Friday, June 25, 2010

Mandatory Injustice: Losing the War on Drugs

By William Fisher

Stephanie Nodd grew up in Mobile, Alabama. The young African-American became pregnant in ninth grade and dropped out of school to care for her child. She was barely 20 years old when she met John, a handsome drug dealer new to the city with lots of money. He showered her with compliments and promised to reward her generously for helping him set up in the area.

Stephanie introduced John to people and local drug spots, sold crack to customers on the street and later delivered cocaine and picked up money for him. In return, John gave her cash, money which Stephanie, a single mother, needed to provide for her four young children.

A little over a month after meeting John, Stephanie was arrested, charged and convicted as part of John’s crack cocaine business.

According to her judge, “this defendant is not an organizer, she was not the boss of this operation. She was only a lieutenant. And I feel that because of her young age, she was influenced to a great extent by [John].” She had no prior criminal record.

So the judge departed from the life sentence required by the then-mandatory guidelines, which he calculated using the relevant conduct guideline, and held her accountable for eight kilograms of crack cocaine handled by the organization.

Stephanie was pregnant with her fifth child when she was sentenced to 30 years in federal prison a few days before Christmas of 1990. And that’s where she is today.

Had she been sentenced for involvement with powder cocaine, as opposed to crack, she would have left prison more than seven years ago.

There are literally tens of thousands of Stephanies in our prisons today.

How does this happen?

In 1986, the U.S. Congress passed laws that created a 100 to 1 sentencing disparity for crack vs. powder cocaine possession. People convicted in federal court of possession of five grams of crack cocaine receive a minimum mandatory sentence of five years in federal prison. Possession of 500 grams of powder cocaine carries the same sentence.

Many legal experts and human rights advocates consider this to be a racist law that discriminates against minorities, because African-Americans are more likely to use crack than powder cocaine. Powder is considered an upper middle class drug, largely used by whites as a weekend “recreational” drug.

One such legal expert is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told Truthout, “I believe that the original ‘rationale’ for the cocaine sentencing disparity was implicit and just evolved: i.e. it was probably racism, pure and simple, that allowed the disparity to emerge to begin with (since elites and mainly whites used powder and poor and minorities used crack).”

The emphasis on drug quantity as opposed to individualized culpability has resulted in scores of unjustifiably draconian sentences.

Reform along these lines would ideally come both from Congress and the United States Sentencing Commission: Congress should reformulate the triggers for mandatory minimums away from mere drug quantity, and the Commission should eschew reliance on drug quantity as the driving factor in determining the offense level.

Although the US Senate passed a bill on March 20, 2010 that would cut the crack-powder sentencing disparity to 18:1, that law is still awaiting passage in the House of Representatives and the signature of the President. And Congresspersons of both parties are so terrified of being seen as “soft on crime” that, year after year, voting to abolish mandatory minimums has become a major “third-rail” vote – and has consistently failed.

Law enforcement is generally, but not unanimously, in favor of the status quo. This is true at both Federal and State levels. However, state treasurers and Federal budget-makers are appalled at the skyrocketing costs of incarceration. Nonetheless, those associated with the so-called War on Drugs generally believe long incarceration to be a deterrent to drug abuse, and lobby aggressively for even more severe sentences.

What are the consequences of the current system?

The most shocking is that the U.S. has the largest prison population in the world. We have less than 5% of the world’s population, yet we incarcerate about 25% of all people in prisons and jails everywhere in the world.

And the cocaine/powder ratio used in drug sentencing is reportedly among the most important reasons for the explosion of our prison population. In the 1980s, while the number of arrests for all crimes was rising 28%, the number of arrests for drug offenses rose 126%. By 2008, the "War on Drugs" resulted in 1.5 million Americans being arrested for drug offenses, and 500,000 of them being imprisoned.

Moreover, crime statistics show that black Americans are consistently far more likely to be targeted by law enforcement for drug crimes, and to receive much stiffer penalties and sentences than non-minorities. Those same statistics also show that such events are far more likely to take place in areas with high minority crime, including low income housing neighborhoods and city projects.

Nationwide, African-Americans are sent to state prisons for drug offenses 13 times more often than other races, even though they reportedly comprise 13% of regular drug users only.

The rate of imprisonment in the United States is between five and eight times higher than countries in Western Europe and 12 times higher than Japan. And the average federal sentence in the United States has tripled in length since the advent of mandatory minimum sentences 25 years ago.

A second major factor in the explosion of the prison population is found in application of the Mandatory Minimum Guidelines for federal judges - mandatory, that is, until 2004, when a major change happened this way:

A man named Blakely pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range.

The Washington Court of Appeals agreed, rejecting Blakely’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.

But the Supreme Court disagreed. It ruled on June 24, 2004, that the Sixth Amendment right to trial by jury required judges to use only facts proved to a jury, not decided by a judge alone, to increase a sentence beyond the standard range.

Thus, the guidelines became voluntary guides for Federal judges, not mandatory orders. A number of States followed suit.

Here’s how the Guidelines worked:

Under the federal sentencing scheme, a defendant's range of possible punishments was reduced to a mathematical formula. If you had a long criminal history, your sentence would be longer. If the prosecutor could persuade a judge and jury that you sold a large amount of drugs, your penalty range climbed still higher. If you were the gang leader, you would get still more years on the inside. Being young could lighten your sentence. So could ratting out your accomplices, as could a confession.

The Guidelines left judges with little to judge, perhaps a minimum and a maximum separated by only a few years. A federal judge could ignore the guideline range, but the decision would likely be appealed and ultimately reversed.

The Blakely decision changed all that.

Defense attorneys lauded the decision. But while the once-mandatory guidelines are now voluntary, they are still with us, largely because some states have not adopted the new voluntary regimen and some judges appear to have difficulty shedding the old, more punitive ways, resulting in overly harsh sentences.

The Guidelines are perhaps a perfect illustration of good intentions going wrong, or proof of the law of unintended consequences.

The Guidelines were the work of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. The primary goal was to alleviate sentencing disparities that research had indicated were prevalent in the existing sentencing system, and provide for determinate sentencing.

This refers to sentencing the actual limits of which are determined at the time the sentence is imposed, as opposed to indeterminate sentencing, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence.

Sentencing criteria already in use by judges were adopted as guidelines, essentially codifying existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.

Jay Rorty, who heads the Drug Law Reform Project for the American Civil Liberties Union, has strong feelings about mandatory minimums. Here’s what he told the Sentencing Commission in May:

“Mandatory minimum sentences defeat the purposes of sentencing, create unwarranted racial disparity and over-crowd our prison system. They take discretion away from judges and give it to prosecutors who use these high sentences to frustrate Constitutional rights.”

“In 1991, the USSC delivered a report to Congress denouncing mandatory minimums and calling for their abolition. The report gathered widespread support from policymakers, judges and practitioners in the field of federal sentencing. But in the years since the report, Congress increased the number and length of mandatory minimum sentences.”

He continued: “We cannot continue to use a one-size-fits-all approach to sentencing. Instead, we must balance public safety with the need to assist individuals on the path to health and rehabilitation.”

