison at Guantanamo Bay and repudiate the policies of President George W. Bush on an array of issues ranging from detainee torture and rendition to warrantless wiretapping and signing statements.

But with the nation facing the deepest economic downturn since the Great Depression of the 1930s, it is unclear whether human rights will become the top priority of the Obama Administration and its allies in Congress.

Nonetheless, such leading organizations as Human Rights Watch, Amnesty International, the Center for Constitutional Rights, and Human Rights First are demanding that the President-elect take the lead in effecting speedy action.

Human Rights Watch (HRW) wants the Obama Administration to close the CIA's secret detention centers permanently, apply to the Central Intelligence Agency (CIA) the rules used by the U.S. military to prevent coercive interrogation, close the Guantanamo detention center, repatriate or prosecute all detainees, and ensure that prosecutions are conducted in regular courts, not the “substandard” military commissions.

Kenneth Roth, executive director of HRW said, “Barack Obama must seize back the US leadership in global human rights squandered by outgoing President George Bush in Guantanamo Bay and other scandals.”

The group issued a 564-page report on the state of human rights around the world. The report charged that governments opposing basic rights, including those in Russia and China, had rushed to fill a vacuum left by the United States.

It blamed Bush's “abandonment of long-held principles, including opposition to torture, in the U.S. war against Islamist militants,” but said Obama “could repair the damage once he takes office on January 20. "There is an enormous need for the Obama administration to redeem America's reputation," Roth added.

At the same time, a coalition of equally prominent groups issued a similar “Human Rights Call to Action” at a summit in Washington last week. It demanded that the Obama Administration put an end to “torture, arbitrary detention, and extraordinary rendition, including closing the prison at Guantanamo Bay and rejecting preventive detention models; ending surveillance abuses, attacks on dissent, and targeting of immigrant groups and other communities of color; and ensuring human rights, civil rights and civil liberties.”

The summit included the American Arab Anti Discrimination Committee, the American Civil Liberties Union, Amnesty International USA, the Center for Constitutional Rights, the Constitution Project, Human Rights First, Human Rights Watch, the National Lawyers Guild, the Partnership for Civil Justice, the Torture Abolition Survivors Support Coalition, the US Human Rights Network, and Witness Against Torture

Similar demands are being made by a number of religious leaders and organizations.

National Religious Campaign Against Torture (NRCAT) is urging Obama to issue an executive order ending torture one of his first official acts in office. A letter to the President-elect, signed by close to three dozen prominent religious leaders representing America’s diverse faith traditions, said, “Such a step will help the United States to regain the moral high ground and restore our credibility within the international community at this critical time.”

The organization also joined a number of other groups in calling for “an investigation of torture policies and practices since 9/11.” Rev. Richard L. Killmer, NRCAT Executive Director, told IPS, “In order to create safeguards to make sure that torture does not happen again, it is important to understand what happened. NRCAT supports an independent non-partisan committee of inquiry with subpoena power and sufficient funding to do a thorough investigation and issue a comprehensive report.”

He added, “I think about my seven grandchildren. I can imagine that some day they will say that the United States used to torture, but we don’t do that anymore. The challenge for our nation is to develop sufficient safeguards so that we don’t torture anymore. We need to understand what happen so that those safeguards can be created.”

Another group of prominent religious leaders presented the Obama Administration with what it called a "Come Let Us Reason Together" Agenda. As part of a multi-issue declaration, the group asserted that “The use of torture and cruel, inhuman, or degrading treatment against prisoners is immoral, unwise, and un-American.”

Leaders of the group represent such organizations as Third Way, Public Religion Research, Evangelicals for Human Rights, Evangelicals for Social Action, the National Hispanic Christian Leadership Conference, and Faith in Public Life.

As these organizations went public with their demands, pressure appeared to be growing for a comprehensive independent investigation of human rights abuses allegedly committed by the Bush Administration. But when ABC News's George Stephanopoulos pressed Obama about it on the television program, "This Week," Obama said he was "still evaluating" the situation but added, "My orientation is going to be moving forward."

However, on Obama's transition website,, the top-rated publicly-submitted question asked the incoming president whether he would appoint a special prosecutor to investigate "the gravest crimes of the Bush Administration, including torture and warrantless wiretapping."

