By William Fisher
At his confirmation hearing to be America’s next attorney general, President Bush’s White House Counsel, Alberto Gonzales ducked most of the potentially contentious questions asked by his US Senate questioners. But he pledged that he would work around the clock to protect civil liberties and human rights.
Well, here’s a place for him to begin:
Since June 2003, Ahmed Abu Ali, a 23-year-old US citizen, has been held in al-Ha’ir prison in Riyadh, Saudi Arabia. He was reportedly arrested by Saudi Arabian authorities on June 11, 2003 in the city of Medina, while taking an exam at the Islamic University there. He has no access to legal counsel or to family members. It is not clear whether he has been charged with a crime, nor is it clears when, or if, he will be put on trial. The US Government says it had nothing to do with his detention, although three FBI agents reportedly questioned him soon after his arrest. Saudi officials have declined to give an explanation for his detention, but say they are holding him at the request of the US State Department and would be glad to release him if there was a request from the US.
The US consul failed to visit Ahmed Abu Ali until almost a month after his detention, and then began monthly visits. Two months after his arrest, in September 2003, he was interrogated by three FBI agents. They reportedly threatened to declare him an “enemy combatant” and send him to Guantanamo Bay. Or he could stand trial in Saudi Arabia, where he would have no legal defense. He was then placed in solitary confinement for three months. Between November 2003 and February 2004, the US consul halted his monthly visits.
With the help of a prominent civil rights attorney, Morton Sklar, Executive Director of Human Rights USA, in August of this year Abu Ali's parents sued the US government. They asked a Federal court to order a hearing on his detention. For authority, they relied on the Supreme Court rulings in the cases of the Guantanamo Bay prisoners, and an American citizen, Yaser Hamdi. These decisions affirmed that even in wartime, the President does not have a “blank check” to detain people without due process.
Responding to the parents' petition in federal court, Justice Department attorneys said US courts lacked jurisdiction over cases involving US citizens in foreign custody. District Judge John D. Bates rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." He ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu Ali's arrest and detention.
The government’s “position is as striking as it is sweeping," the judge said. He warned that its behavior would allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."
The State Department Country Reports on Human Rights Practices for 2003 says Saudi Arabian security forces "tortured detainees" and that "torture and abuse were used to obtain confessions from prisoners." The report also cites " … credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention."
Amnesty International has expressed “concern” over Abu Ali’s plight. “As information or confessions are often extracted under this kind of duress, the failure of United States consular authorities to visit Ahmed Abu Ali promptly after his initial detention, or to regularly visit him since then, has put him at increased risk of these abuses.”
The judge directed the US officials named in the suit to respond within 30 days. Those officials include Attorney General John D. Ashcroft, FBI Director Robert S. Mueller III, Homeland Security Secretary Tom Ridge and Secretary of State Colin L. Powell. So far the silence has been deafening.
At the time they filed the suit, in August of this year, the Saudi government told the family they had no interest in their son. The United States insisted that it was not holding him. But the day the family filed suit, the State Department called the parents and told them that the Saudis were charging him with unspecified terrorism-related crimes. At this point, it is unclear whether any charges have been brought by the Saudis.
But The Washington Post reported that the Saudi embassy said in an e-mail that a senior Saudi official had issued the following statement: Abu Ali "is being detained with the full knowledge and support of the US government. There is an ongoing investigation regarding this individual. At this time, we have received no request for extradition."
Yet, more recently, The Post reported, Abu Ali was told by Saudi authorities that his trial was approaching. US officials have not facilitated legal representation, nor have they discovered what, if anything, he has been charged with.
"Every development we have seen suggests this is a US case and US prosecution," said attorney Sklar.
US officials have been interested in Ahmed Abu Ali because of an alleged connection to a now-concluded Virginia terrorism case. During the July 2003 bail hearing for one of the Virginia defendants, Sabri Benkhala, it was mentioned that Abu Ali was an associate of his who had allegedly confessed to belonging to al-Q’aeda during interrogations that were conducted by Saudi Arabia authorities and observed by the FBI. Ahmed Abu Ali denied to his family that he had ever made such a confession. Curiously, the allegation was not repeated during Benkhala’s March 2004 trial. He was acquitted of all charges.
Most Americans are, lamentably, uninformed about this case – or many other cases of post 9/11 infringements on liberties guaranteed by the US Constitution. Or they have been persuaded by the Bush Administration that losing some of these liberties is critical to “winning the war on terror”.
But many citizens are outraged. Typical is Lawrence Jones of Conifer, Colorado, who wrote to The Denver Post, “Do you know what we call detainees when they are held by other countries without sufficient evidence and without due process of law? ‘Political prisoners.’ And we make a great show of our self-righteous disdain when other countries do exactly what we are doing. What happened to the America I learned about in school, the America that set people free because of a lack of evidence? What are we holding these people on -- hunches?”
The author of the now infamous memo to President Bush characterizing the Geneva Conventions as “obsolete” and “quaint” will soon be confirmed as the nation’s top law enforcement officer. America’s new Attorney General would do well to listen to consult Churchill’s October 16, 1938 speech, "The Light is Going Out” for his job description.
Directed at the U.S. from London, he said: "I avail myself with relief of the opportunity speaking to the people of the United States. I do not know how long such liberties will be allowed, the stations of uncensored expression are closing down; the lights are going out; but there is still time for those to whom freedom and Parliamentary government mean something, to consult together... They [dictators] are afraid of words and thoughts: words spoken abroad, thoughts stirring at home--all the more powerful because forbidden--terrify them."
Tuesday, January 11, 2005
Monday, January 10, 2005
Above the law or outside it
The following article was written by D. Lindley Young, a Tennessee attorney and radio talk show host. He hosts "The Modern Tribune", an online magazine.
(http://www.themoderntribune.com/gonzalez_bush_u_s_policy_on_torture.htm)
By D. Lindley Young
The central issue during the Senate Judiciary Committee hearings this past week on the confirmation of Alberto Gonzales as the attorney general of the United States, was whether White House policy condones torture and whether torture is justified. The official position of the White House is that there has never been a policy condoning torture. However, according to a number of authorities, U.S. and international laws against torture and inhume treatment of prisoners have been repeatedly violated by the U.S.
The problem started at the top. According to Gonzales, there was a point that important information was needed to save innocent lives and a decision on torture had to be made. Gonzales admits that the President was involved in the debate and decisions on the White House torture policy which sought the outer limits of permissible lawful torture in order to obtain information and further the President's agenda. The widely disseminated Gonzales/Bush "torture memos" sent a signal to U.S. troops that torture is permitted. and resulted in torture in Iraq, Afghanistan, Gauntanamo and in other countries to which the U.S. delivered prisoners.
The "torture memos" argued in essence that Bush was above the law in war. By seeking to redefine torture the President invaded the province of Congress by creating new Presidential laws on torture which were in complete contradiction to existing law. The dissemination of the "torture memos" - which instructed on guidelines for the outer limits of permissible torture - constituted de facto approval of torture by the President.
Gonzales hearing
Although Gonzales knew the "torture memos" created on his watch
in January and August 2002 would be a central issue in the confirmation hearings, he was prepared to be unprepared. He used, I must "review" the documents, I do not "remember," and I don't want to give you the wrong answer, repeatedly to, as the Bush administration terms it, dodge the bullet and avoid answering key questions in the public hearings. It looks like the reward for evasiveness and his dedication to setting standards for "torture" will be a promotion to the attorney general of the United States.
At the hearing there was reference to substantial evidence that for at least two years the Bush administration systematically condoned torture as a matter of practice and policy. Starting as early as January 2002, George Bush was personally involved in establishing a White House policy on torture that encouraged, by creating technical ostensible defenses to torture, creating "rights free zones," permitting other countries to do the torture for us, by focusing on defining the outer limits of lawful torture and by disseminating instructions to the U.S. military making the standards for torture by U.S. soldiers so liberal that anything short of a "good faith" intent to kill or "good faith" intent to permanently maim was acceptable.
According to Senator Leahy, "[S]enior officials in the Bush White House, the Ashcroft Justice Department, Rumsfeld Pentagon, set in motion a systematic effort to minimize, distort and even ignore our laws, our policies, our international agreements on torture and the treatment of prisoners. Defense Secretary Rumsfeld, and later Lieutenant General Ricardo Sanchez, authorized the use of techniques that were contrary to both U.S. military manuals, but also international law. Former CIA Director Tenet requested and Secretary Rumsfeld approved the secret detention of ghost detainees in Iraq; did that so they could be hidden from the International Committee of the Red Cross. And still unexplained are instances where the U.S.
government delivered prisoners to other countries so they could be tortured."
Senator Kennedy noted, that after contentions by the Bush administration that only a few bad apples were involved in the Abu Griad prisoner abuse scandal, "we learned that the Defense Department's working group report of April 2003 had provided the broad legal support for the harsh interrogation tactics, and it dramatically narrowed the definition of torture, and it recognized the novel defenses for those who committed the torture. Then we learned that the legal basis for the working group report had been provided by the Justice Department in the Bybee memo."
George Bush directly tied to torture decision
According to the testimony of at the confirmation hearings by Gonzales, Bush personally participated in the torture debates and decisions on the use of torture to get information from prisoners.
Gonzales emphasized the issue of torture was important to Bush. "This was an issue that the White House cared very much about," Gonzales testified under oath. He went on to state that, "As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously."
With regard to the decision not to apply the Geneva Convention to prisoners deemed to be al Qaida, Gonzales confirms the President's participation, stating: "And so I do believe the decision by the president was absolutely the right thing to do."
So, Gonzales establishes that Bush was involved in the "debate" on torture and participated in the decisions that lead to application of torture and inhumane treatment of prisoners. The torture at abu Graid and elsewhere goes to the very top. If it involves just a few bad apples, that's where they are.
The world is watching. As put by the Japanese Times, "A reluctance to move up the chain of command in the face of overwhelming evidence of knowledge and approval by ranking officers will only convince audiences around the world that the U.S. is not interested in truth or justice. And perceptions are critical in the war on terror. The greatest asset that the U.S. and its allies have in this struggle is the belief that they are fighting for a greater good. The Abu Ghraib torture photos suggest that there is a yawning divide between America's self-appointed role as the defender of freedom and human rights, and reality. That gap must be bridged if Washington is to reassert its claim to moral leadership. And that, not the much vaunted military, is its most crucial asset in the world today."
Existing law on "torture"
After World War II the U.S. became a signatory to the Geneva Convention in order to
assure humane treatment of prisoners of war. During the Vietnam war official U.S. policy prevented torture even though the enemy did not wear uniforms.Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain." The Universal Declaration of Human Rights states, “no one shall be subjected to torture.”
The Army Field Manual itself reflects our nation's long-held policies toward prisoners, stating: "U.S. policy expressly prohibits acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation."
The United Nations Convention Against Torture states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
The "torture memos"
The "torture memos" during 2002 (See full text), under Gonzales' counsel, took center stage in the confirmation hearings. The discussion centered on two memos. One in January 2002 and the other in August 2002. Judge Gonzales had issued an opinion to the president that the Geneva Convention did not apply with respect to certain of the combatants. In addition, the memo set Bush above the law in times of war. The committee sought further amplification on a number of substantive issues from these memoranda.
It was noted that in the memorandum of January 25th, 2002, it was said, "In my judgment, this new paradigm" - referring to the war on terrorism - "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."
The other is a August 2002 Justice Department memo sought by Gonzales which outlines
how to avoid violating U.S. and international terror statutes while interrogating prisoners by setting a high threshold for the definition of torture.
In defense of the memorandum, Republicans directed attention to Judge Gonzales' statement that, "In the treatment of detainees, the United States will continue to be constrained by its commitment to treat the detainees humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Geneva Convention." In other words, all enemy, but al Qaida are under the Geneva Convention and all the enemy are al Qaida. It is a case where the exception swallows the rule and the rule means nothing .
Gonzales' interpretation
It is amazing that anyone could take the plain language of any of the numerous statutes, regulations and laws just sited and interpret them as permitting the methods Gonzalez and Bush approved. The "torture memo" for the White House clearly approved torture. The law they say they were interpreting contained plain language that was clear and specific. Real simple. The bottom line: no torture.
From a clear "no torture," Gonzales comes up with the "outer limits" of permissible or lawful "torture." The methods approved by Bush and Gonzales were unlawful torture no matter how you cut it. Lawful torture is an oxymoron.
The law is not an inconvenience that can just be discarded at the pleasure of the President and rewritten to fit the agenda at hand. One cannot simply redefine the word "torture" and make methods under established law obsolete.
The President cannot lawfully redefine or make new law in the office of the White House. The executive branch of government executes the laws, it does not make them. Making law is the province of Congress. Congress is the legislative branch of the government, not the President.
