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What Excuse Remains for Obama’s Failure to Close GITMO? June 3, 2014

Posted by rogerhollander in Barack Obama, Constitution, War on Terror.
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Roger’s note: One is reminded of Richard Nixon’s famous “if the president does it, it’s not illegal.”

 

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Individuals and organizations like Witness Against Torture and the Center for Constitutional Rights have never wavered in their demand that Obama close the offshore prison in Guantanamo and put an end to the practice of indefinite detention. (Image: CCR)

The excuse-making on behalf of President Obama has always found its most extreme form when it came time to explain why he failed to fulfill his oft-stated 2008 election promise to close Guantanamo. As I’ve documented many times, even the promise itself was misleading, as it became quickly apparent that Obama — even in the absence of congressional obstruction — did not intend to “close GITMO” at all but rather to re-locate it, maintaining its defining injustice of indefinite detention.

But the events of the last three days have obliterated the last remaining excuse. In order to secure the release of American POW Sgt. Bowe Bergdahl, the Obama administration agreed to release from Guantanamo five detainees allegedly affiliated with the Taliban. But as even stalwart Obama defenders such as Jeffery Toobin admit, Obama “clearly broke the law” by releasing those detainees without providing Congress the 30-day notice required by the 2014 defense authorization statute (law professor Jonathan Turley similarly observed that Obama’s lawbreaking here was clear and virtually undebatable).

The only conceivable legal argument to justify this release is if the Obama White House argues that the law does not and cannot bind them. As documented by MSNBC’s Adam Serwer – who acknowledges that “when it comes to the legality of the decision [critics] have a point” – Obama has suggested in the past when issuing signing statements that he does not recognize the validity of congressional restrictions on his power to release Guantanamo detainees because these are decisions assigned by the Constitution solely to the commander-in-chief (sound familiar?). Obama’s last signing statement concluded with this cryptic vow: “In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Both Serwer and a new Washington Post article this morning note the gross and obvious hypocrisy of Obama and his Democratic loyalists now using Article-II-über-alles signing statements to ignore congressionally enacted laws relating to the War on Terror. Quoting an expert on signing statements, the Post – referencing Obama’s Bush-era condemnation of signing statements — sums up much of the last six years of political events in the US: “Senator Obama had a very different view than President Obama.”

But the eagerness of many Democrats to radically change everything they claimed to believe as of January 20, 2009 is far too familiar and well-documented at this point to be worth spending much time on. Far more significant are the implications for Obama’s infamously unfulfilled pledge to close Guantanamo.

The sole excuse now offered by Democratic loyalists for this failure has been that Congress prevented him from closing the camp. But here, the Obama White House appears to be arguing that Congress lacks the authority to constrain the President’s power to release detainees when he wants. What other excuse is there for his clear violation of a law that requires 30-day notice to Congress before any detainees are released?

But once you take the position that Obama can override — i.e., ignore — Congressional restrictions on his power to release Guantanamo detainees, then what possible excuse is left for his failure to close the camp? As Jason Leopold notes in an astute article at Al Jazeera, this week’s episode “has led one human rights organization to question why the Obama administration has not acted to transfer dozens of other detainees who have been cleared for release for many years.” He added:

Raha Wala, an attorney with Human Rights First, told Al Jazeera if the administration can make the argument that the five Taliban detainees are transferrable “without any significant problems under the congressionally imposed transfer restrictions” then certainly “the same argument can be made for the detainees who have already been cleared for release.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

They Have Lost Hope: Gitmo Hunger Strike Grows March 26, 2013

Posted by rogerhollander in Civil Liberties, Criminal Justice, Torture.
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03.26.13 – 4:12 PM

by Abby Zimet

In frustrated response to inaction by the Obama administration and a harsh February shakedown of cells, the hunger strike at Guantanamo is spreading, with as many as 100 of 166 prisoners refusing food for the last month. Red Cross workers arrived this week ahead of schedule to check on strikers, force feedings are on the rise, fainting spells are common – though dismissed as fake by prison officials – and many say an inmate death is inevitable. In solidarity, activists this week launched a week-long fast, and plan rallies and vigils. Meanwhile, the mainstream media remains largely, appallingly, inexplicably silent.

