By William Fisher
His name is Clare Callan.
He is a feisty 85-year-old former congressman from rural Nebraska.
And he is asking the Supreme Court to declare that President Bush had no legal authority to go to war in Iraq.
Mr. Callan does not see himself as Don Quixote. He is not asking the Supreme Court to end the war. He is a World War II veteran served on a US Navy destroyer in the Pacific, who is proud of the US military, proud of his own service, and proud of the troops fighting in Iraq.
But he believes that president violated the Constitution when he sent American troops into harm’s way. Now, he wants the nation’s highest court to say so.
Here’s his case:
When Congress passed the Iraq Resolution, it specifically made it subject to the War Powers Resolution of 1973, known as the War Power Act. The Iraq resolution was definite. “Nothing in this joint resolution supersedes any requirement of the War Powers Resolution,” the Resolution said. It did not give the President authority to take the nation to war. It granted him only the right to determine whether the standards required by War Powers Act Congress had been met.
The War Powers Act was passed near the end of the Vietnam War in an effort to ensure that future Congresses would be less likely to abdicate their constitutional responsibility to decide whether the nation should go to war.
To justify going to war, the War Powers Act sets out several criteria. Most important of these is "clear" evidence of an "imminent" threat to US security. The words "clear" and “imminent” are used repeatedly in the War Powers Act to describe situations where US military force is permitted.
In the run-up to the invasion – and ever since -- the president inexplicably went out of his way to avoid using the words “clear” and “imminent”. He described the threat from Iraq with many adjectives such as “growing” and “gathering”. But, while some of his surrogates, including his then press secretary, Ari Fleisher, declared the threat “imminent”, the president never did.
Mr. Callan’s suit charges that the president thereby failed to meet his Constitutional obligation.
Mr. Callan filed his suit in a US Circuit Court three years ago. It has been rejected and appealed multiple times since then, finally working its way up to the Supreme Court. When the Court met last month to decide the cases it would hear in its next session, it too rejected Mr. Callan. But, undeterred, he is now preparing a petition for rehearing, and hopes the Court will finally listen to his complaint.
Mr. Callan – whose favorite pastime is talking politics with his fellow veterans who gather at the Moose Lodge in Odell, Nebraska – served one term as a Democrat in the 89th Congress, when Lyndon Johnson was president. He stayed in Washington for a time after losing a reelection bid, and had several jobs including deputy director of the Rural Electrification Administration. He has financed his current legal battle from his own pocket – and thinks it’s money well spent.
“We all saw what happened when President Johnson fabricated a pretext for going to war in Vietnam. The War Powers Act was passed to prevent future presidents from doing that ever again, “ he says.
Ironically, some of the nation’s best-known conservatives appear to be on Mr. Callan’s side. For example, in a January 13 appearance televised on C-Span, Supreme Court Justices Antonin Scalia and Stephen Breyer agreed that “being the right thing to do” should play no role in how judges enforce the law.
Both Justices agreed that it is not the job of the Supreme Court to do what they personally think is "morally right. Justice Scalia said the court should not be so “arrogant” as to believe that our "moral" standards should be applied to interpret the law. He said: Although the law "cannot become divorced from life," no one should substitute his judgment for that of the legislature. Majority sentiment expressed by the election of a President does not empower any President to act above the law or to slant interpretation of the law to conform to a predetermined agenda.
Many conservative pundits agree. For example, in an August 4 edition of “The Beltway Boys” on Fox News, panelists agreed that Bush never labeled the Iraqi threat "imminent" -- only "urgent". Morton M. Kondracke, executive editor of Roll Call, said, “I think everybody would agree that the word ‘imminent’ was the crucial word, over which the fight took place. And in the case of Iraq, clearly there was not an imminent threat, and Bush didn't say there was.” Fred Barnes, executive editor of the Weekly Standard, agreed: President Bush “said the opposite”.