Other powerful players are taking the view that questions about the Bush administration's torture policies are so serious they can be answered only by a bipartisan, in-depth investigation. Among them is Rep. John Conyers, a Michigan Democrat and chairman of the House Judiciary Committee, who introduced a bill to establish a blue-ribbon commission to investigate Bush's alleged abuse of executive war powers and civil liberties. The commission would be similar to the panel that investigated the terrorist attacks of September 11th, 2001.

The pressure on the Obama team escalated last week when a senior Bush Administration official admitted that Guantanamo interrogators and guards had tortured one of the detainees, Mohammed al Qahtani, a Saudi national accused of planning to take part in the September 11, 2001, attacks

The official, Susan Crawford, a retired judge who oversees the military tribunals for Guantanamo Bay inmates, told The Washington Post, "We tortured Qahtani. His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

According to press reports, Qahtani had proved impervious to standard military interrogation in 2002 when former Defense Secretary Donald Rumsfeld authorized special methods to break his will.

The American Civil Liberties Union (ACLU) described the admission as "stunning" but said the Bush administration was still planning, on its final full day in office, to prosecute other detainees who had been tortured.

Bush and Vice President Dick Cheney have said that the United States does not torture. But Cheney has admitted publicly that a technique known as waterboarding – which simulates drowning – was administered to three detainees.

Bush Administration officials, including the president, vice president, and Attorney General Michael Mukasey do not acknowledge that waterboarding constitutes torture. But Obama’s nominee for Attorney General, Eric Holder, testifying before the Senate Judiciary Committee last week, unequivocally declared, “waterboarding is torture.”

The significance of the phrase “The First Hundred Days” stems from the administration of Franklin Delano Roosevelt, who took office during the Great Depression. In 1933, he called Congress back from a recess to hold a special emergency session, during which more than 15 bills – the heart of FDR’s New Deal -- were passed and signed into law. The hundred day mantra has been the gold standard for American presidents ever since.

Tuesday, January 13, 2009


By William Fisher

Human rights groups are hailing reports that President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba. But they are urging him to provide details on when and how it will be done and what will happen to those now imprisoned there.

In a teleconference today with reporters, Caroline Frederickson, the chief legislative representative of the American Civil Liberties Union (ACLU) said closing GITMO would mean little if detainees were simply moved to some other location. She also said she needed reassurance that the Obama Administration would not propose a system of “preventive detention.”

“It is not enough to simply close Guantanamo or even to suspend the Military Commission trials currently taking place there,” she said. She called on Congress to repeal the Military Commissions Act of 2006, which gave the president authority to detain people, including U.S. citizens, indefinitely without charges or trials.

Deborah Colson of the Law and Security Program of the legal advocacy group Human Rights First (HRF) told us that closing Guantanamo will “show the world we are serious about our values.” But, she added, it “will require embracing time-tested procedures for criminal prosecution of suspected terrorists in our federal courts.”

Closing Guantanamo is unlikely to be completed quickly. One official of the Obama transition team reportedly said it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp. However, transition officials have said president-elect Obama is committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, the incoming administration has reportedly rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration had insisted that such a measure was necessary to close the Guantánamo camp and bring some of the detainees to the U.S.

Meanwhile, the fate of a number of GITMO detainees continues to play out in the courts. Today the ACLU filed a petition for habeas corpus in federal court in Washington, challenging the detention of Mohammed Jawad, who has been held at Guantanamo for more than six years. Jawad, now about 23 years old, was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the U.S. is prosecuting for acts allegedly committed when they were juveniles. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan.“It would be a miscarriage of justice for President-elect Obama to continue Mr. Jawad’s unlawful detention in Guantánamo, particularly considering that Mr. Jawad was captured as a teenager and detained based on alleged confessions obtained through torture,” said Hina Shamsi, an ACLU attorney.

“The Bush administration compounded this injustice by using torture-derived evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military commissions. The government’s continued detention and prosecution of Mr. Jawad violates America’s values and the Constitution, as well as this country’s binding obligations under the Geneva Conventions and human rights law,” she said.In September, the military’s prosecutor resigned from the military commissions because he did not believe he could ethically proceed with the case. He told the court there was “no credible evidence or legal basis” to justify Jawad’s detention and prosecution, and that the commission system’s flaws make it impossible for anyone “to harbor the remotest hope that justice is an achievable goal.”

A month later, Army judge Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody could not be admitted in his trial because it had been obtained under duress. Among various forms of abusive treatment, Jawad was a victim of the military’s so-called “frequent flyer” program, in which detainees at Guantánamo were subjected to sleep deprivation for extended periods of time.