“Nobody else is talking about this subject… If people disappeared into an illegal black hole in Russia and were facing indefinite incarceration, without trial, without charge and without access of attorneys, we’d never hear the end of it. The Western media would be full of it… they’d be screaming from the rooftops.” – British MP George Galloway.

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The Obama GITMO myth July 24, 2012

Posted by rogerhollander in Uncategorized.
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New vindictive restrictions on detainees highlights the falsity of Obama defenders regarding closing the camp

By , Monday, Jul 23, 2012, www.salon.com

The Obama GITMO mythAccused Sept. 11 co-conspirator Ramzi Binalshibh is shown while attending his military hearing at the Guantanamo Bay U.S. Naval Base in Cuba. (AP/Janet Hamlin)

Most of the 168 detainees at Guantanamo have been imprisoned by the U.S. Government for close to a decade without charges and with no end in sight to their captivity. Some now die at Guantanamo, thousands of miles away from their homes and families, without ever having had the chance to contest accusations of guilt. During the Bush years, the plight of these detainees was a major source of political controversy, but under Obama, it is now almost entirely forgotten. On those rare occasions when it is raised, Obama defenders invoke a blatant myth to shield the President from blame: he wanted and tried so very hard to end all of this, but Congress would not let him. Especially now that we’re in an Election Year, and in light of very recent developments, it’s long overdue to document clearly how misleading that excuse is.

Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a “meaningful” opportunity to contest the legality of their detention. The DOJ recently informed a lawyer for a Yemeni detainee, Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he agreed to a new regime of restrictive rules, including acknowledging that such visits are within the sole discretion of the camp’s military commander. Moreover, as SCOTUSblog’s Lyle Denniston explains:

Besides putting control over legal contacts entirely under a military commander’s control, the “memorandum of understanding” does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client.

The New York Times Editorial Page today denounced these new rules as “spiteful,” cited it as “the Obama administration’s latest overuse of executive authority,” and said “the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.” Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees’ right to legal counsel.

But every time the issue of ongoing injustices at Guantanamo is raised, one hears the same apologia from the President’s defenders: the President wanted and tried to end all of this, but Congress — including even liberals such as Russ Feingold and Bernie Sanders — overwhelming voted to deny him the funds to close Guantanamo. While those claims, standing alone, are true, they omit crucial facts and thus paint a wildly misleading picture about what Obama actually did and did not seek to do.

What made Guantanamo controversial was not its physical location: that it was located in the Caribbean Sea rather than on American soil (that’s especially true since the Supreme Court ruled in 2004 that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty — and what still makes it such — is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama’s so-called “plan to close Guantanamo” — even if it had been approved in full by Congress — did not seek to end that core injustice. It sought to do the opposite: Obama’s plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.

Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. President Obama fully embraced indefinite detention — the defining injustice of Guantanamo — as his own policy.

In February, 2009, the Obama DOJ told an appellate court it was embracing the Bush DOJ’s theory that Bagram detainees have no legal rights whatsoever, an announcement that shocked the judges on the panel hearing the case. In May, 2009, President Obama delivered a speech at the National Archives — in front of the U.S. Constitution — and, as his plan for closing Guantanamo, proposed a system of preventative “prolonged detention” without trial inside the U.S.; The New York Times – in an article headlined “President’s Detention Plan Tests American Legal Tradition” – said Obama’s plan “would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.” In January, 2010, the Obama administration announced it would continue to imprison several dozen Guantanamo detainees without any charges or trials of any kind, including even a military commission, on the ground that they were “too difficult to prosecute but too dangerous to release.” That was all Obama’s doing, completely independent of anything Congress did.

