Tags: bagram, ben emmerson, desmond tutu, enemy combatant, england, Guantanamo, human rights, Moazzam Begg, muslim, racism, roger hollander, rumsfeld, torture, victoria brittain, war on terror, women
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Published on Tuesday, March 5, 2013 by TomDispatch.com
Once, as a reporter, I covered wars, conflicts, civil wars, and even a genocide in places like Vietnam, Angola, Eritrea, Rwanda, and the Democratic Republic of Congo, keeping away from official briefings and listening to the people who were living the war. In the years since the Bush administration launched its Global War on Terror, I’ve done the same thing without ever leaving home.
In the last decade, I didn’t travel to distant refugee camps in Pakistan or destroyed villages in Afghanistan, nor did I spend time in besieged cities like Iraq’s Fallujah or Libya’s Misrata. I stayed in Great Britain. There, my government, in close conjunction with Washington, was pursuing its own version of what, whether anyone cared to say it or not, was essentially a war against Islam. Somehow, by a series of chance events, I found myself inside it, spending time with families transformed into enemies.
I hadn’t planned to write about the war on terror, but driven by curiosity about lives most of us never see and a few lucky coincidences, I stumbled into a world of Muslim women in London, Manchester, and Birmingham. Some of them were British, others from Arab and African countries, but their husbands or sons had been swept up in Washington’s war. Some were in Guantanamo, some were among the dozen Muslim foreigners who did not know each other, and who were surprised to find themselves imprisoned together in Britain on suspicion of links to al-Qaeda. Later, some of these families would find themselves under house arrest.
In the process, I came to know women and children who were living in almost complete isolation and with the stigma of a supposed link to terrorism. They had few friends, and were cut off from the wider world. Those with a husband under house arrest were allowed no visitors who had not been vetted for “security,” nor could they have computers, even for their children to do their homework. Other lonely women had husbands or sons who had sometimes spent a decade or more in prison without charges in the United Kingdom, and were fighting deportation or extradition.
Gradually, they came to accept me into their isolated lives and talked to me about their children, their mothers, their childhoods — but seldom, at first, about the grim situations of their husbands, which seemed too intimate, too raw, too frightening, too unknowable to be put into words.
In the early years, it was a steep learning curve for me, spending time in homes where faith was the primary reality, Allah was constantly invoked, English was a second language, and privacy and reticence were givens. Facebook culture had not come to most of these families. The reticence faded over the years, especially when the children were not there, or in the face of the kind of desolation that came from a failed court appeal to lift the restrictions on their lives, an unexpected police raid on the house, a husband’s suicide attempt, or the coming of a new torture report from Washington’s then-expanding global gulag of black sites and, of course, Guantanamo.
In these years, I met some of their husbands and sons as well. The first was a British man from Birmingham, Moazzam Begg. He had been held for three years in Washington’s notorious offshore prison at Guantanamo Bay, Cuba, only to be released without charges. When he came home, through his lawyer, he asked me to help write his memoir, the first to come out of Guantanamo. We worked long months on Enemy Combatant. It was hard for him to relive his nightmare days and nights in American custody in Kandahar and in the U.S. prison at Bagram Air Base in Afghanistan and then those limbo years in Cuba. It was even harder for him to visit the women whose absent husbands he had known in prison and who, unlike him, were still there.
Was My Husband Tortured?
In these homes he visited, there was always one great unspoken question: Was my husband or son tortured? It was the single question no one could bear to ask a survivor of that nightmare, even for reassurance. When working on his book, I deliberately left the chapter on his experiences in American hands in Bagram prison for last, as I sensed how difficult it would be for both of us to speak about the worst of the torture I knew he had experienced.
Through Moazzam, I met other men who had been swept up in the post-9/11 dragnet for Muslims in Great Britain, refugees who sought him out as an Arabic speaker and a British citizen to help them negotiate Britain’s newly hostile atmosphere in the post-9/11 years. Soon, I began to visit some of their wives, too.
In time, I found myself deep inside a world of civilian women who were being warred upon (after a fashion) in my own country, which was how I came upon a locked-down hospital ward with a man determined to starve himself to death unless he was given refugee documents to leave Britain, children who cried in terror in response to a knock on the door, wives faced with a husband changed beyond words by prison.
I found myself deep inside a world of civilian women who were being warred upon (after a fashion) in my own country, which was how I came upon a locked-down hospital ward with a man determined to starve himself to death, children who cried in terror in response to a knock on the door, wives faced with a husband changed beyond words by prison.
I was halfway through working on Moazzam’s book when London was struck by our 9/11, which we call 7/7. The July 7, 2005, suicide bombings, in three parts of the London underground and a bus, killed 52 civilians and injured more than 700. The four bombers were all young British men between 18 and 30, two of them married with children, and one of them a mentor at a primary school. In video statements left behind they described themselves as “soldiers” whose aim was to force the British government to pull its troops out of Iraq and Afghanistan. Just three weeks later, there were four more coordinated bomb attacks on the London subway system. (All failed to detonate.) The four men responsible, longterm British residents originally from the Horn of Africa, were captured, tried, and sentenced to life imprisonment. In this way, the whole country was traumatised in 2005, and that particularly includes the various strands of the Muslim community in Great Britain.
The British security services quickly returned to a post-9/11 stance on overdrive. The same MI5 intelligence agents who had interrogated Moazzam while he was in U.S. custody asked to meet him again to get his thoughts on who might be behind the attacks. However, three years in U.S. custody and five months at home occupied with his family and his book had not made him a likely source of information on current strains of thought in the British Muslim community.
At the same time, the dozen foreign Muslim refugees detained in the aftermath of 9/11 and held without trial for two years before being released on the orders of the House of Lords were rearrested. In the summer of 2005, the government prepared to deport them to countries they had originally fled as refugees.
All of them had been made anonymous by court order and in legal documents were referred to as Mr. G, Mr. U, and so on. This was no doubt intended to safeguard their privacy, but in a sense it also condemned them. It made them faceless, inhuman, and their families experienced it just that way. “They even took my husband’s name away, why?” one wife asked me.
The women I was meeting in these years were mostly from this small group, as well as the relatives of a handful of British residents — Arabs — who were not initially returned from Guantanamo with the nine British citizens that the Americans finally released without charges in 2004 and 2005.
Perhaps no one in the country was, in the end, more terrorised than them, thanks to the various terror plots by British nationals that followed. And they were right to be fearful. The pressure on them was overwhelming. Some of them simply gave up and went home voluntarily because they could not bear house arrest, though they risked being sent to prison in their native lands; others went through years of house arrest and court appeals against deportation, all of which continues to this day.
Among the plots that unnerved them were one in 2006 against transatlantic aircraft, for which a total of 12 Britons were jailed for life in 2009, and the 2007 attempt to blow up a London nightclub and Glasgow International Airport, in which one bomber died and the second was jailed for 32 years. In the post-9/11 decade, 237 people were convicted of terror-related offences in Britain.
Though all of this was going on, much of it remained remote from the world of the refugee women I came to know who, in the larger world, were mainly preoccupied with the wars in Iraq and Afghanistan that, with Palestinian developments, filled their TV screens tuned only to Arabic stations.
These women did not tend to dwell on their own private nightmares, but for anyone in their company there was no mistaking them: a wife prevented from taking her baby into the hospital to visit her hunger-striking husband and get him to eat before he starved to death; another, with several small children, turned back from a prison visit, despite a long journey, because her husband was being punished that day; children whose toys were taken in a police raid and never given back; midnight visits from a private security company to check on a man already electronically tagged.
These women did not tend to dwell on their own private nightmares: a wife prevented from taking her baby into the hospital to visit her hunger-striking husband and get him to eat before he starved to death; another turned back from a prison visit because her husband was being punished that day; children whose toys were taken in a police raid and never given back; midnight visits from a private security company to check on a man already electronically tagged.
Here was the texture of a hidden war of continual harassment against a largely helpless population. This was how some of the most vulnerable people in British society — often already traumatised refugees and torture survivors — were made permanent scapegoats for our post-9/11, and then post-7/7 fears.
So powerful is the stigma of “terrorism” today that, in the name of “our security,” whether in Great Britain or the United States, just about anything now goes, and ever fewer people ask questions about what that “anything” might actually be. Here in London, repeated attempts to get influential religious or political figures simply to visit one of these officially locked-down families and see these lives for themselves have failed. In the present political climate, such a personal, fact-finding visit proved to be anything but a priority for such people.
A Legal System of Secret Evidence, House Arrest, and Financial Sanctions
Against this captive population, in such an anything-goes atmosphere, all sorts of experimental perversions of the legal system were tried out. As a result, the British system of post-9/11 justice contains many features which should frighten us all but are completely unfamiliar to the vast majority of people in the United Kingdom.
Key aspects for the families I have been concerned with include the use of secret evidence in cases involving deportation, bail conditions, and imprisonment without trial. In addition, most of their cases have been heard in a special court known as the Special Immigration Appeals Commission or SIAC, which is housed in an anonymous basement set of rooms in central London.
