By William Fisher
Congressional Democrats and many Washington journalists are predicting that House Speaker Nancy Pelosi’s current dispute with the Central Intelligence Agency may ultimately hasten the push toward the last thing Republicans want -- a comprehensive investigation of prisoner detention and interrogation during the administration of former President George W. Bush.
The Pelosi controversy centers on whether the House’s top Democrat was briefed in 2002 by the Central Intelligence Agency (CIA) that waterboarding and other abusive interrogation techniques were being used when she was chair of the House Intelligence Committee.
Pelosi says the CIA told her waterboarding was not being used; she has accused the agency of misleading Congress. The CIA claims it informed her, as well as a small number of other Congressional leaders.
While President Barack Obama appears to be ambivalent about a comprehensive look-back, many of Pelosi’s House colleagues – and much of the media -- are ramping up their calls for an independent 9/11-type commission to investigate not only what Pelosi knew and when she knew it, but what happened to detainees during the Bush years.
If there is a full-blown investigation of Bush-era policies, it is sure to drill down into the CIA’s activities following the terrorist attacks of September 11, 2001, and in the year-long run-up to the 2003 U.S. invasion of Iraq.
There is little dispute that the CIA played a major role in the interrogation of terror suspects during that period. Public disclosure of what the CIA did – and testimony about who authorized, approved, and implemented it -- is likely to be a major embarrassment for Republicans who controlled the White House and both chambers of Congress at the time.
A recent Senate hearing on torture provides a measure of just how embarrassing such revelations could be.
That hearing revealed two claims that went largely unreported in mainstream media accounts.
The first claim was intended to debunk the widely-held view that the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) were at odds about the effectiveness of harsh interrogation practices. Testimony at the hearing suggested that the two agencies were in agreement.
The second claim was that CIA operatives were responsible for the application of abusive interrogation practices. But testimony asserted that these interrogations were carried out by private contractors, and that CIA personnel present at the time agreed with the FBI that the so-called “enhanced techniques” were unnecessary and counterproductive.
Both these claims came from a former FBI special agent, Ali Soufan, an interrogator who helped question Abu Zubaydah — the first high-value detainee in American custody. Soufan spoke to the Senate committee from behind a partition that concealed his identity to protect his personal security.
Soufan testified that he had built a relationship with Abu Zubaydah using traditional FBI interrogation technques and was getting valuable information.
He said both agencies wanted to continue this approach, but were overruled by “headquarters.” But the identity and location of the “headquarters” and the identity of the CIA contractors remains shrouded in mystery.
Soufan told the Senate hearing that after the FBI was asked to leave, CIA contractors waterboarded Zubaydah 183 times in a single month.
He testified that the people on the ground who pushed hardest for abusive interrogations were CIA contractors. "The interrogation team was a combination between FBI and CIA, and all of us had the same opinion that contradicted with the contractor. The contractors had to keep requesting authorization to use harsher and harsher methods," he said.
In his written testimony, Soufan said contractors used nudity, sleep deprivation, loud noise and temperature manipulation against Zubaydah. The timeline indicates that this was done before the Justice Department had provided written legal authority to use these techniques.
He also testified that the CIA contractors had no interrogation experience.
In the recently released Justice Department memos defining torture, there is no mention of CIA contractors, and that may help explain why there have been no lawsuits against them. Another is the secrecy that has traditionally enveloped all CIA activities, including its interrogation program.
President Barack Obama and Attorney General Eric Holder have granted immunity to CIA operatives who believed they were acting under legal opinions approved by the Justice Department. But the Obama Administration has said nothing about contractors.
CIA Director Leon Panetta has now barred contractors from carrying out interrogations. But even if the identities of the CIA contract interrogators were known, suing them might present formidable legal challenges. For example, the Military Commissions Act passed by Congress in 2006 includes a provision that immunizes contractors from lawsuits.
While some in the human rights community believe that provision to be unconstitutional, it has not yet been tested in any U.S. court. However, there are a number of civil lawsuits ongoing or pending against military contractors, including Blackwater and CACI.
What is known is that CIA contract interrogators attended the school used by the Army to conduct a program known as SERE, an acronym for Survival, Evasion, Resistance and Escape. The SERE program was designed to train Army Special Forces personnel to resist torture if they were captured
It is also known that two military psychologists, James Mitchell and Bruce Jessen, who were key figures in designing the SERE program, left the CIA to create a private company called Mitchell Jessen & Associates, located in Spokane, Washington. That company then won a contract from the CIA to help it “reverse engineer” SERE so that it could be used to interrogate suspected terrorists
There is a growing body of evidence suggesting that the Mitchell-Jessen program – which employed most of the techniques now considered to be torture – was initiated before the Justice Department’s Office of Legal Counsel (OLC) issued its memos confirming the legality of these techniques.
That evidence suggests that while the Bush White House, the Vice President’s office and Justice Department lawyers were beginning to build the legal framework for torture, the two psychologists were already designing the interrogation techniques.
In an article on Vanity Fair's Web site reported that the high-value detainee Mitchell appears to have helped interrogate in March 2002 was Abu Zubaydah. Similar reports have appeared elsewhere; for example, in an article by Mark Benjamin in Salon.com, and by The New Yorker magazine’s Jane Mayer, in her book, “The Dark Side.”
The Vanity Fair article says that, “as Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the CIA team began building a coffin in which they planned to bury the detainee alive.”
It continues: “CIA superiors reportedly overruled the suggestion to bury Zubaydah.” But according to Vanity Fair, Mitchell, along with fellow psychologist, Bruce Jessen, "reverse-engineered the tactics inflicted on SERE trainees":
“The C.I.A. put them in charge of training interrogators in the brutal techniques, including waterboarding at its network of "black sites,” the magazine says. In a statement, Mitchell and Jessen are quoted as saying, "We are proud of the work we have done for our country," the magazine reported.
Allegedly under Mitchell's guidance, interrogators used waterboarding with "far greater frequency than initially indicated" -- a total of 183 times in a month for Khalid Sheikh Mohammed – the alleged mastermind of the 9/11 attacks -- and 83 times in a month for Abu Zubaydah.
And media reports suggest that the main focus of the Zubaydah interrogation was to establish a connection betweeen al-Qaeda and Saddam Hussein’s regime in Iraq.
The CIA was secretly granted broad authority by President Bush days after 9/11 to target terrorists worldwide. Both the military and the spy agency were therefore following a policy approved at the highest levels of the Bush Administration.
The roles played by Mitchell, Jesson and other health professionals in the CIA interrogation programs have caused a firestorm in the psychologist community. Under pressure from many of its members, the American Psychological Association has passed a resolution barring its members from participating in similar programs in the future.
A cornucopia of politically charged information is virtually certain to surface if the Pelosi-CIA contretemps leads to formation of a commission to conduct an independent investigation.
If such a commission is formed, much of its work will likely be conducted behind closed doors. The public may initially learn very little about the details because virtually all the CIA-related material will be classified and it will probably take considerable time for a declassified version of the body’s report to become available publicly.
But many in Washington are saying that, even absent an official investigation, much more information about the CIA’s detention and interrogation practices is likely to find its way to the media in dribs and drabs.
About which we should all say: Bring it on!”
.
Tuesday, May 19, 2009
OBAMA CONSIDERING NATIONAL SECURITY COURTS
By William Fisher
The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.
Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.
But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.
While the idea of such a new court system is generally supported by conservatives, that support is far from universal.
Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.
Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as “the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!”
Fein believes the regular Federal court system should be the venue for terrorism trials.
He told IPS, “Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA).”
CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.
Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."
He said the Obama administration “has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell’s 1984!”
Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.
Prof. Francis Boyle of the University of Illinois law school agrees. He told IPS, “The proposal to establish a ‘National Security Court’ here in the United States would constitute a U.S. Constitutional abomination.”
“It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic,” he said, adding,
“U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind,” he said.
A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told IPS,
“The basic problem with National Security Courts is similar to that with military commissions or other second-tier systems not offering the full panoply of basic human rights and civil liberties to defendants: they posit a category of people (suspected terrorists) purportedly not entitled to basic constitutional and human rights including a full and genuine presumption of innocence with the associated opportunities to fairly defend themselves.”