When the President finally unveiled his plan for “closing Guantanamo,” it became clear that it wasn’t a plan to “close” the camp as much as it was a plan simply to re-locate it — import it — onto American soil, at a newly purchased federal prison in Thompson, Illinois. William Lynn, Obama’s Deputy Defense Secretary, sent a letter to inquiring Senators that expressly stated that the Obama administration intended to continue indefinitely to imprison some of the detainees with no charges of any kind. The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.

Recall that the ACLU immediately condemned what it called the President’s plan to create “GITMO North.” About the President’s so-called “plan to close Guantanamo,” Executive Director Anthony Romero said:

The creation of a “Gitmo North” in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.

Alarmingly, all indications are that the administration plans to continue its predecessor’s policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it’s occurring in Cuba or in Illinois.

In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one’s accusers. . . . .The Obama administration’s announcement today contradicts everything the president has said about the need for America to return to leading with its values.

In fact, Obama’s “close GITMO” plan — if it had been adopted by Congress — would have done something worse than merely continue the camp’s defining injustice of indefinite detention. It would likely have expanded those powers by importing them into the U.S. The day after President Obama’s speech proposing a system of “prolonged detention” on U.S. soil, the ACLU’s Ben Wizner told me in an interview:

It may to serve to enshrine into law the very departures from the law that the Bush administration led us on, and that we all criticized so much. And I’ll elaborate on that. But that’s really my initial reaction to it; that what President Obama was talking about yesterday is making permanent some of the worst features of the Guantanamo regime. He may be shutting down the prison on that camp, but what’s worse is he may be importing some of those legal principles into our own legal system, where they’ll do great harm for a long time.

So even if Congress had fully supported and funded Obama’s plan to “close Guantanamo,” the core injustices that made the camp such a travesty would remain. In fact, they’d not only remain, but would be in full force within the U.S. That’s what makes the prime excuse offered for Obama — he tried to end all of this but couldn’t – so misleading. He only wanted to change the locale of these injustices, but sought fully to preserve them.

Indeed, as part of that excuse, one frequently hears that even liberal civil liberties stalwarts in the Senate — such as Russ Feingold and Bernie Sanders — voted to deny funding for the closing of Guantanamo: as though it is they who are to blame for these enduring travesties, rather than Obama. But this, too, is misleading in the extreme.

The reason these Democratic Senators voted to deny funds for closing Guantanamo is not because they lacked the courage to close Guantanamo. It’s because they did not want to fund a plan to close the camp without knowing exactly what Obama planned to do with the detainees there — because people like Feingold and Sanders did not want to fund the importation of a system of indefinite detention onto U.S. soil. Here’s what actually happened when the Senate, including most Democrats, refused to fund the closing of Guantanamo:

[White House Press Secretary Robert Gibbs] added Obama has not yet decided where some of the detainees will be sent. A presidential commission is studying the issue. . . .

Sen. Daniel Inouye, D-Hawaii, chairman of the Appropriations Committee, favors closing Guantanamo, and the legislation his panel originally sent to the floor provided money for that purpose once the administration submitted a plan for the shutdown.

In changing course and seeking to delete the funds, he said, “The fact that the administration has not offered a workable plan at this point made that decision rather easy.”

Can that be any clearer? They would have voted to fund the closing of Guantanamo, but only once they knew what Obama’s plan was for the detainees there. Feingold — whose vote against funding the closing of Guantanamo is invariably cited by Obama defenders — wrote a letter to the President specifically to object to any plan to import the system of indefinite detention onto U.S. soil:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold was not going to vote for a plan to close Guantanamo if it meant that its core injustice — indefinite detention — was going simply to be re-located onto American soil, where it would be entrenched rather than dismantled. That, as all of this evidence makes clear, is why so many Democratic Senators voted to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely because they did not want to fund its continuation on American soil, as Obama clearly intended.

Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees — including the basic right to legal counsel — are being constricted further, in plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003, and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real stain of Guantanamo — keeping people locked up in cages for years with no charges — endures. And contrary to the blatant myth propagated by Obama defenders, that has happened not because Obama tried but failed to eliminate it, but precisely because he embraced it as his own policy from the start.

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Ten Years of Guantanamo: One of the Prison’s First Detainees Breaks His Silence January 10, 2012

Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, Torture, War on Terror.
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Tuesday 10 January 2012
by: Jason Leopold, Truthout         | Interview

David Hicks, author of “Guantanamo: My Journey.” (Image: Random House Australia)

To mark the tenth anniversary of the opening of the Guantanamo Bay prison to house “war on terror” detainees captured after 9/11, Truthout will republish a handful of exclusive reports by Jason Leopold about the facility.

This exclsuive interview with former Guantanamo detainee David Hicks was originally published on Truthout on February 16, 2011.

David Hicks was the Australian drifter who, years before 9/11, converted to Islam, changed his name to Muhammed Dawood and ended up at training camps in Afghanistan the US government said was linked to al-Qaeda.

Hicks was picked up at a taxi stand by the Northern Alliance in November 2001 and sold to US forces for about $1,500. Hicks was detainee 002, the second person processed into Guantanamo on January 11, 2002, the day the facility opened. He is one of the small group of detainees who challenged President George W. Bush’s November 13, 2001 executive order authorizing indefinite detention, which led to a landmark 2004 Supreme Court case, Rasul v. Bush, in which the High-Court said detainees have the right to habeas corpus.

Hicks spent five-and-a-half years at Guantanamo, where he was tortured. In 2007, he agreed to plead guilty to a charge of providing material support for terrorism in order to finally be freed from Guantanamo. In October 2010, he published a memoir, “Guantanamo: My Journey.” The book is unavailable in the United States and is not available for sale on Amazon or other online booksellers to US readers.

This is his first interview Hicks gave following his release from the “least worst place” on earth.

Please click here to read the main story about David Hicks, which includes exclusive interviews with former Guantanamo guards who he interacted with, one of whom was barred from reenlistment in the Army reserves for speaking to Truthout about his experience.

Truthout: Can you describe for me what you felt, emotionally, as you were writing the book and having to relive the torture you were subjected to?

David Hicks: At times I wrote as a third person, as if I was writing a chronological research report as part of my day job. At other times I had moments of vivid clarity. I would stop typing, sit back, and stare into nothing. The smells, sounds, the feeling of actually being there came flooding back as if had been transported to the camps of Guantanamo, clearly remembering what it was like to have actually been there.

TO: Solitary confinement appears to be among the worst of all the terrible experiences prisoners faced at Guantanamo. Can you explain what it does to you in a way that Americans, with no experience of such things, can understand what such isolation, especially with no knowledge of how long it will last, does to a person?

DH: Solitary and indefinite detention are two different things and are devastating when combined. Isolation has a powerful impact on the mind, especially when coupled with incommunicado detention as in GTMO. Everything outside the four walls is quickly forgotten. With no mental stimulation the mind becomes confused and dull. That state of mind is an advantage to interrogators who manipulate every aspect of your environment. They create a new world reality. Time ceases to exist. Talking becomes difficult, so when conversations do take place, you cannot form words or think. Even when hostility is not present such as during a visit with a lawyer or International Committee of the Red Cross (ICRC) visit, coherent sentences become elusive and huge mental blanks become common, as though you are forgetting the very act of speaking. Everything you think and know is dictated by the interrogators. You become fully dependent with a childlike reliance on your captors. They pull you apart and put you back together, dismantling into smaller pieces each time, until you become something different, their creation, when eventually reassembled. Indefinite detention is draining and cruel. Only after five and a half years when I had been promised a date of release did the intense battle with insanity subside, and that I started to feel a little more normal again. I finally had some certainty and felt a glimmer of control return. I began to remember that another world existed and could once again dream about what that world used to feel like. Indefinite detention is draining because you are taken prisoner and thrown into a cage. No reason is given or any relevant information or explanation offered. There are no accusations, no court rooms or judges. Nobody informs “you will be here for X amount of time.” It’s an impossible situation to accept and every minute is spent silently asking and hoping, “this cannot last forever, I will have to be released soon‚”. But when the mind is so desperate, when you are on your last legs, you can’t let go of the thought that you could be released any moment, even if all seems lost and hopeless. In a strange way it is one of those things the mind latches onto for a source of strength, a reason to keep going: false hopes and dreams are better than nothing.