US Senator Jon Kyl, a Republican from Arizona, in a speech on March 12, 2004, said, “"One of the great myths generated by the president's opponents is that he justified action by claiming the threat posed by Saddam's regime was imminent. Well, the stubborn fact is, that wasn't the president's claim -- in fact, he specifically disclaimed that rationale for his decision.”
Kyl recalled the president’s 2003 State of the Union address, when the president stated: "Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late.”
The Bush administration defends the war on Iraq as “right,” regardless of the evidence, now, or before the war, and provides further justification for the war by arguing that the war in Iraq has made us safer. However, as Justice Scalia said, “Right is not necessarily legal.”
Mr. Callan hopes that, belatedly, the Supreme Court will find it illegal.
Monday, January 17, 2005
Friday, January 14, 2005
CYBERSPIN
By William Fisher
It’s a pity that all the Bush Administration cabinet-level posts have been filled, because there is at least one undiscovered candidate: The White House Webmaster.
I discovered his work yesterday while surfing the web. Here’s a sample:
Under the heading “Disarm Saddam Hussein”, the surfer will find this text:
“The gravest danger we face in the war on terror is outlaw regimes that seek and possess nuclear, chemical and biological weapons.
“Twelve years ago, Saddam Hussein agreed to disarm all weapons of mass destruction. For 12 years, he systematically violated that agreement.
“Three months ago, the United Nations Security Council gave Saddam his final chance to disarm. He has shown his utter contempt for the U.N.
“The U.N. and U.S. intelligence sources have known for some time that Saddam Hussein has materials to produce chemical and biological weapons, but he has not accounted for them:
· 26,000 liters of anthrax—enough to kill several million people
· 38,000 liters of botulinum toxin
· 500 tons of sarin, mustard and VX nerve agents
· Almost 30,000 munitions capable of delivering chemical agents
“From three Iraqi defectors, we know that Iraq in the late 1990s had several mobile biological weapons labs. But he has not disclosed them.
“The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, a design for a nuclear weapon, and was working on methods of enriching uranium for a nuclear bomb. He recently sought significant quantities of uranium from Africa, according to the British Government. He has attempted to purchase high strength aluminum tubes suitable for nuclear weapons, according to our intelligence sources. Yet he has not credibly explained these activities.
“Thousands of Iraqi security personnel are at work hiding documents and materials from the UN inspectors.
“Iraqi officials accompany all inspectors in order to intimidate witnesses.
Iraq is blocking U-2 surveillance flights requested by the U.N.
“Saddam Hussein has ordered that scientists who cooperate with the UN be killed, along with their families.
“Saddam Hussein aids and protects terrorists, including al-Qaida members. He could provide hidden weapons to terrorists, or help them develop their own. It would take just one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known.
“The United States will ask the UN Security Council to convene next week to consider the facts of Iraq’s ongoing defiance of the world. We will consult. But if Saddam Hussein does not disarm, we will act for the safety of our people, and for the peace of the world.”
But while this Webmaster is obviously gifted, he’s not entitled to all the credit. In all fairness, a lot of it needs to go to those wonderful folks who gave us “the mushroom cloud” and other utterances designed to scare us into war. These would surely include Messrs. Bush, Cheney, Rumsfeld, Powell, Wolfowitz, Feith, Ms. Rice, and the rest of the Administration’s coterie of imperators.
You may not think what’s on the White House website is important, but you’re wrong. Millions of people visit this oasis of spin and depend on it for reliable information. Like the stockpiles of anthrax, botulinum toxin, mustard and VX nerve agents, and munitions capable of delivering chemical agents. Like the
mobile biological weapons labs, the advanced nuclear weapons development program, the design for a nuclear weapon, the enrichment of uranium for a nuclear bomb, the significant quantities of uranium he was trying to buy from Africa, and his high strength aluminum tubes suitable for nuclear weapons. And we shouldn’t ignore Saddam’s protection of terrorists, including al-Qaida members.