Attempts by Bush and Gonzales to make their own "new" law to permit torture cannot be justified as mere interpretation. The "definition" defense is tantamount to a lie. The plain language of existing law is so clear, that it did not require redefinition.
Gonzales argues that a definition was required because there was no case law on the issue of permissible torture. There may be no cases because no one else has seen the need to define what "NO TORTURE" means. The law requires application, not definition. The President cannot create law by creating definitions. Nor can their new definition of "torture," be justified as Presidential policy since Presidential
policy cannot be unlawful.
What Bush and Gonzales were doing was writing "new" law, their law that they could use to justify the use of torture. There is no lawful torture permitted under U.S. and international law and for the White House to create a basis for it - in order to justify an agenda of the President - is setting the White House above the law and outside it. If the rule of law is to be the hallmark of democracy, it has to be obeyed, even by the President.
Although Congress, military code, tradition and international law have opposed torture for many years, America has changed all this under Bush. Once we opposed torture on the grounds of principle, now principle is used to justify torture. Now, whether there is ":torture" or not hinges on subjective opinions based on carefully crafted definitions and word nuances. In order to make torture legal, just redefine the word "torture" to mean methods that would not produce pain "of an intensity akin to that which accompanies serious physical injury such as death or organ failure." That definition doesn't leave much that cannot be done during interrogations and violates the spirit, if not the letter, of a large body of existing law.
At least 10 incidents of prisoner abuse have been substantiated at Guantanamo, all but one from 2003 or this year, AP reported. (See more) "Guantanamo has become an icon of lawlessness," the human rights group Amnesty International said in a statement marking Camp X-Ray's third anniversary, "a symbol of the US government's attempts to put itself above the law." (See more)
Not a reasonable interpretation
How can any reasonable person interpret prohibitions against "acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation," to exclude every act short of the specific intent kill, maim or create organ failure?
How can any reasonable person interpret “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture,” to mean any method short of creating "severe" physical or mental pain?
How can any reasonable person interpret a Congressional bar to all Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain," to mean that our troops can do anything even approaching torture.
If Gonzales and Bush can interpret "NO TORTURE," to mean anything short of specific intent to kill, maim or destroy organs, and, then, revise the meaning of "NO TORTURE," to mean anything less than methods which cause "severe" physical or mental "pain," the interpretation of the law by these men is dangerous to due process, freedom of press, the right to vote, the Constitution and methods of war.
Under the Bush/Gonzales torture policy - before we do what is humane - it must be
determined whether the prisoner is a POW, whether the Geneva Convention applies, and
what is "severe" physical and mental pain. Issues like "specific intent" to kill, maim, or destroy are part of guidelines originally disseminated to our military from the very top. Definitions are made and remade on the outer limits of torture and what it means. Technicalities and loopholes are sought to justify torture rather than protect human rights.
The issue which the President asks first is how great can the torture be, not how great should America be. This behind the scenes approach is indicative of where we are headed under Bush.
It is all part of the view from the top that the enemy is "evil" and that evil must be destroyed. It is all part of the dehumanization of mankind. It is part of the disintegration of what America stands for. It is part of the drip drip erosion of the America, the hope for the world, human rights, freedom and liberty. In sum, it is part of the erosion of humanity. It is part of an arrogance and hubris of moral superiority and noble lies for the good of the people that set the actors above the law. It is this type of inch by inch taking away of what we are, that is making
us the "them" we so strongly oppose.
Defense of the "torture memos"
According to White House surrogates, the language of memos regarding the limits of
acceptable torture have been misinterpreted. At the hearings, Republican Senator Cornyn went to the defense of the Bush torture policy, going so far as to argue in effect that the purpose of the memos were to assure "humane" treatment of prisoners. In this context, it was noted that there was a recognition that winning the hearts and the minds of the Arab world is vital to our success in the war on terror.
Senator Sessions also argued in defense of the memos, "But the president's really gone further than the law requires, it seems to me, in granting them privileges that he didn't necessarily have to do as a matter of affecting his policy of humane treatment."
Quite a stretch to some, since the memos focus on the legal limits of the lawful infliction of pain, interrogation that results in death, and the potential defenses for those performing torture. In fact, the very first paragraph of the one of the torture memos acknowledges "other nations and international bodies may take a more restrictive view" of torture.
Justifying "torture"
The idea that there is even a debate on whether the U.S. should use torture is appalling to many. The supporters are prominent. For example, Alan Dershowitz proposes the courts issue "torture warrants" (Los Angeles Times, November 8, 2001). Dershowitz argues, “The real debate is whether such torture should take place outside of our legal system or within it.
The answer to this seems clear: If we are to have torture, it should be authorized by the law.”
In the Gonzales hearings, the "ticking bomb" argument was made to justify torture where it is deemed necessary in order to discover the whereabouts of a ticking bomb and prevent a mass killing of innocent people. Michael Levin "advocat[es] torture as an acceptable measure for preventing future evils."
Pat Buchanan argues, "The morality of any act depends not only on its character, but on the circumstances and motive." In other words, if our "motive" is for good, which, of course, it always is, torture is justified.
On the other hand, many argue that torture, in and of itself, is an "evil" that is antithetical to the principles for which America stands. Permitting torture makes us no different than the oppressive tyrannical tactics we are supposedly fighting against. Under the standards approved by the Bush administration the methods allegedly employed by Saddam Hussein meet approval and are subject to defense.
Oh, but our torture is different. Liven argues, "Torture only the obviously guilty, and only for the sake of saving innocents, and the line between "US" and "THEM" will remain clear." Bush decides who is "obviously guilty" and whether evidence or hearing is required. This new American way with the laws of Bush is leaning towards fascism.
.
Use any means necessary to get information
Human rights is a quaint outdated idea in this modern Bush world of war. The issue at the top has been the limits of torture and how far can we go with it. According to Gonzales the "torture memos" were the result of a need to define the parameters for methods that could be used to get information from prisoners. In the words of Gonzales, "What I can say is that after this war began against this new kind of threat, this new kind of enemy, we realized that there was a premium on receiving information. In many ways, this war on terrorism is a war about information. If we have information, we can defeat the enemy."
There was a point at which a decision was made to use any means necessary to get
information. Gonzales went on, "We had captured some really bad people who we were
concerned had information that might prevent the loss of American lives in the future. It was important to receive that information. And people in the agencies wanted to be sure that they would not do anything that would violate our legal obligations. And so they did the right thing.
They asked questions. What is lawful conduct because we don't want to do anything that violates the law?" In order to justify the outer limits of torture creative interpretation and disregard of the law has been used to create ostensible justifications for torture. In efforts to avoid focus on and subvert the real issue - humane treatment of people and the principles America is supposed to represent - Bush carefully crafts the torture issue as one which centers on technicalities. Was the torturer acting in "good faith?" Does the Geneva Convention apply? Are prisoners POWs? Is Afghanistan different than Iraq? Who has jurisdiction? Etc. Etc.
Although the enemy in Vietnam did not wear uniforms the Geneva Convention was applied. It is now argued that since al Qaida does not have uniforms and it is not a state so they are not entitled to the protections of the Geneva Convention. It is now argued that we are in a new type of war and there must be new rules, without regard to the fact that all wars are new and different.
Are American values changing?
Only a few years ago, the caning of an American kid in Singapore caused a firestorm of outrage in America. However, when the issue of torture was floated in the media several years ago, there was little or no public or media outcry against the potential for the U.S. to utilize torture. There was passive acceptance of torture by the public. Now torture is U.S. practice, if not policy, and enjoys substantial support, if not a mandate, by the American people.
As put by Mark Danner for The New York Times, the confirmation of Gonzales will "give full legitimacy to a path that the Bush administration set the country on more than three years ago,a path that has transformed the United States from a country that condemned torture and forbade its use to one that practices torture routinely. Through a process of redefinition largely overseen by Mr. Gonzales himself, a practice that was once a clear and abhorrent violation of the law has become in effect the law of the land."
Obsession by the President and Gonzales with this issue of permissible or lawful "torture" itself is an indication of how far America has drifted away from what it stands for.
The enemy is human
I am not a scientist and there may be things I do no know, but, in my opinion the enemy is human. Only a few have openly argued they are not. If we tout human rights, those rights are the rights of the world, not just Americans. There are no "rights free zones" in a world that recognizes human rights.
If our power as an example to the world is to have any meaning, the enemy must have
"human" rights which include due process and humane treatment. You cannot debate the issue in technical terms and seek loopholes based upon what you choose to name them and claim to support human rights. We must balance the importance of our example to the world as the beacon of democracy against the importance of "human" rights and the effectiveness of torture. "Doubt," if any, should always be resolved against the use of torture. Most experts agree that torture is ineffective because people will say anything to stop the torture. It is also less effective against an enemy willing to die for their cause in the name of God. If somehow we justify the need to torture, we reduce our importance as the champion of democracy.
The strongest argument for torture is the "ticking bomb" argument. No doubt, it is a powerful hypothetical argument designed to justify torture. But, it is unrealistic and permits application to virtually any enemy, anywhere, anytime. It is to vague and overbroad. The subjective component of the argument, i.e., determining "necessity," opens the floods gates for abuse as has been shown by its application and practice in numerous places.
Balancing the benefits versus the burdens, the balance tips against the use of torture. We should be leaning towards principles that make us the beacon of hope, humanity and justice, not, towards methods and actions that indelibly tarnish our nation, create hate and divide the world.
Our boot on the face of the world
Democracy and human rights has become our boot on the face of the world under the Bush administration. We can not expect a course that places the world under our boot to be one in which violence will curb or a world which unites with America for a common global humanity.
The nomination of Gonzales as attorney general for the U.S., sends the message to the world that the course of empire and abuse of human rights is gaining additional hubris. Rewarding Gonzales for his dedicated defense of "torture" is a harbinger as to where we are heading. Rather than leaning towards zero tolerance of "torture," Gonzales and Bush lean toward torture and see torture as a means to an ends. Torture, as war, are matters of fist resort, not last resort. This is un-American and clearly a violation of existing law.
If this man can interpret "NO TORTURE," to mean torture when necessary, the interpretation of the law by this man is dangerous to due process (FN1), freedom of press, the right to vote, the Constitution and methods of war.
Gonzales will do nothing but advance this country into a greater state of fascism. His commitment to follow the law and protect American rights means nothing if he views the rest of the law though the same lens that he used to view the 'torture' laws.
We are talking about the core beliefs of a man who clearly distorts the law to dispense his own form of justice above and outside the law. It is all about advancing an agenda of secrecy and suppression in the name of national security rather than the spirit of the laws against torture and inhumane treatment. It is about the ideology of world dominance that sets the standards, not existing law, nor concerns for democracy and humanity.
The path which Bush is pursuing is one of shredding our democracy, of chilling speech, of preventing due process, of dividing the world, of creating unnecessary hatred and one of wars for empire, is a disgrace to the sacrifice so many Americans have made with their lives and their blood for the sake of liberty and democracy. The Gonzales appointment, in the face of his involvement in an architecture of torture, is but one more sign of the arrogance with which Bush operates. Its his way right or wrong. It is his way, not the American way.
(http://www.themoderntribune.com/gonzalez_bush_u_s_policy_on_torture.htm)
By D. Lindley Young
The central issue during the Senate Judiciary Committee hearings this past week on the confirmation of Alberto Gonzales as the attorney general of the United States, was whether White House policy condones torture and whether torture is justified. The official position of the White House is that there has never been a policy condoning torture. However, according to a number of authorities, U.S. and international laws against torture and inhume treatment of prisoners have been repeatedly violated by the U.S.
The problem started at the top. According to Gonzales, there was a point that important information was needed to save innocent lives and a decision on torture had to be made. Gonzales admits that the President was involved in the debate and decisions on the White House torture policy which sought the outer limits of permissible lawful torture in order to obtain information and further the President's agenda. The widely disseminated Gonzales/Bush "torture memos" sent a signal to U.S. troops that torture is permitted. and resulted in torture in Iraq, Afghanistan, Gauntanamo and in other countries to which the U.S. delivered prisoners.
The "torture memos" argued in essence that Bush was above the law in war. By seeking to redefine torture the President invaded the province of Congress by creating new Presidential laws on torture which were in complete contradiction to existing law. The dissemination of the "torture memos" - which instructed on guidelines for the outer limits of permissible torture - constituted de facto approval of torture by the President.
Gonzales hearing
Although Gonzales knew the "torture memos" created on his watch
in January and August 2002 would be a central issue in the confirmation hearings, he was prepared to be unprepared. He used, I must "review" the documents, I do not "remember," and I don't want to give you the wrong answer, repeatedly to, as the Bush administration terms it, dodge the bullet and avoid answering key questions in the public hearings. It looks like the reward for evasiveness and his dedication to setting standards for "torture" will be a promotion to the attorney general of the United States.