TO: What do you believe gave you the strength to survive in such terrible conditions? Have you sought medical or psychological help since returning? If so, has it helped you?

DH: I survived because I had no choice, as many of us may unfortunately experience at some time in our lives. It was a psychological battle, a serious and dangerous one. It was a constant struggle not to lose my sanity and go mad. It would have been so easy just to let go: it offered the only escape. I have attended regular counseling since being released. It has helped but the passing of time has been just as helpful. Being exposed to such a consuming environment for five and a half years leaves a stain that cannot be removed overnight. It will take longer to reverse the consequences but even so, some experiences, especially one so prolonged, can never be entirely forgotten. I shudder to think what state of mind those who are still detained in GTMO must be in, and wonder how damaged they will be upon release. If they are released. At the time of writing, the US government is seriously considering enacting indefinite detention into law. It is hard to comprehend that they will effectively sentence someone to life in prison, without ever being charged, accused of breaking a law, or not even being told why they are being held. As with medical experimentation, indefinite detention on its own is a form of torture which causes mental anguish.

TO: At what moment in your mind did you begin to realize or understand that you were being tortured?

DH: I was beaten by US forces the first time I saw them and realized straight away that torture was going to be a reality, it was very scary. As I say in my book, I could not help thinking of the saying, “like trying to get blood from a stone,” and I was afraid of becoming that stone.

TO: What do you think makes a human being torture another human being?

DH: In Guantanamo torture was driven by anger and frustration. It seemed like a mad fruitless quest to pin crimes on detainees, to extract false confessions, and produce so-called intelligence of value. The guards were desensitized and detainees de-humanized. Soldiers were not allowed to engage us in conversation. They were told to address us by number only and not by name. They were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us. On occasion, when some groups of soldiers jogged around the camp perimeters I heard them sing lyrics such as, ‘you hate us and we hate you.’ One time in the privacy of Camp Echo a male soldier broke down when we were alone repeating, “what have I become?‚” after having arrived from an interrogation of a detainee in another camp.

TO: Can you describe for me the facial expressions of the interrogators and /or the guards as you were being abused? How did they react to your pain?

DH: Usually the guards seemed cold and indifferent. They deployed a “just doing my job‚” attitude, such as when they chained me to the floor in stress positions or made me sleep directly on a metal or concrete floor in a very cold air-conditioned room in only a pair of shorts. However some soldiers displayed discomfort and embarrassment. Usually guards were only used to restrain detainees, move them about, or help in the back ground with equipment. It was the interrogators who did the dirty work, expressing, hatred and frustration. At times soldiers did participate directly in beatings however, such the beatings I received before I arrived in GTMO (in Afghanistan, in transit, or when I was rendered to the two ships). These soldiers made a sport of it.

TO: Did any US soldier or any US official present at Guantanamo during your interrogations ever speak out about your torture or the torture of other detainees?

DH: If you mean protest during the act of torture, never. Many soldiers in private however apologized for what their government was doing to us and emphasized that not all Americans were like that or agreed with such treatment.

TO: Were you ever interrogated by anyone from the CIA?

DH: Some interrogators stated which agencies they represented, some didn’t, while others lied about who they worked for. To the best of my knowledge I was seen by the CIA, FBI, US military intelligence, MI5 from the UK, ASIO and the AFP from Australia. There were other organizations working in GTMO, some I had never heard of before.

