Wednesday, May 12, 2010

Transparency? Great! Starting When?

By William Fisher

Pressure is mounting on the U.S. Government to investigate reports that inmates from the notorious prison at Bagram Air Base in Afghanistan have been moved to a second separate facility – known as the Tor Jail, which translates as "black jail" – where they say they were held in isolation in cold cells with a light on day and night and deprived of sleep by U.S. military personnel.

These reports have been confirmed by The International Committee of the Red Cross (ICRC) which said that since August 2009 US authorities have been notifying it of names of detained people in a separate structure at Bagram.

Nine former prisoners have reported the abuses to the British Broadcasting Corporation (BBC). The men told “consistent” stories of being held in a separate building and suffering multiple abuses, the BBC said.

Vice Admiral Robert Harward, in charge of US detentions in Afghanistan, denied the existence of such a facility or abuses. He told the BBC that the main prison, now called the Detention Facility in Parwan, is the only detention facility on the base. However, he said the military would look into the abuse allegations.

The International Committee of the Red Cross (ICRC) said that "The ICRC is being notified by the US authorities of detained people within 14 days of their arrest," a Red Cross spokesman said. "This has been routine practice since August 2009 and is a development welcomed by the ICRC."

Leading advocacy groups are increasing pressure on the Obama Administration to investigate the BBC reports.

Physicians for Human Rights (PHR) said the alleged techniques “regardless of which administration employs them, constitute torture.”

Frank Donaghue, president of PHR, said, “The Obama administration must make good on its earlier statement that it would not use torture by fully investigating these allegations. Until it explicitly repudiates the use of these techniques, its commitment to human rights will remain in question.”

The organization said it is not yet clear under what authority, if any, the abusive techniques allegedly used at Bagram were approved, but it is possible that officials were relying on Appendix M of the 2006 Army Field Manual on Human Intelligence Collector Operations (AFM).

That appendix authorizes the use of two of the tactics -- sleep deprivation and isolation --allegedly being applied to detainees. The use of temperature manipulation is prohibited by the AFM. Since the release of the current AFM in September 2006, PHR has urged the military to rescind Appendix M.
“As long as Appendix M remains in effect, there is an asterisk next to the Obama administration’s claim that it does not authorize torture,” said John Bradshaw, PHR’s Washington Director.

He said, “Appendix M’s approval of sleep manipulation and isolation is a green light for the abuse of the health and human rights of detainees in US custody. The abuses allowed under Appendix M—and any others still practiced—must come to an end.”

Another advocacy group, Human Rights First (HRF), has also called on the U.S. government to answer the BBC’s allegations. In a letter to Vice-Admiral Harward, the organization pressed for answers to the allegations of abuse. It noted that to date “the U.S. government has consistently failed to respond to these serious accusations.”

"In addition to being reprehensible, abuse of prisoners in Afghanistan would also directly undermine U.S. strategic interests there, which depend upon the support and cooperation of the Afghan people and their government," said HRF’s Daphne Eviatar. "But beyond that, these latest reports, if true, suggest that the U.S. may also be in violation of its legal obligations to treat detainees humanely."

"We urge the government to investigate all allegations of abuse and to make the findings of such allegations public. Only by openly investigating and punishing such abuses will the United States be able to win the trust of the Afghan population, as well as American support for U.S. efforts in Afghanistan," Eviatar said.

This is not the first time that such abuse allegations have surfaced. In November 2009, the Washington Post reported that teenagers arrested by U.S. authorities and held at the Bagram air base had similarly charged that they'd been beaten, sexually humiliated, deprived of sleep and held in isolation. At least two prisoners have died at Bagram since its opening.

In October 2008, HRF, in its “Blueprint for the Next Administration: How to End Torture and Cruel Treatment,” called on the incoming Obama administration to close secret prisons and end the practice of holding "ghost prisoners."

In a January 22, 2009 Executive Order, President Obama revoked the CIA's detention authority and required that the ICRC be given access to all armed conflict detainees, as required by international law. It remains unclear, however, how long after an arrest the ICRC is being permitted to meet with the detainees, and if they are being given access to all U.S.-run detention sites in Afghanistan.

In April 2009, In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department released for the first time a list containing the names of 645 prisoners who were detained at Bagram. other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.

Human rights advocates have a mixed record in their attempts to persuade the courts to grant customary due-process rights to Bagram detainees. In one of the earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them - two Yemenis and one Tunisian - had the right to petition U.S. courts for their release.

But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the US and Afghanistan. Judge Bates dismissed Wazir's petition.

W’s “Charity Policy” Reversed

By William Fisher

In a major decision overturning a Bush-era policy – which has been followed by the administration of President Barack Obama -- a federal court has ruled that it is unconstitutional for the U.S. Treasury Department to freeze a charity's assets – effectively putting it out of business with virtually no due process.

That’s what happened in 2006 to an Ohio-based charity called Kind Hearts for Charitable Humanitarian Development, Inc. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist" (SDGT).

Federal District Judge James G. Carr ruled Monday that in the future the administration must obtain a warrant based on probable cause before seizing an organization's assets. In KindHearts' case, the court held that the government must remedy its failure to get a warrant in this case by demonstrating that it had probable cause at the time it froze KindHearts' assets.

Judge Carr also ruled that OFAC violated the U.S. Constitution’s Fifth Amendment's guarantee of due process by failing to provide KindHearts notice of the charges against it or a meaningful opportunity to respond. He held that OFAC must remedy these failures by declassifying or adequately summarizing the classified evidence against KindHearts or by allowing KindHearts' counsel to view the classified evidence pursuant to security clearances and a protective order.

In order to comply with the Constitution, the judge ruled, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department's failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.

The ruling reverses a policy developed by the Administration of President George W. Bush in the wake of the terrorist attacks of September 11, 2001.

The ruling came in a lawsuit filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio, and several civil rights attorneys.

KindHearts was never been found to have engaged in any wrongdoing and has never been designated an SDGT. But as a result of the freeze pending investigation, it would be a crime for anyone to do any business with KindHearts. The charity also had no access to its own property.

Co- counsel in the case was David Cole, a professor at Georgetown University law school and one of the country’s preeminent constitutional lawyers. He told IPS, "The process for freezing charities' assets has been defective from the outset. No charity has yet been afforded notice of the charges against it, and the entire process has been shrouded in secrecy.”

Cole sounded this hopeful note: “With this decision, we may be moving toward fairness, at last, for those targeted by OFAC. If due process means anything, it must mean that the government has to tell you what their charges and evidence are before shutting you down and freezing all your assets."

He added, "For years, the government has insulated its terrorist-designation decisions from any meaningful review by denying the frozen charities even the most basic constitutional requirements of due process," said Georgetown Law Professor David Cole, co-counsel for KindHearts. "Yesterday's decision confirms that such freezes are unconstitutional by requiring the government to provide KindHearts what it has been denied all along – a fair chance to clear its name."

KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the U.S. in full compliance with the law. OFAC froze KindHearts' assets despite the charity’s efforts to implement OFAC policies and even to seek its guidance. The government’s action was based simply on the assertion that the charity was "under investigation." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, again without providing it with a reason or meaningful opportunity to defend itself.

In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review. In August 2009, the court ruled for the first time that the government cannot freeze an organization’s assets without obtaining a warrant based upon probable cause. The court also held that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.

President Barack Obama conceded in his Cairo speech soon after taking office that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation.”

Since then, civil rights advocates have been pressing the president to turn his words into action. For example, the Muslim Public Affairs Council (MPAC) has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.

In a letter to the president, the organizations outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”

The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.

It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”

For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”