The Commission has been telling Congress precisely that for many years. And its pleas have fallen on largely deaf ears.

The one mandatory minimum that Congress appears poised to revise is that governing crack cocaine offenses. The law, which penalizes five grams of crack as harshly as 500 grams of powder cocaine, has been denounced by the ACLU, congressional leaders and the Obama Administration as racially unfair. The Fair Sentencing Act, referring to above, would reduce the 100:1 crack-powder ratio to 18:1, and also eliminate the mandatory minimum for simple possession.

The Justice Department has acknowledged that some mandatory minimums are too harsh, has called the resulting spike in the prison population "unsustainable," and agreed that some reform was warranted.

But it also maintains that using mandatory minimums to pressure defendants into plea bargains is a legitimate sentencing practice.

The policy of the U.S. Attorney’s Office for the Northern District of California illustrates how mandatory minimums can be used to compromise Constitutional rights and dramatically intensify sentences. In that district, until recently, prosecutors routinely threatened to file Informations under 21 U.S.C. § 851 against defendants with prior convictions. The effect of such an Information would be to double the mandatory minimum or require a mandatory life sentence.

Then prosecutors then use that threat to force defendants to bargain away their Constitutional rights to request bail, remain silent, move to suppress
illegally acquired evidence, discover the evidence against them, and receive a trial by jury — all as the price for not being exposed to the higher minimum.

Says the ACLU’s Rorty, “Congress sought to create a uniform baseline for sentencing that reflects all relevant factors, including offense conduct, actual social harms of the offense, and offender role and circumstances — not to make prosecutors’ jobs easier and facilitate the abrogation of defendants’ rights.”

The ACLU has submitted three seemingly common-sense recommendations to the Sentencing Commission – acknowledging that the Commission is not about to repeal mandatory minimums any time soon.

First, it says that lowering minimums or eliminating a subset of minimums would have many salutary effects beyond simply decreasing sentences. For example, it would expand judicial discretion to consider individual offenders’ circumstances and roles in their offenses, and thus to craft fairer sentences.

Second, reducing the impact of the mandatory minimums on the ultimate sentence would reduce their outsized influence as a prosecutorial scare tactic that can be deployed to force defendants to trade in their constitutional rights to avoid facing draconian sentences.

Third, lowering mandatory minimums will reduce the racial disparities that result when different prosecutors make different charging decisions for different defendants.

“As a by-product of decreased sentences, federal prison populations — and therefore federal prison expenditures — will experience a long-term decline, resulting in substantial savings to the public,” the ACLU believes.

And what is the likely picture for the future?

Over the past forty years, U.S. taxpayers have financed a $1 trillion "War on Drugs." Many observers say the program has failed to meet any of its declared goals.

“That's putting it mildly,” says the ACLU. “While the favored ‘drug du jour’ varies over time, overall illicit drug use in America, by and large, has remained steady (while) arrests of drug users have skyrocketed. Drugs are cheaper, purer, and more available than ever.”

Meanwhile, the ACLU alleges, “The U.S. is suffering a crisis of mass incarceration fueled most significantly by the War on Drugs. The racially skewed way in which the war is waged has devastated our communities of color…and while the U.S. continues to throw money at ineffective supply-side strategies aimed at stopping drugs at their source or intercepting them at the border, international cartels have set up shop in our own national parks, and Mexico bleeds.”

The “drug czar”, Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), recently told the Wall Street Journal that his office now considers the drug war to be a public health problem.

“We moved from 'it's a police problem' or 'a criminal justice problem' to 'it's a criminal justice, public health and social policy problem' to 'it's a public-health problem’,” he said.

Yet the 2010 National Drug Control Strategy still allocates 64 percent of federal drug control dollars to "supply reduction" law enforcement strategies and only 36 percent to "demand reduction" strategies like treatment and prevention.

Moreover, ONDCP altered its accounting methods in 2003 to omit the cost of warehousing drug offenders in federal prisons, counting only the costs of programs provided to the inmates.

According to Peter Reuter, who founded the RAND Corporation's Drug Policy Research Center, which makes the Bureau appear, by function, “only as a treatment agency.”

The Sentencing Commission is not slated to issue its report to Congress until October –just a month before the mid-term Congressional elections. Truthout asked Congress watchers whether anyone who has experienced the craven craziness of those who represent us at that particular point in the calendar honestly believes that any Congressperson will take any action likely to make us proud of them?

Well, they tell us there may be some anonymous nibbling around the margins. And Sen. Jim Webb’s proposed National Crime Commission bill may become law, opening the door to a more focused, more aggressive look into all aspects of our justice system, including sentencing.

But, for major changes, the answer for now seems –again -- to be a resounding “not this year.”

This article originally appeared in

McCarthy Redux

By William Fisher

In the wake of yesterday’s Supreme Court decision upholding a law making it a crime to provide any “material support” to an organization designated as a “terrorist” by the U.S. government, former U.S. President Jimmy Carter charged that the law “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”

Carter, whose organization, The Carter Center, filed a “friend of the court” brief in the case, said in a statement, "We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”

He added, “ The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."

Carter joined numerous civil and human rights advocates in attacking the Court’s 6-3 ruling “to criminalize speech” in Holder v. Humanitarian Law Project. It was the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims.

Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon.

Chief Justice John Roberts wrote for the court’s majority, affirming in part, reversing in part, and remanding the case back to the lower court for review.
Justice Stephen Breyer dissented and read his dissent aloud before his fellow justices – always a sign of an opinion very deeply felt. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.

Citing various high court rulings instructing lower courts not to construe a statute “so as to abridge the exercise of right guaranteed under the First Amendment,” Justice Breyer wrote, ”Not even the serious and deadly problem of international terrorism can require automatic forfeiture of First Amendment rights.“

“In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national defense, and that it grants particular authority to the President in matters of foreign affairs,” he wrote.

Originally brought in 1998, the case challenges the constitutionality of laws that make it a crime to provide “material support” to groups the administration has designated as “terrorist.” The plaintiffs in the case sought to engage in speech advocating only nonviolent, lawful ends, but the government took the position that any such speech, including even filing an amicus brief in the U.S. Supreme Court, would be a crime if done in support of a designated “terrorist group.”

The plaintiffs’ lead lawyer, Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees the “material support” paradigm of “preemptively weeding out threats to national security, guilt by association” resurrected from the McCarthy era.

He told IPS, “While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”

Cole asserts that support for the lawful activities of a designated group should not be unlawful, and that the not-for-profit sector needs to insist that constitutional rights apply in the war on terror. He is calling for changes in the enabling legislation when Congress returns from its August recess.

“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.

The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive.

Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny.

This one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.

One Constitutional authority, law professor Francis Boyle of the University of Illinois law school, told IPS that the SCOTUS decision upheld the government’s position as set out by the Solicitor General, Elena Kagan, who has been nominated by President Barack Obama to be the next associate justice of the Supreme Court.

Boyle said that Kagan “argued this case as Solicitor General and maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organization would be violating the material support statute and thus risk criminal prosecution. The Supreme Court did not reach that hypothetical issue, but did uphold the statute. According to this decision, the advocacy of international law, human rights, and the peaceful settlement of international disputes can be criminalized.”