TO: In your book you write: “These beatings and other activities were systematic and ordered from above, not the result of low- ranking MPs looking for ways to have some fun.” Did anyone ever state who from above ordered the beatings?

DH: The soldiers were very open about where their orders came from and interrogators never allowed us to forget that they controlled every aspect of our lives; whether it was torturing us, allowing us a shower, clothing, or a letter from home. Then there were examples such as when General [Geoffrey] Miller took over camp procedures in early 2003. He unleashed a new wave of interrogation techniques upon us. Each new General, and wave of interrogators who were accompanied by experts from various professions, brought newly signed orders from Department of Justice employees allowing ever harsher techniques.

TO: Have you read the torture memos written by former Justice Department attorneys John Yoo and Jay Bybee? Were you ever subjected to torture techniques described in those memos?

DH: I have read them but it was some time ago and I cannot currently recollect all that they contained. Some of the techniques I was subjected to from the memos was being chained to the floor, known as “stress positions.” Sleep deprivation was an everyday occurrence during all of the years I spent in GTMO. Noise manipulation also happened often depending on what camp I was in. They used chainsaw motors and loud music in Camp Delta. They used temperature extremes on me, which meant subjecting me to the freezing cold because they knew I have a low tolerance to the cold. Sensory deprivation, prolonged isolation and other psychological manipulation techniques were also used on me (injecting me with substances, giving me cold and sometimes green food such as eggs, putting cameras up on the ceiling). They also used techniques that exploited my fears.

TO: You write that at Camp Echo that guards were placed to observe you constantly and that they wrote notes about your every behavior. Did you ever ask these guards what their instructions were, or if they knew what their superiors did with these notes? Did they ever tell you?

DH: We were observed in all camps. Guards always carried a pen and note book having been ordered to write down everything we did, including the trivial such as what we did to pass the time and what we spoke about when other detainees were around. They even recorded how we went to the bathroom, i.e. did we shield ourselves from neighboring detainees or guards and if so, how? Nothing went un-noted. This information was combined with personality traits learnt from interrogations, ranging from how we spoke to how we responded to the so called “enhanced interrogation techniques.” The end result was the US government compiling files on each of us, including a micro level psychoanalysis. They knew our likes and dislikes, fears and weaknesses. These files were then used against us in interrogation and in daily camp life. It was about crushing and defeating us, to make us become so desperate that we would do and agree to anything to escape. Collecting this information and what they used it for was no secret and some guards explained this program when in private. In Camp Echo guards who sat outside our cages staring at us twenty four hours a day had to write what we were doing every fifteen minutes night and day. The interrogation rooms of Camp Delta had an entire wall as a one way observation glass. Behind these walls sat teams of so-called experts: Intelligence officers, behavioral scientists, psychologists; people who made conclusions upon which they decided what techniques were to be employed. By this I mean what programs the detainee would be subjected to in his cage such as sleep deprivation, noise or food ‚Äòmanipulation‚Äô. There was no shortage of ideas, resources, expertise, or personnel. A lot of effort went into these customized interrogations. Nothing was private. We were violated internally, psychologically, spiritually. They probed and tinkered in recesses so deep; parts of ourselves we are not conscious of or in touch with in our daily lives and may not even connect with and discover in our lifetimes.

TO: Did you ever meet separately with a psychologist or psychiatrist when at Guantanamo, for ostensibly psychological reasons, either a psychological test or assessment, or for supposed treatment of any sort?

DH: No, but they did approach me occasionally during the last year or so I spent in GTMO to see if I would talk and cooperate. Apart from their contributions in interrogations they were always lurking in the back ground, waiting to “help a detainee,” but to really act as another prong to interrogation. If a detainee even whispered for such medical intervention a “mental health expert,” would appear with a pocket of unknown medication and a long list of probing questions. They were not there to help, but to harm. We knew this and so I always refused to speak with them when they offered. If I did speak with them, such as the period when I eventually, after two years, had limited access to a lawyer for example, the questions would have been centered on how I intended to defend myself and any court actions I was considering. All they wanted was information, or to find a new way to defeat you.