In May 2004, a few months after Jawad tried to commit suicide in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – after having been ordered by their commanding general to discontinue this practice.

The government told the judge that Jawad's alleged confessions were the centerpiece of its case against him. “The fact that the government persists in trying to use evidence obtained through torture says everything you need to know about the integrity of its case,” said U.S. Air Force Major David J. R. Frakt, who represents Jawad. The Bush administration is appealing the Guantánamo military judge’s decision to throw out the “tainted” evidence.
In a separate case, the trial of another “child soldier,” Canadian citizen Omar Ahmed Khadr, is scheduled to begin January 26. Khadr was captured by American forces when he was 15, following a four-hour firefight with militants in a village in Afghanistan. He has spent six years in Guantanamo charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.

But in February of 2008, the Pentagon accidentally released documents that revealed that while Khadr was present during the firefight, there was no evidence that he had thrown the grenade. In fact, military officials had originally reported that another militant had thrown the grenade just before being killed.

HRF’s Deborah Colson told us that Obama’s plan to close GITMO will be further complicated if he “does not make an immediate decision to suspend all military commission proceedings, including the trial of Omar Khadr.”

Among the many complications surrounding the closing of Guantanamo is the question of what to do with detainees the U.S. Government has cleared for release.

In December 2008, the government attempted to halt the cases of approximately 20 detainees the Defense Department had cleared for transfer out of Guantanamo. A few weeks later, a federal court rejected the government’s action. The ruling, from Judge Thomas Hogan of the United States District Court for the District of Columbia, meant that lawyers for the detainees could go forward with attempting to seek their release from detention.

As recognized by the Supreme Court and by District Court Judge Ricardo Urbina in the case involving 17 Chinese Muslims – known as Uighurs -- remaining at Guantánamo, a core facet of the fundamental right of habeas is the ability of a federal court to order release in cases of unlawful detention. Judge Urbina ruled the Uighurs should be released from Guantanamo and admitted into the U.S. The government is appealing that decision.

“An administrative order that says that they are free to go is not relief after seven years of imprisonment,” says Emi MacLean, an attorney with the Center for Constitutional Rights. “These men need to be released from prison, and this relief is long overdue,” she says.

There are approximately 50-60 detainees at Guantánamo who cannot be sent to their home countries for fear of torture or persecution or because of statelessness. These include the 17 Uighurs from China as well as men from Azerbaijan, Algeria, Libya, Palestine, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.

Monday, January 12, 2009


By William Fisher

While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.

That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.

The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.

In 2005, following well-documented accounts of detainee deaths, torture and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government. But due to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.

The ICRC report is said to cite massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado” in “a previously undisclosed warren of isolation cells” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions”. Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.

According to Hina Shamsi of the American Civil Liberties Union (ACLU), “Bagram appears to be just as bad as, if not worse than, Guantanamo. When a prisoner is in American custody and under American control, our values are at stake and our commitment to the rule of law is tested”.

She told us, “The abuses cited by the Red Cross give us cause for concern that we may be failing the test. The Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it on Afghanistan.”

She added: “Both Congress and the executive branch need to investigate what’s happening at Bagram if we are to avoid a tragic repetition of history.”

But most observers believe the solution is more likely to come in the courts and to be inextricably linked to recent judicial decisions affecting prisoners at Guantanamo.

Last June, the U.S. Supreme Court ruled that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo have a constitutional right to challenge their captivity in U.S. courts in Washington. Last week, a federal judge began exploring whether this landmark decision also applies to Bagram.

Like Guantanamo, Bagram was set up as a facility where battlefield captives could be held for the duration of the “war on terrorism” under full military control in an overseas site beyond the reach of U.S. courts.

The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review. But the Justice argument is that none of those rulings has any application to Bagram, and that the federal judge should dismiss the legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.

But lawyers for four Bagram prisoners who have been held in detention since at least 2003 contend that recent Supreme Court Guantanamo decisions also apply to Afghanistan. They are also arguing that another Supreme Court decision -- Munaf v. Geren -- extended habeas rights to a U.S. military facility in Baghdad.

Barbara Olshansky of the Stanford Law School represents three of the four men who brought the court action. She said "there is no more complete analogy or mirror to Guantanamo than this (case)."