At the hearing there was reference to substantial evidence that for at least two years the Bush administration systematically condoned torture as a matter of practice and policy. Starting as early as January 2002, George Bush was personally involved in establishing a White House policy on torture that encouraged, by creating technical ostensible defenses to torture, creating "rights free zones," permitting other countries to do the torture for us, by focusing on defining the outer limits of lawful torture and by disseminating instructions to the U.S. military making the standards for torture by U.S. soldiers so liberal that anything short of a "good faith" intent to kill or "good faith" intent to permanently maim was acceptable.
According to Senator Leahy, "[S]enior officials in the Bush White House, the Ashcroft Justice Department, Rumsfeld Pentagon, set in motion a systematic effort to minimize, distort and even ignore our laws, our policies, our international agreements on torture and the treatment of prisoners. Defense Secretary Rumsfeld, and later Lieutenant General Ricardo Sanchez, authorized the use of techniques that were contrary to both U.S. military manuals, but also international law. Former CIA Director Tenet requested and Secretary Rumsfeld approved the secret detention of ghost detainees in Iraq; did that so they could be hidden from the International Committee of the Red Cross. And still unexplained are instances where the U.S.
government delivered prisoners to other countries so they could be tortured."
Senator Kennedy noted, that after contentions by the Bush administration that only a few bad apples were involved in the Abu Griad prisoner abuse scandal, "we learned that the Defense Department's working group report of April 2003 had provided the broad legal support for the harsh interrogation tactics, and it dramatically narrowed the definition of torture, and it recognized the novel defenses for those who committed the torture. Then we learned that the legal basis for the working group report had been provided by the Justice Department in the Bybee memo."
George Bush directly tied to torture decision
According to the testimony of at the confirmation hearings by Gonzales, Bush personally participated in the torture debates and decisions on the use of torture to get information from prisoners.
Gonzales emphasized the issue of torture was important to Bush. "This was an issue that the White House cared very much about," Gonzales testified under oath. He went on to state that, "As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously."
With regard to the decision not to apply the Geneva Convention to prisoners deemed to be al Qaida, Gonzales confirms the President's participation, stating: "And so I do believe the decision by the president was absolutely the right thing to do."
So, Gonzales establishes that Bush was involved in the "debate" on torture and participated in the decisions that lead to application of torture and inhumane treatment of prisoners. The torture at abu Graid and elsewhere goes to the very top. If it involves just a few bad apples, that's where they are.
The world is watching. As put by the Japanese Times, "A reluctance to move up the chain of command in the face of overwhelming evidence of knowledge and approval by ranking officers will only convince audiences around the world that the U.S. is not interested in truth or justice. And perceptions are critical in the war on terror. The greatest asset that the U.S. and its allies have in this struggle is the belief that they are fighting for a greater good. The Abu Ghraib torture photos suggest that there is a yawning divide between America's self-appointed role as the defender of freedom and human rights, and reality. That gap must be bridged if Washington is to reassert its claim to moral leadership. And that, not the much vaunted military, is its most crucial asset in the world today."
Existing law on "torture"
After World War II the U.S. became a signatory to the Geneva Convention in order to
assure humane treatment of prisoners of war. During the Vietnam war official U.S. policy prevented torture even though the enemy did not wear uniforms.Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain." The Universal Declaration of Human Rights states, “no one shall be subjected to torture.”
The Army Field Manual itself reflects our nation's long-held policies toward prisoners, stating: "U.S. policy expressly prohibits acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation."
The United Nations Convention Against Torture states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
The "torture memos"
The "torture memos" during 2002 (See full text), under Gonzales' counsel, took center stage in the confirmation hearings. The discussion centered on two memos. One in January 2002 and the other in August 2002. Judge Gonzales had issued an opinion to the president that the Geneva Convention did not apply with respect to certain of the combatants. In addition, the memo set Bush above the law in times of war. The committee sought further amplification on a number of substantive issues from these memoranda.
It was noted that in the memorandum of January 25th, 2002, it was said, "In my judgment, this new paradigm" - referring to the war on terrorism - "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."
The other is a August 2002 Justice Department memo sought by Gonzales which outlines
how to avoid violating U.S. and international terror statutes while interrogating prisoners by setting a high threshold for the definition of torture.
In defense of the memorandum, Republicans directed attention to Judge Gonzales' statement that, "In the treatment of detainees, the United States will continue to be constrained by its commitment to treat the detainees humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Geneva Convention." In other words, all enemy, but al Qaida are under the Geneva Convention and all the enemy are al Qaida. It is a case where the exception swallows the rule and the rule means nothing .
Gonzales' interpretation
It is amazing that anyone could take the plain language of any of the numerous statutes, regulations and laws just sited and interpret them as permitting the methods Gonzalez and Bush approved. The "torture memo" for the White House clearly approved torture. The law they say they were interpreting contained plain language that was clear and specific. Real simple. The bottom line: no torture.
From a clear "no torture," Gonzales comes up with the "outer limits" of permissible or lawful "torture." The methods approved by Bush and Gonzales were unlawful torture no matter how you cut it. Lawful torture is an oxymoron.
The law is not an inconvenience that can just be discarded at the pleasure of the President and rewritten to fit the agenda at hand. One cannot simply redefine the word "torture" and make methods under established law obsolete.
The President cannot lawfully redefine or make new law in the office of the White House. The executive branch of government executes the laws, it does not make them. Making law is the province of Congress. Congress is the legislative branch of the government, not the President.
Attempts by Bush and Gonzales to make their own "new" law to permit torture cannot be justified as mere interpretation. The "definition" defense is tantamount to a lie. The plain language of existing law is so clear, that it did not require redefinition.
Gonzales argues that a definition was required because there was no case law on the issue of permissible torture. There may be no cases because no one else has seen the need to define what "NO TORTURE" means. The law requires application, not definition. The President cannot create law by creating definitions. Nor can their new definition of "torture," be justified as Presidential policy since Presidential
policy cannot be unlawful.
What Bush and Gonzales were doing was writing "new" law, their law that they could use to justify the use of torture. There is no lawful torture permitted under U.S. and international law and for the White House to create a basis for it - in order to justify an agenda of the President - is setting the White House above the law and outside it. If the rule of law is to be the hallmark of democracy, it has to be obeyed, even by the President.
Although Congress, military code, tradition and international law have opposed torture for many years, America has changed all this under Bush. Once we opposed torture on the grounds of principle, now principle is used to justify torture. Now, whether there is ":torture" or not hinges on subjective opinions based on carefully crafted definitions and word nuances. In order to make torture legal, just redefine the word "torture" to mean methods that would not produce pain "of an intensity akin to that which accompanies serious physical injury such as death or organ failure." That definition doesn't leave much that cannot be done during interrogations and violates the spirit, if not the letter, of a large body of existing law.
At least 10 incidents of prisoner abuse have been substantiated at Guantanamo, all but one from 2003 or this year, AP reported. (See more) "Guantanamo has become an icon of lawlessness," the human rights group Amnesty International said in a statement marking Camp X-Ray's third anniversary, "a symbol of the US government's attempts to put itself above the law." (See more)
Not a reasonable interpretation
How can any reasonable person interpret prohibitions against "acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation," to exclude every act short of the specific intent kill, maim or create organ failure?
How can any reasonable person interpret “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture,” to mean any method short of creating "severe" physical or mental pain?
How can any reasonable person interpret a Congressional bar to all Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain," to mean that our troops can do anything even approaching torture.
If Gonzales and Bush can interpret "NO TORTURE," to mean anything short of specific intent to kill, maim or destroy organs, and, then, revise the meaning of "NO TORTURE," to mean anything less than methods which cause "severe" physical or mental "pain," the interpretation of the law by these men is dangerous to due process, freedom of press, the right to vote, the Constitution and methods of war.
Under the Bush/Gonzales torture policy - before we do what is humane - it must be
determined whether the prisoner is a POW, whether the Geneva Convention applies, and
what is "severe" physical and mental pain. Issues like "specific intent" to kill, maim, or destroy are part of guidelines originally disseminated to our military from the very top. Definitions are made and remade on the outer limits of torture and what it means. Technicalities and loopholes are sought to justify torture rather than protect human rights.
The issue which the President asks first is how great can the torture be, not how great should America be. This behind the scenes approach is indicative of where we are headed under Bush.
It is all part of the view from the top that the enemy is "evil" and that evil must be destroyed. It is all part of the dehumanization of mankind. It is part of the disintegration of what America stands for. It is part of the drip drip erosion of the America, the hope for the world, human rights, freedom and liberty. In sum, it is part of the erosion of humanity. It is part of an arrogance and hubris of moral superiority and noble lies for the good of the people that set the actors above the law. It is this type of inch by inch taking away of what we are, that is making
us the "them" we so strongly oppose.
Defense of the "torture memos"
According to White House surrogates, the language of memos regarding the limits of
acceptable torture have been misinterpreted. At the hearings, Republican Senator Cornyn went to the defense of the Bush torture policy, going so far as to argue in effect that the purpose of the memos were to assure "humane" treatment of prisoners. In this context, it was noted that there was a recognition that winning the hearts and the minds of the Arab world is vital to our success in the war on terror.
Senator Sessions also argued in defense of the memos, "But the president's really gone further than the law requires, it seems to me, in granting them privileges that he didn't necessarily have to do as a matter of affecting his policy of humane treatment."
Quite a stretch to some, since the memos focus on the legal limits of the lawful infliction of pain, interrogation that results in death, and the potential defenses for those performing torture. In fact, the very first paragraph of the one of the torture memos acknowledges "other nations and international bodies may take a more restrictive view" of torture.
Justifying "torture"
The idea that there is even a debate on whether the U.S. should use torture is appalling to many. The supporters are prominent. For example, Alan Dershowitz proposes the courts issue "torture warrants" (Los Angeles Times, November 8, 2001). Dershowitz argues, “The real debate is whether such torture should take place outside of our legal system or within it.
The answer to this seems clear: If we are to have torture, it should be authorized by the law.”
In the Gonzales hearings, the "ticking bomb" argument was made to justify torture where it is deemed necessary in order to discover the whereabouts of a ticking bomb and prevent a mass killing of innocent people. Michael Levin "advocat[es] torture as an acceptable measure for preventing future evils."
Pat Buchanan argues, "The morality of any act depends not only on its character, but on the circumstances and motive." In other words, if our "motive" is for good, which, of course, it always is, torture is justified.
On the other hand, many argue that torture, in and of itself, is an "evil" that is antithetical to the principles for which America stands. Permitting torture makes us no different than the oppressive tyrannical tactics we are supposedly fighting against. Under the standards approved by the Bush administration the methods allegedly employed by Saddam Hussein meet approval and are subject to defense.
Oh, but our torture is different. Liven argues, "Torture only the obviously guilty, and only for the sake of saving innocents, and the line between "US" and "THEM" will remain clear." Bush decides who is "obviously guilty" and whether evidence or hearing is required. This new American way with the laws of Bush is leaning towards fascism.
.
Use any means necessary to get information
Human rights is a quaint outdated idea in this modern Bush world of war. The issue at the top has been the limits of torture and how far can we go with it. According to Gonzales the "torture memos" were the result of a need to define the parameters for methods that could be used to get information from prisoners. In the words of Gonzales, "What I can say is that after this war began against this new kind of threat, this new kind of enemy, we realized that there was a premium on receiving information. In many ways, this war on terrorism is a war about information. If we have information, we can defeat the enemy."
There was a point at which a decision was made to use any means necessary to get
information. Gonzales went on, "We had captured some really bad people who we were
concerned had information that might prevent the loss of American lives in the future. It was important to receive that information. And people in the agencies wanted to be sure that they would not do anything that would violate our legal obligations. And so they did the right thing.
They asked questions. What is lawful conduct because we don't want to do anything that violates the law?" In order to justify the outer limits of torture creative interpretation and disregard of the law has been used to create ostensible justifications for torture. In efforts to avoid focus on and subvert the real issue - humane treatment of people and the principles America is supposed to represent - Bush carefully crafts the torture issue as one which centers on technicalities. Was the torturer acting in "good faith?" Does the Geneva Convention apply? Are prisoners POWs? Is Afghanistan different than Iraq? Who has jurisdiction? Etc. Etc.
Although the enemy in Vietnam did not wear uniforms the Geneva Convention was applied. It is now argued that since al Qaida does not have uniforms and it is not a state so they are not entitled to the protections of the Geneva Convention. It is now argued that we are in a new type of war and there must be new rules, without regard to the fact that all wars are new and different.
Are American values changing?
Only a few years ago, the caning of an American kid in Singapore caused a firestorm of outrage in America. However, when the issue of torture was floated in the media several years ago, there was little or no public or media outcry against the potential for the U.S. to utilize torture. There was passive acceptance of torture by the public. Now torture is U.S. practice, if not policy, and enjoys substantial support, if not a mandate, by the American people.