Boyle said Kagan's arguments in this case “demonstrate emphatically why she must not be confirmed for the US Supreme Court. She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the Bush administration with the USA Patriot Act.”

The American Civil Liberties Union (ACLU) said the Court’s ruling “thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups.”

Under the law, individuals face up to 15 years in prison for providing "material support" to foreign terrorist organizations (FTOs), even if their work is intended to promote peaceful, lawful objectives. "Material support" is defined to include any "service," "training," "expert advice or assistance" or "personnel."

Tuesday, June 15, 2010

End of the Legal Road for Arar

By William Fisher

The quest for justice of a Canadian who was mistakenly tagged as a terrorist by U.S. authorities and shipped off to a Syrian prison for close to a year of abuse came to an abrupt halt yesterday when the Supreme Court declined to hear his case.

Maher Arar is a Syrian-born Canadian and father who was arrested in 2002 while passing through New York’s John F. Kennedy Airport on his way to his home in Canada. The Canadian government provided U.S. authorities with bad intelligence suggesting Arar had ties to Al Qaeda. Arar was deported to Syria where he was held in a 3'x6'x7' cell for 10.5 months, during which time he claims he was tortured.

The Canadian government investigated Arar's case, concluded that he was not a terrorist, had no ties to terrorists, and had been unjustly detained and tortured, apologized and paid him $10.5 million.

The Supreme Court offered no explanation for its refusal to hear the case. But some Court observers have suggested that it was because two justices had previous involvement in the case and would have had to recuse themselves because of perceived conflicts of interest. It was suggested that with only seven justices voting, it would be difficult to reach a fair verdict.

Justice Sonia Sotomayor heard arguments in the Arar case when it came before the appeals court of which she was a member before her appointment to the Supreme Court. Supreme Court-nominee Elena Kagan, currently the Solicitor-General of the U.S., signed off on the government’s case in a lower court filing, claiming that the “State Secrets” privilege should apply because allowing the Arar case to go forward would represent a threat to national security.

Arar is still considered a terrorist by the U.S. but no court has ever heard his case on the merits. Arar and his family remain on a U.S. watch list, and the United States has never officially apologized or admitted it made a mistake. Secretary of State Hillary R. Clinton has said only that the Arar case was not handled well.

Upon his release by Syria – without charges -- Arar sued the Justice Department of former President George W. Bush, but his lawsuit was rejected on State Secrets grounds by a succession of U.S. courts. The Bush Administration invoked the State Secrets privilege routinely.

President Barack Obama Obama pledged to use the State Secrets doctrine less often, but so far those promises have not been kept.

Arar said, "Today's decision eliminates my last bit of hope in the judicial system of the United States. When it comes to ‘national security' matters the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law. My case and other cases brought by human beings who were tortured have been thrown out by U.S. courts based on dubious government claims. Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well."

The Center for Constitutional Rights (CCR), which has represented Arar in the various iterations of his case, said in a statement that “the Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar as Canada has done. “

The group added, “Yet the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.”

The final possible legal steps for Arar now lie with Congress or President Obama. Congress could theoretically pass a resolution acknowledging the U.S. error. And President Obama could issue an executive order with the same conclusion.

Georgetown university law school professor David Cole, who argued the Arar case, told IPS, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”

He added, "The courts have regrettably refused to right the egregious wrong done to Maher Arar. But the courts have never questioned that a wrong was done. They have simply said that it is up to the political branches to fashion a remedy. We are deeply disappointed that the courts have shirked their responsibility. But this decision only underscores the moral responsibility of those to whom the courts deferred - President Obama and Congress - to do the right thing and redress Arar's injuries."

CCR Senior Attorney Maria LaHood said, "The Supreme Court has effectively condoned torture by denying Maher's right to seek a remedy. It is now up to President Obama and Congress to apologize to Maher for what the Bush administration did to him, to make clear that our laws prohibiting torture apply to everyone, including federal officials, and to hold those officials accountable."

But it is considered extremely unlikely that either of these possibilities will come to fruition. People accused of being “Muslim terrorists” – no matter how erroneous the charge -- are distinctly unpopular politically.

Thursday, June 10, 2010

Who’s Going to Investigate the CIA?

By William Fisher

Human Rights groups are turning to an obscure, virtually invisible government agency to investigate allegations that medical professionals on the payroll of the Central Intelligence Agency (CIA) helped the agency to perform experiments on detainees in U.S. custody following the terrorist attacks of Sept. 11, 2001, in an effort to make “enhanced interrogation techniques” more efficient and provide it with legal cover.

The organizations called a telephonic press conference Wednesday to announce that they are asking The Office for Human Research Protections (OHRP), part of the Department of Health and Human Services, to initiate an official investigation into experimentation by the CIA on detainees in its custody. Their complaint contends that the CIA’s Office of Medical Services (OMS) “conducted research and experimentation on detainees in U.S. custody and, in the process, likely violated federal regulations governing human subject research carried out by United States Government entities. These regulations are known as The Common Rule (45 CFR 46).”

Their complaint notes that the CIA is one of seventeen federal agencies required by law to adhere to The Common Rule when conducting federally funded research on human beings.

Led by Physicians for Human Rights (PHR), which disclosed the human experimentation suspicions in a new report earlier this week, the other organizations joining the complaint and participating in the press conference are Amnesty International USA, the Bill of Rights Defense Committee, the Center for Constitutional Rights, the Center for Victims of Torture, Human Rights Watch, the National Religious Campaign Against Torture, and Psychologists for Social Responsibility.

“OHRP has a legal responsibility to investigate these disturbing new allegations about the CIA and possible illegal human experimentation on detainees, despite the refusal by Langely( CIA headquarters) and the White House to do so,” stated Nathaniel Raymond, lead author of the Physicians for Human Rights report, “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the ‘Enhanced’ Interrogation Program.”

“OHRP has a reputation for enforcing strict adherence to human research protections, which it must bring to bear against any CIA malfeasance that it uncovers.”

Tom Parker, Amnesty International USA's Policy Director for Terrorism, Counterterrorism and Human Rights, told IPS, "PHR's report makes it clear that if nothing else mental health professionals on the U.S. government payroll provided 'material support' to torture. We are calling on the relevant authorities to conduct a full investigation into these activities as they are required to do by law."

And Dr. Steve Miles, board member of the Center for Victims of Torture, professor at the Center for Bioethics of the Department of Medicine at the University of Minnesota Medical School and author of “Oath Betrayed: America’s Torture Doctors”, agreed.

He said, “As an organization committed to healing torture survivors and ending the practice of torture, the Center for Victims of Torture (CVT) is appalled by the implications of this report, and renews its call for an independent non-partisan commission to examine and report publicly on torture and cruel treatment of prisoners since September 11, 2001. Such a commission should be adequately funded and given subpoena power and a mandate to fully examine the facts and circumstances of such abuses and to recommend measures to prevent future abuses. "

The groups say their complaint is based upon the evidence of wrongdoing detailed in declassified government documents, including:

The collection by OMS health professionals of data from detainees in order to derive generalizable knowledge of the effects on detainee subjects of “enhanced interrogation” techniques.