One of SIAC’s innovative features is the use of “special advocates,” senior barristers who have security clearance to see secret evidence on behalf of their clients, but without being allowed to disclose it or discuss it, even with the client or his or her own lawyer. The resignation on principle of a highly respected barrister, Ian Macdonald, as a special advocate in November 2004 exposed this process to the public for the first time — but almost no one took any interest.
And a sense of the injustice in this arcane system was never sufficiently sparked by such voices, which found little echo in the media. Nor was there a wide audience for reports from ateam of top psychiatrists about the devastating psychological impact on the men and their families of indefinite detention without trial, and of a house-arrest system framed by “control orders” that allow the government to place restrictions of almost any sort on the lives of those it designates.
An even less noted aspect of the anti-terror legal system brought into existence after 9/11 was the financial sanctions that could freeze the assets of designated individuals. First ordered by the United Nations, the financial-sanctions regime was consolidated here through a European Union list of designated people. The few lawyers who specialized in this area were scathing about the draconian measures involved and the utter lack of transparency when it came to which governments had put which names on which list.
The effect on the listed families was draconian. Marriages collapsed under the strain. The listed men were barred from working and only allowed £10 a week for personal expenses. Their wives — often from conservative cultures where all dealings with the outside world had been left to husbands — suddenly were the families’ faces to the world, responsible for everything from shopping to accounting monthly to the government’s Home Office for every item the family purchased, right down to a bottle of milk or a pencil for a child. It was humiliating for the men, who lost their family role overnight, and exhausting and frustrating for the women, while in some cases the rest of their families shunned them because of the taint of alleged terrorism. Almost no one except specialist lawyers even knew that such financial sanctions existed in Britain.
In the country’s High Court, the first judicial challenge to the financial-sanctions regime was brought in 2008 by five British Muslim men known only as G, K, A, M, and Q. In response, Justice Andrew Collins said he found it “totally unacceptable” that, to take an especially absurd example, a man should have to get a license for legal advice about the sanctions from the very body that was imposing them. The man in question had waited three months for a “basic expense” license permitting funds for food and rent, and six months for a license to obtain legal advice about the situation he found himself in.
In a related case before the judicial committee of the House of Lords, Justice Leonard Hoffman expressed incredulity at the “meanness and squalor” of a regime that “monitored who had what for lunch.” More recently, the United Kingdom’s Supreme Court endorsed the comments of Lord Justice Stephen Sedley who described those subject to the regime as being akin to “prisoners of the state.”
Among senior lawyers concerned about this hidden world of punishment was Ben Emmerson, the U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. He devoted one of his official U.N. reports to the financial sanctions issue. His recommendations included significantly more transparency from governments who put people on such a list, the explicit exclusion of evidence obtained by torture, and the obligation of governments to give reasons when they refuse to remove individuals from the list. Of course, no one who mattered was paying the slightest attention.
Against ideological governments obsessed by terrorism on both sides of the Atlantic and a culture numbed by violent anti-terrorist tales like “24” and Zero Dark Thirty, such complicated and technical initiatives on behalf of individuals who have been given the tag, implicitly if not explicitly, of “terrorist” stand little chance of getting attention.
“Each Time It’s Worse”
Nearly a decade ago, at the New York opening night of Guantanamo: Honour Bound to Defend Freedom, the play Gillian Slovo and I wrote using only the words of the relatives of prisoners in that jail, their lawyers, and Secretary of Defense Donald Rumsfeld, an elderly man approached Moazzam Begg’s father and me. He introduced himself as a former foreign policy adviser to President John Kennedy. “It could never have happened in our time,” he said.
When the Global War on Terror was still relatively new, it was common for audiences to react similarly and with shock to a play in which fathers and brothers describe their bewilderment over the way their relation had disappeared into the legal black hole of Guantanamo Bay. In the years since, we have become numb to the destruction of lives, livelihoods, futures, childhoods, legal systems, and trust by Washington’s and London’s never-ending war on terror.
In that time, I have seen children grow from toddlers to teenagers locked inside this particular war machine. What they say today should startle us out of such numbness. Here, for instance, are the words of two teenagers, a girl and a boy whose fathers had been imprisoned or under house arrest in Britain for 10 years and whose lives in those same years were filled with indignities and humiliations:
“People seem to think that we get used to things being how they are for us, so we don’t feel the injustices so much now. They are quite wrong: it was painful the first time, more painful the second, even more so the third. In fact, each time it’s worse, if you can believe that. There isn’t a limit on how much pain you can feel.”
The boy added this:
“There is never one day when I feel safe. It can be the authorities, it can be ordinary people, they can do something bad for us. Only like now when we are all in the house together can I stop worrying about my mum and my sisters, and even me, what might happen to us. On the tube [subway], in class at university, people look at my beard. I see them looking and I know they are thinking bad things about me. I would like to be a normal guy who no one looks at. You know, other boys, some of my friends, they cut corners, things like driving without a current license, everyone does it. But I can’t, I can’t ever, ever, take even a small risk. I have to always be cautious, be responsible… for my family.”
These children have been brought up by women who, against all odds, have often preserved their dignity and kept at least a modicum of joy in their families’ lives, and so, however despised, however unnoticed, however locked away, made themselves an inspiration to others. They are not victims to be pitied, but women our societies should embrace.
South African Archbishop Desmond Tutu’s response to recent proposals that Washington establish a secret court to oversee the targeting of terrorist suspects for death-by-drone and President Obama’s expanding executive power to kill, speak for the world beyond the West. They offer a different perspective on the war on terror that Washington and Great Britain continue to pursue with no end in sight:
“Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the nineteenth century, are not as human as you are? I cannot believe it. I used to say of apartheid that it dehumanized its perpetrators as much as, if not more than, its victims. Your response as a society to Osama bin Laden and his followers threatens to undermine your moral standards and your humanity.”
Victoria Brittain, journalist and former editor at the Guardian, has authored or co-authored two plays and four books, including Enemy Combatant with Moazzam Begg. Her latest book, Shadow Lives: The Forgotten Women of the War on Terror (Palgrave/Macmillan, 2013) has just been published.
Tags: al-Qaeda, Anwar al-Awlak, civilian casualties, drone attacks, drone missiles, drone strikes, enemy combatant, jon queally, lindsey graham, roger hollander
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Republican from South Carolina becomes first elected official to impart government’s estimate of civilians killed by US drones abroad
Becoming the first elected government official to publicly state an estimated number of “innocent people” killed in US drone attacks overseas, Sen. Lindsey Graham told a local crowd in his home state of South Carolina that “We’ve killed 4,700.”
“Sometimes you hit innocent people, and I hate that, but we’re at war,” said Sen Lindsey Graham (R-SC).
Speaking to a group of Rotarians at a forum in Easley, South Carolina, Graham responded to a question about drones by saying, “Sometimes you hit innocent people, and I hate that, but we’re at war, and we’ve taken out some very senior members of Al-Qaeda.”
His remarks, reported by the local Easley Patch, included a defense of the use of drones despite their propensity to kill innocent bystanders, including women and children.
“I didn’t want him to have a trial,” Graham stated, refering to a US citizen, Anwar Al-Awlaki, who was assassinated in Yemen by a missile from a US drone in 2011.
“We’re not fighting a crime, we’re fighting a war,” Graham said. “I support the president’s ability to make a determination as to who an enemy combatant is. It’s never been done by judges before. I support the drone program.”
Graham’s remarks have since been picked up by national and international media due to the fact that he appears to be the first high-ranking US government official to put an exact number of the number civilians killed by the US practice.
As Al-Jazeera reports:
Several organizations have tried to calculate how many militants and civilians may have been killed in drone strikes since 2004 but have arrived at a wide range of numbers.
The figure cited by Graham matches the high end of a tally by the London-based Bureau of Investigative Journalism. It says the number killed in drone strikes in Pakistan, Yemen and Somalia is between 3,072 and 4,756.
The Washington-based New America Foundation says there have been 350 US drone strikes since 2004, most of them during Barack Obama’s presidency. And the foundation estimates the death toll at between 1,963 and 3,293, with 261 to 305 civilians killed.
US intelligence agencies and the White House have refused to divulge details about the strikes, which are officially termed classified, but officials have suggested that few if any civilians have been killed inadvertently.
The comments by Graham set off speculation about whether or not the senator mistakenly cited official government estimates, and human rights advocates and civil liberty groups would be pleased to discover that such numbers actually exist given the Obama administration’s refusal to release any details about the program which was initiated under President Bush but escalated over the course of the current president.
Micah Zenko, credited by many for breaking the story of Graham’s comment at his CFR blog, said it’s notable that Graham’s publicly stated estimate “nearly matches” the Bureau of Investigative Journalism’s.
“Either Graham is a big fan of TBIJ’s work,” wrote Zenko, “or perhaps he inadvertently revealed the U.S. government’s body count for nonbattlefield targeted killings.”