He added, “These have been the very concerns prompting the U.S. to routinely object when such courts are used by other countries.”
He said, “The bottom-line is that such courts – like military commissions applying outside of the usual circumstances (real-world war, with battlefields etc) – are neither needed nor a good idea. They would risk being broadened and subjected to mission creep, but even if they can be limited to the circumstances contemplated would be an alarming step along the road toward a very different country indeed from what our founders envisioned.”
“The rule of law, by contrast, has proven to be a pretty good idea, along with its associated notions of human rights/civil liberties,” he said.
Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, believes the establishment of National Security Courts “would be a terrible mistake.”
He told IPS that these new courts “would institutionalize many of the worst features of Bush administration policies, perpetuating both indefinite detention and trial of terrorism suspects outside the established federal criminal courts.”
He added, “National security court proposals are riddled with constitutional flaws including reliance on secret evidence, elimination of core constitutional safeguards like the right to confront one's accusers, and the absence of protections against the use of evidence obtained by coercion. While they might be sold as a reform measure, national security courts are part of an agenda to continue the failed Guantanamo system rather than to end it.”
Brian J. Foley, Visiting Associate Professor at the Boston University law school, says U.S. detention policy “needs rethinking.”
He told IPS, “The current Guantanamo system has rules that are too soft and allow roundups of suspected terrorists based on unreliable evidence. Interrogating these people using harsh methods leads to false confessions and other statements calculated to end the abuse. Threatening them with trial by what amounts to a kangaroo court will also cause many to confess falsely.”
He says the result is that “U.S. anti-terror officials end up with a false picture of the enemy and waste their time chasing false leads and phantoms, which can distract them from actual terrorists. If the U.S. is to have a special court system for terrorists, it should be focused on coming to accurate results, not simply politically expedient convictions.”
Foley sees the current debate as an “opportunity for policymakers to think really hard about accuracy and about how rules can foster accuracy.”
He explains: “Most discussions right now are 'rights'- based. Accuracy, though, should be the focus on any such new court system”
He said he is “not convinced that alleged terrorists and war criminals and war criminals should not be tried in our regular courts. It would be easier to tinker with the existing system (which has developed slowly over the years) if necessary rather than building an entirely new one.”
Mark Shulman, a professor at the Pace University law school, sees an ominous similarity between the current discussion and the experiences of other countries.
“National security or terrorist courts in other countries offer troubling lessons, mostly because of their implications for the respect for civil liberties generally -- not only of the accused, but of the wider population,” he said, adding,
“Existing proposals to create such a court in the United States inadequately account for this risk, or explain how it would be minimized or mitigated. “Emergency systems in other countries have invariably reduced civil liberties for the general population.”
He emphasized that “it is important to recognize that these emergency systems in such diverse jurisdictions as Great Britain, Malaysia, and South Africa have diminished freedoms for society as a whole.”
The administration of President Barack Obama is considering the creation of a national security court to try cases in which there is enough reliable intelligence to hold a foreign terrorism suspect in preventive detention, but not enough to bring a case in federal court or even through military commissions.
Human rights advocates and legal experts confirm that the new institution is among the options being considered by the Justice Department Task Force Obama created to determine how best to adjudicate the cases of suspected terrorists held at the U.S. naval base at Guantanamo Bay, Cuba. Obama has pledged to close that detention center by January 2010.
But the idea of establishing a National Security Court is attracting widespread criticism because it would mean keeping some terrorism suspects on U.S. soil indefinitely.
While the idea of such a new court system is generally supported by conservatives, that support is far from universal.
Sen. Lindsey Graham, a conservative Republican from South Carolina and a military judge in the Air Force Reserve, notes the legal difficulties that would arise from a National Security Court. "How do you hold someone in prison without a trial indefinitely?" he asked.
Another prominent conservative, Bruce Fein, who served in the Justice Department under President Ronald Reagan, described the issues surrounding detention and trial of alleged terrorists as “the most important the Republic has confronted since the Civil War as to what America means. It should not mean Empire!”
Fein believes the regular Federal court system should be the venue for terrorism trials.
He told IPS, “Shortly after 9/11, Michael Chertoff, then head of the Criminal Division of DOJ, testified before the Senate Judiciary Committee that Article III federal courts have performed brilliantly in the trials of terrorism cases assisted by the Classified Information Procedures Act of 1980 (CIPA).”
CIPA enables trials without disclosing national security secrets where a summary of the incriminating evidence is sufficient to enable the accused to conduct a fair defense.
Fein says Chertoff told the Senate Judiciary Committee that "the history of this Government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information."
He said the Obama administration “has failed to adduce a crumb of evidence, experience, or intuition suggesting that a national security court is necessary to secure justice -- unless the term is meant to include convicting the innocent like a page from Orwell’s 1984!”
Since 9/11, Federal courts have tried approximately 120 terror-related cases, with defendants including some considered among the most dangerous.
Prof. Francis Boyle of the University of Illinois law school agrees. He told IPS, “The proposal to establish a ‘National Security Court’ here in the United States would constitute a U.S. Constitutional abomination.”
“It would simply import the Gitmo Kangaroo Courts into the United States itself and purport to render these U.S. domestic kangaroo national security courts part of our longstanding constitutional system for the administration of justice going back to the foundation of our Republic,” he said, adding,
“U.S. domestic kangaroo National Security Courts would debase and degrade and corrupt and ultimately co-opt America's Article III Federal Court system, up to and including the U.S. Supreme Court. They would be one step removed from establishing a police state, which is really what their proponents have in mind,” he said.
A similar view is expressed by Chip Pitts, president of the Board of Directors of the Bill of Rights Defense Committee. He told IPS,
“The basic problem with National Security Courts is similar to that with military commissions or other second-tier systems not offering the full panoply of basic human rights and civil liberties to defendants: they posit a category of people (suspected terrorists) purportedly not entitled to basic constitutional and human rights including a full and genuine presumption of innocence with the associated opportunities to fairly defend themselves.”
He added, “These have been the very concerns prompting the U.S. to routinely object when such courts are used by other countries.”
He said, “The bottom-line is that such courts – like military commissions applying outside of the usual circumstances (real-world war, with battlefields etc) – are neither needed nor a good idea. They would risk being broadened and subjected to mission creep, but even if they can be limited to the circumstances contemplated would be an alarming step along the road toward a very different country indeed from what our founders envisioned.”
“The rule of law, by contrast, has proven to be a pretty good idea, along with its associated notions of human rights/civil liberties,” he said.
Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, believes the establishment of National Security Courts “would be a terrible mistake.”
He told IPS that these new courts “would institutionalize many of the worst features of Bush administration policies, perpetuating both indefinite detention and trial of terrorism suspects outside the established federal criminal courts.”
He added, “National security court proposals are riddled with constitutional flaws including reliance on secret evidence, elimination of core constitutional safeguards like the right to confront one's accusers, and the absence of protections against the use of evidence obtained by coercion. While they might be sold as a reform measure, national security courts are part of an agenda to continue the failed Guantanamo system rather than to end it.”
Brian J. Foley, Visiting Associate Professor at the Boston University law school, says U.S. detention policy “needs rethinking.”
He told IPS, “The current Guantanamo system has rules that are too soft and allow roundups of suspected terrorists based on unreliable evidence. Interrogating these people using harsh methods leads to false confessions and other statements calculated to end the abuse. Threatening them with trial by what amounts to a kangaroo court will also cause many to confess falsely.”
He says the result is that “U.S. anti-terror officials end up with a false picture of the enemy and waste their time chasing false leads and phantoms, which can distract them from actual terrorists. If the U.S. is to have a special court system for terrorists, it should be focused on coming to accurate results, not simply politically expedient convictions.”
Foley sees the current debate as an “opportunity for policymakers to think really hard about accuracy and about how rules can foster accuracy.”
He explains: “Most discussions right now are 'rights'- based. Accuracy, though, should be the focus on any such new court system”
He said he is “not convinced that alleged terrorists and war criminals and war criminals should not be tried in our regular courts. It would be easier to tinker with the existing system (which has developed slowly over the years) if necessary rather than building an entirely new one.”
Mark Shulman, a professor at the Pace University law school, sees an ominous similarity between the current discussion and the experiences of other countries.