These techniques, which have serious potential to cause harm, included sleep deprivation, waterboarding, sensory deprivation and overload. It appears that data also was collected on the impact of techniques both when used individually and when applied in combination;

The collection of data from detainees subjected to the technique of the waterboard in order to develop new methods and procedures for its application, including the experimental use of potable saline in place of water to reduce the risk of hyponatremia;

The CIA’s apparent failure to comply with The Common Rule’s regulations (a) requiring all human research subjects to provide informed consent, (b) assuring that subjects of research have the right and ability to stop their participation in the research at any time, and (c) requiring the conduct of prior review of the proposed human subject research by an Institutional Review Board.

If the OHRP concludes that OMS research on detainees subjected to “enhanced interrogation” techniques commonly viewed as torture violated The Common Rule and internationally accepted standards of health professional ethics, the CIA must be immediately sanctioned by the Department of Health and Human Services.

Any personnel found to have violated the law should be referred to the
Department of Justice for prosecution. Professionals determined to be in violation of their ethically mandated responsibilities should be referred to state licensing bodies and professional associations for appropriate professional sanctions.

The OHRP, which is part of the U.S. Department of Health & Human Services, is responsible for ensuring that federally funded research by federal agencies including the CIA involving human subjects complies with regulations collectively known as the Common Rule. The CIA cannot obstruct an OHRP investigation on the basis that evidence may be classified. OHRP has previously taken actions to suspend research activities at major research universities for violation of the Common Rule. Since the Obama administration has not responded to the request to investigate possible incidents of human experimentation on detainees, the groups are seeking an official investigation by the Office for Human Research Protections (OHRP)

OHRP also provides leadership in the protection of the rights, welfare, and well-being of subjects involved in research conducted or supported by HHS.

There have been numerous human experiments performed in the United States, which have been considered unethical, and were often performed illegally, without the knowledge, consent, or informed consent of the test subjects.

Many types of experiments were performed including the deliberately infecting people with deadly or debilitating diseases, exposing people to biological and chemical weapons, human radiation experiments, injecting people with toxic and radioactive chemicals, surgical experiments, interrogation/torture experiments, tests involving mind-altering substances, and a wide variety of others.

Many of these experiments were funded by the United States government, especially the Central Intelligence Agency and the United States military.

Public outcry over the discovery of government experiments on human subjects led to numerous congressional investigations and hearings, including the Church Committee, Rockefeller Commission, and the Advisory Committee on Human Radiation Experiments.

But as of 2010, not a single U.S. government researcher has been prosecuted for human experimentation, and many of the victims of U.S. government experiments have not received retribution, or in many cases, even acknowledgement of what was done to them.


By William Fisher

One year after massive dissent erupted over Iran’s disputed June 2009 presidential election – and just days before the United Nations Human Rights Council releases its report on Iran -- the Islamic Republic is still conducting a widening human rights crackdown that leaves hundreds of journalists, academics, lawyers, students, clerics, political and rights activists unjustly imprisoned.

In a new report, Amnesty International charges that “The repression has led to widespread torture and ill treatment, including rapes and mock executions, and to political executions.”

T. Kumar, International Advocacy Director for Amnesty International USA (AI), told IPS, “Amnesty is extremely concerned about the continuing abuses being perpetrated upon hundreds of political prisoners. The Islamic Republic is determined to shut down all dissent – even peaceful dissent – by its citizens and by those lawyers and other defenders who stand with them.”

Amnesty International's 71-page report, “From Protest to Prison – Iran One Year After the Election,” documents the expanding wave of repression including arrests and imprisonment of those who have spoken out against the government and its abuses.

Lawyers, academics, former political prisoners and members of Iran’s ethnic and religious minorities have been caught up in the crackdown that has led to widespread incidents of torture and other ill-treatment along, with politically motivated execution of prisoners, the report says.

Amnesty says detainees “have been held incommunicado for days, week or even months while relatives remain unable to find out where they are being held or on what charges.”

It adds, “The secrecy surrounding arrests makes it easier for interrogators to resort to torture and other ill-treatment, including rape, and mock executions, in order to extract forced ‘confessions,’ which are used later as evidence in trial.”

The organization reports that a women’s rights activist who was held “told us that her interrogators had attached cables to her nipples and given her electric shocks. She was so ill she would sometimes faint in the cell.”

The organization is demanding the release of all prisoners of conscience in Iran held since the disputed 2009 election and its aftermath and calls for fair trials without recourse to the death penalty for other political prisoners.

Amnesty International said the Iranian government took an "absurd stand" when it presented its national report to the Universal Periodic Review by the Human Rights Council of the United Nations -- that virtually no violations occurred in Iran. The council will adopt its final report on Iran this week.

Amnesty International is demanding that U.N. human rights experts be allowed to visit Iran and that the country accept recommendations relating to the treatment of prisoners.

Hundreds of people remain detained for their part in the protests of June 2009 or for otherwise expressing dissenting views. The imprisonment of ordinary citizens has become an every day phenomenon in an expanding ‘revolving door system’ of arbitrary arrest and detention. Those with only tentative links to banned groups as well as family members of former prisoners have been subjected to arbitrary arrest in the past year.

Examples include:

Banned student Sayed Ziaoddin Nabavi serving a 10-year prison sentence in Evin Prison. A member of the Council to Defend the Right to Education, his sentence appears to be linked to the fact that he has relatives in the People’s Mojahedin Organization of Iran, a banned group, which the authorities claim was responsible for organizing demonstrations.

Around 50 members of the Baha’i faith have been arrested across Iran since the elections - continuing to be unjustly cast as scapegoats for the unrest.

Iran’s ethnic minority communities have faced arrest and detention, during and following the election. Four Kurds were among five political prisoners executed in May without the notifications required by law, in what was a clear message to anyone considering marking the anniversary with protest.

The mother of a human rights defender, Shiva Nazar Ahari, detained without charge or trial whose case is highlighted in the report, said: “I hope your daughters grow up to get married – mine grew up to be thrown into jail,” illustrating the journey taken by an increasing number of Iranians, from political and civil activism to the cells of Evin Prison and other prisons in the provinces.

Politically motivated executions, recently taking place prior to key anniversaries when mass protests are expected, continue, with the justice system used as a lethal instrument of repression by the Iranian authorities. At least six people remain on death row charged with ‘enmity against God’ for their alleged involvement in demonstrations and membership of banned groups.

Iran has one of the highest rates of executions in the world. To date in 2010, Amnesty International has already recorded over 115 executions.

“The Iranian authorities must end this campaign of fear that aims to crush even the slightest opposition to the government,” Amnesty said, adding, “They are continuing to use the death penalty as a tool of repression, right up to the eve of the anniversary of the election. The Iranian authorities blame everyone but themselves for the unrest but they are failing to show any respect for their own laws which prohibit the torture and other ill-treatment of all detainees.”

AI and other organizations will mark June 12, 2010, the first anniversary of last year’s disputed elections in Iran, with a Global Day of Action across the world.