And Anti-War‘s John Glaser adds:
It should be noted also that TBIJ, despite their rigorous methodology, was for a long time shunned by a mainstream media that refused to cite their casualty estimates, simply because it recorded the highest ones available. Newspapers and TV typically used the middle-of-the-road estimate, which was New America Foundation. Graham – with his seat on the Senate Armed Services Committee – is almost certainly privy to some secret government numbers on drone war casualties. The fact that he might of let it slip here – and the fact that it’s way higher than virtually anybody in the mainstream reports – should be something of a lesson, I think.
Graham also noted in his comments that in addition to his support for the drone war overseas, he supported further use of the technology within the US.
“I don’t want to arm them, but we need drones along the border so we can really control illegal immigration,” Graham told his constituents.
US Military Detains More Than 200 Afghan Teens as ‘Enemy Combatants’ December 9, 2012Posted by rogerhollander in Iraq and Afghanistan, War.
Tags: afghan teenagers, Afghanistan, Afghanistan War, bagram, childrens rights, enemy combatant, International law, roger hollander
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Roger’s note: the United States invades a country on the other side of the world that poses no threat to its security, throwing down death and destruction. Cowardly unmanned missiles rain down on civilian targets, and here we learn that children are captured and thrown into the hell hole dungeon know as the Bagram prison. God Bless America. It knows how to treat its “enemies” regardless of age.
Published on Saturday, December 8, 2012 by Common Dreams
‘Children as young as 11 or 12’ detained at Bagram
More than 200 Afghan teenagers have been captured and detained by the US military, the United States told the United Nations in a very troubling report distributed this week.
(Photo: Cpl. Reece Lodder / Marine Corps)
In recent years, the US has received criticism from a number of human rights organizations for failing to meet commitments to protect children in war zones.
The report was written in response to questions raised earlier this year by the United Nations committee charged with implementing the international treaty on the rights of children in armed conflict, formally known as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC).
According to the report, the State Department detained the children for up to a year at a time at a military prison next to Bagram Airfield in Afghanistan.
Characterized as “enemy combatants,” the purpose of detention was “not punitive but preventative: to prevent a combatant from returning to the battlefield,” the report said.
Though the US military estimates that most of the juvenile Afghan detainees were about 16 years old, their age was not usually determined until after capture.
“I’ve represented children as young as 11 or 12 who have been at Bagram,” said Tina M Foster, executive director of the International Justice Network, which represents adult and juvenile detainees.
Jamil Dakwar, director of the American Civil Liberties Union’s human rights program, added that it was “highly likely that some children were as young as 14 or 13 years old when they were detained by US forces.”
In regards to the inexplicably long detention, Dakwar added, “This is an extraordinarily unacceptably long period of time that exposes children in detention to greater risk of physical and mental abuse, especially if they are denied access to the protections guaranteed to them under international law.”
Allison Frankel of the ACLU human rights program wrote Saturday that there were significant and troubling lapses in information in the report:
The U.S. still has not provided any specific information about where these children were transferred to, or what forms of rehabilitation and reintegration assistance has been made available to them. Although this support is mandated under OPAC, evidence suggests that the U.S. has thus far failed to provide such assistance, let alone remedies for wrongful detention and abuse in U.S. custody.
According to the Associated Press, the State Department filed a similar report in 2008, providing a “snapshot” of the “US military’s effort in the endgame of the Bush presidency”:
In 2008, the US said it held about 500 juveniles in Iraqi detention centers and then had only about 10 at the Bagram Airfield in Afghanistan. A total of some 2,500 youths had been detained, almost all in Iraq, from 2002 through 2008 under the Bush administration.
Barack Obama campaigned for the presidency in 2008 in part on winding down active US involvement in the Iraq war, and shifting the military focus to Afghanistan. The latest figures on under-18 detainees reflect the redeployment of US efforts to Afghanistan.
The report was issued within the same week as an objectionable article in Military Times entitled “Some Afghan Kids Aren’t Bystanders,” quoted a senior officer who said that the military isn’t just out to bomb “military age males,” anymore, but kids, too:
“It kind of opens our aperture,” said Army Lt. Col. Marion “Ced” Carrington, whose unit, 1st Battalion, 508th Parachute Infantry Regiment, was assisting the Afghan police. “In addition to looking for military-age males, it’s looking for children with potential hostile intent.”
Amos Guiora, a law professor at the University of Utah specializing in counter-terrorism, said Carrington’s remarks reflected the shifting definitions of legitimate military targets within the Obama administration, the Guardian reports.
He is articulating a deeply troubling policy adopted by the Obama administration.
The decision about who you consider a legitimate target is less defined by your conduct than the conduct of the people or category of people which you are assigned to belong to … That is beyond troubling. It is also illegal and immoral.
The U.S. will undergo formal review by the Committee on the Rights of the Child in January 2013.
Jose Padilla and how American justice functions September 20, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, War on Terror.
Tags: ashcroft, Criminal Justice, cruel and unusual, dirty bomber, doj, enemy combatant, glenn greenwald, habaes corpus, jose padilla, national security, presidential power, roger hollander, rumsfeld, solitary confinement, troture, war on terror
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(updated below – Update II)
The story of Jose Padilla, continuing through the events of yesterday, expresses so much of the true nature of the War on Terror and especially America’s justice system. In 2002, the American citizen was arrested at Chicago’s O’Hare Airport, publicly labeled by John Ashcroft as The Dirty Bomber, and then imprisoned for the next three years on U.S. soil as an “enemy combatant” without charges of any kind, and denied all contact with the outside world, including even a lawyer. During his lawless incarceration, he was kept not just in extreme solitary confinement but extreme sensory deprivation as well, and was abused and tortured to the point of severe and probably permanent mental incapacity (Bush lawyers told a court that they were unable to produce videos of Padilla’s interrogations because those videos were mysteriously and tragically “lost”).
Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way. That’s because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him.
As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: “Here, where Padilla’s damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims” (emphasis added)). With one rare exception, federal courts, as usual, meekly complied. Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.
The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites. Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla — on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber — and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla’s imprisonment on the grounds of “mootness” (he’s no longer being held without charges so there’s nothing to decide).
At Padilla’s trial, the judge excluded all evidence of the abuse to which he was subjected and even admitted statements he made while in custody before he was Mirandized. Unsurprisingly, Padilla was convicted on charges of “supporting Islamic terrorism overseas” — but not any actual Terrorist plots (“The government’s chief evidence was an application form that government prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda training camp in Afghanistan in 2000″) — and then sentenced to 17 years in prison, all above and beyond the five years he was imprisoned with no due process.
Not content with what was done to Padilla, the Bush DOJ — and then the Obama DOJ — contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government’s. Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla’s arguments. It then took the very unusual step of vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:
Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors . . . .
As the dissenting judge explained, this decision is extraordinary because trial judges — not judges sitting afterward on appeal — are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence. But more so, in this case, a sentence less than the full maximum was warranted because “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.” About that point, the dissenting judge documented:
Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at he military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.
In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority.
Thus: American officials who are responsible for this “inhumane” and “cruel” abuse of detainees act with full impunity, as usual. Those who are its victims are not merely denied all redress (though they are), and do not merely have the courthouse doors slammed in their faces in the name of secrecy, national security and presidential power (though they do), but they are also mercilessly punished to the fullest extent possible.
It should be said that part of what happened here is just the typical politicization of the judiciary, as the two-judge majority was comprised of a hard-core right-wing Reagan/Bush 41 appointee from Alabama (Joel Dubina), while the other was one of Bush 43’s most controversial appointees, the former Alabama Attorney General who was filibustered by the Democrats and allowed onto the bench only by virtue of the “Gang of 14” compromise (William Pryor). Meanwhile, the dissenting judge was born in Mexico to Syrian parents and, after moving to Miami at the age of 6, became the first female judge (as well as the first Hispanic and Arab American judge) on the Florida Supreme Court (rising to Chief Justice), and was a Clinton appointee to the federal appeals court (Rosemary Barkett); Barkett, incidentally, dissented from an 11th Circuit ruling denying a habeas petition to Troy Davis, the African-American death row inmate scheduled to be executed by the State of Georgia this week despite mountains of evidence showing his innocence. So this episode highlights one of the few genuine differences that remain between the two parties that can truly impact people’s lives: their judicial appointments.
But the overriding theme is what we have seen time and again, that which — as it turns out — is the subject of my book to be released next month: America is plagued by a two-tiered justice system in which political and financial elites enjoy virtually absolute immunity for even the most egregious of crimes, while ordinary Americans (and especially fully stigmatized ones like Padilla) are subject with few defenses to the world’s largest and one of its most merciless systems of punishment. Thus do Jose Padilla’s lawless jailers and torturers walk free and prosper, while no punishment is sufficiently harsh for him.
* * * * *
Almost immediately after I published this, it was announced that Troy Davis’ last chance for clemency has been denied, virtually assuring that a likely innocent man will be killed by the State of Georgia tomorrow. Obviously, everything I just wrote applies in abundance to that event.