As put by Mark Danner for The New York Times, the confirmation of Gonzales will "give full legitimacy to a path that the Bush administration set the country on more than three years ago,a path that has transformed the United States from a country that condemned torture and forbade its use to one that practices torture routinely. Through a process of redefinition largely overseen by Mr. Gonzales himself, a practice that was once a clear and abhorrent violation of the law has become in effect the law of the land."
Obsession by the President and Gonzales with this issue of permissible or lawful "torture" itself is an indication of how far America has drifted away from what it stands for.
The enemy is human
I am not a scientist and there may be things I do no know, but, in my opinion the enemy is human. Only a few have openly argued they are not. If we tout human rights, those rights are the rights of the world, not just Americans. There are no "rights free zones" in a world that recognizes human rights.
If our power as an example to the world is to have any meaning, the enemy must have
"human" rights which include due process and humane treatment. You cannot debate the issue in technical terms and seek loopholes based upon what you choose to name them and claim to support human rights. We must balance the importance of our example to the world as the beacon of democracy against the importance of "human" rights and the effectiveness of torture. "Doubt," if any, should always be resolved against the use of torture. Most experts agree that torture is ineffective because people will say anything to stop the torture. It is also less effective against an enemy willing to die for their cause in the name of God. If somehow we justify the need to torture, we reduce our importance as the champion of democracy.
The strongest argument for torture is the "ticking bomb" argument. No doubt, it is a powerful hypothetical argument designed to justify torture. But, it is unrealistic and permits application to virtually any enemy, anywhere, anytime. It is to vague and overbroad. The subjective component of the argument, i.e., determining "necessity," opens the floods gates for abuse as has been shown by its application and practice in numerous places.
Balancing the benefits versus the burdens, the balance tips against the use of torture. We should be leaning towards principles that make us the beacon of hope, humanity and justice, not, towards methods and actions that indelibly tarnish our nation, create hate and divide the world.
Our boot on the face of the world
Democracy and human rights has become our boot on the face of the world under the Bush administration. We can not expect a course that places the world under our boot to be one in which violence will curb or a world which unites with America for a common global humanity.
The nomination of Gonzales as attorney general for the U.S., sends the message to the world that the course of empire and abuse of human rights is gaining additional hubris. Rewarding Gonzales for his dedicated defense of "torture" is a harbinger as to where we are heading. Rather than leaning towards zero tolerance of "torture," Gonzales and Bush lean toward torture and see torture as a means to an ends. Torture, as war, are matters of fist resort, not last resort. This is un-American and clearly a violation of existing law.
If this man can interpret "NO TORTURE," to mean torture when necessary, the interpretation of the law by this man is dangerous to due process (FN1), freedom of press, the right to vote, the Constitution and methods of war.
Gonzales will do nothing but advance this country into a greater state of fascism. His commitment to follow the law and protect American rights means nothing if he views the rest of the law though the same lens that he used to view the 'torture' laws.
We are talking about the core beliefs of a man who clearly distorts the law to dispense his own form of justice above and outside the law. It is all about advancing an agenda of secrecy and suppression in the name of national security rather than the spirit of the laws against torture and inhumane treatment. It is about the ideology of world dominance that sets the standards, not existing law, nor concerns for democracy and humanity.
The path which Bush is pursuing is one of shredding our democracy, of chilling speech, of preventing due process, of dividing the world, of creating unnecessary hatred and one of wars for empire, is a disgrace to the sacrifice so many Americans have made with their lives and their blood for the sake of liberty and democracy. The Gonzales appointment, in the face of his involvement in an architecture of torture, is but one more sign of the arrogance with which Bush operates. Its his way right or wrong. It is his way, not the American way.
Saturday, January 08, 2005
WHERE WILL IT END?
By William Fisher
Though it received thousands of pages of documents from the Federal Bureau of Investigation (FBI) regarding prisoner abuse by the Defense Department (DOD) at the US Naval base at Guantanamo Bay, Cuba, the American Civil Liberties Union (ACLU) charges that the FBI investigation was “sharply scaled back”, records related to the FBI’s investigation are still being withheld, and those it has received are so heavily redacted (blacked out) that they “raise more questions than they answer”.
At the same time, under pressure from Congress, the DOD announced late last week that it would open an investigation into all reports of abuse contained in the newly released FBI documents. Army Brigadier General John T. Furlow will lead the investigation, which could begin this week. Guantanamo’s commanding Army Brigadier General Jay Hood said a military team independent of the Guantanamo mission was needed to find and interview people who had left the post and were no longer under his command.
"The (new FBI) documents raise more questions than they answer," said ACLU attorney Jameel Jaffer. "Why did the FBI narrow its investigation? Did the FBI ever conduct follow-up interviews? Did the FBI provide a formal summary of its findings to the Defense Department? If so, why hasn’t the FBI released a copy of this report?" He told IPS that the ACLU “will return to court both to challenge the adequacy of the agencies' searches and to challenge particular redactions.”
The release of these documents follows a federal court order that directed the DOD and other government agencies to comply with a year-old request under the Freedom of Information Act (FOIA) filed by advocacy groups including the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. The New York Civil Liberties Union is co-counsel in the case. The FOIA is a law signed in 1968 by President Lyndon B. Johnson to provide public access to government documents.
Among FBI documents turned over to the ACLU is an email dated December 9, 2002 referring to the "military’s Interview plan" along with the comment, "You won't believe it!"
Other papers received by the ACLU include a heavily redacted document referring to an investigation captioned "Corruption Federal Public Official - Executive Branch," which appears to have been referred to the FBI because of a "conflict of interest." Accompanying this document is an FBI summary of "potentially relevant criminal statutes." The statutes pertain to war crimes, torture, aggravated sexual abuse, and sexual abuse of a minor or ward, which the ACLU said raises the question of why the FBI considered them "relevant."
The new documents also reveal that many of the FBI’s earlier descriptions of abuses came in response to an email from Steve McCraw, the Assistant Director of the FBI’s Office for Intelligence, to more than 500 agents who had been stationed at Guantanamo, asking them to report whether they had observed "aggressive treatment, interrogations or interview techniques" that violated FBI guidelines.
According to subsequent e-mails noting the status of the "special inquiry," 478 responded and 26 reported observations of detainee mistreatment by personnel of other agencies. The 26 summaries were reviewed by FBI General Counsel Valerie Caproni, who determined 17 to pertain to "approved DOD techniques." As a result, says Jaffer, “some 17 reports of abuse were not investigated.”
For unknown reasons, the ACLU says, Ms. Caproni declined further investigation of the abuses she considered to follow approved DOD interrogation techniques. The ACLU says “she focused only on those abuses that were not approved by even the DOD’s permissive rules. As a result, only nine reported incidents were tagged for follow-up investigation.”
ACLU Attorney Jaffer charges that “The ACLU has not received information about the follow-up investigation, and a final FBI report about the matter is apparently being withheld.” The ACLU’s review of the documents also shows that other critical records have not been released. For instance, the FBI has withheld a copy of a May 30, 2003 "electronic communication" in which the FBI formally complained to the Defense Department about the treatment of detainees.
These most recent FBI documents were released on the eve of the confirmation hearings of Attorney General-nominee Alberto Gonzales, who is widely thought to be responsible for a memorandum to President Bush providing legal justifications for the use of torture.
Thousands of pages of other FBI documents were received by the ACLU as the result of an earlier FOIA request, and a Federal Court recently ordered the CIA to turn over all documents relating to its internal investigation of prisoner abuse.
Meanwhile, “Newsweek” magazine reports on a related controversy regarding previous testimony to Congress on the prisoner abuse issue by FBI Director Robert Mueller. Some senators are questioning whether Mueller misled the Senate Judiciary Committee when he was questioned about the subject in an appearance last May. According to Newsweek, “At least some of the internal FBI documents indicate that, for nearly a year prior to Mueller’s testimony, top FBI officials were strongly objecting to unorthodox practices — such as hooding and slapping prisoners, sleep deprivation and the use of dogs for intimidation by U.S. military interrogators at Guantanamo Bay” (and) “pressing the Pentagon to investigate specific instances of abuse reported by bureau agents assigned to Guantanamo.”
Yet, says the magazine, “when Mueller appeared before the Senate Judiciary Committee on May 20, 2004, just a few weeks after the Abu Ghraib scandal broke, he gave little hint of the concerns by his own agents about the mistreatment of prisoners — much less the apparently intense dispute between the FBI and the Pentagon over the propriety of the “aggressive” interrogation techniques that had been authorized by Secretary of Defense Donald Rumsfeld to be used on prisoners at Guantamamo Bay.”
Newsweek says Sen. Patrick Leahy, a Vermont Democrat, asked Mueller if FBI agents had “encountered objectionable practices involving the treatment of prisoners in Iraq, Afghanistan or Guantanamo?” Leahy followed up: “Is the FBI conducting any investigations involving handling of prisoners in Guantanamo?” Mueller: “No.”
The new documents obtained by the ACLU indicate that prisoner abuse at Guantanamo went beyond anything the government acknowledged.
For example, in one e-mail, dated July 16, 2004, an FBI agent (whose name is deleted) reports seeing one detainee at Guantanamo “sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing.”
In another, dated Aug. 2, 2004, an unidentified FBI agent reports “on a couple of occasions” entering interview rooms at Guantanamo and finding one of the detainees “chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room that the barefooted detainee was shaking with cold. When I asked the MPs [military police] what was going on, I was told that interrogators from the day prior had ordered this treatment.”
Another document reports that a female U.S. military interrogator stroked and applied lotion to a shackled male prisoner yanked his thumbs back, causing him .to grimace in pain and then “grabbed his genitals.”
A broad review of U.S. military interrogation practices conducted by Navy Inspector General Vice Adm. Albert Church is now in its final stages, and the FBI has prepared a 300-page response to follow-up questions from the Senate Judiciary Committee about Mueller’s earlier testimony. But that response has been “under review” at the Justice Department since October. Neither it, nor the Church report, is likely to be released publicly soon.
Though it received thousands of pages of documents from the Federal Bureau of Investigation (FBI) regarding prisoner abuse by the Defense Department (DOD) at the US Naval base at Guantanamo Bay, Cuba, the American Civil Liberties Union (ACLU) charges that the FBI investigation was “sharply scaled back”, records related to the FBI’s investigation are still being withheld, and those it has received are so heavily redacted (blacked out) that they “raise more questions than they answer”.
At the same time, under pressure from Congress, the DOD announced late last week that it would open an investigation into all reports of abuse contained in the newly released FBI documents. Army Brigadier General John T. Furlow will lead the investigation, which could begin this week. Guantanamo’s commanding Army Brigadier General Jay Hood said a military team independent of the Guantanamo mission was needed to find and interview people who had left the post and were no longer under his command.
"The (new FBI) documents raise more questions than they answer," said ACLU attorney Jameel Jaffer. "Why did the FBI narrow its investigation? Did the FBI ever conduct follow-up interviews? Did the FBI provide a formal summary of its findings to the Defense Department? If so, why hasn’t the FBI released a copy of this report?" He told IPS that the ACLU “will return to court both to challenge the adequacy of the agencies' searches and to challenge particular redactions.”
The release of these documents follows a federal court order that directed the DOD and other government agencies to comply with a year-old request under the Freedom of Information Act (FOIA) filed by advocacy groups including the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. The New York Civil Liberties Union is co-counsel in the case. The FOIA is a law signed in 1968 by President Lyndon B. Johnson to provide public access to government documents.
Among FBI documents turned over to the ACLU is an email dated December 9, 2002 referring to the "military’s Interview plan" along with the comment, "You won't believe it!"
Other papers received by the ACLU include a heavily redacted document referring to an investigation captioned "Corruption Federal Public Official - Executive Branch," which appears to have been referred to the FBI because of a "conflict of interest." Accompanying this document is an FBI summary of "potentially relevant criminal statutes." The statutes pertain to war crimes, torture, aggravated sexual abuse, and sexual abuse of a minor or ward, which the ACLU said raises the question of why the FBI considered them "relevant."
The new documents also reveal that many of the FBI’s earlier descriptions of abuses came in response to an email from Steve McCraw, the Assistant Director of the FBI’s Office for Intelligence, to more than 500 agents who had been stationed at Guantanamo, asking them to report whether they had observed "aggressive treatment, interrogations or interview techniques" that violated FBI guidelines.
According to subsequent e-mails noting the status of the "special inquiry," 478 responded and 26 reported observations of detainee mistreatment by personnel of other agencies. The 26 summaries were reviewed by FBI General Counsel Valerie Caproni, who determined 17 to pertain to "approved DOD techniques." As a result, says Jaffer, “some 17 reports of abuse were not investigated.”