The United Nations Security Council yesterday passed its fourth round of sanctions against Iran’s nuclear program, but it was widely believed that the measures would halt Iran’s production of nuclear fuel.

But Amnesty’s Kumar suggests that the time has come for the international community to move beyond the nuclear issue alone and recognize the “dire human rights disaster happening before our eyes in Iran.”


By William Fisher

The administration of President Barack Obama is considering using Afghanistan’s U.S.-run Bagram Air Base prison to indefinitely detain terrorism suspects captured far from a battlefield and who have not been charged with a crime -- without any judicial oversight.

A senior U.S. official reportedly told the Los Angeles Times that the Obama administration wants to detain and interrogate non-Afghan terrorism suspects captured in countries outside Afghanistan in a section of the Bagram prison, even after it turns the prison over to Afghan control.

The U.S. government has stated its intention to turn over control of the Bagram detention facility to the Afghan government early next year. In May, a federal court ruled that unlike at Guantánamo, prisoners in U.S. custody at Bagram, including those who were captured far from any battlefield and brought to Afghanistan, cannot challenge their detention in U.S. courts. That decision paves the way for the U.S. government to use Bagram to detain terrorism suspects indefinitely.

"The Guantánamo problem is not solved simply by recreating a Guantánamo somewhere else. Closing Guatánamo is essential but it is equally important that the Obama administration put an end to the illegal indefinite detention policy behind Guantánamo," said Melissa Goodman, staff attorney with the ACLU National Security Project.

"The entire world is not a battlefield. We cannot just capture people far from any zone of armed conflict and lock up them up indefinitely without any access to the courts or due process. Such a policy not only flies in the face of our justice system, but opens up the possibility that mistakes will be made and the wrong people will be imprisoned – which is exactly what we have seen at Guantánamo."

The ACLU filed a Freedom of Information Act (FOIA) lawsuit in September 2009 demanding information about Bagram, which has thus far been shrouded in much secrecy. In response to the lawsuit, the government has turned over some important information but continues to withhold key details about the prisoners detained at Bagram, as well as information about the implementation of its new detainee status review procedures and about a separate "secret jail" on the base.

The secret facility is reportedly run by either the Joint Special Operations Command or the Defense Intelligence Agency, and detainees maintain they have been abused there. It is unclear whether guards and interrogators at the secret facility are subject to the same rules that apply at the main Bagram detention facility.

"The possibility of continuing to hold and interrogate detainees at Bagram is even more disturbing given the lack of transparency about the facility," said Goodman. "Plans to continue holding prisoners in U.S. custody at Bagram must be accompanied by the disclosure of key information about what currently goes on there."

In a related development, Bagram four Bagram detainees were given their first opportunity to appear at a pre-trial hearing last week. According to Reuters and the Associated Press, the detainees – three adult brothers and their elderly father – were brought before a panel of three Afghan judges on June 1. The proceeding was the first pre-trial hearing in advance of the first trial ever to be held at the U.S.-controlled detention facility.

But legal advocacy groups are expressing concern about the lack of transparency surrounding the trial procedures, the apparent failure to provide detainees with adequate access to their lawyers before the hearing, and lack of arrangements for appropriate translation services.

Tina Foster, the attorney who represents a number of Bagram detainees through the International Justice Network (IJN), told IPS, “Once again the Obama administration has simply made a grand pronouncement of policy without any transparency or accountability. Given the failures of the Obama-Bush track record on Military Commissions, it's hard to imagine these would be anything other than Kangaroo court procedings."

And Daphne Eviatar, senior counsel at Human Rights First (HRF), said her group was “dismayed that the proceeding so far has been chaotic and (that) so little information has been made available about how this trial will proceed and whether more such trials are planned.

Since the U.S. military first began detaining suspected insurgents at Bagram eight years ago, none have been accorded a trial by U.S. authorities. Some have been transferred to an Afghan-run detention facility and provided summary trials there. HRF has in the past criticized such trials for not meeting the minimum standards of due process.

In the past year, the group says, the U.S. military has begun to provide more meaningful hearings for detainees at Bagram that allow the suspects to call "reasonably available" witnesses and to be represented by "personal representatives" chosen by the U.S. military.

However, HRF points out that the detainees still have no right to legal representation or to see much of the evidence used against them, as much of it remains classified. The organization has repeatedly asked to see the rules governing these new Detainee Review Board procedures, but the military has not responded.

News reports of the first hearing last week also revealed that the trial procedures are inadequately developed. One defense lawyer reportedly complained that he had not an opportunity even to meet his client or to review his client's file. And when the hearing began, it became clear that the government had failed to provide the necessary translators to make it comprehensible.

The trial was being conducted in Dari, rather than in the detainees' native language, which is Pashto. Although there were translators available to translate to English, there were none who could translate the proceedings into Pashto.

Eviatar told IPS that, “We support the idea of trials being presided over by Afghan judges, (but) only if those trials are fair trials and if they're conducted in a language that the detainees understands, or at least with interpreters who can translate the proceedings into the detainee's language.”

She added, “Obviously, a trial held in Dari without interpreters available to translate to Pashto, when the detainees speak and understand Pashto and not Dari, won't be comprehensible to the detainees, and therefore by definition won't be fair.”

Model? Not so Much!

By William Fisher

In an immigration detention system that has been plagued by abuse, negligence, and even deaths, stronger oversight and accountability is urgently needed to prevent further sexual harassment of female detainees.

This is the view immigration advocates are expressing in the wake of allegations that a male guard at a central Texas detention facility sexually assaulted female detainees on their way to being deported.

Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), said last week that the guard has been fired. It added that Corrections Corporation of America, the private prison company that manages the Hutto facility, has been placed on probation pending the investigation's outcome. The consequences of probation were not immediately clear.

ICE said that several women who were held at Hutto facility in Taylor, Texas, were groped while being patted down and at least one was propositioned for sex.

"We understand that this employee was able to commit these alleged crimes
because ICE-mandated transport policies and procedures were not followed," David Sanders, the Homeland Security Department's contracting officer said in a letter to Corrections Corporation of America obtained by The Associated Press.

ICE has ordered Corrections Corporation of America to take corrective actions. Among them is forbidding male guards from being alone with female detainees.

An IPS reporter asked Jacki Esposito of Detention Watch Network, a coalition of organizations that monitors ICE treatment of detainees, how she thinks increased oversight could prevent what some are calling an isolated abusive aberration by a single person. She responded:

“Hutto is not an isolated incident. Allegations of sexual assault have plagued other facilities where immigrants are being held by the federal government. With appropriate oversight, including meaningful inspections and better access by independent agencies the fact that this guard had been engaging in a pattern of sexual assaults against females could have come to light earlier.”

She added, “The latest story of abuse in the U.S. immigration detention system highlights yet again the fact that the immigration detention system is in need of serious repair. This scandal is only the latest to come to light in a detention system that has been plagued by abuse, negligence, and even deaths. Stronger oversight and accountability within DHS and from Congress is urgently needed.”