UPDATE: As usual, America’s propaganda-spreading, government-serving establishment media spouts blatant falsehoods to justify all this; from ABC News:
Padilla was never even charged with, let alone convicted of, having anything to do with a “dirty bomb.” “Dirty Bomber” was the villain nickname given to him by Bush officials and mindlessy repeated by its media to justify the treatment to which he was subjected. The U.S. Government gave up long ago using this accusation to demonize him (NYT on his conviction: “The dirty bomb accusations were not mentioned during Mr. Padilla’s three-month trial here“), but their lying “watchdog media” servants continue unabated. Who would possibly object to a longer prison term for A Dirty Bomber who tried to detonate radioactive weapons in American cities? The fact that not even the Government charged with him that is no deterrent to its media continuing to claim he did.
UPDATE II: Padilla was consigned to the SuperMax prison in Florence, Colorado to serve his 17-year sentence. The New York Bar Association last week issued a comprehensive study of America’s SuperMax system and concluded:
But 17 years in a torture system like that — on top of the 5 years of abuse he endured — is insufficient: “too lenient.”
- More: Glenn Greenwald
Tags: adel hassan hamad, al-Qaeda, bagram, cheney, Colin Powell, Criminal Justice, detainees, enemy combatant, Guantanamo, habeas corpus, International law, jason leopold, lawrence wilkerson, rendition, roger hollander, rumsfeld, Taliban, torture, war on terror
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Friday 09 April 2010
Former Secretary of Defense Donald Rumsfeld once declared that individuals captured by the US military in the aftermath of 9/11 and shipped off to the Guantanamo Bay prison facility represented the “worst of the worst.”
During a radio interview in June 2005, Rumsfeld said the detainees at Guantanamo, “all of whom were captured on a battlefield,” are “terrorists, trainers, bomb makers, recruiters, financiers, [Osama Bin Laden’s] body guards, would-be suicide bombers, probably the 20th hijacker, 9/11 hijacker.”
But Rumsfeld knowingly lied, according to a former top Bush administration official.
And so did then Vice President Dick Cheney when he said, also in 2002 and in dozens of public statements thereafter, that Guantanamo prisoners “are the worst of a very bad lot” and “dangerous” and “devoted to killing millions of Americans, innocent Americans, if they can, and they are perfectly prepared to die in the effort.”
Now, in a sworn declaration obtained exclusively by Truthout, Col. Lawrence Wilkerson, who was chief of staff to former Secretary of State Colin Powell during George W. Bush’s first term in office, said Bush, Cheney, and Rumsfeld knew the “vast majority” of prisoners captured in the so-called War on Terror were innocent and the administration refused to set them free once those facts were established because of the political repercussions that would have ensued.
“By late August 2002, I found that of the initial 742 detainees that had arrived at Guantánamo, the majority of them had never seen a US soldier in the process of their initial detention and their captivity had not been subjected to any meaningful review,” Wilkerson’s declaration says. “Secretary Powell was also trying to bring pressure to bear regarding a number of specific detentions because children as young as 12 and 13 and elderly as old as 92 or 93 had been shipped to Guantánamo. By that time, I also understood that the deliberate choice to send detainees to Guantánamo was an attempt to place them outside the jurisdiction of the US legal system.”
He added that it became “more and more clear many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military.”
For Cheney and Rumsfeld, and “others,” Wilkerson said, “the primary issue was to gain more intelligence as quickly as possible, both on Al Qaeda and its current and future plans and operations but increasingly also, in 2002-2003, on contacts between Al Qaeda and Saddam Hussein’s intelligence and secret police forces in Iraq.”
“Their view was that innocent people languishing in Guantánamo for years was justified by the broader war on terror and the capture of the small number of terrorists who were responsible for the September 11 attacks, or other acts of terrorism,” Wilkerson added. “Moreover, their detention was deemed acceptable if it led to a more complete and satisfactory intelligence picture with regard to Iraq, thus justifying the Administration’s plans for war with that country.”
Documents have been released over the past year that showed how in 2002 several high-value detainees were tortured and forced to make statements that linked Iraq to al-Qaeda and 9/11, which the Bush administration cited as intelligence to support its invasion of the country in March 2003. But the confessions were utterly false.
Wilkerson’s declaration was made in support of a lawsuit filed by Adel Hassan Hamad, a 52-year-old former Guantanamo detainee who is suing Defense Secretary Robert Gates, former Joint Chief of Staff Richard Myers, and a slew of other Bush administration officials for wrongfully imprisoning and torturing him.
Hamad was arrested in his apartment in Pakistan in July 2002, rendered to Bagram Air Base in Afghanistan for three months, where he says he was tortured, and then transferred to Guantanamo, where he was interrogated daily and subjected to even more torture by US military personnel.
At Bagram, according to Hamad’s lawsuit, “dogs were set upon [him] while watching United States military personnel laughed and mocked him.” Moreover, he was forced to stand for three days without “sleep or food” and eventually collapsed. He was then sent to a hospital where it took him two weeks to recover.
“Mr. Hamad was not given notice of the basis for his detention until more than two years after first being detained, when a Combatant Status Review Tribunal (CSRT) was convened in November 2004,” according to the lawsuit, filed in US District Court for the Western District of Washington at Seattle earlier this week. “Not until March 2005, nearly three full years after initially being detained, was Mr. Hamad officially labeled an ‘enemy Combatant’ by the flawed CSRT process,” according to the lawsuit.
“However, this determination drew a rare dissenting opinion that acknowledged his enemy combatant status determination was unwarranted and, as such, would have ‘unconscionable results,'” the lawsuit states. “The basis for Mr. Hamad’s enemy combatant determination was simply because of his association as an employee of two organizations for whom he had done humanitarian and charity work (one of which he had left years before), and nothing more.
“In fact, a second CSRT was ordered for Mr. Hamad in November of 2007, one month before he was ultimately released to the Sudan. This was unusual, and indicates that the government recognized that the initial CSRT determination of Mr. Hamad was not accurate.”
While Hamad was detained, his wife gave birth to a daughter who died some time later because the family did not have any money to pay for medical care. He has five other children.
Since he has been released, Hamad says he suffers from emotional, physical and psychological injuries and he is seeking undisclosed compensatory and punitive damages. Similar lawsuits against former Bush administration officials, however, have been dismissed in other jurisidictions.
Wilkerson said he “made a personal choice to come forward and discuss the abuses that occurred because knowledge that I served in an Administration that tortured and abused those it detained at the facilities at Guantánamo Bay and elsewhere and indefinitely detained the innocent for political reasons has marked a low point in my professional career and I wish to make the record clear on what occurred.”
“I am also extremely concerned that the Armed Forces of the United States, where I spent 31 years of my professional life, were deeply involved in these tragic mistakes. I am willing to testify in person regarding the content of this declaration, should that be necessary,” he added.
Gwynne Skinner, an assistant professor of clinical law at Willamette University College of Law in Salem, Oregon and a member of Hamad’s legal team, said WIlkerson’s declaration was originally intended to be filed in support of Hamad’s habeas corpus case, which was still pending in federal court in Washington, DC, along with more than 100 others, even though Hamad and the other former Guantanamo prisoners have already been released.
But US District Court Judge Thomas Hogan dismissed the cases, stating the former prisoners’ transfers rendered their habeas lawsuits moot. Attorneys for the detainees were upset because they had hoped the court would make a decision that would ultimately clear the peitioners’ names, lift travel restrictions, and the stigma that comes from being detained at Guantanamo.
Still, Skinner said Wilkerson’s declaration is signficant because it marks the first time a Bush administration official is willing to state, under oath, that Bush, Cheney, Rumsfeld and others knew many of the prisoners were innocent when they were sent to Guantanamo.
Wilkerson said detainees like Hamad were of little concern to Cheney.
The Office of Vice President Dick Cheney “had absolutely no concern that the vast majority of Guantanamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them,” Wilkerson said in the 9-page declaration. Cheney’s position, Wilkerson asserted, “could be summed up as ‘the end justifies the means.'”
Cheney, and his daughter Liz, have been vocal critics of President Obama’s efforts to shut down Guantanamo. Obama signed an executive order immediately after he was sworn into office and set a one-year deadline to close the facility. But he missed the date, due in part, to Congress’ refusal to earmark funds that would have allowed the administration to close the prison and move some detainees to a supermax prison in Illinois.
Cheney said last year that the only alternative the Bush administration had to setting up Guantanamo was to kill the prisoners detained there.
“If you don’t have a place where you can hold these people, the only other option is to kill them, and we don’t operate that way,” Cheney said.
It is not news that the majority of the initial 742 prisoners who were detained at Guantanamo were innocent of the crimes that they were accused of.
Indeed, in February of 2006, the National Journal reviewed the case files of 132 prisoners who filed habeas corpus petitions and the redacted CSRT transcripts of 314 others and concluded that “most of the ‘enemy combatants’ held at Guantanamo… are simply not the worst of the worst of the terrorist world” as Cheney, Rumsfeld and Bush had claimed.
“Many of them are not accused of hostilities against the United States or its allies,” according to an investigative report published by the National Journal. “Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence — even the classified evidence — gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It’s based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.”
The Journal noted that a common thread among many of the detainees is that a majority of them “were not caught by American soldiers on the battlefield. They came into American custody from third parties, mostly from Pakistan, some after targeted raids there, most after a dragnet for Arabs after 9/11.”