“National security or terrorist courts in other countries offer troubling lessons, mostly because of their implications for the respect for civil liberties generally -- not only of the accused, but of the wider population,” he said, adding,
“Existing proposals to create such a court in the United States inadequately account for this risk, or explain how it would be minimized or mitigated. “Emergency systems in other countries have invariably reduced civil liberties for the general population.”
He emphasized that “it is important to recognize that these emergency systems in such diverse jurisdictions as Great Britain, Malaysia, and South Africa have diminished freedoms for society as a whole.”
Saturday, May 16, 2009
Lawyers, Human Rights Groups Outraged by Obama GITMO Decision
By William Fisher
Human rights advocates are outraged by President Barack Obama’s decision to prosecute some Guantanamo detainees through the same Military Commissions he criticized during his campaign as a “flawed” system that “has failed to convict anyone of a terrorist act since the 9/11 attacks.”
The White House said Friday that the Commissions would be used to prosecute terrorism suspects who can’t be tried in the civilian criminal justice system, but added that detainees would have expanded legal rights to make the proceedings fairer.
The Military Commission system, rebuked several times by the Supreme Court as unconstitutional, was a centerpiece of the Bush administration’s strategy for fighting “the global war on terror.”
Critics representing both the Left and the Right said Obama’s decision was an unnecessary compromise of American values.
Bruce Fein, a prominent conservative who was a senior official in the Justice Department under President Ronald Reagan, told IPS, “The entire structure of military commissions is flawed. It combines judge, jury, and prosecutor in the same branch -- the very definition of tyranny according to The Federalist Papers.”
He said,” Military Commissions are used to whitewash torture and sister outrages against the Fifth Amendment and due process.”
Other constitutional scholars expressed similar views.
Professor David Cole of Georgetown University law school told IPS, “You have to wonder why the Obama administration would want to saddle itself with a process that is deeply tainted by the way the Bush administration sought to use it. Surely it would be better in terms of the acceptability of the verdicts around the world, to make a clean break and use the regular courts or the military court-martial system.”
Professor Francis A. Boyle of the University of Illinois law school characterized the Military Commissions as “Kangaroo courts” that are too deeply flawed to be “fixed.”
He told IPS, “The laws of war would permit (Guantanamo detainees) to be prosecuted in either a U.S. Federal District Court organized under Article III of the United States Constitution or in a military court-martial proceeding organized under the Uniform Code of Military Justice. To do otherwise would be a war crime. What is the Obama administration afraid of? An acquittal? There were acquittals at Nuremberg.”
Marjorie Cohn, president of the National Lawyers Guild, told IPS, “Military commissions deny the accused basic due process and are not necessary to try terrorism-related offenses. The U.S. civil and military courts, which provide due process protections that comply with the Constitution, can effectively protect classified information through the Classified Information Procedures Act.”
And Brian J. Foley, Visiting Associate Professor at the Boston University School of Law, told IPS, “The system is fatally flawed because it was built to result in convictions -- why else rig the rules to allow evidence that regular courts would reject as unreliable?”
He added, “The only people Obama is winning points with by this decision is the hard right wing (which is a waste of his time, because they will find reasons to hate him, anyway) -- he's thumbing his nose at his political base as well as at the world.”
Human rights organizations were equally damning in their condemnation of the Obama decision.
Jonathan Hafetz, an attorney with the American Civil Liberties Union, called the military commission system a “failed experiment that must be ended not revived if American justice and the rule of law is to be restored.”
He told IPS, “There is no legitimate reason for continuing to circumvent the established method of trying terrorism suspects in our ordinary federal courts. No proposed improvements to the military commission system will cure their endemic flaws or their lack of legitimacy in the eyes of the world.”
“After years of working with these bizarre commissions, it is clear to us that they simply do not work,” said Zachary Katznelson, legal director of Reprieve, a UK-based legal charity that represents a number of Guantanamo detainees.
He told IPS, “As a constitutional lawyer, Obama must know that he can put lipstick on this pig - but it will always be a pig.”
Amnesty International USA researcher Rob Freer said the Military Commission system was “conceived and developed as part of an unlawful detention regime, to facilitate convictions while minimizing judicial scrutiny of the executive’s treatment of detainees.”
“No amount of tinkering with their rules can fix this discredited system,” he said.
Chip Pitts, President of the Board of Directors of the Bill of Rights Defense Committee, told IPS, “This a terrible day for the rule of law. I have to conclude that political considerations played a major role in this decision. Obama believes he must compromise in order to achieve his larger goals -- health care, education and energy independence. But you don't compromise your basic principles."
The Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to defend Guantanamo detainees, said in a statement, “Today’s announcement is an alarming development for those who expected that the Obama administration would end Bush’s dangerous experiments with our legal system.”
And Elisa Massimino, CEO of Human Rights First, argued that federal courts are capable of handling the cases and warned that "tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions."
But Obama’s decision was seen as a political win by some observers of Congress and by many conservative Republicans who have worried that Obama was seen as “too soft” on terrorism.
For example, David B. Rivkin Jr., a Washington lawyer who was an official in the Reagan administration, told The New York Times that the decision suggested the Obama administration “was coming to accept the Bush administration’s thesis that terror suspects should be viewed as warriors, not as criminals with all the rights accorded them in American courts.”
In Congress, the Senate Republican leader, Mitch McConnell of Kentucky, an outspoken critic of Obama’s plan to close Guantánamo, called the decision to use the military commissions “an encouraging development.”
Sen. Lindsey Graham, a conservative Republican from South Carolina and a member of the Armed Services Committee, called Obama's decision a step toward strengthening U.S. detention policies that have been derided worldwide. He said, “I applaud the president's actions today."
And Sen. Joe Lieberman, an Independent from Connecticut, also welcomed Obama's decision. He said, “The president "has reinforced that we are at war, and that the laws of war should apply to these prisoners."
White House officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases. They also said questions surrounding the brutal treatment of some detainees had become an obstacle.
The Military Commission system was set up after the military began sweeping detainees off the battlefields of Afghanistan in late 2001. It has been the subject of repeated legal challenges from human rights organizations because it denied defendants many of the rights they would be granted in a civilian courtroom. When he was a U.S. Senator, Obama voted against the Military Commissions Act of 2006, which established the current system.
In several landmark decisions, the U.S. Supreme Court has ruled that this system, first established by executive order by former President George W. Bush, was unconstitutional.
Human rights advocates are outraged by President Barack Obama’s decision to prosecute some Guantanamo detainees through the same Military Commissions he criticized during his campaign as a “flawed” system that “has failed to convict anyone of a terrorist act since the 9/11 attacks.”
The White House said Friday that the Commissions would be used to prosecute terrorism suspects who can’t be tried in the civilian criminal justice system, but added that detainees would have expanded legal rights to make the proceedings fairer.
The Military Commission system, rebuked several times by the Supreme Court as unconstitutional, was a centerpiece of the Bush administration’s strategy for fighting “the global war on terror.”
Critics representing both the Left and the Right said Obama’s decision was an unnecessary compromise of American values.
Bruce Fein, a prominent conservative who was a senior official in the Justice Department under President Ronald Reagan, told IPS, “The entire structure of military commissions is flawed. It combines judge, jury, and prosecutor in the same branch -- the very definition of tyranny according to The Federalist Papers.”
He said,” Military Commissions are used to whitewash torture and sister outrages against the Fifth Amendment and due process.”
Other constitutional scholars expressed similar views.
Professor David Cole of Georgetown University law school told IPS, “You have to wonder why the Obama administration would want to saddle itself with a process that is deeply tainted by the way the Bush administration sought to use it. Surely it would be better in terms of the acceptability of the verdicts around the world, to make a clean break and use the regular courts or the military court-martial system.”
Professor Francis A. Boyle of the University of Illinois law school characterized the Military Commissions as “Kangaroo courts” that are too deeply flawed to be “fixed.”
He told IPS, “The laws of war would permit (Guantanamo detainees) to be prosecuted in either a U.S. Federal District Court organized under Article III of the United States Constitution or in a military court-martial proceeding organized under the Uniform Code of Military Justice. To do otherwise would be a war crime. What is the Obama administration afraid of? An acquittal? There were acquittals at Nuremberg.”