Her view was echoed by Brittney Nystrom, director of policy and legal affairs at the National Immigration Forum (NIF) a non-partisan, non-profit pro-immigrant advocacy organization in Washington. She told IPS, “The most disturbing thing about these charges is that involve a facility that’s supposed to be the shining star of ICE’s detention policy. Instead it turns out to be an example of poor oversight and bad management.”

Ali Noorani, NIF’s Executive Director, said, “News of fresh abuses at this facility is deeply disturbing. The newly discovered violations reinforce the urgency of major reforms that are overdue in our immigration detention system and in our immigration laws. The innocent victims of this guard’s abuse are yet further evidence that ICE is warehousing hundreds of thousands of detained immigrants in a poorly managed system that cannot keep them safe.”

The Hutto facility formerly held families, including children, in a setting that critics have labeled totally inappropriate for such a purpose, and attracted both litigation and protesters. Last year, it was converted to a facility for female detainees, conditions were modified, and it was lauded by ICE as a model facility.

Noorani says, “The problem stems from several factors. Most importantly, the agency’s enforcement of hopelessly outdated immigration laws funnels many thousands of non-criminal immigration violators into a network of jails designed to serve the criminal justice system. There are so many immigration detainees that ICE must contract the work to companies that run penal institutions, and there is too little oversight of those contracts and personnel. There are no standards of detention that have the force of law. “

He adds, “This is not the first scandal arising from the way DHS enforces the immigration law, and it will not be the last. DHS must step up its efforts to create a system where abuse and death are rare, and when they do occur the persons responsible are promptly held accountable. Congress must do its part to both monitor the agency and reform the laws that DHS is obligated to enforce.

In March, ICE took what the immigrant advocacy community generally hailed as “important steps to address immigration detention conditions that are currently a national embarrassment.”

“After years of advocacy with this agency and its predecessors, the National Immigration Forum and other pro-immigrant watchdogs are pleased to see some movement by the Obama administration in a very helpful direction. No modern, developed nation should tolerate the conditions under which we have jailed hundreds of thousands of families and individuals – conditions that have proven life-threatening and fatal in far too many cases,” the groups said in a statement at that time.

They added, “The network of for-profit and government-run facilities that detain deportees needs to be tightly scrutinized and this is a tremendously positive step in that direction. The Hutto facility alone has stood out as a worst-case example – among many other egregious sites – and we are pleased that press attention, lawsuits, and public outcry have sparked definitive action. Expanding the use of cost-saving alternatives to detention will take some of the pressure off of the overburdened system and make immigration enforcement more in tune with the nature of the civil violations immigrant detainees are accused of.”

The groups concluded that the ”single most important thing we can do with regard to immigrant detention is to reduce the need for its use for millions of non-criminals, families, and workers in the first place.”

“By having a functioning legal immigration system so that people come with visas and within the law and by establishing a system for processing the millions of immigrants living here illegally into legal status, we can put our immigration system back on a legal footing and move away from the fantasy that we can simply enforce our way out of our current situation,” the groups said.

Monday, June 07, 2010

CIA Used MDs for Torture Experiments

By William Fisher

A major human rights organization claims it has uncovered evidence that the Administration of former President George W. Bush conducted “illegal and unethical human experimentation” and research on detainees in CIA custody.

The group, Physicians for Human Rights (PHR), claims “the apparent experimentation and research appear to have been performed to provide legal cover for torture, as well as to help justify and shape future procedures and policies governing the use of the “enhanced” interrogation techniques.”

Its new report, “Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program,” claims to be the first to provide evidence that CIA medical personnel engaged in the crime of illegal experimentation after 9/11, in addition to the previously disclosed crime of torture.

“This evidence indicating apparent research and experimentation on detainees opens the door to potential additional legal liability for the CIA and Bush-era officials. There is no publicly available evidence that the Department of Justice’s Office of Legal Counsel determined that the alleged experimentation and research performed on detainees was lawful, as it did with the ‘enhanced’ techniques themselves,” PHR contends.

“The CIA appears to have broken all accepted legal and ethical standards put in place since the Second World War to protect prisoners from being the subjects of experimentation,” said Frank Donaghue, PHR’s Chief Executive Officer. “Not only are these alleged acts gross violations of human rights law, they are a grave affront to America’s core values.”

Physicians for Human Rights is calling on President Barack Obama to direct the Attorney General to investigate these allegations, and if a crime is found to have been committed, to prosecute those responsible.

Additionally, the group said, Congress must immediately amend the War Crimes Act (WCA) to remove changes made to the WCA in 2006 by the Bush Administration that allow a more permissive definition of the crime of illegal experimentation on detainees in US custody. The more lenient 2006 language of the WCA was made retroactive to all acts committed by US personnel since 1997.

“In their attempt to justify the war crime of torture, the CIA appears to have committed another alleged war crime – illegal experimentation on prisoners,” said Nathaniel A. Raymond, Director of PHR’s Campaign Against Torture and lead report author. “Justice Department lawyers appear to never have assessed the lawfulness of the alleged research on detainees in CIA custody, despite how essential it appears to have been to their legal cover for torture.”

PHR says its report is relevant to present-day national security interrogations, as well as Bush-era detainee treatment policies. As recently as February, 2010, President Obama’s then director of national intelligence, Admiral Dennis Blair, disclosed that the US had established an elite interrogation unit that will conduct “scientific research” to improve the questioning of suspected terrorists. Admiral Blair declined to provide important details about this effort.

“If health professionals participated in unethical human subject research and experimentation they should be held to account,” stated Scott A. Allen, MD, a medical advisor to Physicians for Human Rights and lead medical author of the report. “Any health professional who violates their ethical codes by employing their professional expertise to calibrate and study the infliction of harm disgraces the health profession and makes a mockery of the practice of medicine.”

Several prominent individuals and organizations in addition to PHR will file a complaint this week with the US Department of Health and Human Services’ Office for Human Research Protections (OHRP) and call for an OHRP investigation of the CIA’s Office of Medical Services.

The PHR report indicates that there is evidence that health professionals engaged in research on detainees that violates the Geneva Conventions, The Common Rule, the Nuremberg Code and other international and domestic prohibitions against illegal human subject research and experimentation. Declassified government documents indicate that:

Research and medical experimentation on detainees was used to measure the effects of large- volume waterboarding and adjust the procedure according to the results.

After medical monitoring and advice, the CIA experimentally added saline, in an attempt to prevent putting detainees in a coma or killing them through over-ingestion of large amounts of plain water. The report observes: “‘Waterboarding 2.0’ was the product of the CIA’s developing and field-testing an intentionally harmful practice, using systematic medical monitoring and the application of subsequent generalizable knowledge.”

Health professionals monitored sleep deprivation on more than a dozen detainees in 48-, 96- and 180-hour increments. This research was apparently used to monitor and assess the effects of varying levels of sleep deprivation to support legal definitions of torture and to plan future sleep deprivation techniques.

Health professionals appear to have analyzed data, based on their observations of 25 detainees who were subjected to individual and combined applications of “enhanced” interrogation techniques, to determine whether one type of application over another would increase the subject’s “susceptibility to severe pain.” The alleged research appears to have been undertaken only to assess the legality of the “enhanced” interrogation tactics and to guide future application of the techniques.