That’s a point Wilkerson made in his declaration and said it likely applied to Hamad’s case as well.
“With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantanamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all,” Wilkerson said in his declaration. “I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting.
“There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan. The vetting problem, in my opinion, was directly related to the initial decision not to send sufficient regular army troops at the outset of the war in Afghanistan, and instead, to rely on the forces of the Northern Alliance and the extremely few US Special Operations Forces (SOF) who did not have the necessary training or personnel to deal with battlefield detention questions or even the inclination to want to deal with the issue.
“A related problem with the initial detention was that predominantly US forces were not the ones who were taking the prisoners in the first place. Instead, we relied upon Afghans, such as General [Abdul Rashid] Dostums forces, and upon Pakistanis, to hand over prisoners whom they had apprehended, or who had been turned over to them for bounties, sometimes as much as $5,000 per head.
“Such practices meant that the likelihood was high that some of the Guantanamo detainees had been turned in to US forces in order to settle local scores, for tribal reasons, or just as a method of making money. I recall conversations with serving military officers at the time, who told me that many detainees were turned over for the wrong reasons, particularly for bounties and other incentives.”
In Hamad’s case, Wilkerson said that he has “no reason to believe that any more thorough process was used to determine whether his seizure or transfer to Guantanamo was justified.”
Wilkerson said that he discussed the Guantanamo detainees issue regularly with Powell and, based on those discussions, Wilkerson discovered that “President Bush was involved in all of the Guantanamo decision-making.”
“My own view is that it was easy for Vice President Cheney to run circles around President Bush bureaucratically because Cheney had the network within the government to do so,” Wilkerson said. “Moreover, by exploiting what Secretary Powell called the president’s ‘cowboy instincts,’ Vice President Cheney could more often than not gain the President’s acquiescence.”
Wilkerson said issues revolving around efforts to repatriate individuals wrongfully detained at Guantanamo came up during the morning briefings chaired by Powell that he and about 50 to 55 senior State Department officials attended beginning in August 2002 after the prison facility was opened.
“At the briefing, Secretary Powell would question Ambassador Pierre Prosper (Ambassador-at-Large for War Crimes), Cofer Black (Coordinator for Counter Terrorism), and Beth Jones (Assistant Secretary for Eurasia), or other senior personnel for information about specific progress in negotiating detainee releases,” Wilkerson said. “A number of these conversations arose because Secretary Powell received frequent phone calls from British Foreign Minister Jack Straw, who had consulted with Secretary Powell frequently about repatriating the British Guantánamo detainees …
“I also know that several other foreign ministers spoke with Secretary Powell urging him to repatriate their countries’ citizens. During these morning briefings, Secretary Powell would express frustration that more progress had not been made with detainee releases.”
During one particular meeting, Wilkerson said, Ambassador Prosper, the point person on negotiating the transfer of detainees to other countries, “would discuss the difficulty he encountered in dealing with the Department of Defense, and specifically Donald Rumsfeld, who just refused to let detainees go.”
Wilkerson said it was “politically impossible” to release detainees, even the ones Bush, Cheney, Rumsfeld and other senior officials knew were innocent.
“The concern expressed was that if they were released to another country, even an ally such as the United Kingdom, the leadership of the Defense Department would be left without any plausible explanation to the American people, whether the released detainee was subsequently found to be innocent by the receiving country, or whether the detainee was truly a terrorist and, upon release were it to then occur, would return to the war against the US,” he said. “Another concern was that the detention efforts at Guantánamo would be revealed as the incredibly confused operation that they were. Such results were not acceptable to the
Administration and would have been severely detrimental to the leadership at DOD.”
A spokesman for Rumsfeld said Wilkerson’s claims are untrue. Peggy Cifrino, Powell’s spokeswoman, said the former Secretary of State, “has not seen Colonel Wilkerson’s declaration and, therefore, cannot provide a comment.”
Still, what Wilkerson described may have very well been an issue in Hamad’s case, although as Jim White pointed out in a blog post, the Pentagon appears to have had a policy in place to “justify the long-term detention and interrogation of innocent civilians.”
According to Hamad’s lawsuit, the Pentagon had cleared him for release in November 2005, according to a redacted copy of his clearance decision his attorneys cited in their complaint.
But he was not freed from Guantanamo until December 2007. His attorneys said they were notified via email in March 2007 that Hamad was eligible to be sent back home to Sudan and it was during negotiations with the Sudanese government that they discovered he was eligible for release a full two years earlier.
About 183 detainees, many of whom have already been cleared for release, remain at Guantanamo. A majority of them have never been charged with a crime.
Bagram: Graveyard of the Geneva Conventions February 5, 2010Posted by rogerhollander in Criminal Justice, Human Rights, Iraq and Afghanistan, Torture, War.
Tags: Abu Ghraib, Afghanistan, Afghanistan War, andy worthington, bagram, block d, cia, enemy combatant, geneva conventions, Guantanamo, habaes corpus, human rights, International law, interrogation, john d. bates, obama administration, roger hollander, rumsfeld, secret prisons, supreme court, torture, war on terror
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Thursday 04 February 2010
On January 15, 2010, the Pentagon released the first-ever list of prisoners held in the Bagram Theater Internment Facility, the main US prison in Afghanistan for the last eight years. An annotated version of the list is available here.
For those who fear that there are hundreds of prisoners in Bagram who have been held for many years, the limited information provided by the list is somewhat reassuring. Of the 645 prisoners listed, all but a hundred or so were seized in the last two years. There is a caveat, however. Based on the numbering system used, it appears that a total of 3,000 prisoners have been held at Bagram since the last of the regular prisoners were transferred to Guantanamo in November 2003, but although some have been freed – as part of an essentially inscrutable review process – it is not known how many others have been transferred either to Afghan custody (under a similarly inscrutable arrangement) or to Block “D” of Kabul’s main prison, Pol-i-Charki.
Refurbished by US forces in early 2007, Block “D” is where 45 of the 46 Afghan prisoners repatriated from Guantanamo since August 2007 have ended up. The one exception is Mohamed Jawad, released last August, who won his habeas corpus petition in a US court, but the other 45 have been subjected to equally opaque policies regarding their continued detention, and decisions about whether they should be tried or released, and, if the former, whether trials should be based on anything other than dubious “evidence” recycled from Guantanamo. The overriding question about Block “D” – which lawyers are hoping to test in US courts following the recent transfer of four Afghans from Guantanamo – is whether Block “D” is under Afghan or American control.
Despite these small reassurances about Bagram, I would not like to give the impression that all is well with the prison. The length of time that the majority of the 645 men have been held may appear to be quite reasonable – between one and two years – but this is supposed to be a prison in a war zone, and those detained should be screened on capture to make sure that they have not been seized by mistake, and then held for the duration of hostilities. Instead, there is every indication that prisoners are, in general, seized according to the defining characteristics of the “War on Terror,” as played out in both Iraq and Afghanistan – indiscriminate dragnets and raids based on often dubious intelligence – which not only fail to win “hearts and minds,” but also demonstrate a unilateral (and illegal) reworking of the Geneva Conventions.
The Geneva Conventions and the Prevention of Torture
If there is any doubt about a wartime prisoner’s status – because he is not wearing a uniform, for example – he is entitled to an Article 5 competent tribunal, held close to the time and place of capture, at which he can call witnesses. The US military pioneered these tribunals from Vietnam onwards, and was preparing to undertake them in December 2001, when the prisons at Kandahar and Bagram opened, until orders came from on high that, in the “war on terror,” they were unnecessary. In its extraordinary arrogance and contempt for the law, the Bush administration decided that no screening was required, and that it was sufficient for the president to declare that, on capture, all the men were “enemy combatants,” who could be held indefinitely without any rights whatsoever.
The purpose – as became apparent at Guantanamo, when President Bush declared that the Geneva Conventions did not extend to those held in the “war on terror” – was not to keep men off the battlefield for the duration of hostilities, but to provide the lawless conditions in which they could be interrogated for “actionable intelligence.” The result, as has been chronicled as Guantanamo, at Bagram, at Abu Ghraib and in the secret prison network, was a torture regime, purportedly sanctioned by memos written by lawyers in the Justice Department’s Office of Legal Counsel, which claimed to redefine torture for the use by the CIA, or, in the case of the military, through “enhanced interrogation techniques” approved by Defense Secretary Donald Rumsfeld for use at Guantanamo, which later migrated to Iraq.
In many ways, these techniques were first conceived at Bagram, where the use of sleep deprivation and brutal stress positions (the “strappado” technique, or “Palestinian hanging”) was widespread, and the regime was so brutal that, in 2002, at least two prisoners (and possibly as many as five) were murdered in US custody.
Despite official claims that the conditions at Bagram have improved in the years since, a BBC report in June 2008, based on interviews with men held in the prison between 2002 and 2008, found that only two “said they had been treated well,” while the rest complained that “they were beaten, deprived of sleep and threatened with dogs.” In “Undue Process,” a Human Rights First report published in November 2009, a distinction was made between those held in Bagram’s early years, and those held since 2006, when, as the report noted, ex-detainees “described significantly better treatment than those captured earlier, but some still told of being assaulted at the point of capture and being held in cold isolation cells for several weeks after their capture.”