Marjorie Cohn, president of the National Lawyers Guild, told IPS, “Military commissions deny the accused basic due process and are not necessary to try terrorism-related offenses. The U.S. civil and military courts, which provide due process protections that comply with the Constitution, can effectively protect classified information through the Classified Information Procedures Act.”
And Brian J. Foley, Visiting Associate Professor at the Boston University School of Law, told IPS, “The system is fatally flawed because it was built to result in convictions -- why else rig the rules to allow evidence that regular courts would reject as unreliable?”
He added, “The only people Obama is winning points with by this decision is the hard right wing (which is a waste of his time, because they will find reasons to hate him, anyway) -- he's thumbing his nose at his political base as well as at the world.”
Human rights organizations were equally damning in their condemnation of the Obama decision.
Jonathan Hafetz, an attorney with the American Civil Liberties Union, called the military commission system a “failed experiment that must be ended not revived if American justice and the rule of law is to be restored.”
He told IPS, “There is no legitimate reason for continuing to circumvent the established method of trying terrorism suspects in our ordinary federal courts. No proposed improvements to the military commission system will cure their endemic flaws or their lack of legitimacy in the eyes of the world.”
“After years of working with these bizarre commissions, it is clear to us that they simply do not work,” said Zachary Katznelson, legal director of Reprieve, a UK-based legal charity that represents a number of Guantanamo detainees.
He told IPS, “As a constitutional lawyer, Obama must know that he can put lipstick on this pig - but it will always be a pig.”
Amnesty International USA researcher Rob Freer said the Military Commission system was “conceived and developed as part of an unlawful detention regime, to facilitate convictions while minimizing judicial scrutiny of the executive’s treatment of detainees.”
“No amount of tinkering with their rules can fix this discredited system,” he said.
Chip Pitts, President of the Board of Directors of the Bill of Rights Defense Committee, told IPS, “This a terrible day for the rule of law. I have to conclude that political considerations played a major role in this decision. Obama believes he must compromise in order to achieve his larger goals -- health care, education and energy independence. But you don't compromise your basic principles."
The Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to defend Guantanamo detainees, said in a statement, “Today’s announcement is an alarming development for those who expected that the Obama administration would end Bush’s dangerous experiments with our legal system.”
And Elisa Massimino, CEO of Human Rights First, argued that federal courts are capable of handling the cases and warned that "tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions."
But Obama’s decision was seen as a political win by some observers of Congress and by many conservative Republicans who have worried that Obama was seen as “too soft” on terrorism.
For example, David B. Rivkin Jr., a Washington lawyer who was an official in the Reagan administration, told The New York Times that the decision suggested the Obama administration “was coming to accept the Bush administration’s thesis that terror suspects should be viewed as warriors, not as criminals with all the rights accorded them in American courts.”
In Congress, the Senate Republican leader, Mitch McConnell of Kentucky, an outspoken critic of Obama’s plan to close Guantánamo, called the decision to use the military commissions “an encouraging development.”
Sen. Lindsey Graham, a conservative Republican from South Carolina and a member of the Armed Services Committee, called Obama's decision a step toward strengthening U.S. detention policies that have been derided worldwide. He said, “I applaud the president's actions today."
And Sen. Joe Lieberman, an Independent from Connecticut, also welcomed Obama's decision. He said, “The president "has reinforced that we are at war, and that the laws of war should apply to these prisoners."
White House officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases. They also said questions surrounding the brutal treatment of some detainees had become an obstacle.
The Military Commission system was set up after the military began sweeping detainees off the battlefields of Afghanistan in late 2001. It has been the subject of repeated legal challenges from human rights organizations because it denied defendants many of the rights they would be granted in a civilian courtroom. When he was a U.S. Senator, Obama voted against the Military Commissions Act of 2006, which established the current system.
In several landmark decisions, the U.S. Supreme Court has ruled that this system, first established by executive order by former President George W. Bush, was unconstitutional.
Thursday, May 14, 2009
TORTURE PHOTOS: MILITARY HAPPY, LEFT OUTRAGED
By William Fisher
President Barack Obama’s decision yesterday to object to the planned release of photos showing abuse of prisoners in U.S. custody in Iraq and Afghanistan has drawn quiet praise from the military and some in Congress – and outspoken scorn from human rights advocates, a number of legal scholars and religious leaders, and many on the left of his Democratic Party.
The release, originally scheduled for May 28, was ordered by a federal appeals court in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The Obama Justice Department initially indicated it had run out of legal options and would comply with the court order.
But yesterday, the president made a 180-degree U-turn and ordered his lawyers to go back to court to appeal the decision. It is likely the case will eventually make its way to the Supreme Court.
The White House said the President “strongly believes that the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing U.S. forces, and making our job more difficult in places like Iraq and Afghanistan.”
Photographs released in 2006 of detainees being abused and humiliated at the Abu Ghraib military prison in Iraq sparked widespread outrage and led to convictions for several prison guards and the ouster of the prison’s commander. The Pentagon shut down the prison in the wake of the scandal but it reopened under Iraqi control earlier this year.
It is being widely reported in the U.S. press that two factors played significant roles in the president’s turnabout. One factor was objections from top military leaders, concerned that release of the images would inflame the Muslim world at the moment when the U.S. is planning to draw down its troops from Iraq and initiate a new counter-insurgency strategy in Afghanistan. The second factor is Obama’s scheduled June 4 speech in Egypt; some in the Administration were reportedly worried that the photos would blunt the president’s message of reconciliation with the Muslim community by providing fresh fodder for the anti-American press in the Middle East.
Those said to be making this case to the White House include Robert Gates, the secretary of defense; Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff; Gen. David Petraeus, the CENTCOM commander; Gen. Ray Odierno, the U.S. commander in Iraq; and Gen. David McKiernan, the outgoing U.S. commander in Afghanstan.
Some influential members of Congress have also been urging Obama not to release the photos. They include Senator Lindsay Graham, a conservative Republican from South Carolina and a long-time military lawyer in the Air Force Reserve; and Senator Joe Lieberman, an Independent from Connecticut. Graham is a member of the Senate Armed Services Committee. Lieberman is chairman of the Senate Homeland Security Committee.
The two Senators wrote to Obama on March 7, “Releasing these old photographs of detainee treatment now will provide new fodder to al-Qaeda’s propaganda and recruitment operations, undercut the progress you have made in our international relations, and endanger America’s military and diplomatic personnel throughout the world.”
Support for the Obama decision has also came from some veterans’ groups. David Rehbein, the national commander of the American Legion, wrote in the Wall Street Journal that nothing good can come from the release of the photographs.
“Other than self-flagellation by certain Americans, riots and future terrorist acts, what else do people expect will come from the release of these photographs?” he asked.
But this reasoning has failed to impress human rights groups and some religious leaders, many on the Left of the Democratic Party, and some spokesmen for the Right.
Anthony D. Romero, Executive Director of the ACLU, which originally brought the FOIA lawsuit, said, “The Obama administration’s adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the president’s stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government.”
Other human rights groups were similarly outraged. Stacy Sullivan, counterterrorism adviser at Human Rights Watch, said, "We understand President Obama's concern about protecting U.S. military personnel serving in Iraq and Afghanistan, but the real danger comes not from the knowledge that abuse happened but the sense that those responsible for planning and authorizing it haven't been held accountable.”
Human Rights First argues that releasing the photos is vital. The group says it has set up a nonpartisan inquiry to “evaluate the full cost of abuses, look at how we got there, and come up with safeguards so we don’t repeat the same mistakes.”
Amnesty International USA’s executive director, Larry Cox, said,
“Today’s decision to hold the torture photos only points more firmly to the urgent need for an investigation to expose, prosecute and finally close the book on torture. The American people have been lied to, and government officials who authorized and justified abusive policies have been given a pass.”
Criticism of Obama’s decision also came from some Conservatives. Bruce Fein, Chairman of the American Freedom Agenda and a senior Justice Department official during the administration of President Ronald Reagan, told us, “The more things change, the more they stay the same. To maintain that the more grisly the abuses or torture revealed by the photos, the greater the urgency of secrecy to prevent infuriating foreigners is a page from George Orwell's 1984.”