The “Experiments in Torture” report is the result of six months of investigation and the review of thousands of pages of government documents. PHR says it has been peer-reviewed by outside experts in the medical, biomedical and research ethics fields, legal experts, health professionals and experts in the treatment of torture survivors.

Thursday, June 03, 2010

The Deaths That Won’t Go Away!

By William Fisher

A leading good-government group is asking the Justice Department to disclose details of its investigation into the deaths of three Guantanamo prisoners in 2006.

Citizens for Responsibility and Ethics in Washington (CREW) today sent a Freedom of Information Act (FOIA) request to the DOJ seeking information about the Criminal Division’s handling of allegations of wrongdoing in the deaths of the detainees their subsequent investigation by military officials.

CREW said investigative reports by Harper’s Magazine and the Seton Hall University School of Law -- based on the whistleblowing testimony of a decorated non-commissioned Army officer -- have raised serious questions about the government’s response to the June 9, 2006 deaths.

“The absence of clear information has allowed for a confusing and contradictory public debate, replete with conspiratorial claims of cover-ups and purported debunkings,” the organization said in a statement.

CREW said it is seeking “evidence of DOJ’s ability to handle allegations of government wrongdoing, to inform the public and hold the government accountable.”

CREW’s FOIA has been sparked by a question many human rights organizations are asking: Is the administration of President Barack Obama concealing evidence suggesting that three suicides at Guantanamo Bay were not suicides at all?

The question arose after publication of an article in Harper’s Magazine by Scott Horton presenting whistleblower testimony suggesting that the three dead prisoners likely suffered particularly abusive interrogations in a remote corner of the base in the hours before they died, and their deaths were then passed off as suicides by the Bush Administration.

Horton presented new evidence from then-Sergeant Joe Hickman, a whistleblower formerly stationed in Guantánamo, that the three dead prisoners were taken to a remote corner of the base in the hours before they died. There they were tortured, GITMO officials came up with the suicide cover, and the Bush Administration capitalized on the panic by ordering further abuse of prisoners, and by spreading self-serving and poisonous lies about the dead men, adding to their families’ distress.

Horton says that President Obama’s Justice Department has refused to fully investigate the incident.

According to the U.S. Navy, GITMO detainees Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi and Yasser Talal Al-Zahrani were found hanged in their cells on June 9, 2006. The U.S. military initially described their deaths as "asymmetrical warfare" against the United States, before finally declaring that the deaths were suicides that the inmates coordinated among themselves.

But a report from Seton Hall University Law School, released last fall, cast
doubt on almost every element of the U.S. military's story. It questioned, for
example, how it would have been possible for the three detainees to have stuffed rags down their throats and then, while choking, managed to raise themselves up to a noose and hang themselves.

The report stated: “There is no explanation of how each of the detainees, much less all three, could have done the following: braided a noose by tearing up his sheets and/or clothing, made a mannequin of himself so it would appear to the guards he was asleep in his cell, hung sheets to block vision into the cell—a violation of Standard Operating Procedures, tied his feet together, tied his hands together, hung the noose from the metal mesh of the cell wall and/or ceiling, climbed up on to the sink, put the noose around his neck and released his weight to result in death by strangulation, hanged until dead and hung for at least two hours completely unnoticed by guards.”

Army Staff Sergeant Joseph Hickman told Harper's magazine that he was made aware of the existence of a secret detention center at Guantanamo, nicknamed by some of the guards "Camp No," because "No, it doesn't exist."

According to Hickman, it was generally believed among camp guards that the facility was used by the CIA.

Hickman also said there was a van on site, referred to as the "paddy wagon,"
which was allowed to come in and out of the main detention area without going through the usual inspection. On the night of the three detainees' deaths, Hickman says he saw the paddy wagon leave the area where the three were being detained and head off in the direction of Camp No. The paddy wagon, which can carry only one prisoner at a time in a cage in the back, reportedly made the trip three times.

Hickman says he saw the paddy wagon return and go directly to the medical
center. Shortly after, a senior non-commissioned officer, whose name Hickman didn't know, ordered him to convey a code word to a petty officer. When he did, the petty officer ran off in a panic.

Both Hickman and Specialist Tony Davila told Harper's that they had been told, initially, that three men died as a result of having rags stuffed down their throats. And in a truly strange turn of events, the whistleblowers say that -- even though by the next morning it had become "common knowledge" that the men had died of suicide by stuffing rags down their own throats -- the camp commander, Col. Michael Bumgarner, told the guards that the media would "report something different."

According to independent interviews with soldiers who witnessed the speech, Bumgarner told his audience that “you all know” three prisoners in the Alpha Block at Camp 1 committed suicide during the night by swallowing rags, causing them to choke to death. This was a surprise to no one—even servicemen who had not worked the night before had heard about the rags.

But then Bumgarner told those assembled that the media would report something different. It would report that the three prisoners had committed suicide by hanging themselves in their cells. It was important, he said, that servicemen make no comments or suggestions that in any way undermined the official report.

Two of the dead prisoners were plaintiffs in a civil lawsuit brought by the Center for Constitutional Rights (CCR) on behalf of the deceased and their families, Al-Zahrani v. Rumsfeld.

George Brent Mickum IV, an attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."

U.N. Expert Calls On U.S. To Halt CIA Targeted Killings

By William Fisher

Targeted killings, including those using drones, are increasingly being applied in ways that violate international law, according to a report issued today by a United Nations expert on extrajudicial killings.

In a statement, the American Civil Liberties Union (ACLU) said the report, by U.N. special rapporteur Philip Alston, “underscores the alarming legal questions raised by the U.S. program of targeting and killing people – including U.S. citizens – sometimes far from any battlefield.”

The report, which will be presented to the U.N. Human Rights Council in Geneva on Thursday, says that while targeted killings may be permitted in armed conflict situations when used against combatants, fighters or civilians who directly engage in combat-like activities, they are increasingly being used far from any battlefield.

It states that "this strongly asserted but ill-defined license to kill without accountability is not an entitlement which the United States or other States can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial killings."

Alston also criticized the U.S. invocation of the "law of 9/11," which it uses to justify the use of force outside of armed-conflict zones as part of the so-called global war on terrorism. The report called for the United States and other countries to end the "accountability vacuum" by disclosing the full legal basis for targeted killings and specifically the measures in place to ensure wrongful killings are investigated, prosecuted and punished.

Jamil Dakwar, Director of the ACLU Human Rights Program, said, "The U.S. should heed the recommendations of the rapporteur and disclose the full legal basis of the U.S. targeted killings program, and it should abide by international law.”

He added, “The entire world is not a battlefield, and the government cannot use quintessentially warlike measures anywhere in the world that it believes a suspected terrorist might be located. The Obama administration has pledged to lead by example and restore respect for rule of law, but U.S. targeted killings are impeding U.S. leadership on human rights and sending the message that some causes can be fought outside the rule of law and without transparency and accountability."

In March, the ACLU filed a Freedom of Information Act (FOIA) lawsuit demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas, and in April sent a letter to President Obama condemning the U.S. policy on targeted killings and urging him to bring it into compliance with international and domestic law.