For unknown reasons, the ACLU says, Ms. Caproni declined further investigation of the abuses she considered to follow approved DOD interrogation techniques. The ACLU says “she focused only on those abuses that were not approved by even the DOD’s permissive rules. As a result, only nine reported incidents were tagged for follow-up investigation.”
ACLU Attorney Jaffer charges that “The ACLU has not received information about the follow-up investigation, and a final FBI report about the matter is apparently being withheld.” The ACLU’s review of the documents also shows that other critical records have not been released. For instance, the FBI has withheld a copy of a May 30, 2003 "electronic communication" in which the FBI formally complained to the Defense Department about the treatment of detainees.
These most recent FBI documents were released on the eve of the confirmation hearings of Attorney General-nominee Alberto Gonzales, who is widely thought to be responsible for a memorandum to President Bush providing legal justifications for the use of torture.
Thousands of pages of other FBI documents were received by the ACLU as the result of an earlier FOIA request, and a Federal Court recently ordered the CIA to turn over all documents relating to its internal investigation of prisoner abuse.
Meanwhile, “Newsweek” magazine reports on a related controversy regarding previous testimony to Congress on the prisoner abuse issue by FBI Director Robert Mueller. Some senators are questioning whether Mueller misled the Senate Judiciary Committee when he was questioned about the subject in an appearance last May. According to Newsweek, “At least some of the internal FBI documents indicate that, for nearly a year prior to Mueller’s testimony, top FBI officials were strongly objecting to unorthodox practices — such as hooding and slapping prisoners, sleep deprivation and the use of dogs for intimidation by U.S. military interrogators at Guantanamo Bay” (and) “pressing the Pentagon to investigate specific instances of abuse reported by bureau agents assigned to Guantanamo.”
Yet, says the magazine, “when Mueller appeared before the Senate Judiciary Committee on May 20, 2004, just a few weeks after the Abu Ghraib scandal broke, he gave little hint of the concerns by his own agents about the mistreatment of prisoners — much less the apparently intense dispute between the FBI and the Pentagon over the propriety of the “aggressive” interrogation techniques that had been authorized by Secretary of Defense Donald Rumsfeld to be used on prisoners at Guantamamo Bay.”
Newsweek says Sen. Patrick Leahy, a Vermont Democrat, asked Mueller if FBI agents had “encountered objectionable practices involving the treatment of prisoners in Iraq, Afghanistan or Guantanamo?” Leahy followed up: “Is the FBI conducting any investigations involving handling of prisoners in Guantanamo?” Mueller: “No.”
The new documents obtained by the ACLU indicate that prisoner abuse at Guantanamo went beyond anything the government acknowledged.
For example, in one e-mail, dated July 16, 2004, an FBI agent (whose name is deleted) reports seeing one detainee at Guantanamo “sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing.”
In another, dated Aug. 2, 2004, an unidentified FBI agent reports “on a couple of occasions” entering interview rooms at Guantanamo and finding one of the detainees “chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room that the barefooted detainee was shaking with cold. When I asked the MPs [military police] what was going on, I was told that interrogators from the day prior had ordered this treatment.”
Another document reports that a female U.S. military interrogator stroked and applied lotion to a shackled male prisoner yanked his thumbs back, causing him .to grimace in pain and then “grabbed his genitals.”
A broad review of U.S. military interrogation practices conducted by Navy Inspector General Vice Adm. Albert Church is now in its final stages, and the FBI has prepared a 300-page response to follow-up questions from the Senate Judiciary Committee about Mueller’s earlier testimony. But that response has been “under review” at the Justice Department since October. Neither it, nor the Church report, is likely to be released publicly soon.
Thursday, January 06, 2005
Trickle of Prison Abuse Reports Becoming A Torrent
By William Fisher
Even as the alleged ringleader of the Abu Ghraib prison abuse scandal faces court-martial Friday, human rights groups are questioning whether his case is really the ”aberration” the Pentagon claims.
”The trial of Charles Graner is a first step toward accountability, but no one should confuse it with the end of the process,” said Reed Brody, special counsel at Human Rights Watch. ”The issue isn't only who was the local ringleader, but whether his superiors led him to believe he had permission to engage in such atrocities.”
The scope of U.S. mistreatment of prisoners, at home and abroad, has continued to widen in recent weeks, even as the government is reportedly considering building a 25-million-dollar, 200-bed prison to hold detainees who are unlikely to ever appear before a military tribunal for lack of evidence.
In December, a federal court ordered the Central Intelligence Agency (CIA) to turn over documents to human rights groups that it had previously refused to divulge regarding prisoner abuse by the U.S. military in Iraq and Afghanistan, under a law that allows citizens access to public records.
Government lawyers contended that the spy agency should be allowed to complete its internal investigation before turning over the documents, an argument rejected by the court.
Jameel Jaffer, a lawyer for the American Civil Liberties Union (ACLU), the plaintiff in the case, told IPS that the decision ”recognised that, at least in certain circumstances, the Freedom of Information Act gives the public the right to information about CIA activity.”
”We have insisted from the outset that the public has a right to know whether CIA personnel are engaged in the abuse and torture of detainees,” he said. ”Judge Hellerstein's ruling is an important step towards vindicating that right.”
He added that the CIA has not yet said whether it will appeal the order.
The ACLU suit is also seeking information about so-called ”ghost detainees” -- prisoners held by the CIA but who were not registered so that they would escape discovery by the International Committee of the Red Cross.
Army investigations had previously confirmed the existence of these practices, and Defence Secretary Donald Rumsfeld told a Pentagon news conference months ago that he had complied with a CIA request to conceal at least one prisoner. Since then, Army investigators have estimated that the number of ”ghost detainees” could be as many as 100.
Meanwhile, the new inspector general of the Department of Homeland Security (DHS) has begun an ”intensive audit of the immigration detention system...seeking information from government, non-governmental organizations, attorneys with currently detained clients and.detainees themselves.”
Inspector generals are frequently critical of their own agencies. They can be removed by the president, and President George W. Bush recently fired the
inspector general of the DHS. He had issued many critical reports about the mismanagement and security flaws at the huge department.
The new inspector general said this week that his office would look into allegations of mistreatment, including physical and sexual abuse, and cases of hunger strike and attempted suicide.
A leading authority on the U.S. immigration detention system, Mark Dow, author of ”American Gulag: Inside U.S. Immigration Prisons”, had a mixed reaction to the investigation.
”It's certainly a good thing that investigators will be looking at a few detention centres,” he told IPS. ”But truly independent monitoring and reforms must come from outside DHS. After all, criminals don't punish themselves.”
After the Sep. 11 attacks, the U.S. government rounded up some 5,000 aliens, mostly Arabs and other Muslims. Many were held for long periods, without access to their families or to legal counsel. Many were deported for visa violations. In some cases, they were returned to countries where they would likely face abuse in detention. None was ever charged with a terror-related crime.
When the Department of Homeland Security was established, the Immigration and Naturalisation Service was split into three new agencies. All are part of the DHS. The service operates detention centers throughout the U.S., and also uses traditional jails and prisons, including many operated by private contractors. The centres have been called the country's most secretive prison system.
According to the Washington Post, the prison issue arose because Bush administration officials are preparing long-range plans for indefinitely jailing suspected terrorists they do not want to set free or turn over to U.S or foreign courts.
One option under this proposal would ”render” large numbers of Afghan, Saudi and Yemeni detainees from the U.S. military's Guantanamo Bay detention centre to new U.S.-built prisons in their home countries. According to the newspaper, ”the prisons would be operated by those countries, but the State Department, where this idea originated, would ask them to abide by recognised human rights standards and would monitor compliance.”
In the past, the legitimacy of such assurances has been widely questioned by human rights groups and legislators because the countries to which prisoners are ”rendered” have well-documented histories of prisoner torture and death in detention.
Since the 1990s, the CIA has secretly transferred captives it picks up abroad to third countries. The transfers, called ”renditions,” depend on arrangements between the United States and other countries, such as Egypt, Jordan and Afghanistan, which agree to have local security services hold certain terror suspects secretly and without access to due process for interrogation by CIA and foreign intelligence officers.
Renditions were originally a way of picking up drug dealers and other criminals abroad, and delivering them to courts in the United States or other countries. But since 2001, the practice has been used against terror suspects to ensure that these detainees do not go to court or back on the streets.
An alternative to the transfer plan would be the construction of a 25-million-dollar, 200-bed prison in the U.S. ”to hold detainees who are unlikely to ever go through a military tribunal for lack of evidence,” Pentagon officials told the Washington Post. The prison reportedly would be modeled on a U.S. prison and would allow socialising among inmates.
The idea of holding detainees potentially for life has drawn criticism from human rights groups and from some legislators.
”There must be some modicum, some semblance of due process...if you're going to detain
people, whether it's for life or whether it's for years,” said Sen. Carl M. Levin of Michigan, the senior Democrat on the Armed Services Committee.
Even as the alleged ringleader of the Abu Ghraib prison abuse scandal faces court-martial Friday, human rights groups are questioning whether his case is really the ”aberration” the Pentagon claims.
”The trial of Charles Graner is a first step toward accountability, but no one should confuse it with the end of the process,” said Reed Brody, special counsel at Human Rights Watch. ”The issue isn't only who was the local ringleader, but whether his superiors led him to believe he had permission to engage in such atrocities.”
The scope of U.S. mistreatment of prisoners, at home and abroad, has continued to widen in recent weeks, even as the government is reportedly considering building a 25-million-dollar, 200-bed prison to hold detainees who are unlikely to ever appear before a military tribunal for lack of evidence.
In December, a federal court ordered the Central Intelligence Agency (CIA) to turn over documents to human rights groups that it had previously refused to divulge regarding prisoner abuse by the U.S. military in Iraq and Afghanistan, under a law that allows citizens access to public records.
Government lawyers contended that the spy agency should be allowed to complete its internal investigation before turning over the documents, an argument rejected by the court.
Jameel Jaffer, a lawyer for the American Civil Liberties Union (ACLU), the plaintiff in the case, told IPS that the decision ”recognised that, at least in certain circumstances, the Freedom of Information Act gives the public the right to information about CIA activity.”
”We have insisted from the outset that the public has a right to know whether CIA personnel are engaged in the abuse and torture of detainees,” he said. ”Judge Hellerstein's ruling is an important step towards vindicating that right.”
He added that the CIA has not yet said whether it will appeal the order.
The ACLU suit is also seeking information about so-called ”ghost detainees” -- prisoners held by the CIA but who were not registered so that they would escape discovery by the International Committee of the Red Cross.
Army investigations had previously confirmed the existence of these practices, and Defence Secretary Donald Rumsfeld told a Pentagon news conference months ago that he had complied with a CIA request to conceal at least one prisoner. Since then, Army investigators have estimated that the number of ”ghost detainees” could be as many as 100.
Meanwhile, the new inspector general of the Department of Homeland Security (DHS) has begun an ”intensive audit of the immigration detention system...seeking information from government, non-governmental organizations, attorneys with currently detained clients and.detainees themselves.”
Inspector generals are frequently critical of their own agencies. They can be removed by the president, and President George W. Bush recently fired the
inspector general of the DHS. He had issued many critical reports about the mismanagement and security flaws at the huge department.
The new inspector general said this week that his office would look into allegations of mistreatment, including physical and sexual abuse, and cases of hunger strike and attempted suicide.
A leading authority on the U.S. immigration detention system, Mark Dow, author of ”American Gulag: Inside U.S. Immigration Prisons”, had a mixed reaction to the investigation.
”It's certainly a good thing that investigators will be looking at a few detention centres,” he told IPS. ”But truly independent monitoring and reforms must come from outside DHS. After all, criminals don't punish themselves.”
After the Sep. 11 attacks, the U.S. government rounded up some 5,000 aliens, mostly Arabs and other Muslims. Many were held for long periods, without access to their families or to legal counsel. Many were deported for visa violations. In some cases, they were returned to countries where they would likely face abuse in detention. None was ever charged with a terror-related crime.
When the Department of Homeland Security was established, the Immigration and Naturalisation Service was split into three new agencies. All are part of the DHS. The service operates detention centers throughout the U.S., and also uses traditional jails and prisons, including many operated by private contractors. The centres have been called the country's most secretive prison system.
According to the Washington Post, the prison issue arose because Bush administration officials are preparing long-range plans for indefinitely jailing suspected terrorists they do not want to set free or turn over to U.S or foreign courts.
One option under this proposal would ”render” large numbers of Afghan, Saudi and Yemeni detainees from the U.S. military's Guantanamo Bay detention centre to new U.S.-built prisons in their home countries. According to the newspaper, ”the prisons would be operated by those countries, but the State Department, where this idea originated, would ask them to abide by recognised human rights standards and would monitor compliance.”