Some religious leaders are also critical of Obama’s decision. Rev. Richard Killmer, Executive Director of the National Religious Campaign Against Torture, told us, “President Obama promised to make his administration ‘the most open and transparent in history.’ It is unfortunate that he appears to have chosen to backpedal on that promise on the issue of U.S.-sponsored torture. Not only should he allow the release of these photos, but he should also move to establish a Commission of Inquiry to investigate and report on our use of torture since 9/11.”
Legal scholars are also expressing opposition to Obama’s decision. Typical is Prof. Francis Boyle of the University of Illinois law school. He told us, “This tragic, misguided, and unprincipled reversal seems to be consistent with the fact that instead of getting a real ‘change’ on policies under the Obama administration, the American people are experiencing continuity across the board with those of the discredited and criminal Bush administration when it comes to international law, human rights, and U.S. constitutional law related thereto.”
A similar view comes from Marjorie Cohn, President of the National Lawyers Guild. She told us, “President Obama's about-face on releasing the photos belies his commitment to transparency. Those who authorized the mistreatment depicted in the photos have not been punished. By refusing to make the photos public, the administration is withholding evidence that could be used to bring the real culprits to justice."
And Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, told The Washington Post he thought Obama faced an uphill legal battle. "They should not be able to go back time and again and concoct new rationales" for withholding what have been deemed public records, he said.
Criticism of the Obama decision has also become viral among liberals in the blogosphere, For example, Cenk Uygur, writing in the left-leaning Huffington Post, said, “This is an unbelievable moment. Dick Cheney's PR offensive over the last month actually worked. Barack Obama just crumbled and will follow Cheney's command to not release the new set of detainee abuse pictures.”
President Barack Obama’s decision yesterday to object to the planned release of photos showing abuse of prisoners in U.S. custody in Iraq and Afghanistan has drawn quiet praise from the military and some in Congress – and outspoken scorn from human rights advocates, a number of legal scholars and religious leaders, and many on the left of his Democratic Party.
The release, originally scheduled for May 28, was ordered by a federal appeals court in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU). The Obama Justice Department initially indicated it had run out of legal options and would comply with the court order.
But yesterday, the president made a 180-degree U-turn and ordered his lawyers to go back to court to appeal the decision. It is likely the case will eventually make its way to the Supreme Court.
The White House said the President “strongly believes that the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing U.S. forces, and making our job more difficult in places like Iraq and Afghanistan.”
Photographs released in 2006 of detainees being abused and humiliated at the Abu Ghraib military prison in Iraq sparked widespread outrage and led to convictions for several prison guards and the ouster of the prison’s commander. The Pentagon shut down the prison in the wake of the scandal but it reopened under Iraqi control earlier this year.
It is being widely reported in the U.S. press that two factors played significant roles in the president’s turnabout. One factor was objections from top military leaders, concerned that release of the images would inflame the Muslim world at the moment when the U.S. is planning to draw down its troops from Iraq and initiate a new counter-insurgency strategy in Afghanistan. The second factor is Obama’s scheduled June 4 speech in Egypt; some in the Administration were reportedly worried that the photos would blunt the president’s message of reconciliation with the Muslim community by providing fresh fodder for the anti-American press in the Middle East.
Those said to be making this case to the White House include Robert Gates, the secretary of defense; Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff; Gen. David Petraeus, the CENTCOM commander; Gen. Ray Odierno, the U.S. commander in Iraq; and Gen. David McKiernan, the outgoing U.S. commander in Afghanstan.
Some influential members of Congress have also been urging Obama not to release the photos. They include Senator Lindsay Graham, a conservative Republican from South Carolina and a long-time military lawyer in the Air Force Reserve; and Senator Joe Lieberman, an Independent from Connecticut. Graham is a member of the Senate Armed Services Committee. Lieberman is chairman of the Senate Homeland Security Committee.
The two Senators wrote to Obama on March 7, “Releasing these old photographs of detainee treatment now will provide new fodder to al-Qaeda’s propaganda and recruitment operations, undercut the progress you have made in our international relations, and endanger America’s military and diplomatic personnel throughout the world.”
Support for the Obama decision has also came from some veterans’ groups. David Rehbein, the national commander of the American Legion, wrote in the Wall Street Journal that nothing good can come from the release of the photographs.
“Other than self-flagellation by certain Americans, riots and future terrorist acts, what else do people expect will come from the release of these photographs?” he asked.
But this reasoning has failed to impress human rights groups and some religious leaders, many on the Left of the Democratic Party, and some spokesmen for the Right.
Anthony D. Romero, Executive Director of the ACLU, which originally brought the FOIA lawsuit, said, “The Obama administration’s adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the president’s stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government.”
Other human rights groups were similarly outraged. Stacy Sullivan, counterterrorism adviser at Human Rights Watch, said, "We understand President Obama's concern about protecting U.S. military personnel serving in Iraq and Afghanistan, but the real danger comes not from the knowledge that abuse happened but the sense that those responsible for planning and authorizing it haven't been held accountable.”
Human Rights First argues that releasing the photos is vital. The group says it has set up a nonpartisan inquiry to “evaluate the full cost of abuses, look at how we got there, and come up with safeguards so we don’t repeat the same mistakes.”
Amnesty International USA’s executive director, Larry Cox, said,
“Today’s decision to hold the torture photos only points more firmly to the urgent need for an investigation to expose, prosecute and finally close the book on torture. The American people have been lied to, and government officials who authorized and justified abusive policies have been given a pass.”
Criticism of Obama’s decision also came from some Conservatives. Bruce Fein, Chairman of the American Freedom Agenda and a senior Justice Department official during the administration of President Ronald Reagan, told us, “The more things change, the more they stay the same. To maintain that the more grisly the abuses or torture revealed by the photos, the greater the urgency of secrecy to prevent infuriating foreigners is a page from George Orwell's 1984.”
Some religious leaders are also critical of Obama’s decision. Rev. Richard Killmer, Executive Director of the National Religious Campaign Against Torture, told us, “President Obama promised to make his administration ‘the most open and transparent in history.’ It is unfortunate that he appears to have chosen to backpedal on that promise on the issue of U.S.-sponsored torture. Not only should he allow the release of these photos, but he should also move to establish a Commission of Inquiry to investigate and report on our use of torture since 9/11.”
Legal scholars are also expressing opposition to Obama’s decision. Typical is Prof. Francis Boyle of the University of Illinois law school. He told us, “This tragic, misguided, and unprincipled reversal seems to be consistent with the fact that instead of getting a real ‘change’ on policies under the Obama administration, the American people are experiencing continuity across the board with those of the discredited and criminal Bush administration when it comes to international law, human rights, and U.S. constitutional law related thereto.”
A similar view comes from Marjorie Cohn, President of the National Lawyers Guild. She told us, “President Obama's about-face on releasing the photos belies his commitment to transparency. Those who authorized the mistreatment depicted in the photos have not been punished. By refusing to make the photos public, the administration is withholding evidence that could be used to bring the real culprits to justice."
And Eric Glitzenstein, a lawyer with expertise in Freedom of Information Act requests, told The Washington Post he thought Obama faced an uphill legal battle. "They should not be able to go back time and again and concoct new rationales" for withholding what have been deemed public records, he said.
Criticism of the Obama decision has also become viral among liberals in the blogosphere, For example, Cenk Uygur, writing in the left-leaning Huffington Post, said, “This is an unbelievable moment. Dick Cheney's PR offensive over the last month actually worked. Barack Obama just crumbled and will follow Cheney's command to not release the new set of detainee abuse pictures.”
Wednesday, May 13, 2009
“Torture Memos” an “Ethical Trainwreck”
By William Fisher
“An ethical train wreck” was the phrase used by one witness to describe the legal reasoning behind the Justice Department’s recently released memos justifying the use of waterboarding and other forms of “enhanced interrogation techniques.”
The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee today.
Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the American public in a "near avalanche of falsehood" on the subject of detainee treatment.
"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.
The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.
He told the subcommittee – the first congressional panel to address allegations of torture -- that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.
He added that the issue was one that senior Bush Administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.
Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of September 11, 2001, said that Justice Department memos on “enhanced interrogation techniques” were "unsound, even unreasonable." He called for a "thorough public inquiry" into the issue.
"The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information," Zelikow said.
"This was a mistake, perhaps a disastrous one. It was a collective failure,” he said.
The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI), Ali Soufan, who interrogated some suspected al-Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.
Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.
He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.
Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al-Qaeda."
"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.
A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.
Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not “evil” people, but simply those who were trying to protect the American people from the next terrorist attack on the U.S.
He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.
Prof. Luban disagreed with that reasoning. He told the committee he thought it “impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law." He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions."
Luban concluded that memos written by Justice Department lawyers in the administration of former president George W. Bush "cherry pick" legal precedents and fail to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.
"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.
Three Bush-era lawyers, all working in the DOJ’s Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama Administration. The so-called “torture memos” were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.
The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.
Today’s testimony came amid calls for these lawyers – and their superiors – to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a “truth commission” to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice. An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.
President Obama’s reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that “no one is above the law,” he has said repeatedly that his inclination is to look forward, not backward.
“An ethical train wreck” was the phrase used by one witness to describe the legal reasoning behind the Justice Department’s recently released memos justifying the use of waterboarding and other forms of “enhanced interrogation techniques.”
The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee today.
Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the American public in a "near avalanche of falsehood" on the subject of detainee treatment.
"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.
The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.
He told the subcommittee – the first congressional panel to address allegations of torture -- that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.
He added that the issue was one that senior Bush Administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.
Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of September 11, 2001, said that Justice Department memos on “enhanced interrogation techniques” were "unsound, even unreasonable." He called for a "thorough public inquiry" into the issue.
"The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information," Zelikow said.
"This was a mistake, perhaps a disastrous one. It was a collective failure,” he said.
The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI), Ali Soufan, who interrogated some suspected al-Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.
Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.
He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.
Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al-Qaeda."
"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.
A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.
Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not “evil” people, but simply those who were trying to protect the American people from the next terrorist attack on the U.S.
He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.
Prof. Luban disagreed with that reasoning. He told the committee he thought it “impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law." He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions."
Luban concluded that memos written by Justice Department lawyers in the administration of former president George W. Bush "cherry pick" legal precedents and fail to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.
"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.
Three Bush-era lawyers, all working in the DOJ’s Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama Administration. The so-called “torture memos” were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.
The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.
Today’s testimony came amid calls for these lawyers – and their superiors – to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a “truth commission” to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice. An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.
President Obama’s reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that “no one is above the law,” he has said repeatedly that his inclination is to look forward, not backward.
BACK TO MILITARY COMMISSIONS?
By William Fisher
Human rights advocates and legal scholars fear that the administration of U.S. President Barack Obama may resurrect the Military Commissions designed by their predecessor to try Guantanamo detainees after Obama’s 120-day moratorium on proceedings expires on May 20.
That possibility appeared to moved a step closer to reality when Guantanamo’s chief judge refused to delay a May 27 pre-trial hearing for Ahmed Al-Darbi, 34, a Saudi Arabian accused of providing material support for terrorism and participating in a conspiracy to commit murder and other crimes. Military authorities also allege that he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He has been a U.S. prisoner since 2002, first at Bagram Air Field in Afghanistan, and since 2003 at Guantanamo.
Darbi’s hearing will be the first commission session since President Obama took office and ordered the freeze on war court proceedings. The Guantanamo judge, Army Col. James Pohl, ruled that defense lawyers had ample notice to prepare for the one-day hearing.
Judge Pohl’s ruling ordering the May 27 hearing noted that
“There has been no change in the statutory or regulatory scheme governing military commissions."
In setting that date, Pohl said he was "not trying to influence the Administration's review" and would consider adjusting or canceling the hearing if there "are changes between now and May 27.”
The major issue at the al-Darbi hearing is how much evidence might be presented at his military trial in a bid to show that he was tortured into confessing crimes he now denies. Darbi's lawyer, Ramzi Kassem of the Yale University law school, is trying to prevent Pentagon prosecutors from using as trial evidence dozens of the Saudi's self-incriminating statements, which the lawyer claims were obtained through brutal treatment during interrogations at Bagram Air Base in Afghanistan and at Guantanamo Bay.
Darbi's attorney has requested that two documentary films describing a climate of abuse at the time of Darbi's interrogations be introduced as evidence.
During his first week in office, President Obama ordered a case-by-case review of all detainees held at Guantanamo. Al-Darbi’s lawyer told us he doesn’t know if Darbi’s case has been reviewed by Obama Administration.
But he was certain that his client could not find justice at a Military Commission trial, whether it was held in Guantanamo or in the U.S.
He told us, “The (George W.) Bush administration decided on using the Guantanamo Bay naval base in Cuba because they considered it a law-free zone, but the courts decided otherwise. Now that the Obama Administration has pledged to close the base, they seem to be thinking of moving the Military Commissions to the U.S. mainland, perhaps with a few detainee protections added.”
However, he added, “There is no amount of tinkering that will make Military Commissions ‘better’. This is a system designed to produce convictions, not justice.”
Kassem also said, “There is no reason to revert to this failed system. We already have a proven criminal justice system in the U.S. That system has demonstrated over 120 times that it is well equipped to try people accused of terrorism and to deal with national security matters. Why should we need to invent another system?”
Al-Darbi has also filed a habeas corpus petition in federal court in Washington, D.C.
The Defense Department says Darbi is the brother-in-law of one of the 9/11 hijackers aboard American Airlines Flight 77, which crashed into the Pentagon. While Darbi is not accused of involvement in 9/11, military authorities say he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He also allegedly met Osama bin Laden and trained in an Afghan al Qaeda camp.
The Bush-era Military Commissions have had a bumpy history. In a series of orders in 2001 and 2002, the Bush administration created a system of tribunals that specifically did not adhere to the standards set out in the Geneva Convention, arguing that as "non-state actors'' the suspects were not entitled to that kind of protection; the system was also declared to be beyond review by federal courts.
The government then established a prison camp at Guantánamo Bay Naval Base in Cuba to hold these prisoners away from federal court jurisdiction, arguing that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment -- did not apply to foreigners being held outside the U.S. as enemy combatants.
But, in 2004, the Supreme Court disagreed, in a case known as Rasul v. Bush. And in another decision in June 2006, Hamdan v. Rumsfeld, the high court struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and the Geneva Conventions.
In response, the Bush Administration and Congress effectively rewrote the law, by passing the Military Commissions Act of 2006. The measure broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include non-citizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.
In place of habeas proceedings, it said detainees could challenge their imprisonment only through hearings known as combatant status review trials. It allowed evidence seized in the U.S. or abroad without a search warrant to be admitted in trials. And while the bill barred the admission of evidence obtained by cruel and inhuman treatment, it made an exception for any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act banning torture.
But, in a June 2008 decision in the case of Boumediene v. Bush, the Supreme Court overturned those portions of the law, finding that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention in United States courts. In a harsh rebuke of the Bush administration, the Court rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.
Meanwhile, human rights groups continue to oppose trials under the Military Commissions Act. Amnesty International says, “Any trials of Guantánamo detainees should be conducted before US federal civilian courts in trials that meet international standards.”
The organization called on the Obama administration to abandon the commissions altogether, withdraw all charges under the Military Commissions Act (MCA), and transfer to the U.S. mainland any Guantánamo detainee who was to be charged, bring him before a civilian judicial authority, and promptly charge him with specific offences under applicable federal law.
The American Civil Liberties Union (ACLU) expressed a similar view. Its executive director, Anthony D. Romero, said, "The Obama administration's purported plans to resuscitate the Guantanamo military commissions and ship them onto American soil is fatally flawed. The military commissions are built on unconstitutional premises and designed to ensure convictions, not provide fair trials. Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable; there is no such thing as 'due process light.' Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless”.
Human rights advocates and legal scholars fear that the administration of U.S. President Barack Obama may resurrect the Military Commissions designed by their predecessor to try Guantanamo detainees after Obama’s 120-day moratorium on proceedings expires on May 20.