In an organization as large as The White House, I suppose that breakdowns in communications are inevitable from time to time. But it’s now time someone told The White House Webmaster that his material is just a tad outdated, superseded by the reports of Dr. Kay, Mr. Duelfer, and the 9/11 Commission.
But all is not lost for the Webmaster. I can’t think of a more deserving recipient of the next Medal of Honor.
It’s a pity that all the Bush Administration cabinet-level posts have been filled, because there is at least one undiscovered candidate: The White House Webmaster.
I discovered his work yesterday while surfing the web. Here’s a sample:
Under the heading “Disarm Saddam Hussein”, the surfer will find this text:
“The gravest danger we face in the war on terror is outlaw regimes that seek and possess nuclear, chemical and biological weapons.
“Twelve years ago, Saddam Hussein agreed to disarm all weapons of mass destruction. For 12 years, he systematically violated that agreement.
“Three months ago, the United Nations Security Council gave Saddam his final chance to disarm. He has shown his utter contempt for the U.N.
“The U.N. and U.S. intelligence sources have known for some time that Saddam Hussein has materials to produce chemical and biological weapons, but he has not accounted for them:
· 26,000 liters of anthrax—enough to kill several million people
· 38,000 liters of botulinum toxin
· 500 tons of sarin, mustard and VX nerve agents
· Almost 30,000 munitions capable of delivering chemical agents
“From three Iraqi defectors, we know that Iraq in the late 1990s had several mobile biological weapons labs. But he has not disclosed them.
“The International Atomic Energy Agency confirmed in the 1990s that Saddam Hussein had an advanced nuclear weapons development program, a design for a nuclear weapon, and was working on methods of enriching uranium for a nuclear bomb. He recently sought significant quantities of uranium from Africa, according to the British Government. He has attempted to purchase high strength aluminum tubes suitable for nuclear weapons, according to our intelligence sources. Yet he has not credibly explained these activities.
“Thousands of Iraqi security personnel are at work hiding documents and materials from the UN inspectors.
“Iraqi officials accompany all inspectors in order to intimidate witnesses.
Iraq is blocking U-2 surveillance flights requested by the U.N.
“Saddam Hussein has ordered that scientists who cooperate with the UN be killed, along with their families.
“Saddam Hussein aids and protects terrorists, including al-Qaida members. He could provide hidden weapons to terrorists, or help them develop their own. It would take just one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known.
“The United States will ask the UN Security Council to convene next week to consider the facts of Iraq’s ongoing defiance of the world. We will consult. But if Saddam Hussein does not disarm, we will act for the safety of our people, and for the peace of the world.”
But while this Webmaster is obviously gifted, he’s not entitled to all the credit. In all fairness, a lot of it needs to go to those wonderful folks who gave us “the mushroom cloud” and other utterances designed to scare us into war. These would surely include Messrs. Bush, Cheney, Rumsfeld, Powell, Wolfowitz, Feith, Ms. Rice, and the rest of the Administration’s coterie of imperators.
You may not think what’s on the White House website is important, but you’re wrong. Millions of people visit this oasis of spin and depend on it for reliable information. Like the stockpiles of anthrax, botulinum toxin, mustard and VX nerve agents, and munitions capable of delivering chemical agents. Like the
mobile biological weapons labs, the advanced nuclear weapons development program, the design for a nuclear weapon, the enrichment of uranium for a nuclear bomb, the significant quantities of uranium he was trying to buy from Africa, and his high strength aluminum tubes suitable for nuclear weapons. And we shouldn’t ignore Saddam’s protection of terrorists, including al-Qaida members.
In an organization as large as The White House, I suppose that breakdowns in communications are inevitable from time to time. But it’s now time someone told The White House Webmaster that his material is just a tad outdated, superseded by the reports of Dr. Kay, Mr. Duelfer, and the 9/11 Commission.
But all is not lost for the Webmaster. I can’t think of a more deserving recipient of the next Medal of Honor.
Thursday, January 13, 2005
THE MORAL HIGH GROUND?