While U.S. District Judge John D. Bates has not ruled on the government’s motion to dismiss the four Bagram cases, he said during the court hearing, “These individuals are no different than those detained at Guantanamo except where they're housed."

In its motion to dismiss the cases, the Justice Department argued that Bagram is so much a part of ongoing military operations that there simply is no role for U.S. courts to play. “To provide alien enemy combatants detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically,” the government’s brief claimed.

The government claims the U.S. does not have nearly the control over the Bagram Airfield as it does over Guantanamo Bay, and thus the reasoning of the Supreme Court in extending habeas rights to Guantanamo should not apply to Bagram.

It also noted that Bagram is in the midst of a war zone; Guantanamo is not. It asserted that civilian court review of Bagram detentions would actually compromise the military mission in Afghanistan.

The Munaf decision also has no application to Bagram, the government’s motion contended, because that involved U.S. citizens, not foreign nationals.

Lawyers for the Bagram detainees noted that some of them have been held for more than six years, so any argument the Justice Department might have made against habeas rights abroad has now lost its force “after so much time has passed.”

They say the issue “is whether the Executive can create a modern-day Star Chamber, where it can label an individual an ‘enemy combatant’ or ‘unlawful enemy combatant,’ deny him any meaningful ability to challenge that label, and on that basis, detain him indefinitely, virtually incommunicado, subject to interrogation and torture, without any right of redress.”

The lawyers note that the Supreme Court has rejected such efforts at Guantanamo on three occasions. But it added that the government is now seeking “to revive their effort to create a prison beyond judicial scrutiny by arguing that habeas does not extend to Bagram because they have deliberately located their Star Chamber in an airfield they contend is outside their ‘realm,’ for the express purpose of avoiding compliance with domestic civil, criminal, military, and international law.”

Bagram, their brief contended, “is not a temporary holding camp, intended to house enemy soldiers apprehended on the battlefield, for the duration of a declared war, finite in time and space.” It said the “war on terror” as conceived by the government is “unlimited in duration and global in scope.”

It also noted that, unlike Guantanamo, Bagram is a permanent prison. Thousands of individuals from all over the world have been taken to the airfield prison, and nearly 700 remain there now, and it is being expanded with a new prison to hold more than 11,000. Moreover, they argued, Bagram detainees do not even have the minimal procedural guarantees to have their captivity reviewed that Guantanamo prisoners have in the so-called “Combatant Status Review Tribunals.” The military does not operate CSRTs at Bagram.

Lawyers for the four men -- two Yemeni, one Tunisian and one Afghan -- said none was captured while in battle or otherwise directly aiding terrorist groups.

The Justice Department argued that releasing alleged enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.

"What evidence is there to believe they would return to the battlefield?" Judge Bates asked Deputy Assistant Attorney General John O'Quinn. "They were not on the battlefield to begin with."

While there is no timetable for a court ruling, it is clear that it will not come during the waning days of the George W. Bush Administration. Like the issue of how to close Guantanamo, the Bagram issue will be left to the new presidency of Barack Obama to solve.

Monday, January 05, 2009

The Politics of Fear

By William Fisher

As Barack Obama’s inauguration approaches, I suppose it was inevitable that inhabitants of the parallel universe that is the right-wing blogosphere would begin circulating dark reports that our new president will take his oath of office by placing his hand on a Koran.

Well, these wingnuts are entitled to their own opinions, but not to their own facts. Here’s the main fact, no doubt inconvenient: Obama will place his hand on the same Bible used by Abraham Lincoln, that other radical Muslim.

The one from Illinois.

And, while we’re on the subject of radical Muslims, it’s worth noting that the past few weeks have given us yet more evidence that our post-9/11 Islamophobia is still alive and well.

Should you have any doubt, just ask the members of the Irfan family. The Irfans are American-born Muslims of Indian descent. Last week, eight members of the family, plus a friend, were sitting on the tarmac at Washington’s Ronald Reagan airport in an AirTran plane and attempting to fly to Orlando, Fla. The men in the party wore beards; the women wore headscarves.

Two members of this family reportedly had a conversation about the safest place to sit in the event of an accident. Whereupon other passengers reported these “suspicious” remarks to a flight attendant, who passed them on to the pilot, who notified a couple of air marshals on the plane, who then called the FBI and the Transportation Security Administration.

All 104 passengers were ordered off the plane. The FBI questioned the “suspicious” family and cleared them of any wrongdoing.

