Tuesday, April 07, 2009

Why Is Spain Doing America’s Work?

By William Fisher

Human rights organizations and legal scholars are applauding the efforts of Spanish lawyers in seeking the indictment of six former officials of the administration of President George W. Bush in connection with the torture of detainees at the U.S. military's Guantanamo Bay prison.

Spanish prosecutors may decide this week whether to proceed with an investigation. The prosecutors were asked to review the case by Baltasar Garzon, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.

The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

Garzon asked for the review following a complaint filed by Spanish human rights lawyers, who could pursue the case in court even if prosecutors decide not to take it further. This occurred in the Pinochet case.

The U.S. officials involved in the investigation include former U.S. Attorney
General Alberto Gonzales; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions, Douglas Feith, the former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel and now a Federal judge; and David Addington, chief of staff and legal adviser to former Vice President Dick Cheney.

The investigation would likely focus on whether these officials violated international law by providing a legal justification for the torture. It was triggered by a complaint filed by the Association for the Dignity of Inmates, a Spanish legal rights organization.

The six are said to have “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention center at Guantánamo.”

A spokesman for the association, attorney Gonzalo Boye, said the six Americans had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

The views of Michael Ratner, president of the Center for Constitutional Rights – which has played a major role in mobilizing lawyers to defend Guantanamo detainees, probably represent the consensus among U.S. human rights advocates. He said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts.”

He added, “If and when arrest warrants are issued, 24 countries in Europe are obligated to enforce them. The world is getting smaller for the torture conspirators.”

Brian J. Foley, Visiting Associate Professor of Law at Boston University, told us, “I hope Spain goes ahead with a full and fair investigation. These are serious allegations, and there needs to be a forum to air them. U.S. officials seem unwilling to look into the alleged war crimes, which is unfortunate and further diminishes any remaining U.S. moral authority. I hope the Spanish investigation is open and transparent, revealing the truth for the whole world to see -- including, perhaps especially, American citizens. We need to face what has been done in our name.”

And Marjorie Cohn, President of the National Lawyers Guild, told us, “The only reason Spain is considering the prosecution of Americans for torture is because the United States is refusing to do so. Eric Holder must follow U.S. law and initiate criminal investigations of Bush officials who committed torture and other war crimes. Political considerations should not control our obligation under the Torture Convention to prosecute or extradite war criminals."

A similar view was expressed by Ben Wizner, attorney in the National Security Project of the American Civil Liberties Union (ACLU). He told us, “The idea of Spain investigating America’s treatment of detainees is an embarrassment to us. Once we were the world’s leading champions, not only of human rights, but of accountability. We shouldn’t be depending on other countries to clean up our mess.”

“If the Obama Administration did what the law required – appoint a special prosecutor – we would see fewer of our allies feeling they have to do our work,” he added.

Spain's law allows it to claim jurisdiction in the case because five Spanish
citizens or residents who were prisoners at Guantanamo Bay say they were
tortured there.

The U.S. detention camp in Cuba was set up to hold foreigners captured after U.S.-led forces invaded Afghanistan to root out al Qaeda and its Taliban protectors in response to the attacks of September 11, 2001 against the United States. U.S. officials held that Guantanamo was beyond the reach of U.S. law, thus giving detainees no rights. But three landmark rebukes by the U.S. Supreme Court have destroyed that defense by ruling that prisoners have a right to challenge their detentions in U.S. civilian courts.

In one of his first acts in office, U.S. President Barack Obama set a one-year
deadline for shutting the prison where about 245 people are still detained and which has been widely viewed by the international community as a stain on the U.S. human rights record.

Under Spanish law, prosecutors recommend whether to proceed with cases and determine whether any trial would come under the jurisdiction of the High Court.

While there is no set deadline for a decision, a recommendation could come
this week, according to court officials.

Whatever Happened to “Do No Harm”?

By William Fisher

Human rights advocates are expressing alarm about recent disclosures that medical professionals assisted the Central Intelligence Agency in harsh interrogations of prisoners at C.I.A. secret prisons overseas and at the Guantanamo Bay detention facility, and that judges have ignored the mental health problems of government witnesses in terror-related trials.

A secret leaked report by the International Committee of the Red Cross concluded that medical professionals working for the C.I.A. were actively involved in the abusive interrogation of terrorist suspects. The report labeled their participation in abusive interrogations that included waterboarding “a gross breach of medical ethics.”

And, in a virtually unreported ruling last week, Federal Judge Emmet Sullivan found that the Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases. The judge said it was clear that the witness, a fellow GITMO detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts.