"The U.S. program of targeted killing outside of armed conflict zones is illegal and raises serious policy questions that ought to be debated publicly," said Jonathan Manes, legal fellow with the ACLU National Security Project.

"In addition to the legal basis, scope and limits of the program, the Obama administration should disclose how many civilians have been killed, how the program is overseen, and what accountability mechanisms exist over the CIA and others who conduct the targeted killings."

While welcoming an initial effort by the administration of President Barack Obama to offer a legal justification for drone strikes to kill suspected terrorists overseas, human rights groups say critical questions remain unanswered.

In an address to an international law group last week, State Department Legal Adviser Harold Koh insisted that such operations were being conducted in full compliance with international law.

"The U.S. is in armed conflict with al Qaeda as well as the Taliban and associated forces in response to the horrific acts of 9/11 and may use force consistent with its right to self-defence under international law," he said. "...Individuals who are part of such armed groups are belligerents and, therefore, lawful targets under international law."

Moreover, he went on, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war," which require limiting attacks to military objectives and that the damage caused to civilians by those attacks would not be excessive.

While right-wing commentators expressed satisfaction with Koh's evocation of the "right to self-defence" - the same justification used by President George W. Bush - human rights groups were circumspect.

Drone attacks, which have increased significantly under Obama, are widely considered to have become the single-most effective weapon in Washington's campaign disrupt al Qaeda and affiliated groups, especially in the frontier areas of western Pakistan.

In Obama's first year in office, more strikes were carried out than in the previous eight years under his predecessor, George W. Bush.

Conducted by the Central Intelligence Agency (CIA), they reportedly killed "several hundred" al Qaeda and Pakistani Taliban militants since Obama in 2009, forcing many of them to flee their border hideouts for large cities where precision attacks would be much harder to carry out without causing heavy civilian casualties.

The weapon itself "is one of the least problematic from a civilian-protection standpoint, because drones can hover over their targets and observe whether civilians are present before delivering a payload, and because they carry relatively small and precisely guided munitions,”

"The question is a legal one: under what circumstances can you use lethal force at all? Our view has always been that it should be limited to zones of active armed conflict where normal arrest operations are not feasible,” noted Malinowski.

In his remarks to the American Society for International Law, Koh, who was one of the harshest and most outspoken critics of the Bush administration's legal tactics in its "global war on terror", acknowledged some of these concerns, noting that his speech "is obviously not the occasion for a detailed legal opinion."

While noting criticism that the use of lethal force against some individuals far removed from the battlefield could amount to an "unlawful extra-judicial killing", he insisted that "a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force."

"Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise," he said.

Alston, the U.N. rapporteur, was far from satisfied with these assurances, however, calling Koh's statement "evasive".

He "was essentially arguing that 'You've got to trust us. I've looked at this very carefully. I'm very sensitive to these issues. And all is well,'" he told an interviewer on 'Democracy Now' Thursday.

"The speech did not provide essential information about the drone/targeted killing programme, including the number and rate of civilian casualties, and the internal oversight and controls on targeted killing, especially within the CIA," said Manes of the ACLU, which has filed a lawsuit to acquire that information.

Tom Parker of Amnesty International was more scathing about Koh's position, suggesting that it was one more concession - along with indefinite detention and special military tribunals for suspected terrorists - to the framework created by Bush's "global war on terror".

"The big issue is where the war is and whether it's a war, and we couldn't disagree more strongly as to the tenor of Koh's comments," he said. "It goes back to the idea of an unbounded global war on terror where terror is hardly defined at all."

Wednesday, June 02, 2010

Ex-Somalian Torture Victims Win Right to Sue

By William Fisher

The Supreme Court agreed yesterday with a group of 19 torture survivors, torture survivor support and recovery organizations, religious and human rights groups, that a former Somali prime minister is not protected from a lawsuit in the U.S. for alleged torture and human rights abuses.

The ruling is a major victory for five former Somali citizens who charge that they and their families were tortured by Somali officials. They sued Mohamed Ali Samantar, seeking financial damages.

From 1980 until 1990, Samantar served as vice president, defense minister and prime minister under the brutal regime of President Mohamed Siad Barre.

The lead plaintiff, Barre Yousuf, described the killings and abuse carried out by Somali troops. He says, "I was tortured with an electric shock and waterboarded."

He and other Somalis sued Samantar under the Torture Victim Protection Act of 1991. But a federal judge dismissed the suit because the claim conflicted with a law that grants immunity to foreign states.

Their attorney praised Tuesday's ruling.

"We are very thrilled with the court's decision today," Pamela Merchant, executive director of the San Francisco-based Center for Justice and Accountability (CJA), told the Los Angeles Times. CJA represents the Somali plaintiffs.

She said, "Faced with a choice between accountability and immunity, the Supreme Court squarely came down in favor of accountability. It means that our clients and their families, who are victims of torture, rape and murder, will now be able to hold Mr. Mohamed Samantar, the man who is responsible for these horrific actions, accountable."

Samantar denies being responsible for torture and says his government was fighting a civil war against dissident groups.

It is unclear whether yesterday’s ruling will signal a green light for other plaintiffs to sue former officials for torture and abuse committed by other foreign regimes. The U.S. has not been willing to allow prosecutions of ex-officials of friendly states to go forward.

Justice John Paul Stevens, who will retire after the current term, stressed that the court was deciding only a narrow question. Even in Samantar's case, the former prime minister "may have other valid defenses to the grave charges against him," he said.

A lawyer and leading politician, plaintiff Barre Yousuff had refused to support the government of President Siad Barre, which came to power in 1969. Samantar was detained without charge or trial almost continuously for 20 years.

He was one of the longest held prisoners of conscience known to Amnesty International (AI), which continued to campaign for his release.

Reuters reports that the five plaintiffs do not claim that Samantar personally committed the atrocities or that he was directly involved. But they said the Somali intelligence agencies and the military police under his command engaged in the killings, rapes and torture, including the use of electric shocks, of civilians.

Samantar has been a Virginia resident since 1997. The plaintiffs – some of who are now naturalized U.S. citizens -- brought the lawsuit in 2004 under a U.S. law called the Torture Victim Protection Act.

While that suit was dismissed, a U.S. appeals court reinstated it. It was that
decision that prompted Samantar to appeal to the Supreme Court. Justice Stevens agreed with the appeals court.

Somalia, considered a failed state, has been without an effective government since warlords overthrew former dictator Barre in 1991. A decade of civil conflicts has followed. Most recently, al Qaeda-linked Islamists have waged an insurgency against a U.N.-backed interim government.

Several prominent U.S. human rights groups joined an amicus (“friend of the court”) brief in the case. They included Human Rights Watch and Human Rights First, two of the more prominent U.S. rights groups.

In their brief, they argued that when Congress passed the Torture Victim Protection Act in 1991, it intended to allow survivors of torture to sue former officials of foreign governments in US courts, on the understanding that the Foreign Sovereign Immunities Act (FSIA) would not bar such suits.

A decision to apply FSIA immunity to Samantar could permit other authoritarian governments to immunize the most serious acts of abuse by their former officials.