Moreover, in October 2009, during a panel discussion following the launch of the new Guantanamo documentary, “Outside the Law: Stories from Guantanamo,” former prisoner Omar Deghayes explained how his Pakistani brother-in-law was recently captured on a visit to Afghanistan and ended up in Bagram. As Omar described it, his brother-in-law’s wife, who was allowed to talk to her husband through a videophone system established by the International Committee of the Red Cross in early 2008, reported “how horribly and badly tortured he was, how he had marks on his eyes and was really badly battered.”
Importing Guantanamo-Style Reviews to Bagram
In an attempt to stifle dissent – and, it seems, as part of a cynical maneuver to encourage the Court of Appeals to reverse the habeas victories last March of three foreign prisoners who were rendered to Bagram from other countries – the Obama administration announced last September that it was introducing a new review process for the Bagram prisoners. Submitted in court documents relating to the government’s appeal, the proposals, for the first time, allowed prisoners to call witnesses in their defense.
This was an improvement, because, until 2007, there was no formal review process at all, and as District Court Judge John D. Bates noted last March, when he granted the habeas corpus petitions of the three foreign prisoners rendered to Bagram, the system that was then put in place – consisting of Unlawful Enemy Combatant Review Boards – “falls well short of what the Supreme Court found inadequate at Guantanamo” (the Combatant Status Review Tribunals, the one-sided review process convened in 2004-05, which the Supreme Court found inadequate in Boumediene v. Bush, the June 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights).
With incredulity, Judge Bates noted that the Bagram prisoners are not even allocated a personal representative from the military, as happened during the CSRTs at Guantanamo, and also noted that, although they are allowed to represent themselves:
Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation – so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process [which was followed by annual review boards], Bagram detainees receive no review beyond the UECRB itself.
In what appeared to be a direct response to Judge Bates’ damning criticisms, the Obama administration announced that, under the new rules, each prisoner would be assigned a US military official to represent him (as happened at Guantanamo), and that prisoners would also have the right to call witnesses and present evidence when it is “reasonably available” (as also happened at Guantanamo, even though no foreign witness was ever summoned to Cuba to testify).
It was also announced that the boards would determine whether prisoners should be held by the United States, turned over to Afghan authorities or released, but although the proposals included a promise that, “For those ordered held longer, the process will be repeated at six-month intervals,” the unilateral flight from the Geneva Conventions was confirmed not only in the decision to export Guantanamo’s discredited tribunal system to Bagram, but also in a section detailing how prisoners would be treated on capture.
As the submission explained, new prisoners would be subjected, on capture, not to Article 5 tribunals, but to cursory reviews by “the capturing unit commander” and by the commander of Bagram to ascertain that they “meet the criteria for detention.” Moreover, the DoD insisted that it was not merely holding prisoners “consistent with the laws and customs of war,” but was also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the “War on Terror,” approved by Congress within days of the 9/11 attacks), which authorized the president to detain those who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001,” or those who supported them.
This is depressingly close to the “new paradigm” of warfare introduced by Bush and Cheney, and it is, perhaps, no surprise that, as criticisms began to mount, the administration strategically announced that it was in the process of transferring control of Bagram to the Afghan government. It remains to be seen how swiftly the proposed transfer will occur, but it is unsurprising that the announcement has been made, for two reasons: firstly, because it diverts attention from current US policy, and secondly, because, as with the Status of Forces Agreement (SOFA) in Iraq, it allows the US government to abdicate all responsibility for the mistakes it has made. Signed in November 2008, the SOFA in Iraq has led to the transfer of thousands of prisoners in US control to the custody of the Iraqi government, even though what awaits them is not a review of whether their detention by US forces was a mistake, but the chaos of the Iraqi judicial system.
This is depressingly cynical, of course, but what makes it even worse is a reasonable assumption that the transfer of Bagram to Afghan control will not include the transfer of any prisoners regarded as significant. For these men, the likelihood is that the US government will retain control of a secretive “black jail” within Bagram airbase, exposed by The Washington Post and The New York Times in November 2009, and will continue to seize men in nighttime raids, sending them either to this facility, or to one of nine “Field Detention Sites” on military bases, “often on the slightest suspicion and without the knowledge of their families,” as Anand Gopal reported in a ground-breaking exposé last week, which revealed the extensive torture and abuse of those held.
Gopal’s account is not the only insight into the dark realities of current US detention policies in Afghanistan, beyond Bagram, beyond the Geneva Conventions, and, it seems, beyond the law. Late last year, a reliable Afghan source informed a lawyer friend of mine that there were, at the time, about two dozen secret facilities in Afghanistan, including three or four in Herat, four or five in northern Afghanistan, and three or four in Kabul. According to this source, the majority were US facilities, although a few were run by the National Directorate of Security (NDS), the Afghan government’s domestic intelligence agency, and a few others were run by the Afghan Army. The source added, “They are all worse than Bagram. All contain a mix of combatants, criminals and totally innocent persons. The main difference is that those at the US prisons are fed better. No one has any rights.”
In addition, just last week, in response to my recent articles, a military insider let me know that, “Not only were there facilities in Bagram, but in Kandahar and Salerno as well. Saw them firsthand between 2006 and 2009, but was told not to speak of the jails.” These, it was noted, were “unsanctioned facilities,” which were off-limits to the International Committee of the Red Cross.
As eight years of Bush, Cheney and Rumsfeld should have taught us, once you abandon the Geneva Conventions, all that lies beyond is secrecy and torture. The Obama administration has certainly tinkered with the Bush administration’s legacy, but as the stories of Bagram, the “dark jail” and the network of secret facilities demonstrate, tinkering threatens only to drive the dark truths further underground, and what is needed is the courage to thoroughly repudiate the brutal practices at the heart of the “war on terror.”
Obama Returns to Bush Era on Guantánamo May 5, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: andy worthington, coerice interrogations, Criminal Justice, david addington, Dick Cheney, enemy combatant, eric holder, George Bush, guananamo, guantanamo bribery, Guantanamo detainees, guantanamo kangaroo court, guantanamo suspicious prisoners, human rights, lawrence wilkerson, military commissions, military tribunals, Obama, Robert Gates, roger hollander, senate appropriations, torture, torture confessions, torture evidence
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Published on Tuesday, May 5, 2009 by The Future of Freedom Foundation
Two distressing pieces of news emerged last week regarding the Obama administration’s plans to close Guantánamo, and both were delivered by Defense Secretary Robert Gates in testimony to the Senate Appropriations Committee.
Discussing what would happen to the remaining 241 prisoners, Gates announced that the question was “still open” as to what the government should do with “the 50 to 100 – probably in that ballpark – who we cannot release and cannot try.” He also announced that the much-criticized military commission trial system, suspended for four months by Barack Obama on his first day in office, was “still very much on the table.”
Both admissions indicate that when it comes to Guantánamo, it is beginning to appear that the much-vaunted change promised by Barack Obama on the campaign trail has actually involved nothing more than imposing a closing date on Guantánamo while maintaining the Bush administration’s approach to the men still held there.
Back in Bush’s day, for example, those “who we cannot release and cannot try” were sometimes referred to as those who were “too dangerous to release but not guilty enough to prosecute” – essentially because the supposed evidence against them was the fruit of torture or other abuse.
As someone who has studied the story of Guantánamo and its prisoners in detail over the last three years, I’m aware that much of the information compiled by the Bush administration for use against the prisoners at Guantánamo was obtained through torture or coercion and is, therefore, unreliable, and that other, equally unreliable information was secured through the bribery of other prisoners.
As a National Journal investigation revealed in 2006, one prisoner, described by the FBI as a notorious liar, made false allegations against 60 prisoners in Guantánamo in exchange for more favorable treatment, and in February this year the Washington Post published the sobering tale of another informant, whose copious confessions should have set alarm bells ringing. In both cases, however, there is no indication that the officials responsible for compiling the information examined by the president’s review team have acknowledged that a substantial number of allegations against the prisoners are actually worthless.
Moreover, the defense secretary’s talk of 50 to 100 suspicious prisoners (above and beyond those regarded as demonstrably dangerous) is at odds with repeated intelligence assessments reported over the years, which have indicated that the total number of prisoners with any meaningful connection to international terrorism is between 35 and 50. To this should be added the recent revelation by Lawrence Wilkerson, Colin Powell’s chief of staff, that “no more than a dozen or two of the detainees” held in Guantánamo ever had any worthwhile intelligence.
In addition, the defense secretary’s talk of reviving the military commissions is a distressing development for the many critics of the novel trial system invented by Dick Cheney and David Addington, who hoped that the administration would resist all calls to reinstate them, and would, instead, move the relatively few prisoners regarded as genuinely dangerous to the mainland to face trials in federal court.
However, on Saturday, after speaking to Obama administration officials, the New York Times reported that, despite declaring that, as president, he would “reject the Military Commissions Act,” and stating that “by any measure our system of trying detainees has been an enormous failure,” President Obama was indeed considering reviving the commissions.