The witness provided information in the government's case for continuing to detain Aymen Saeed Batarfi, a Yemeni doctor held at the U.S. Naval Base at Guantanamo Bay, Cuba, since 2001. Judge Sullivan excoriated the government for failing to turn over the witnesses’ medical records and said his testimony in other cases could also be challenged as unreliable. He ordered department lawyers to explain why he shouldn't cite them for contempt of court.

In a surprise development, it was widely reported late last month that Batarfi was the second captive to be cleared for release through the new review procedures put in place by U.S. President Barack Obama. The deal struck with government lawyers allows Batarfi to restart his lawsuit if he is not delivered to a country acceptable to him within 30 days. The agrement still must be reviewed by a judge.

The Red Cross – the only international agency guaranteed access to detainees – concluded in late 2006 that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.

The Red Cross report was based on statements from 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006.

Facilitating practices that the Red Cross described as torture was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill-treatment.”

Frank Donaghue, Chief Executive Officer of Physicians for Human Rights (PHR), a non-profit medical advocacy group, told us, “Health professionals violated ethical duties by participating in the torture and abuse of detainees in U.S. custody. PHR has long demanded a full investigation into the role health professionals played in detainee treatment. PHR again calls upon health professional associations to support a non-partisan commission of inquiry.”

“It is time for the American Medical Association, the American Psychological Association, and others to demand a nonpartisan commission to investigate these crimes,” he said. “The associations must sanction any of their membership found to have violated their professional ethics.”

“The Bush Administration weaponized medicine by using health professionals to break the bodies and minds of detainees,” stated John Bradshaw, PHR’s Washington Director. “Congress must act to restore medical ethics by finally authorizing a non-partisan commission to probe these crimes.”

And Dr. Steven H. Miles, a physician at the Center for Bioethics of the University of Minnesota, said that in recent decades, torture had almost always involved medical professionals, and that to deter future misconduct, the medical role in the C.I.A. program should be fully disclosed.

The American Medical Association, the American Psychological Association, and other professional organizations, have condemned participation by their members in detainee interrogations.

The Red Cross report was obtained by Mark Danner, a journalist who has written extensively about torture, and published in The New York Review of Books.

The report said, “At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”

Khalid Shaikh Mohammed, the self-described chief planner of the Sept. 11 attacks, reportedly told investigators that when he was waterboarded, his pulse and oxygen level were monitored, and that a medical attendant stopped the procedure on several occasions.

Another prisoner, Walid bin Attash, who had previously had a leg amputated, said that when he was forced for days to stand with his arms shackled above his head, a health worker periodically measured the swelling in his intact leg and eventually ordered that he be allowed to sit.

The report does not indicate whether the medical personnel at the C.I.A. sites were physicians, psychologists, physicians’ assistants or former military paramedics.

Shortly after taking office in January, President Barack Obama ordered the closing of the Guantanamo Bay prison and the C.I.A. secret detention sites. He directed that the Red Cross be promptly informed of every person detained by the C.I.A. or any other agency.

Regarding the Batarfi case, Dr. Jeffrey Kaye, a San Francisco-based psychologist, told us that a judge can bar testimony on competency grounds, if there is "sufficient evidence showing a person's mental incapacity will render his or her testimony irrelevant, misleading, or incredible"; or is problematic due to "'counter-probative mental or psychological conditions or chemical influence.'"

In the Batafri case, Kaye added, “The main issue is the withholding of relevant or probative evidence for the court to assess the credibility of the witness. Whether that witness would be held credible by the court is really a separate issue.”

“The issue in assessing a potential witness boils down to whether or not they are seriously psychotic, or have some major disability that prevents them from processing information, or a severe personality disorder that would bear on their ability to be truthful.”

Kaye said, “It's easy to confirm a witness as competent under these criteria, but not necessarily credible or truthful.”

Commonly, he added, "The kinds of conditions that might be relevant to impeaching a witness includes 'psychoses, most or all neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality or antisocial personality disorder.”

In its 40-page report, the Red Cross condemned the C.I.A. detention program not only for using torture and other cruel treatment, but also for holding prisoners without notice to governments or families.

The report also details the Bush administration’s lack of cooperation for several years with the Red Cross’s inquiries and investigations of American detention programs. Repeated inquiries and reports from the organization beginning in 2002 received no response from American officials, the report said.

The new C.I.A. Director, Leon Panetta, has stated that “No one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.”

The C.I.A.’s interrogation methods were declared legal by the Justice Department under President George W. Bush. The recently released memoranda asserting their legality have been attacked by many legal scholars and human rights advocates.