By William Fisher
Here is a sure-fire nomination for the most outrageous quote of the week: “Accusations that we are torturing people tend to be mythology.”
These are the words an un-named Egyptian official questioned by The Washington Post about prisoner abuse.
Here are the facts of the case The Post was enquiring about. The reader can decide who was doing what to whom.
An Egyptian-born Australian citizen, currently a prisoner at the U.S. Naval base at Guantanamo Bay, Cuba, charges that the US Government forcibly transferred him to Egypt, where he was tortured for six months. He has petitioned a US Federal Court to block plans to send him back to an Egyptian prison a second time.
Mamdouh Habib alleges that while in Egyptian custody he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten. He contends that under US and international law, he cannot be sent back. The US accuses Habib of training and raising money for al Qaeda, and say he had advance knowledge of the Sept. 11, 2001, attacks. Australian media report that in 2001, authorities there cleared him of having terrorist connections.
In a surprise announcement on January 11, the Pentagon said they would release Habib and four remaining British men on the grounds that ''the governments of the United Kingdom (Britain) and Australia have accepted responsibility for these individuals and will work to prevent them from engaging in or otherwise supporting terrorist activities in the future.'' US authorities obviously do not want this case aired in any US court.
But Habib intends to pursue his legal action against the US Government. What Habib is challenging is a highly secret US practice: the outsourcing of torture. The practice is known as ‘rendering’. It involves transferring detainees to countries where there are no de facto restrictions on prisoner abuse. It is used to obtain confessions and “intelligence” under duress, or because there is insufficient evidence to try them in US courts.
Egypt, Saudi Arabia, Syria and Yemen, are high on the list of destinations. And for good reason. Their practices of torture and death in detention have been widely criticized by international and indigenous human rights advocates for many years, and by the US State Department in successive editions of its Annual Report on Human Rights. Because of their close ‘strategic relationship’, Egypt has been a CIA favorite.
According to terrorism expert Peter Bergen, a fellow of the New America Foundation and adjunct professor at Johns Hopkins University's School of Advanced International Studies, “Egypt routinely tortures political prisoners, untroubled by fears that other Arab leaders will seriously condemn such actions.”
This view is shared by Human Rights Watch. In a briefing paper entitled “Egypt’s Torture Epidemic”, HRW says, “Torture in Egypt is a widespread and persistent phenomenon. Security forces and the police routinely torture or ill-treat detainees, particularly during interrogation.”
The Egyptian Organization for Human Rights (EOHR) in Cairo reports that “Deaths in custody as a result of torture and ill-treatment have shown a
disturbing rise. Egyptian human rights organizations report at least ten cases in 2002 and seven in 2003. There were four deaths in custody during the September-November 2003 period alone.
US Congressional testimony confirms that the Central Intelligence Agency (CIA) engages in “renditions”. However, the Bush Administration says it always seeks “diplomatic assurances” from foreign governments that they will treat the captives humanely. Advocacy groups such as Human Rights Watch and Amnesty have found that such assurances are routinely violated.
According to a memorandum filed in US District Court in the District of
Columbia, Habib was arrested in Pakistan in October 2001. He claims that three Americans interrogated him over a period of weeks. He says he was then taken to an airfield where he was beaten by Americans. One cut off his clothes, while another placed a foot on his neck "and posed while another took pictures," the document says.
Court papers allege he was then flown to Egypt, and spent six months in custody. During interrogations, Habib was alleges he was suspended from hooks, with his is feet resting on the side of a large cylindrical drum attached to wires and a battery. "When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity" went through the drum, it says. "The action of Mr. Habib 'dancing' on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib finally fainted."
At other times, the petition alleges, he was placed in ankle-deep water that his
interrogators told him "was wired to an electric current, and that unless Mr.
Habib confessed, they would throw the switch and electrocute him." Habib says he gave false confessions to stop the abuse.
The legal authority for “renditions” is based on an Executive Order signed by President Bill Clinton, and reportedly summarized in a 2002 memo entitled "The President's Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations." According to The Washington Post, “knowledgeable US officials said White House counsel Alberto R. Gonzales participated in its production.”