As the Times described it,
Administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.
As a result, they said, decision-makers were considering whether to tinker with the rules regarding the use of coercive interrogations and hearsay, in what the Times described as “walk[ing] a tightrope of granting the suspects more rights yet stopping short of affording them the rights available to defendants in American courts.”
The “tightrope” analogy, though apt, is also something of an understatement. Almost universally derided in their seven-year history, the commissions demonstrated, above all, that inventing a legal system from scratch was a poor substitute for respecting the laws which have served the Republic well for over 200 years.
Nor can it be claimed that the federal court system is incapable of dealing with terrorism cases. As was explained in a 2008 report by Human Rights First, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts” (PDF), over 100 terrorism cases have been prosecuted successfully in the federal courts in the last 15 years.
Moreover, last Thursday, as Robert Gates was telling the Senate that the military commissions were still “on the table,” the Justice Department was taking a very different line in the case of Ali al-Marri, a legal U.S. resident who was held in extreme isolation for nearly six years without charge or trial as an “enemy combatant” in a U.S. naval brig, until he was returned to the federal justice system by the Obama administration.
As al-Marri accepted a plea agreement and admitted that he had been sent to the United States as an al-Qaeda “sleeper agent,” Attorney General Eric Holder announced that the result “reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which this nation was founded and the rule of law.”
To remove the stain that Guantánamo has left on the reputation of the United States as a nation founded on the rule of law, Mr. Holder’s words should be repeated to him every time that the administration attempts to turn back the clock to the days of George W. Bush, with its dangerous talk of finding new ways to justify holding prisoners without charge or trial and its willingness to revive a trial system despised as nothing more than a “kangaroo court.”
Tags: al-Qaeda, associated press, aumf, bagram, Barack Obama, bush administration, enemy combatant, eric holder, glenn greenwald, Guantanamo, habeas corpus, liliana, new york times, roger hollander, segura, Taliban, terrorism suspects, war on terror, william glaberson
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Words matter, as Obama said on the campaign trail. But when it comes to his detention and counterterrorism policies, his actions are speaking louder.
The most pervasive early criticism of Barack Obama, aside from his inexperience, was that he was all rhetoric, no substance, an allegation he eloquently dismissed.
“Don’t tell me words don’t matter,” Obama declared on the campaign trail last February. ” ‘I have a dream.’ Just words? ‘We hold these truths to be self evident, that all men are created equal.’ Just words?” (That particular turn of phrase led to cries of plagiarism, but that’s another story.)
Arriving in the Oval Office, Obama immediately announced a number of executive orders whose language carried enormous promise. He pledged to close Guantanamo. He suspended the military commissions process. He reiterated that the United States does not torture.
At the same time, he moved away from the discredited terminology of the Bush administration. In January, the Associated Press reported that, with a sole exception, Obama had not uttered the term “war on terror” since assuming the presidency. “Obama has made it clear in his first days in office that he is … making what is at least a symbolic shift away from the previous administration’s often more combative tone,” it reported.
Then, last week, the Obama administration announced that it was getting rid of the label Bush used to brand terrorism suspects — good news, it would seem, if it weren’t for the context: “The Obama administration said Friday that it would abandon the Bush administration’s term ‘enemy combatant’ as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies,” reported William Glaberson of the New York Times.
But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.
According to the court filing, which was filed in a Washington federal court, “the United States bases its detention authority as to such persons on the Authorization for the Use of Military Force,” which grants the president “authority to detain persons who he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, and persons who harbored those responsible for the Sept. 11 attacks. The president also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.”
The AUMF, of course, is the measure passed almost unanimously by Congress one week after 9/11, which granted broad executive powers to the president. The court filing lifts the exact language from the AUMF, which declared that the president “is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Applied to Guantanamo, the language is seemingly at odds with Obama’s promise to close the prison camp — not to mention the Supreme Court’s landmark decision granting its prisoners habeas corpus rights. But it is not at odds with Obama’s official policy on prisoners at Afghanistan’s Bagram air base, who, according to his administration, have no right to challenge their detention because, unlike Cuba, Bagram is in an active theater of war (although many of the prisoners held there were captured elsewhere).
So, aside from discarding the term “enemy combatant,” what is the real difference between the Obama administration’s policy on indefinite detention and Bush’s?
“This seems fundamentally consistent with the positions of the prior administration,” Steven A. Engel, a lawyer in Bush’s Office of Legal Counsel told the Times.
“Mr. Engel added that the term ‘enemy combatant’ was not the issue. ‘The important point is that they recognize that we can detain members of the enemy’ during a war, he said.”
This position has been articulated by U.S. Attorney General Eric Holder, who nonetheless issued a statement on Friday saying: “As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values and is governed by law.”
But, especially as it remains unclear what, exactly, is “new” in its detention policies, it is long past the point where Americans should take the words of the Obama administration at face value. This may be a challenge in a time when people still camp out to hear Obama speak and marvel that their president has a basic command of the English language. But, as with the announcement that Guantanamo will close (but the U.S. still has the right to keep prisoners there), that the Iraq war will end (except for tens of thousands of “residual forces”), that torture will not occur on his watch (but renditions will continue), as a news headline, the retirement of the phrase “enemy combatant” conceals the most crucial part of the story.
Glenn Greenwald reminded readers on Sunday: “Bush’s asserted power to detain as ‘enemy combatants’ even those people who were detained outside of a traditional ‘battlefield’ — rather than charge them with crimes — was one of the most controversial of the last eight years. Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes — designed to generate headlines misleadingly depicting a significant reversal (“Obama drops ‘enemy combatant’ label”) — while, in fact, retaining the crux of Bush’s extremist detention theory.”
So is this “a case of old wine in new bottles,” as the Center for Constitutional Rights said in a statement released Friday?
For those who spent the Bush years raising hell over the razing of civil liberties, such a declaration is so depressing as to be intolerable. As Greenwald wrote, “the last thing most people want to do is conclude that the Obama administration is continuing the core of that extremism.”
“That was why the flurry of executive orders in the first week produced such praise: those who are devoted to civil liberties were, from the start, eager to believe that things would be different, and most want to do everything but conclude that the only improvements that will be made by Obama will be cosmetic ones.
“But it’s becoming increasingly difficult for honest commentators to do anything else but conclude that.”
Obama Admin Moves to Protect Military Officials March 13, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, George W. Bush.
Tags: Afghanistan, Asif Iqbal, bagram airfield, constitutional rights, doj, ed lewis, enemy combatant, Guantanamo, Guantanamo detainees, jamal al-harith, justice department, military officials, nedra pickler, president obama, religious freedom, Rhuhel Ahmed, richard myers, roger hollander, rumsfeld, Shafiq Rasul, supreme court, terror suspects, torture
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Published on Friday, March 13, 2009 by the Associated Press
by Nedra Pickler
WASHINGTON – The Obama administration is trying to protect top Bush administration military officials from lawsuits brought by prisoners who say they were tortured while being held at Guantanamo Bay.
The Justice Department argued in a filing Thursday with the U.S. Circuit Court of Appeals for the District of Columbia that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy.
The Obama administration was expected to take another stand affecting Guantanamo detainees’ lawsuits Friday. A federal judge overseeing lawsuits of detainees challenging their detention has given the Justice Department until the close of business to give its definition of whom the United States may hold as an “enemy combatant.”
Obama has pledged to close the Guantanamo Bay detention facility within a year, and Justice Department lawyers are already trying to find courtrooms or foreign countries to place the 240 people still held there.
The new administration is seeking to craft new rules for when and how a terror suspect can be seized, and what interrogation methods may be used in trying to extract information from them. But while it works on those rules, the Obama administration appears to be sticking with Bush administration legal definitions in pending litigation.
Last month in another court filing, the Justice Department sided with the Bush White House by arguing that detainees at Bagram Airfield in Afghanistan have no constitutional rights.
“The president has ordered a comprehensive review of both the government’s overall policy for detainees and the status of detainees held at Guantanamo,” Justice Department spokesman Matthew Miller said. “The Guantanamo detention facility will be closed by January 22, 2010, but in the meantime, we will continue to litigate cases involving detainees.”
The suit before the appeals court was brought by four British citizens – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith – who were sent back to Great Britain in 2004. The defendants in the case include former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff.
Eric Lewis, attorney for the four, said Friday that military officials should be subject to liability when they order torture.
“The upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected,” Lewis said.
The men say they were beaten, shackled in painful stress positions and threatened by dogs during their time at the U.S. naval base in Cuba. They also say they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet.
They contend in their lawsuit that the treatment violated the Religious Freedom Restoration Act, which provides that the “government shall not substantially burden a person’s exercise of religion.”
The appeals court ruled against them early last year, saying because the men were foreigners held outside the United States, they do not fall within the definition of a “person” protected by the act.
But later in the year, the Supreme Court ruled that Guantanamo detainees have some rights under the Constitution. So the Supreme Court instructed the appeals court to reconsider the lawsuit in light of their decision.