In the past, the legitimacy of such assurances has been widely questioned by human rights groups and legislators because the countries to which prisoners are ”rendered” have well-documented histories of prisoner torture and death in detention.
Since the 1990s, the CIA has secretly transferred captives it picks up abroad to third countries. The transfers, called ”renditions,” depend on arrangements between the United States and other countries, such as Egypt, Jordan and Afghanistan, which agree to have local security services hold certain terror suspects secretly and without access to due process for interrogation by CIA and foreign intelligence officers.
Renditions were originally a way of picking up drug dealers and other criminals abroad, and delivering them to courts in the United States or other countries. But since 2001, the practice has been used against terror suspects to ensure that these detainees do not go to court or back on the streets.
An alternative to the transfer plan would be the construction of a 25-million-dollar, 200-bed prison in the U.S. ”to hold detainees who are unlikely to ever go through a military tribunal for lack of evidence,” Pentagon officials told the Washington Post. The prison reportedly would be modeled on a U.S. prison and would allow socialising among inmates.
The idea of holding detainees potentially for life has drawn criticism from human rights groups and from some legislators.
”There must be some modicum, some semblance of due process...if you're going to detain
people, whether it's for life or whether it's for years,” said Sen. Carl M. Levin of Michigan, the senior Democrat on the Armed Services Committee.
Monday, January 03, 2005
THE GOVERNMENT WE DESERVE?
By William Fisher
The 2004 Presidential campaign reminded me of an earlier time.
Two decades ago, I worked for a major public relations firm. Our biggest client was the world’s largest cigarette maker. One of my jobs for this client was writing press releases. We had two criteria for success. One was whether the press release was technically excellent. The other was how many newspapers published it.
Whether it was accurate or not was not on the table. We knew it wasn’t. But no one cared.
So it was with the recent political campaign – and political campaigns throughout American history. It was about who could be more professional in crafting the ten words most likely to resonate with voters, i.e. “he voted for the $87 billion before he voted against it”; “he didn’t show up for National Guard duty”. It was about “staying on message”. It was about appealing to “the base” in the basest possible ways. It was about political theater. It was about stagecraft. And it was about campaign managers and their obvious contempt for the intelligence of the electorate – ten words being the max American voters are capable of processing.
So, since President Bush was reelected, he hails Karl Rove as “the architect”. Rove would have written great press releases for that tobacco company.
But should we condemn Mr. Rove and John Kerry’s campaign manager, Mary Beth Cahill? I think not. Because there was more than enough complicity to go around. The voters were complicit. They settled for sound bites rather than demanding substance. They failed to spend the time to understand which issues were important and which were trivial. The media were complicit for allowing the campaigns to “define” the candidates and “frame” their stories. And, perhaps most troublesome of all, America’s schools were complicit. They graduated millions of people without the most minimal equipment necessary for choosing a leader.
America’s voters are the same folks who are unable to show you where Mexico is on a map. Who think Iraq sent us the 9/11 hijackers. Who know less about history, science, math, and most other subjects, than their peers in much of the rest of the industrialized world.
Did you know that close to 30 percent of high school freshmen fail to graduate? That more than 25 percent of the high school graduates who enter four-year colleges fail to return for their sophomore year and that, in two-year institutions, the dropout rate is twice that high. That more than half of today's college students are placed in at least one remedial math or English class, learning skills they should have acquired in high school. That surveys of employers find a high proportion of new hires lacking basic reading, writing and math skills? That in math and science among eighth-grade students, the US is 15th out of 45 countries. That American eighth-graders register an average score in math of 504 out of a possible 1000, below their counterparts' scores in Singapore (605), South Korea (589) and Russia (508), but above those in Sweden (499), New Zealand (494) and Saudi Arabia (332)? That US 15-year-olds score below the international average in math literacy and problem-solving? That at the fourth-grade level, US students are 12th out of 25 in the ranking, below Singapore, Japan, Lithuania and Hungary? And as for the arts or foreign languages? Forget it!
Not to worry, we are told. Americans have “common sense” and “good gut instincts”. Sure, but is that enough? These days, Americans are scared to death. Of terrorists. Of Saddam Hussein’s mushroom clouds. Of losing a son or a daughter or a father or a mother in Iraq or Afghanistan. Of being forced to have a same-sex marriage. This is the “new normal”. So people respond to whoever looks like a way out. Whoever sounds most confident. Whoever they’d like to have a beer with. Whoever is most telegenic. Whoever is best at compressing a dangerous and increasingly complex world into ten words or less: “Mission Accomplished”, or “I’m John Kerry and I’m reporting for duty”.
Maybe the world used to be simpler. Maybe you could get by with common sense and gut instincts. But if history tells us this wasn’t enough even in the past -- we’ve elected our share of deeply flawed leaders – it surely is not enough now. This is not a Republican thing or a Democratic thing. Or a Red State/Blue State thing. It is an American thing. World powers have declined and vanished before. If ours is not to become one of them, our voters need to inform their common sense and gut instincts with real knowledge.
If the people don’t demand fact and truth – from the candidates, from the media, and from our education system – they are doomed to get the government they deserve.
The 2004 Presidential campaign reminded me of an earlier time.
Two decades ago, I worked for a major public relations firm. Our biggest client was the world’s largest cigarette maker. One of my jobs for this client was writing press releases. We had two criteria for success. One was whether the press release was technically excellent. The other was how many newspapers published it.
Whether it was accurate or not was not on the table. We knew it wasn’t. But no one cared.
So it was with the recent political campaign – and political campaigns throughout American history. It was about who could be more professional in crafting the ten words most likely to resonate with voters, i.e. “he voted for the $87 billion before he voted against it”; “he didn’t show up for National Guard duty”. It was about “staying on message”. It was about appealing to “the base” in the basest possible ways. It was about political theater. It was about stagecraft. And it was about campaign managers and their obvious contempt for the intelligence of the electorate – ten words being the max American voters are capable of processing.
So, since President Bush was reelected, he hails Karl Rove as “the architect”. Rove would have written great press releases for that tobacco company.
But should we condemn Mr. Rove and John Kerry’s campaign manager, Mary Beth Cahill? I think not. Because there was more than enough complicity to go around. The voters were complicit. They settled for sound bites rather than demanding substance. They failed to spend the time to understand which issues were important and which were trivial. The media were complicit for allowing the campaigns to “define” the candidates and “frame” their stories. And, perhaps most troublesome of all, America’s schools were complicit. They graduated millions of people without the most minimal equipment necessary for choosing a leader.
America’s voters are the same folks who are unable to show you where Mexico is on a map. Who think Iraq sent us the 9/11 hijackers. Who know less about history, science, math, and most other subjects, than their peers in much of the rest of the industrialized world.
Did you know that close to 30 percent of high school freshmen fail to graduate? That more than 25 percent of the high school graduates who enter four-year colleges fail to return for their sophomore year and that, in two-year institutions, the dropout rate is twice that high. That more than half of today's college students are placed in at least one remedial math or English class, learning skills they should have acquired in high school. That surveys of employers find a high proportion of new hires lacking basic reading, writing and math skills? That in math and science among eighth-grade students, the US is 15th out of 45 countries. That American eighth-graders register an average score in math of 504 out of a possible 1000, below their counterparts' scores in Singapore (605), South Korea (589) and Russia (508), but above those in Sweden (499), New Zealand (494) and Saudi Arabia (332)? That US 15-year-olds score below the international average in math literacy and problem-solving? That at the fourth-grade level, US students are 12th out of 25 in the ranking, below Singapore, Japan, Lithuania and Hungary? And as for the arts or foreign languages? Forget it!
Not to worry, we are told. Americans have “common sense” and “good gut instincts”. Sure, but is that enough? These days, Americans are scared to death. Of terrorists. Of Saddam Hussein’s mushroom clouds. Of losing a son or a daughter or a father or a mother in Iraq or Afghanistan. Of being forced to have a same-sex marriage. This is the “new normal”. So people respond to whoever looks like a way out. Whoever sounds most confident. Whoever they’d like to have a beer with. Whoever is most telegenic. Whoever is best at compressing a dangerous and increasingly complex world into ten words or less: “Mission Accomplished”, or “I’m John Kerry and I’m reporting for duty”.
Maybe the world used to be simpler. Maybe you could get by with common sense and gut instincts. But if history tells us this wasn’t enough even in the past -- we’ve elected our share of deeply flawed leaders – it surely is not enough now. This is not a Republican thing or a Democratic thing. Or a Red State/Blue State thing. It is an American thing. World powers have declined and vanished before. If ours is not to become one of them, our voters need to inform their common sense and gut instincts with real knowledge.
If the people don’t demand fact and truth – from the candidates, from the media, and from our education system – they are doomed to get the government they deserve.
Thursday, December 30, 2004
GIVE US YOUR HUDDLED MASSES…
By William Fisher
The law to reorganize US intelligence services was passed at the 11th hour in the last Congress partly because of a compromise that eliminated a number of controversial anti-immigration provisions. But the sponsor of those provisions says he intends to reintroduce them as “must pass” legislation “on the first day of the 109th Congress in January.” With President Bush, many human rights groups, most Democrats, and a number of civil libertarian conservatives arrayed against measure, the action is destined to trigger a fierce battle on Capitol Hill.
Said Congressman James Sensenbrenner, a Republican from Wisconsin and powerful chairman of the House of Representatives Judiciary Committee: “These common-sense provisions are aimed at preventing another 9/11-type attack by plugging holes in our homeland security efforts. We must address these vulnerabilities very soon because we know America’s enemies diligently probe our vulnerabilities to carry out their deadly intentions.”
Most media coverage of last session’s immigration proposals focused on such issues as establishing uniform security standards for drivers’ licenses and border security, such as closing the three-mile hole in the U.S./Mexico border fence near San Diego, California.
But the provisions that are far more worrying to human rights groups and civil libertarians relate to tightening asylum regulations. For example, the legislation would allow immigration judges to determine witness credibility in asylum cases with significantly reduced opportunity for appeal, stipulate that all terrorism-related grounds for inadmissibility are grounds for deportation, and provide for the ‘expedited deportation’ of immigrants and visitors, even to countries where they are likely to face prison torture.
Human rights groups have been unanimous in their opposition to these provisions.
According to Susan Benesch of Amnesty International USA, the Sensenbrenner provisions “would prevent refugees from finding save haven in the United States and erode their chance for due process in presenting their asylum claims.” She told IPS in an email interview that “these anti-refugee and anti-immigrant measures were not recommended by the 9-11 commission for good reason -- they would not improve our national security. On the contrary -- they would deny safety to people whose own security is in danger.” Amnesty, she added, “also opposes the outsourcing of torture - - the United States is bound by the UN Convention Against Torture to prevent or punish torture, certainly not to facilitate it.”
The legislation reorganizing the intelligence community was based on the recommendations of the 9/11 Commission, established to investigate the attacks of September 11, 2001. The Sensenbrenner recommendations were not part of the Commission’s recommendations.
Much of the controversy surrounding the Sensenbrenner immigration provisions stems from the widespread round-ups of primarily Arab and Muslim immigrants and visitors after the 9/11 attacks and again just prior to the 2004 presidential election. More than 5,000 people were arrested, and many detained for long periods with access to legal counsel. None were charged with any terror-related crime. Many were deported, some to countries where they were likely to be arrested again and face torture in detention. The US Department of Justice (DOJ) has refused to disclose the names of any of the detainees.
But Amnesty’s Benesch says her organization “would be equally opposed if no Muslims had been rounded up” because the government was denying long-established asylum rights.
Mark Dow, author of ‘American Gulag: Inside US Immigration Prisons told IPS, “even sympathetic observers continue to believe that though the post-911 roundup failed to catch terrorists, it was intended to do so. This ignores the evidence that roundups were at least in part a cover to make it look like the Justice Department was doing something.” He added: “It is less the case, as is commonly asserted, that roundups of Arabs and Muslims were intended to fight terrorism than that terrorism was used as a pretext to justify the roundups -- a pattern that is in full force today around the country”. The INS was separated into three agencies, one of which is the U.S. Immigration and Customs Enforcement (ICE). All are now part of the new Department of Homeland Security.
One of the few Sensenbrenner provisions that made it into the final law increased the numbers of beds in detention facilities. Of this, Dow calls it “unconscionable to give DHS more detention capacity. Instead, Congress should establish a permanent independent oversight system to review the legality and humaneness of all current and future immigration detainee cases, and to monitor the treatment of all detainees. Ultimately, detention authority should be removed from DHS except in emergencies and for strictly limited periods. The immigration service has shown its unwillingness and inability to run a humane and lawful detention system.”