That possibility appeared to moved a step closer to reality when Guantanamo’s chief judge refused to delay a May 27 pre-trial hearing for Ahmed Al-Darbi, 34, a Saudi Arabian accused of providing material support for terrorism and participating in a conspiracy to commit murder and other crimes. Military authorities also allege that he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He has been a U.S. prisoner since 2002, first at Bagram Air Field in Afghanistan, and since 2003 at Guantanamo.
Darbi’s hearing will be the first commission session since President Obama took office and ordered the freeze on war court proceedings. The Guantanamo judge, Army Col. James Pohl, ruled that defense lawyers had ample notice to prepare for the one-day hearing.
Judge Pohl’s ruling ordering the May 27 hearing noted that
“There has been no change in the statutory or regulatory scheme governing military commissions."
In setting that date, Pohl said he was "not trying to influence the Administration's review" and would consider adjusting or canceling the hearing if there "are changes between now and May 27.”
The major issue at the al-Darbi hearing is how much evidence might be presented at his military trial in a bid to show that he was tortured into confessing crimes he now denies. Darbi's lawyer, Ramzi Kassem of the Yale University law school, is trying to prevent Pentagon prosecutors from using as trial evidence dozens of the Saudi's self-incriminating statements, which the lawyer claims were obtained through brutal treatment during interrogations at Bagram Air Base in Afghanistan and at Guantanamo Bay.
Darbi's attorney has requested that two documentary films describing a climate of abuse at the time of Darbi's interrogations be introduced as evidence.
During his first week in office, President Obama ordered a case-by-case review of all detainees held at Guantanamo. Al-Darbi’s lawyer told us he doesn’t know if Darbi’s case has been reviewed by Obama Administration.
But he was certain that his client could not find justice at a Military Commission trial, whether it was held in Guantanamo or in the U.S.
He told us, “The (George W.) Bush administration decided on using the Guantanamo Bay naval base in Cuba because they considered it a law-free zone, but the courts decided otherwise. Now that the Obama Administration has pledged to close the base, they seem to be thinking of moving the Military Commissions to the U.S. mainland, perhaps with a few detainee protections added.”
However, he added, “There is no amount of tinkering that will make Military Commissions ‘better’. This is a system designed to produce convictions, not justice.”
Kassem also said, “There is no reason to revert to this failed system. We already have a proven criminal justice system in the U.S. That system has demonstrated over 120 times that it is well equipped to try people accused of terrorism and to deal with national security matters. Why should we need to invent another system?”
Al-Darbi has also filed a habeas corpus petition in federal court in Washington, D.C.
The Defense Department says Darbi is the brother-in-law of one of the 9/11 hijackers aboard American Airlines Flight 77, which crashed into the Pentagon. While Darbi is not accused of involvement in 9/11, military authorities say he conspired with al Qaeda in a never-realized 2000-2002 plot to bomb vessels at sea in the Straits of Hormuz. He also allegedly met Osama bin Laden and trained in an Afghan al Qaeda camp.
The Bush-era Military Commissions have had a bumpy history. In a series of orders in 2001 and 2002, the Bush administration created a system of tribunals that specifically did not adhere to the standards set out in the Geneva Convention, arguing that as "non-state actors'' the suspects were not entitled to that kind of protection; the system was also declared to be beyond review by federal courts.
The government then established a prison camp at Guantánamo Bay Naval Base in Cuba to hold these prisoners away from federal court jurisdiction, arguing that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment -- did not apply to foreigners being held outside the U.S. as enemy combatants.
But, in 2004, the Supreme Court disagreed, in a case known as Rasul v. Bush. And in another decision in June 2006, Hamdan v. Rumsfeld, the high court struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and the Geneva Conventions.
In response, the Bush Administration and Congress effectively rewrote the law, by passing the Military Commissions Act of 2006. The measure broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include non-citizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.
In place of habeas proceedings, it said detainees could challenge their imprisonment only through hearings known as combatant status review trials. It allowed evidence seized in the U.S. or abroad without a search warrant to be admitted in trials. And while the bill barred the admission of evidence obtained by cruel and inhuman treatment, it made an exception for any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act banning torture.
But, in a June 2008 decision in the case of Boumediene v. Bush, the Supreme Court overturned those portions of the law, finding that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention in United States courts. In a harsh rebuke of the Bush administration, the Court rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.
Meanwhile, human rights groups continue to oppose trials under the Military Commissions Act. Amnesty International says, “Any trials of Guantánamo detainees should be conducted before US federal civilian courts in trials that meet international standards.”
The organization called on the Obama administration to abandon the commissions altogether, withdraw all charges under the Military Commissions Act (MCA), and transfer to the U.S. mainland any Guantánamo detainee who was to be charged, bring him before a civilian judicial authority, and promptly charge him with specific offences under applicable federal law.
The American Civil Liberties Union (ACLU) expressed a similar view. Its executive director, Anthony D. Romero, said, "The Obama administration's purported plans to resuscitate the Guantanamo military commissions and ship them onto American soil is fatally flawed. The military commissions are built on unconstitutional premises and designed to ensure convictions, not provide fair trials. Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable; there is no such thing as 'due process light.' Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless”.
Sunday, May 10, 2009
SENATORS TRY TO BLOCK ABU GHRAIB PHOTOS
By William Fisher
Civil libertarians are condemning a call by two influential U.S. senators for the White House to block the impending release of photographs showing detainees being abused by U.S. military personnel at the notorious Abu Ghraib prison in Iraq and at other American detention facilities in the Middle East and elsewhere.
The plea to intervene to stop the expected May 28 release of the photos came in a letter to President Barack Obama from Senators Joseph Lieberman and Lindsey Graham.
"The release of these old photographs of past behavior that has now been clearly prohibited will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country's image, and endanger our men and women in uniform," the Senators wrote.
Release of the photos is expected in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.
"We urge you in the strongest possible terms to fight the release of these old pictures of detainees in the war on terror, including appealing the decision of the Second Circuit in the ACLU lawsuit to the Supreme Court and pursuing all legal options to prevent the public disclosure of these pictures," the senators wrote.
Their letter said, “We know that many terrorists captured in Iraq have told American interrogators that one of the reasons they decided to join the violent jihadist war against America was what they saw on Al-Qaeda videos of abuse of detainees at Abu Ghraib.”
As a result of the ensuing actions by Congress, “America’s soldiers, sailors airmen and marines have made great progress in improving detention and interrogation procedures,” they wrote.
Senator Graham is a conservative Republican from South Carolina, a member of the Armed Services Committee, and a military lawyer in the U.S. Air Force Reserve. Lieberman was a lifelong Democrat until he lost his party’s primary contest in 2006, after which he ran and won as an Independent from Connecticut. He is chairman of the powerful Senate Homeland Security Committee. The two senators were among the most ardent supporters of the recent unsuccessful presidential campaign of Senator John McCain.
Civil libertarians were virtually unanimous in their opposition to withholding the photographs.
Gabor Rona, International Legal Director of Human Rights First, told IPS, ”Sen. Lieberman and Graham's claims might carry more weight had the US government been consistently honest about the mistreatment it authorized. But as long as the American people are kept in the dark about what crimes were committed in their name, they cannot intelligently exercise their democratic right and obligation to call for corrective measures.”
He added, “To elevate fear of al-Qaeda's reactions over faith in our democratic ideals and structures is unfortunate and counterproductive.”
Marjorie Cohn, President of the National Lawyers Guild, told IPS, “The more evidence that emerges to document the Bush policy of torture and abuse, the more likely that investigations and prosecutions will take place."
Professor Francis A. Boyle of the University of Illinois Law School told IPS, “The release of these photos will further document torture, abuse and other war crimes inflicted by U.S. military personnel in Iraq, the orders for which go all the way up the military chain of command to the Commander in Chief President Bush, the Secretary of Defense Donald Rumsfeld, and Lt. Gen. Ricardo Sanchez, none of whom has yet been held accountable.”
He said, “Senators Lieberman and Graham are simply running interference for all three of them. Yet under the terms of the Four Geneva Conventions of 1949 and the Convention against Torture, the Obama administration has an obligation to open an investigation and to prosecute them. Failure to do so is a war crime in its own right.”
"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," said attorney Amrit Singh of the American Civil Liberties Union (ACLU), the organization that originally brought the lawsuit under the Freedom of Information Act (FOIA).