Charlie Savage on Obama’s embrace of Bush/Cheney “terrorism policies” February 18, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
Tags: aclu, al-Qaeda, battlefield law, boeing, bush admnistration, charlie savage, cia, civil liberties, counterterrorism, elena kagan, enemy combatant, eric holder, extraordinary rendition, glenn greenwald, Gregory Craig, Guantanamo, interrogatin restrictions, leon panetta, military commissions, rendition, roger hollander, solicitor general, state secrets, state secrets doctrine, state secrets privilege, torture, war on terrorism, waterboarding
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www.salon.com, February 18, 2009
During the Bush presidency, there were few reporters, if there were any, who were better on issues of civil liberties and executive power abuses than Charlie Savage, who won the Pulitzer Prize for his work exposing the lawlessness of Bush’s signing statements while at The Boston Globe. For that reason, it will be very difficult even for the hardest-core Obama supporters to dismiss away the following observations about Obama as nothing more than the angry harping of excessively impatient, unfairly harsh and/or alarmist Obama critics (also referred to by some Obama supporters — using the Fox News script — as “Far Leftist, Marxist, reactionary, radical demagogues“). From Savage this morning in The New York Times:
Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
Savage lists several other examples of controversial Bush/Cheney “War on Terror” policies which have been either fully embraced or preliminarily welcomed by the Obama administration, all of which have been previously discussed here (though one episode Savage didn’t mention which is one of the most disturbing yet is the Obama DOJ’s ongoing and increasingly aggressive efforts to keep Bush’s NSA warrantless spying program shielded from judicial review, by invoking Bush’s State Secrets argument).
Concerning the pending dispute over Bush’s wildly broad assertions of executive privilege in order to prevent his aides (such as Karl Rove) from having to disclose information to Congress, Savage quotes Obama’s White House counsel Greg Craig as follows:
Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
That may be the most revealing quote of the article. If — as virtually all Bush critics agree — the Bush presidency ushered in a massive and dangerous expansion of executive power, isn’t it necessary, by definition, to scale back some of those powers — i.e., to “undermine or weaken the institution of the presidency” — if those abuses are to be reversed? The cynical view has long been that Obama will not, on his own, meaningfully uproot Bush’s executive power expansions because political officials do not get into office and then start voluntarily giving up their own power. Craig’s statement constitutes a virtual affirmation of the cynic’s view of Obama’s intentions.
* * * * *
Having said all of this, and while believing that Savage’s article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly). Additionally, it is all but certain that media stars and right-wing Bush followers will dishonestly exploit Savage’s article to make claims about “vindication of Bush policies” that go far beyond the cautious statements Savage makes.
As Savage notes, there was a flurry of Executive Orders issued by Obama in the first week which are indisputably positive and constitute genuine reversals of some key Bush policies — banning CIA black sites, guaranteeing International Red Cross access to all detainees (i.e., no more secret detentions), freezing all military commissions, increasing some Executive Branch restrictions on presidential secrecy powers, substantially limiting the interrogation techniques which (at least for now) the CIA is authorized to employ. All of those orders were, by design, preliminary, incomplete and reversible — and their value is therefore limited — but they were clearly important steps in the right direction.
Additionally, the fact that there are some Obama appointees with some inexcusably horrible, Bush/Cheney-replicating views — such as Solicitor General Elena Kagan’s endorsement of the “war” paradigm to justify indefinite, lawless detention of “enemy combatants” and Deputy Solicitor General Neal Katyal’s partnership with Bush official Jack Goldsmith to advocate for Orwellian “national security courts” — doesn’t mean that those will become Obama’s policies. After all, Obama’s own Vice President and Secretary of State last year co-sponsored legislation to ban the use of the State Secrets privilege as a preemptive tool to immunize Presidents from judicial scrutiny of alleged criminality, but that sure didn’t stop the Obama DOJ from embracing exactly that dangerous secrecy weapon in a federal appeals court last week. Policies become policies when the President adopts them, not when some of his appointees advocate them.
There are also some mildly encouraging signs that Congress will impose checks on Obama’s power when he fails to follow through on his promises to do so. As Savage notes, numerous members almost immediately re-introduced the State Secrets legislation as a rebuke to Obama after his DOJ advocated that power for itself. Perhaps more notably — and more surprisingly — Rep. Jane Harman, a Blue Dog who was one of the worst enablers of Bush abuses of the last eight years, wrote an excellent Op-Ed in her local newspaper last week that went way further than Obama has gone in demanding a restoration of basic civil liberties. She demands that all Guantanamo prisoners be released, sent home, or tried in our existing federal courts; that the Military Commissions Act be repealed in its entirety; and that all new laws in these areas be debated and drafted entirely out in the open, with full public hearings first.
If someone like Jane Harman is emphatically advocating those measures, then there may be hope that even if, as appears to be the case, Obama is intent on preserving some Bush/Cheney abuses, it will be Congress — which has the ultimate duty here — that stops him. If, for instance, Obama wants to create some new, due-process-abridging detention scheme on U.S. soil (“national security courts”), he will need Congressional approval, and if someone like Jane Harman is already signaling her opposition, it’s difficult (though hardly impossible) to imagine how he would obtain that. The fact that Congress has spent the last eight years being complicit, meek, compliant and impotent is no reason to assume they will continue to be. Congress has a history of being much more assertive with Democratic Presidents, and that could — and should — be an important check on Obama.
* * * * *
Nonetheless, there is no question that Obama has already taken some truly alarming steps, including — in addition to those listed above — invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I’ve become convinced — for reasons Darren Hutchinson has argued and Savage today pointed out — that there’s more potential mischief in that policy than I immediately recognized.
There’s just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions — he just needs more time; it’s only been three weeks — is a complete straw man.
These are not complaints that Obama has failed to act quickly enough to reverse Bush/Cheney policies. Indeed, there are many areas where Obama has explicitly said he needs time before deciding what he wants to do — closing Guantanamo, proceeding with detainee trials; deciding if he wants to claim Bush’s power to indefinitely detain “enemy combatants” on U.S. soil; responding to some FOIA requests, etc. Very few civil libertarians — and certainly not me — have objected to his needing more time before he finalizes his exact policies. That’s perfectly reasonable. Some of these issues are truly complex, involve many moving parts, and require that many factions which he needs (e.g., inside the CIA) be placated. Taking some time is reasonable. The complaint is not that Obama has failed to move quickly enough to repudiate Bush/Cheney abuses. Virtually nobody is arguing that.
Rather, the criticisms are grounded in the opposite premise: these cases which have provoked objections are all cases where Obama has already taken affirmative actions to preserve and defend Bush/Cheney policies. In the State Secrets case, for example, the Obama DOJ explicitly rejected the ACLU’s offer for more time, declaring they do not need or want more time, that they have had ample time to review the issues and have decided that they believe in the Bush/Cheney theory of what the State Secrets privilege allows. Here’s what Greg Craig told Savage about why the Obama DOJ embraced Bush’s State Secrets theory:
Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance.
Can that be any clearer? Not even the Obama DOJ is claiming they needed more time. They’re saying they had all the time they needed, so Obama supporters should really stop trying to defend them by offering up excuses that the Obama administration itself rejects.
* * * * *
The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.
There are people who believe that Barack Obama is kind, just and good, and thus are going to have a hard time believing that he’s embracing some of the most abusive Bush/Cheney policies even when he does it right in front of their faces. Others aren’t ever going to object to what Obama does in this area, because they believe (as Bush supporters believed about Bush) that there’s nothing really wrong if Obama wields these same powers since Obama is a kind-hearted ruler and therefore can be trusted not to abuse these powers. As DCLaw pointed out yesterday, people with that swooning mentality can’t be reached because they don’t really believe in the basic premise on which the country was founded, as enunciated by James Madison in Federalist 51:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good. We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law. That’s what it means to be a nation of laws and not men. When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power. It’s the same. And that’s true even if one “trusts” Obama more than Bush.
A genuine reversal of the last eight years — meaning something more than just sand-papering the roughest edges — will come not from having a kinder-hearted and more magnanimous leader, but only from a restoration of the legal and Constitutional framework that makes a President’s magnanimity irrelevant, since his powers are exercised transparently and with real checks and limits. It remains very much an open question whether that will happen. There are some preliminary signs that it could, and some much more concrete signs that it won’t — at least not without a very concerted fight.
UPDATE: Greg Sargent had the same reaction I had to Greg Craig’s disturbing vow that Obama will do nothing to “undermine or weaken the institution of the presidency.” Self-evidently, it’s very hard to see how Bush/Cheney executive power abuses will be reversed if maximizing presidential power is their guiding principle.
In CQ yesterday, Tim Starks raised several issues similar to the ones Savage raised today, documenting that “on some of the most controversial intelligence issues of the Bush years, President Obama is either following in the footsteps of the former president or positioning himself to be able to do so later, if he chooses.” Like Savage did, Stark provides a balanced account, taking note of the positive steps Obama has taken. Still, all of these articles and episodes make conclusively clear that there is very real cause for concern about the direction in which they have been moving.