Most of the passengers were then allowed to reboard the plane -- but the nine American Muslims weren’t. Nor were they allowed to buy tickets on any other AirTran flights. They had to buy tickets on U.S. Airways.

Initially, AirTran said it was not at fault. Later it said the incident was a “misunderstanding” and issued an apology.

“We regret that the issue escalated to the heightened security level it did,” the airline said, “but we trust everyone understands that the security and the safety of our passengers is paramount and cannot be compromised,” AirTran said.

Well, actually, no, many of us don’t understand. We don’t understand the relationship between passenger security and safety and the conversation these two passengers had. What we do understand is that if these passengers had been white and clean-shaven, and the women’s hair uncovered, this incident would never have happened.

But wouldn’t that be racial profiling? Sure sounds like it. Yet the FBI, the DHS, the TSA, and every other government agency you can name, will vehemently deny it practices racial profiling.

Atif Irfan, one of the passengers who is a lawyer from Alexandria, Virginia, has a more realistic view. “Whenever we get on a plane, because of the color of our skin, people tend to look at us with a wary eye anyway.”

Kashif Irfan, 34, Atif’s older brother and another of the detained passengers, is a medical doctor. Perhaps a tad too magnanimously, he said, “We are very grateful for the apology, and we’re impressed by the outpouring of respect that AirTran has demonstrated after the fact.”

He added, however, that the Irfan family has “not ruled out the possibility of legal action.”

Others aren’t waiting for the Irfans, however. The Council on American-Islamic Relations (CAIR), an advocacy group, has already filed a complaint with the Transportation Department requesting an investigation.

The trouble with waiting for a TSA to finish an investigation and disclose the results is like trying to get your name off one of the government’s famous “no fly” lists. Conjures up images of Sisyphus.

Now, if you haven’t run out of patience yet, here’s another exciting chapter in the never-ending annals of “activist judges.”

This one takes place in Douglasville, Georgia (population about 20,000), considered a suburb of Atlanta. In the municipal courtroom of Judge Keith Rollins, a Douglasville woman was jailed recently for refusing to remove her hijab, the traditional Muslim head covering, in court.

Judge Rollins had Lisa Valentine, 40, arrested, and ordered her to serve ten days in jail for contempt of court. Police said that Valentine violated a court policy that prohibits people from wearing any headgear in court.

Ms. Valentine, who recently moved to Georgia from New Haven, Connecticut, said the incident reminded her of stories she'd heard of the civil rights-era South.

She said, "I just felt stripped of my civil, my human rights."

And she’s not alone. The same judge recently removed another woman and her 14-year-old daughter from the courtroom because they were wearing Muslim headscarves. And last year, a judge in Valdosta in southern Georgia barred a Muslim woman from entering a courtroom because she would not remove her headscarf. There have been similar cases in other states, including Michigan, where a Muslim woman in Detroit filed a federal lawsuit after a judge dismissed her small-claims court case when she refused to remove a head and face veil.

The hijab is worn by millions of Muslim women in accordance with their belief in Islam. There are many types of hijabs; in America, a majority of Muslim women who choose to cover only their hair, leaving the face visible for identification, as was the case with Ms. Valentine.

I wonder if the good Judge Rollins has somehow not noticed that followers of other religions regularly use headwear, apparently with impunity. Would he order a nun to remove her religious habit? Would he order a Jew to remove his yarmulke? Would he order a Sikh to remove his turban?

Maybe I’m missing something here.

Maybe, but what I’m not missing is the U.S. Constitution. I don’t know where Judge Rollins went to law school, but he somehow seems to have missed Lyndon Johnson’s Civil Rights Act of 1964. That law says no one can be deprived of the equal protection of the laws on account of race, color, religion or national origin by being denied equal use of any public facility. Well, a courtroom certainly qualifies as a public facility. Our tax dollars built it.

Then there’s the U.S. Supreme Court, which has ruled that a state can only interfere with the free exercise of a citizen’s religious observance if there’s a compelling state interest.

Denial of access to a courtroom based on a religious observance seems to me an open-and-shut case of discrimination. And where is the “compelling state interest” here?

Well, this story may actually have a happier ending, sort of.

First, after a Muslim advocacy group threatened to take the case to court, Ms. Valentine was released from jail (though the cops would not explain why).