Washington sources believe most of the original Sensenbrenner proposals are likely to make it into the new bill. These include:
·“Expedited Removal” – allowing immigration enforcement officers to deport without a hearing any non-citizen not admitted to the U.S. by immigration authorities and who has been here for less than five years. This could result in the summary deportation of people who could face serious harm if deported. According to Human Rights First (HRF), an advocacy group, “These provisions place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review.”
·Summary deportation of battered spouses, children whose unlawful entry into the U.S. was connected to the abuse they suffered, and victims of human trafficking and victims of serious crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, and abduction.
·“Preventing Terrorists from Obtaining Asylum” is, according to HRF, “is NOT about preventing terrorists from getting asylum. Terrorists are already barred from asylum.” This section, the group says, would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor’s central reason for harming them, or had any inconsistencies between statements made to any U.S. government employees and their testimony before an immigration judge.
·Permitting adjudicators to deny asylum because they are unable to provide corroborating evidence of “certain alleged facts pertaining to the specifics of their claim.” This provision, says HRF, “would disproportionately harm asylum seekers who are held in jails and detention facilities, and the many who are not represented by legal counsel.”
·Giving adjudicators broad leeway to deny applicants asylum based on factors such as their perceived “demeanor”.
·Allowing an asylum applicant to be denied asylum on grounds of credibility if the abuse suffered or feared was not documented in the annual country conditions reports of the Department of State.
·Eliminating stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court. According to HRF, “This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported.”
·Eliminating all judicial review for persons claiming protection from removal under the Convention Against Torture (CAT) who are barred from direct review by the court of appeals.
·Requiring that anyone not deported be detained indefinitely. This provision, says HRF, “runs afoul of international legal standards against arbitrary detention. In addition, the Supreme Court has already stated that ‘a statute permitting indefinite detention of an alien would raise a serious constitutional problem’.”
·Allowing the Department of Homeland Security to designate as a “specially dangerous alien” and detain indefinitely anyone who is barred from withholding of removal but has not been granted any protection against removal, while requiring the indefinite detention—without any showing or even allegation of dangerousness.
While the US media has largely focused on border security issues, US asylum policy has come under less scrutiny. However, “The New York Times” wrote in a September 25, 2004 editorial: “In jails and prisons across the United States, thousands of people are detained who have never been accused of crimes. The guards treat them like criminals, and the criminals they bunk with often abuse them. They are held for months, sometimes even years, but unlike the criminals, they do not know when their sentences will end. They receive this treatment because they are foreigners who arrived in the United States saying that they were fleeing persecution at home… They come here chasing America's promised liberty, and they end up in chains…locking up thousands of people who pose no risk and are accused of no crimes is expensive, unnecessary and a betrayal of America's commitment to the persecuted.”
For years, the INS has failed to furnish accurate numbers of asylum-seekers to the Congress, despite a Federal law requiring this data. Thus precise data is difficult to come by. The US Government suggests that there are about 22,000 detainees in US immigration prisons at any one time, and that on average several thousand of these will be asylum-seekers. Non-governmental sources estimate the numbers as many times higher. Other sources have estimated that in 2001, 86,180 people sought asylum in the United States; 68,400 applications were reportedly granted. Yet other sources report that in 2000, there were 48,054 asylum-seekers to the US, and 47,584 cases in the first nine months of 2001. Only a few hundred of the Muslims and Arabs rounded up after September 11th, 2001, were asylum-seekers, but many more were reportedly refugees.
President George W. Bush opposed some of the Sensenbrenner proposals, as well as measures introduced by others, in the bill he signed into law earlier this month. However, it is unclear whether he did so only to facilitate the compromise that allowed the bill to pass. The immigration issue is further complicated by President Bush’s own proposal for a ‘guest worker’ program. This program would grant multi-year work permits to non-citizens, including illegal aliens. The idea has drawn widespread bi-partisan opposition in Congress.
The law to reorganize US intelligence services was passed at the 11th hour in the last Congress partly because of a compromise that eliminated a number of controversial anti-immigration provisions. But the sponsor of those provisions says he intends to reintroduce them as “must pass” legislation “on the first day of the 109th Congress in January.” With President Bush, many human rights groups, most Democrats, and a number of civil libertarian conservatives arrayed against measure, the action is destined to trigger a fierce battle on Capitol Hill.
Said Congressman James Sensenbrenner, a Republican from Wisconsin and powerful chairman of the House of Representatives Judiciary Committee: “These common-sense provisions are aimed at preventing another 9/11-type attack by plugging holes in our homeland security efforts. We must address these vulnerabilities very soon because we know America’s enemies diligently probe our vulnerabilities to carry out their deadly intentions.”
Most media coverage of last session’s immigration proposals focused on such issues as establishing uniform security standards for drivers’ licenses and border security, such as closing the three-mile hole in the U.S./Mexico border fence near San Diego, California.
But the provisions that are far more worrying to human rights groups and civil libertarians relate to tightening asylum regulations. For example, the legislation would allow immigration judges to determine witness credibility in asylum cases with significantly reduced opportunity for appeal, stipulate that all terrorism-related grounds for inadmissibility are grounds for deportation, and provide for the ‘expedited deportation’ of immigrants and visitors, even to countries where they are likely to face prison torture.
Human rights groups have been unanimous in their opposition to these provisions.
According to Susan Benesch of Amnesty International USA, the Sensenbrenner provisions “would prevent refugees from finding save haven in the United States and erode their chance for due process in presenting their asylum claims.” She told IPS in an email interview that “these anti-refugee and anti-immigrant measures were not recommended by the 9-11 commission for good reason -- they would not improve our national security. On the contrary -- they would deny safety to people whose own security is in danger.” Amnesty, she added, “also opposes the outsourcing of torture - - the United States is bound by the UN Convention Against Torture to prevent or punish torture, certainly not to facilitate it.”
The legislation reorganizing the intelligence community was based on the recommendations of the 9/11 Commission, established to investigate the attacks of September 11, 2001. The Sensenbrenner recommendations were not part of the Commission’s recommendations.
Much of the controversy surrounding the Sensenbrenner immigration provisions stems from the widespread round-ups of primarily Arab and Muslim immigrants and visitors after the 9/11 attacks and again just prior to the 2004 presidential election. More than 5,000 people were arrested, and many detained for long periods with access to legal counsel. None were charged with any terror-related crime. Many were deported, some to countries where they were likely to be arrested again and face torture in detention. The US Department of Justice (DOJ) has refused to disclose the names of any of the detainees.
But Amnesty’s Benesch says her organization “would be equally opposed if no Muslims had been rounded up” because the government was denying long-established asylum rights.
Mark Dow, author of ‘American Gulag: Inside US Immigration Prisons told IPS, “even sympathetic observers continue to believe that though the post-911 roundup failed to catch terrorists, it was intended to do so. This ignores the evidence that roundups were at least in part a cover to make it look like the Justice Department was doing something.” He added: “It is less the case, as is commonly asserted, that roundups of Arabs and Muslims were intended to fight terrorism than that terrorism was used as a pretext to justify the roundups -- a pattern that is in full force today around the country”. The INS was separated into three agencies, one of which is the U.S. Immigration and Customs Enforcement (ICE). All are now part of the new Department of Homeland Security.
One of the few Sensenbrenner provisions that made it into the final law increased the numbers of beds in detention facilities. Of this, Dow calls it “unconscionable to give DHS more detention capacity. Instead, Congress should establish a permanent independent oversight system to review the legality and humaneness of all current and future immigration detainee cases, and to monitor the treatment of all detainees. Ultimately, detention authority should be removed from DHS except in emergencies and for strictly limited periods. The immigration service has shown its unwillingness and inability to run a humane and lawful detention system.”
Washington sources believe most of the original Sensenbrenner proposals are likely to make it into the new bill. These include:
·“Expedited Removal” – allowing immigration enforcement officers to deport without a hearing any non-citizen not admitted to the U.S. by immigration authorities and who has been here for less than five years. This could result in the summary deportation of people who could face serious harm if deported. According to Human Rights First (HRF), an advocacy group, “These provisions place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review.”
·Summary deportation of battered spouses, children whose unlawful entry into the U.S. was connected to the abuse they suffered, and victims of human trafficking and victims of serious crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, and abduction.
·“Preventing Terrorists from Obtaining Asylum” is, according to HRF, “is NOT about preventing terrorists from getting asylum. Terrorists are already barred from asylum.” This section, the group says, would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor’s central reason for harming them, or had any inconsistencies between statements made to any U.S. government employees and their testimony before an immigration judge.
·Permitting adjudicators to deny asylum because they are unable to provide corroborating evidence of “certain alleged facts pertaining to the specifics of their claim.” This provision, says HRF, “would disproportionately harm asylum seekers who are held in jails and detention facilities, and the many who are not represented by legal counsel.”
·Giving adjudicators broad leeway to deny applicants asylum based on factors such as their perceived “demeanor”.
·Allowing an asylum applicant to be denied asylum on grounds of credibility if the abuse suffered or feared was not documented in the annual country conditions reports of the Department of State.
·Eliminating stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court. According to HRF, “This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported.”
·Eliminating all judicial review for persons claiming protection from removal under the Convention Against Torture (CAT) who are barred from direct review by the court of appeals.
·Requiring that anyone not deported be detained indefinitely. This provision, says HRF, “runs afoul of international legal standards against arbitrary detention. In addition, the Supreme Court has already stated that ‘a statute permitting indefinite detention of an alien would raise a serious constitutional problem’.”
·Allowing the Department of Homeland Security to designate as a “specially dangerous alien” and detain indefinitely anyone who is barred from withholding of removal but has not been granted any protection against removal, while requiring the indefinite detention—without any showing or even allegation of dangerousness.
While the US media has largely focused on border security issues, US asylum policy has come under less scrutiny. However, “The New York Times” wrote in a September 25, 2004 editorial: “In jails and prisons across the United States, thousands of people are detained who have never been accused of crimes. The guards treat them like criminals, and the criminals they bunk with often abuse them. They are held for months, sometimes even years, but unlike the criminals, they do not know when their sentences will end. They receive this treatment because they are foreigners who arrived in the United States saying that they were fleeing persecution at home… They come here chasing America's promised liberty, and they end up in chains…locking up thousands of people who pose no risk and are accused of no crimes is expensive, unnecessary and a betrayal of America's commitment to the persecuted.”
For years, the INS has failed to furnish accurate numbers of asylum-seekers to the Congress, despite a Federal law requiring this data. Thus precise data is difficult to come by. The US Government suggests that there are about 22,000 detainees in US immigration prisons at any one time, and that on average several thousand of these will be asylum-seekers. Non-governmental sources estimate the numbers as many times higher. Other sources have estimated that in 2001, 86,180 people sought asylum in the United States; 68,400 applications were reportedly granted. Yet other sources report that in 2000, there were 48,054 asylum-seekers to the US, and 47,584 cases in the first nine months of 2001. Only a few hundred of the Muslims and Arabs rounded up after September 11th, 2001, were asylum-seekers, but many more were reportedly refugees.
President George W. Bush opposed some of the Sensenbrenner proposals, as well as measures introduced by others, in the bill he signed into law earlier this month. However, it is unclear whether he did so only to facilitate the compromise that allowed the bill to pass. The immigration issue is further complicated by President Bush’s own proposal for a ‘guest worker’ program. This program would grant multi-year work permits to non-citizens, including illegal aliens. The idea has drawn widespread bi-partisan opposition in Congress.
Sunday, December 19, 2004
BACK-PEDALING AT THE TREASURY
By William Fisher
From Washington this week comes proof that high-profile individuals can sometimes force the Bush Administration to reverse some of its anti-human rights policies.
The high-profile individual is Prof. Shirin Ebadi, the Iranian dissident who was the first Muslim woman to win the Nobel Prize. This is the story of how she and her colleagues got the US Treasury Department to stop a certain train wreck.
Prof. Ebadi was told she couldn’t publish her memoirs in the United States because of regulations that prohibit ‘trading with the enemy’. “The enemy”, in Prof. Ebadi’s case, is Iran, against whom the US currently has sanctions. The Trading With The Enemy Act (TWTE), passed in 1917, allows the president to bar transactions during times of war or national emergency. Though the law has been amended to exempt publishers, the Treasury Department continued to rule it illegal “to enhance the value of anything created in Iran without permission” -- including books.
The Department suggested Prof. Ebadi apply for a special license. But instead, Prof. Ebadi and her agent joined a lawsuit filed a month earlier against the Treasury Department by several American organizations representing publishers, editors and translators. These organizations had conducted fruitless negations for more than a year with Treasury’s Office of Foreign Assets Control (OFAC), which administers the TWTE regulations. Prof. Ebadi’s book is described as an effort to "help correct Western stereotypes of Islam, especially the image of Muslim women as docile, forlorn creatures." The TWTE regulations currently apply to countries against which the US has sanctions – Iran, Sudan and Cuba.