During Mr. Gonzales’s Senate confirmation hearings on his nomination to be the next Attorney General, Sen. Patrick Leahy, a Democrat from Vermont, criticized the Bush Administration for refusing a Congressional request to make the memo public. But an August 2002 Justice Department opinion defines torture narrowly and concludes that the president could legally permit torture in fighting terrorism. The Senate hearings confirmed that Gonzales asked for and helped draft the memorandum.
Shortly before Gonzales’s confirmation hearings began, the Justice Department replaced the 2002 memo after two years on its website as official government policy. The new version follows the provisions of the UN Convention Against Torture, which prohibits torture without exception.
During his confirmation hearing, Mr. Gonzales was asked by Senator Dick Durbin, a Democrat from Illinois, if it would be illegal for the US to turn a prisoner over to a country that would torture him. Mr. Gonzales said: "Under my understanding of the law, we have an obligation not to render someone” to a country that we know practices torture. He said “It would be illegal if US officials were involved.”
Only one other court case has challenged “rendering”. It was brought by the Syrian-born Canadian citizen, Maher Arar, who claims he was detained at New York’s Kennedy Airport after arriving from Tunisia enroute to his home in Canada, and shipped off the Syria, where he alleges he was imprisoned and tortured for ten months before being set free without charge. The case is now pending.
In continuing this obscene practice, the US is once again shooting itself in the foot. There are three reasons. First, in a time when the entire world is ‘wired’, it is no longer possible to keep secret operations secret for very long. Second, many old hands at the CIA believe rendering to be a waste of resources; torture consistently yields unreliable confessions. Finally, America likes to believe it occupies the moral high ground in just about everything; there is nothing moral about torture, whether at Abu Ghraib or Guantanamo Bay, or in Cairo or Riyadh, or Sana´a.
Here is a sure-fire nomination for the most outrageous quote of the week: “Accusations that we are torturing people tend to be mythology.”
These are the words an un-named Egyptian official questioned by The Washington Post about prisoner abuse.
Here are the facts of the case The Post was enquiring about. The reader can decide who was doing what to whom.
An Egyptian-born Australian citizen, currently a prisoner at the U.S. Naval base at Guantanamo Bay, Cuba, charges that the US Government forcibly transferred him to Egypt, where he was tortured for six months. He has petitioned a US Federal Court to block plans to send him back to an Egyptian prison a second time.
Mamdouh Habib alleges that while in Egyptian custody he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten. He contends that under US and international law, he cannot be sent back. The US accuses Habib of training and raising money for al Qaeda, and say he had advance knowledge of the Sept. 11, 2001, attacks. Australian media report that in 2001, authorities there cleared him of having terrorist connections.
In a surprise announcement on January 11, the Pentagon said they would release Habib and four remaining British men on the grounds that ''the governments of the United Kingdom (Britain) and Australia have accepted responsibility for these individuals and will work to prevent them from engaging in or otherwise supporting terrorist activities in the future.'' US authorities obviously do not want this case aired in any US court.
But Habib intends to pursue his legal action against the US Government. What Habib is challenging is a highly secret US practice: the outsourcing of torture. The practice is known as ‘rendering’. It involves transferring detainees to countries where there are no de facto restrictions on prisoner abuse. It is used to obtain confessions and “intelligence” under duress, or because there is insufficient evidence to try them in US courts.
Egypt, Saudi Arabia, Syria and Yemen, are high on the list of destinations. And for good reason. Their practices of torture and death in detention have been widely criticized by international and indigenous human rights advocates for many years, and by the US State Department in successive editions of its Annual Report on Human Rights. Because of their close ‘strategic relationship’, Egypt has been a CIA favorite.
According to terrorism expert Peter Bergen, a fellow of the New America Foundation and adjunct professor at Johns Hopkins University's School of Advanced International Studies, “Egypt routinely tortures political prisoners, untroubled by fears that other Arab leaders will seriously condemn such actions.”