"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse,” she said.
Lieutenant General Ricardo S. Sanchez, now retired, served as the V Corps commander of coalition forces in Iraq from June 2003 to June 2004. When he retired in November 2006, he called his career a casualty of the Abu Ghraib scandal.
The disagreement over release of the photos reflects conflicting assessments of which is more dangerous and objectionable -- the release of the photographs or the abusive behavior that they depict. It also turns on unresolved questions concerning the scale of prisoner abuse by U.S. personnel, and the nature of the public accounting that can or should be required.
The original Abu Ghraib photos were first exposed to the public in a 2006 segment of the television program, “Sixty Minutes,” and shortly thereafter in an extensive article by investigative reporter Seymour Hersh in The New Yorker magazine.
The images showed Iraqi prisoners hooded, with electrodes attached to their bodies, being menaced by dogs, forced to walk with dog collars around their necks, and made to form pyramids of naked bodies. Existence of the images was first reported by a low-level U.S. Army soldier.
The military conducted more than a dozen investigations of the abusive practices, which then Defense Secretary Donald Rumsfeld attributed to the aberrations of “a few bad apples.” A number of low-level soldiers were convicted and sentenced to terms in military prisons, a few others were given official reprimands, and the brigadier general who was in charge of the prison was demoted to colonel.
The Defense Department investigations concluded that no one higher up in the military or civilian leadership of the Pentagon bore any responsibility for the abuses.
While the contents of the new photos have not been made public, it is known that members of Congress viewed them in a classified setting when the original Abu Ghraib images were released. Some have said publicly that the new photos paint an even grimmer picture of prisoner abuse, not only at Abu Ghraib but also at other U.S.-controlled prisons in the Middle East.
It is unclear whether the new crop of photos includes those taken by psychologist Philip Zimbardo. As an expert witness in the defense of an Abu Ghraib guard who was court-martialed, he had access to many of the images of abuse that were taken by the guards themselves. Zimbardo assembled some of these pictures into a short video. Many of the images are explicit and gruesome, depicting nudity, degradation, simulated sex acts, and guards posing with decaying corpses.
Zimbardo’s images may be viewed at http://www.wired.com/science/discoveries/news/2008/02/ted_zimbardo.
The original Abu Ghraib photos were broadcast around the world long before it became known that U.S. authorities, including the Central Intelligence Agency (CIA), were using waterboarding and other “enhanced interrogation techniques” at the Navy detention center at Guantanamo Bay, Cuba, in Afghanistan, and at secret prisons in Eastern Europe and elsewhere.
Civil libertarians are condemning a call by two influential U.S. senators for the White House to block the impending release of photographs showing detainees being abused by U.S. military personnel at the notorious Abu Ghraib prison in Iraq and at other American detention facilities in the Middle East and elsewhere.
The plea to intervene to stop the expected May 28 release of the photos came in a letter to President Barack Obama from Senators Joseph Lieberman and Lindsey Graham.
"The release of these old photographs of past behavior that has now been clearly prohibited will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country's image, and endanger our men and women in uniform," the Senators wrote.
Release of the photos is expected in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.
"We urge you in the strongest possible terms to fight the release of these old pictures of detainees in the war on terror, including appealing the decision of the Second Circuit in the ACLU lawsuit to the Supreme Court and pursuing all legal options to prevent the public disclosure of these pictures," the senators wrote.
Their letter said, “We know that many terrorists captured in Iraq have told American interrogators that one of the reasons they decided to join the violent jihadist war against America was what they saw on Al-Qaeda videos of abuse of detainees at Abu Ghraib.”
As a result of the ensuing actions by Congress, “America’s soldiers, sailors airmen and marines have made great progress in improving detention and interrogation procedures,” they wrote.
Senator Graham is a conservative Republican from South Carolina, a member of the Armed Services Committee, and a military lawyer in the U.S. Air Force Reserve. Lieberman was a lifelong Democrat until he lost his party’s primary contest in 2006, after which he ran and won as an Independent from Connecticut. He is chairman of the powerful Senate Homeland Security Committee. The two senators were among the most ardent supporters of the recent unsuccessful presidential campaign of Senator John McCain.
Civil libertarians were virtually unanimous in their opposition to withholding the photographs.
Gabor Rona, International Legal Director of Human Rights First, told IPS, ”Sen. Lieberman and Graham's claims might carry more weight had the US government been consistently honest about the mistreatment it authorized. But as long as the American people are kept in the dark about what crimes were committed in their name, they cannot intelligently exercise their democratic right and obligation to call for corrective measures.”
He added, “To elevate fear of al-Qaeda's reactions over faith in our democratic ideals and structures is unfortunate and counterproductive.”
Marjorie Cohn, President of the National Lawyers Guild, told IPS, “The more evidence that emerges to document the Bush policy of torture and abuse, the more likely that investigations and prosecutions will take place."
Professor Francis A. Boyle of the University of Illinois Law School told IPS, “The release of these photos will further document torture, abuse and other war crimes inflicted by U.S. military personnel in Iraq, the orders for which go all the way up the military chain of command to the Commander in Chief President Bush, the Secretary of Defense Donald Rumsfeld, and Lt. Gen. Ricardo Sanchez, none of whom has yet been held accountable.”
He said, “Senators Lieberman and Graham are simply running interference for all three of them. Yet under the terms of the Four Geneva Conventions of 1949 and the Convention against Torture, the Obama administration has an obligation to open an investigation and to prosecute them. Failure to do so is a war crime in its own right.”
"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," said attorney Amrit Singh of the American Civil Liberties Union (ACLU), the organization that originally brought the lawsuit under the Freedom of Information Act (FOIA).
"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse,” she said.
Lieutenant General Ricardo S. Sanchez, now retired, served as the V Corps commander of coalition forces in Iraq from June 2003 to June 2004. When he retired in November 2006, he called his career a casualty of the Abu Ghraib scandal.
The disagreement over release of the photos reflects conflicting assessments of which is more dangerous and objectionable -- the release of the photographs or the abusive behavior that they depict. It also turns on unresolved questions concerning the scale of prisoner abuse by U.S. personnel, and the nature of the public accounting that can or should be required.
The original Abu Ghraib photos were first exposed to the public in a 2006 segment of the television program, “Sixty Minutes,” and shortly thereafter in an extensive article by investigative reporter Seymour Hersh in The New Yorker magazine.
The images showed Iraqi prisoners hooded, with electrodes attached to their bodies, being menaced by dogs, forced to walk with dog collars around their necks, and made to form pyramids of naked bodies. Existence of the images was first reported by a low-level U.S. Army soldier.
The military conducted more than a dozen investigations of the abusive practices, which then Defense Secretary Donald Rumsfeld attributed to the aberrations of “a few bad apples.” A number of low-level soldiers were convicted and sentenced to terms in military prisons, a few others were given official reprimands, and the brigadier general who was in charge of the prison was demoted to colonel.
The Defense Department investigations concluded that no one higher up in the military or civilian leadership of the Pentagon bore any responsibility for the abuses.
While the contents of the new photos have not been made public, it is known that members of Congress viewed them in a classified setting when the original Abu Ghraib images were released. Some have said publicly that the new photos paint an even grimmer picture of prisoner abuse, not only at Abu Ghraib but also at other U.S.-controlled prisons in the Middle East.
It is unclear whether the new crop of photos includes those taken by psychologist Philip Zimbardo. As an expert witness in the defense of an Abu Ghraib guard who was court-martialed, he had access to many of the images of abuse that were taken by the guards themselves. Zimbardo assembled some of these pictures into a short video. Many of the images are explicit and gruesome, depicting nudity, degradation, simulated sex acts, and guards posing with decaying corpses.
Zimbardo’s images may be viewed at http://www.wired.com/science/discoveries/news/2008/02/ted_zimbardo.
The original Abu Ghraib photos were broadcast around the world long before it became known that U.S. authorities, including the Central Intelligence Agency (CIA), were using waterboarding and other “enhanced interrogation techniques” at the Navy detention center at Guantanamo Bay, Cuba, in Afghanistan, and at secret prisons in Eastern Europe and elsewhere.
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