The lawsuit said, “At a time when the US calls for citizens of other countries to follow the example of American democracy, preventing writers in certain countries from reaching the American public sends exactly the wrong message. Writers in Iran, Cuba and Sudan cannot publish freely in their own countries. It is a tragic and dangerous irony that Americans may not freely publish the works of those writers here, either.”
“We seek to overturn the regulations on what Americans can and cannot read in the United States”, Prof. Ebadi wrote in “The New York Times” (November 16) about the lawsuit. The suit was filed by the PEN American Center, the Association of American Publishers Professional and Scholarly Publishing division (AAP/PSP), the Association of American University Presses (AAUP), and Arcade Publishing. Arcade is the publisher of PEN’s “Anthology of Iranian Literature”. PEN is a writers’ advocacy group.
Prof. Ebadi wrote that she “was surprised and angered when I learned that regulations in the United States make it nearly impossible for me to write a book for Americans. Despite federal laws that say that American trade embargoes may not restrict the free flow of information, the Treasury Department's Office of Foreign Assets Control continues to regulate the import of books from Iran, Cuba and other countries. In order to skirt the laws protecting the flow of information, the government prohibits publishing ‘materials not fully created and in existence’. Therefore, I could publish my memoir in the United States, but it would be illegal for an American literary agent, publisher, editor or translator to help me.” Rule-breakers are subject to prison sentences of up to 10 years or fines of up to $1,000,000.
Human rights, she said, “including the freedom to read whatever one wishes, are universal values that transcend national boundaries. Therefore, just as I take on court cases in Tehran to defend others' rights, so must I follow my conscience and take on a lawsuit in the United States to defend my own rights and the rights of Americans.”
The organizations asked the court to strike down OFAC regulations that require publishers, writers, and translators to seek a license from the government to perform the routine services necessary to publish foreign literature in the United States.
Those rulings and the regulations they interpret mandate that Americans may not publish work not already published in embargoed countries, promote or market the work, nor provide vaguely defined "artistic or substantive alterations or enhancements" to the work.
Prof. Ebadi and her colleagues charged that the regulations violate both the intention of Congress, articulated in the 1989 Berman Amendment, and the 1994 Free Trade in Ideas Act, which exempts transactions involving "information and informational materials" from embargoed countries, as well as the First Amendment to the US Constitution. The author of the Berman Amendment is Congressman Howard Berman, Democrat of California, who has long been an advocate for the free flow of information from embargoed nations.
In March, Rep. Berman wrote the Treasury Department to criticize its “narrow and misguided interpretation of the law”. He added: “I fail to see how this serves the interests of the United States in any way, shape or form.”
PEN, the AAP/PSP, AAUP, and Arcade contended that OFAC's regulations overreached the office's statutory authority and endangered US citizens' constitutional rights.
Last week, the Treasury Department abruptly reversed its interpretation of the TWTE Act, to largely exempt writers, publishers, editors, translators and literary agents from the regulations governing the publication of informational materials, including medical and scientific publications as well as books, from countries subject to US trade embargoes.
Edward Davis, whose law firm represents the publishing organizations as well as PEN, called the Treasury Department’s decision “a very encouraging first step toward restoring the freedom of expression”, but cautioned that “the government has not yet undone all the restrictions imposed.” He told IPS, “Prof. Ebadi’s reputation and notoriety undoubtedly played a role in getting the government to change its rules.” Davis’s law firm, Davis, Wright, Tremaine, has not yet withdrawn the lawsuit.
There is an ironic twist to the Ebadi story. At the same time the Treasury Department was denying Prof. Ebadi the right to publish her book, the US State Department – which is reportedly in charge of ‘winning the hearts and minds’ of people who live under repressive, authoritarian regimes – was lauding her on its website as one of Iran’s “Voices Struggling To Be Heard.”
The website notes that she was awarded the Nobel Peace Prize in 2003 “for her life-long campaign to protect vulnerable and persecuted groups within Iranian society.” And it quotes the citation from the Norwegian Nobel Committee: “As a lawyer, judge, lecturer, writer and activist, she has spoken out clearly and strongly in her country, Iran and far beyond.”
The State Department website goes on to explain, “Since being forced from her position as the president of the city court of Tehran, she has used her legal expertise to promote and protect some of the most basic and necessary human rights…. she has provided legal representation to many activists who are the targets of government harassment because of dissident opinions and democracy promotion. She has courageously fought for equitable and just treatment for women in Iranian society, and she has also helped to organize efforts to publicize and alleviate the harsh conditions of ‘street children’ in Iran.”
Prof. Ebadi, a former judge who was forced by the Iranian regime to step down from the bench, is now a law professor at the University of Tehran. In her “New York Times” op-ed, Prof. Ebadi wrote, “I cannot publish my memoir in Iran. The book would either be banned altogether or censored to such an extent that it would be rendered useless. Publishing my book in the United States would involve risk and repercussions for me back in Iran. I believe, however, that the message of the book is so important that I will happily accept the risk and its possible consequences.”
The State Department website notes that in 2000 Prof. Ebadi “was arrested and accused of distributing a videotape that implicated prominent hard-line leaders of instigating attacks against advocates of reform. She received a suspended sentence and a professional ban. She was then detained after attending a conference in Berlin on the Iranian reform movement.”
It says she also provided legal representation for “highly politicized and sensitive cases” such as the students killed during the 1999 Tehran University protests by vigilante groups operating under the influence of hard-line clerics, and two prominent political activists who were stabbed to death in 1998 by “rogue” elements within the Intelligence Ministry.
Even President Bush lauds Prof. Ebadi. In Iran, he says, “the demand for democracy is strong and broad as we saw when thousands gathered to welcome home Shirin Ebadi…The regime in Tehran must heed the democratic demands of the Iranian people, or lose its last claim to legitimacy."
.
From Washington this week comes proof that high-profile individuals can sometimes force the Bush Administration to reverse some of its anti-human rights policies.
The high-profile individual is Prof. Shirin Ebadi, the Iranian dissident who was the first Muslim woman to win the Nobel Prize. This is the story of how she and her colleagues got the US Treasury Department to stop a certain train wreck.
Prof. Ebadi was told she couldn’t publish her memoirs in the United States because of regulations that prohibit ‘trading with the enemy’. “The enemy”, in Prof. Ebadi’s case, is Iran, against whom the US currently has sanctions. The Trading With The Enemy Act (TWTE), passed in 1917, allows the president to bar transactions during times of war or national emergency. Though the law has been amended to exempt publishers, the Treasury Department continued to rule it illegal “to enhance the value of anything created in Iran without permission” -- including books.
The Department suggested Prof. Ebadi apply for a special license. But instead, Prof. Ebadi and her agent joined a lawsuit filed a month earlier against the Treasury Department by several American organizations representing publishers, editors and translators. These organizations had conducted fruitless negations for more than a year with Treasury’s Office of Foreign Assets Control (OFAC), which administers the TWTE regulations. Prof. Ebadi’s book is described as an effort to "help correct Western stereotypes of Islam, especially the image of Muslim women as docile, forlorn creatures." The TWTE regulations currently apply to countries against which the US has sanctions – Iran, Sudan and Cuba.
The lawsuit said, “At a time when the US calls for citizens of other countries to follow the example of American democracy, preventing writers in certain countries from reaching the American public sends exactly the wrong message. Writers in Iran, Cuba and Sudan cannot publish freely in their own countries. It is a tragic and dangerous irony that Americans may not freely publish the works of those writers here, either.”
“We seek to overturn the regulations on what Americans can and cannot read in the United States”, Prof. Ebadi wrote in “The New York Times” (November 16) about the lawsuit. The suit was filed by the PEN American Center, the Association of American Publishers Professional and Scholarly Publishing division (AAP/PSP), the Association of American University Presses (AAUP), and Arcade Publishing. Arcade is the publisher of PEN’s “Anthology of Iranian Literature”. PEN is a writers’ advocacy group.
Prof. Ebadi wrote that she “was surprised and angered when I learned that regulations in the United States make it nearly impossible for me to write a book for Americans. Despite federal laws that say that American trade embargoes may not restrict the free flow of information, the Treasury Department's Office of Foreign Assets Control continues to regulate the import of books from Iran, Cuba and other countries. In order to skirt the laws protecting the flow of information, the government prohibits publishing ‘materials not fully created and in existence’. Therefore, I could publish my memoir in the United States, but it would be illegal for an American literary agent, publisher, editor or translator to help me.” Rule-breakers are subject to prison sentences of up to 10 years or fines of up to $1,000,000.
Human rights, she said, “including the freedom to read whatever one wishes, are universal values that transcend national boundaries. Therefore, just as I take on court cases in Tehran to defend others' rights, so must I follow my conscience and take on a lawsuit in the United States to defend my own rights and the rights of Americans.”
The organizations asked the court to strike down OFAC regulations that require publishers, writers, and translators to seek a license from the government to perform the routine services necessary to publish foreign literature in the United States.
Those rulings and the regulations they interpret mandate that Americans may not publish work not already published in embargoed countries, promote or market the work, nor provide vaguely defined "artistic or substantive alterations or enhancements" to the work.
Prof. Ebadi and her colleagues charged that the regulations violate both the intention of Congress, articulated in the 1989 Berman Amendment, and the 1994 Free Trade in Ideas Act, which exempts transactions involving "information and informational materials" from embargoed countries, as well as the First Amendment to the US Constitution. The author of the Berman Amendment is Congressman Howard Berman, Democrat of California, who has long been an advocate for the free flow of information from embargoed nations.
In March, Rep. Berman wrote the Treasury Department to criticize its “narrow and misguided interpretation of the law”. He added: “I fail to see how this serves the interests of the United States in any way, shape or form.”
PEN, the AAP/PSP, AAUP, and Arcade contended that OFAC's regulations overreached the office's statutory authority and endangered US citizens' constitutional rights.
Last week, the Treasury Department abruptly reversed its interpretation of the TWTE Act, to largely exempt writers, publishers, editors, translators and literary agents from the regulations governing the publication of informational materials, including medical and scientific publications as well as books, from countries subject to US trade embargoes.
Edward Davis, whose law firm represents the publishing organizations as well as PEN, called the Treasury Department’s decision “a very encouraging first step toward restoring the freedom of expression”, but cautioned that “the government has not yet undone all the restrictions imposed.” He told IPS, “Prof. Ebadi’s reputation and notoriety undoubtedly played a role in getting the government to change its rules.” Davis’s law firm, Davis, Wright, Tremaine, has not yet withdrawn the lawsuit.
There is an ironic twist to the Ebadi story. At the same time the Treasury Department was denying Prof. Ebadi the right to publish her book, the US State Department – which is reportedly in charge of ‘winning the hearts and minds’ of people who live under repressive, authoritarian regimes – was lauding her on its website as one of Iran’s “Voices Struggling To Be Heard.”
The website notes that she was awarded the Nobel Peace Prize in 2003 “for her life-long campaign to protect vulnerable and persecuted groups within Iranian society.” And it quotes the citation from the Norwegian Nobel Committee: “As a lawyer, judge, lecturer, writer and activist, she has spoken out clearly and strongly in her country, Iran and far beyond.”
The State Department website goes on to explain, “Since being forced from her position as the president of the city court of Tehran, she has used her legal expertise to promote and protect some of the most basic and necessary human rights…. she has provided legal representation to many activists who are the targets of government harassment because of dissident opinions and democracy promotion. She has courageously fought for equitable and just treatment for women in Iranian society, and she has also helped to organize efforts to publicize and alleviate the harsh conditions of ‘street children’ in Iran.”
Prof. Ebadi, a former judge who was forced by the Iranian regime to step down from the bench, is now a law professor at the University of Tehran. In her “New York Times” op-ed, Prof. Ebadi wrote, “I cannot publish my memoir in Iran. The book would either be banned altogether or censored to such an extent that it would be rendered useless. Publishing my book in the United States would involve risk and repercussions for me back in Iran. I believe, however, that the message of the book is so important that I will happily accept the risk and its possible consequences.”
The State Department website notes that in 2000 Prof. Ebadi “was arrested and accused of distributing a videotape that implicated prominent hard-line leaders of instigating attacks against advocates of reform. She received a suspended sentence and a professional ban. She was then detained after attending a conference in Berlin on the Iranian reform movement.”
It says she also provided legal representation for “highly politicized and sensitive cases” such as the students killed during the 1999 Tehran University protests by vigilante groups operating under the influence of hard-line clerics, and two prominent political activists who were stabbed to death in 1998 by “rogue” elements within the Intelligence Ministry.
Even President Bush lauds Prof. Ebadi. In Iran, he says, “the demand for democracy is strong and broad as we saw when thousands gathered to welcome home Shirin Ebadi…The regime in Tehran must heed the democratic demands of the Iranian people, or lose its last claim to legitimacy."
.
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