This view is shared by Human Rights Watch. In a briefing paper entitled “Egypt’s Torture Epidemic”, HRW says, “Torture in Egypt is a widespread and persistent phenomenon. Security forces and the police routinely torture or ill-treat detainees, particularly during interrogation.”
The Egyptian Organization for Human Rights (EOHR) in Cairo reports that “Deaths in custody as a result of torture and ill-treatment have shown a
disturbing rise. Egyptian human rights organizations report at least ten cases in 2002 and seven in 2003. There were four deaths in custody during the September-November 2003 period alone.
US Congressional testimony confirms that the Central Intelligence Agency (CIA) engages in “renditions”. However, the Bush Administration says it always seeks “diplomatic assurances” from foreign governments that they will treat the captives humanely. Advocacy groups such as Human Rights Watch and Amnesty have found that such assurances are routinely violated.
According to a memorandum filed in US District Court in the District of
Columbia, Habib was arrested in Pakistan in October 2001. He claims that three Americans interrogated him over a period of weeks. He says he was then taken to an airfield where he was beaten by Americans. One cut off his clothes, while another placed a foot on his neck "and posed while another took pictures," the document says.
Court papers allege he was then flown to Egypt, and spent six months in custody. During interrogations, Habib was alleges he was suspended from hooks, with his is feet resting on the side of a large cylindrical drum attached to wires and a battery. "When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity" went through the drum, it says. "The action of Mr. Habib 'dancing' on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib finally fainted."
At other times, the petition alleges, he was placed in ankle-deep water that his
interrogators told him "was wired to an electric current, and that unless Mr.
Habib confessed, they would throw the switch and electrocute him." Habib says he gave false confessions to stop the abuse.
The legal authority for “renditions” is based on an Executive Order signed by President Bill Clinton, and reportedly summarized in a 2002 memo entitled "The President's Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations." According to The Washington Post, “knowledgeable US officials said White House counsel Alberto R. Gonzales participated in its production.”
During Mr. Gonzales’s Senate confirmation hearings on his nomination to be the next Attorney General, Sen. Patrick Leahy, a Democrat from Vermont, criticized the Bush Administration for refusing a Congressional request to make the memo public. But an August 2002 Justice Department opinion defines torture narrowly and concludes that the president could legally permit torture in fighting terrorism. The Senate hearings confirmed that Gonzales asked for and helped draft the memorandum.
Shortly before Gonzales’s confirmation hearings began, the Justice Department replaced the 2002 memo after two years on its website as official government policy. The new version follows the provisions of the UN Convention Against Torture, which prohibits torture without exception.
During his confirmation hearing, Mr. Gonzales was asked by Senator Dick Durbin, a Democrat from Illinois, if it would be illegal for the US to turn a prisoner over to a country that would torture him. Mr. Gonzales said: "Under my understanding of the law, we have an obligation not to render someone” to a country that we know practices torture. He said “It would be illegal if US officials were involved.”
Only one other court case has challenged “rendering”. It was brought by the Syrian-born Canadian citizen, Maher Arar, who claims he was detained at New York’s Kennedy Airport after arriving from Tunisia enroute to his home in Canada, and shipped off the Syria, where he alleges he was imprisoned and tortured for ten months before being set free without charge. The case is now pending.
In continuing this obscene practice, the US is once again shooting itself in the foot. There are three reasons. First, in a time when the entire world is ‘wired’, it is no longer possible to keep secret operations secret for very long. Second, many old hands at the CIA believe rendering to be a waste of resources; torture consistently yields unreliable confessions. Finally, America likes to believe it occupies the moral high ground in just about everything; there is nothing moral about torture, whether at Abu Ghraib or Guantanamo Bay, or in Cairo or Riyadh, or Sana´a.
Tuesday, January 11, 2005
THE LIGHT IS GOING OUT
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."
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."
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.
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