Then, the Douglasville Police Department announced that its officers – along with Judge Rollins -- would undergo a course of "sensitivity and cultural diversity training. "

Not a minute too soon! Let’s hope they’re fast learners!

But next time you hear your right-wing friends railing against those “activist judges who legislate from the bench,” how about reminding them of Mr. Justice Keith Rollins?

Friday, January 02, 2009

Rummie’s Gift to Obama

By William Fisher

Should we be surprised that Australia – once our staunchest ally in the “global war on terror” – has for the second time refused a request from the lame-duck Bush Administration to accept any of the Guantanamo Bay prisoners the U.S. Government has been trying to release?

As have most of the other countries in the world.

How come we’re having such a hard time? After all, are we not the leader of the free world? Are we not the world’s sole remaining superpower? And haven’t we been generous to a fault in providing arms and military advice and all manner of other economic and humanitarian aid to most of the countries now turning their backs on us?

These nations must be just plain ingrates.

Or maybe we’ve hoisted ourselves by our own petard.

Yep, one could make a pretty good case for the latter. Consider this:

Way back in 2002, our rock star Defense Secretary Don Rumsfeld famously referred to Guantanamo prisoners as "the worst of the worst." The press loved it. Rummie’s line became one of period’s most iconic quotes.

Rummie must have loved the line too, because he kept using it. As recently as 2005, he was saying, "If you think of the people down there, these are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, (Osama bin Laden's) bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker."

Well, Rummie, the rest of the world was listening too. Now, there are a host of reasons why countries are declining to provide homes for GITMO detainees – foreign governments have long memories when it comes to W’s cowboy unilateralism. But if we gave you the gift of a “worst of the worst” figleaf, why in the world would you be willing to accommodate the country that failed to consult you about Guantanamo, WMD, the invasion of Iraq, or much of anything else?

You wouldn’t. And they haven’t.

Rumsfeld kept delivering his favorite zinger – now joined by a veritable Greek chorus of sycophants including Richard Myers, then Chairman of Joint Chief of Staff -- despite massive and incontrovertible evidence that “the worst of the worst” riff was simply a lie.

For years now, we have all known that perhaps only five percent of those held at GITMO were even captured by the United States – more than 90 percent of them were picked up by the warlords of the Northern Alliance or by Pakistani forces in exchange for bounties. We have all known that only some eight percent of these prisoners were accused of being members of Al Qaeda, and that up to a third of them may have been imprisoned by mistake.

That information comes from Bush’s own CIA. But the White House has chosen to ignore it and continue to insist that all GITMO detainees are "enemy combatants" subject to indefinite incarceration. A top aide to Vice President Dick Cheney dismissed the CIA report and turned down proposals for a thorough review of the detainees' cases. “There will be no review," was the reported response of Cheney staff director David Addington, who added, "The president has determined that they are ALL enemy combatants. We are not going to revisit it."

Well, governments all over the world heard exactly the same information. So why would they want these “enemy combatants” free to stir up mischief in their country?

Now, if any of these countries needed a further excuse to say “no thanks,” there’s always this: “If these prisoners are so benign, how come the United States has refused to take in any of them?”

Tough question, that.

There have been ample opportunities for the U.S. to demonstrate the innocence of many GITMO prisoners by resettling them in America. At this very moment, the U.S. Circuit Court of Appeals in Washington is considering whether 17 Chinese Muslims should be allowed to enter our country.

These people are known as Uighurs. They are fierce opponents of the Chinese Government but have never harbored any hostility toward the U.S. The State Department says it can’t return them to China for fear they will be tortured or otherwise persecuted.

After a lower court Federal judge ordered the Uighurs released immediately and brought to his courtroom as their first step toward resettlement in the U.S., what did the government do? It sought to have the lower court ruling reversed by appealing it. NIMBY is alive and well. The appeals court decision is pending.

There are now some 60 GITMO detainees for whom the government is trying to find homes. It is extremely unlikely that this is going to happen in the waning weeks of the Bush Administration.

Leaving Barack Obama with yet another problem to solve. He has pledged to close Guantanamo Bay but, as of now, we don’t know what he will do with the prisoners we’d like to release, much less how he plans to handle those we still consider dangerous terrorists.

The takeaway from this mess is that we don’t have anything like the leverage we once thought we had. We are no longer trusted. Restoring that trust is going to be a long and difficult process. It promises to be one of President Obama’s toughest challenges.

Thanks a lot, Rummie!