TO: Were psychologists and/or medical professionals present at all interrogations? Were the interrogations ever stopped to check your heart rate and/or pulse?

DH: The major physical beatings I endured occurred in Afghanistan, during transportation and en-route to GTMO. During those sessions, one was around 10 hours, my vital signs were checked often. In GTMO medical personnel were not in the same room as me during actual interrogations but from my understanding they were monitoring my interrogations from behind the one way glass in Camp Delta. For other detainees, such as those being shocked or water boarded, medical personnel were present, or if drugs were being administrated during interrogation as I describe in my book when they extracted false confessions from one of the UK detainees. They were present when I was injected in the spine, but that experience is one that I don’t like to talk about.

TO: Have your attorneys tried to get a copy of your medical records?

DH: Yes, but with no luck. We gave up thinking me might be allowed to see them long ago. Even upon return to Australian where I was forced to spend the first seven months in isolated detention as part of the agreement to get out of GTMO. My family requested an independent blood test be taken on my return to Australia. They were refused without an excuse. It was nearly eight months since GTMO and about a year since being given medication before I was allowed to have my first blood test. I was informed that too much time had passed to see what I had been given.

TO: During your interrogations, did the interrogators ever ask you questions about Iraq ?

DH: No, the policy of incommunicado was strictly enforced, for years we knew absolutely nothing about the outside world. We weren’t even meant to know the time of day, let alone our location, especially any news. The first time I learnt about the war in Iraq was the end of 2003. A guard was kind enough to allow me to read his copy of FHM magazine and it contained an article about the US invasion, otherwise I would not have known. Rumors of a war in Iraq did not begin to circulate amongst the detainees until 2004 and was viewed with skepticism by most. The military did not inform us officially of the Iraq invasion until late 2006 by placing large posters of Saddam hanging from a noose around the camps with slogans splashed across the front like, “this could be you.” It was only then that detainees believed that the war had taken place.

TO: You have written eloquently of your terrible experience with what you say was medical experimentation, calling it the worst and darkest of your experiences there. Have you talked with any other detainees about whether they had similar experiences? How do you think about it now?

DH: When I was injected in the back of the neck I was being held in isolation, so I was unable to discuss what had happened with other detainees. A year passed before I was eventually able to see and communicate with fellow detainees, and I am unable to remember today if I discussed that particular personal experience with them. We did discuss medical experimentation in general however. A detainee with UK citizenship described being injected daily, resulting in one of his testicles becoming swollen and racked with pain. Along with these daily injections he was subjected to mind games by interrogators, medical personnel, and guards whom worked as a team. Under these conditions they were able to extract written false confessions from him. How I experienced the injection at the base of my neck is described in detail in my book. In a nutshell, I felt my soul had been violated. That is just one experience I had with medication. There were many pills and injections, plus constant blood tests over the years. Everybody regardless of their citizenship should acknowledge that medical experimentation, whether on human beings or animals, is unacceptable. As with animals, we were held as prisoners when these procedures were forced upon us against our will. And as with animals, we were voiceless.

TO: Did any interrogator or other official working for the US government ever use the word “torture” or “experiment” as you were being interrogated?

DH: I don’t remember the word torture being used but there were many ways to imply it. After a torture session for example an interrogator would just say, “the treatment you have recently endured can always be repeated,” and threats were often made referring to past treatment or what was happening to other detainees. Guards often alluded to GTMO as being a big laboratory where we were subjected to their government’s well-honed techniques. I remember in the early days while being held aboard a US ship when a soldier said, “be strong man no matter what they do to you, just keep your head in God man,”. It didn’t leave me with much confidence.

TO: Did you ever sign any document stating that you consented to the medications/injections you received? Did anyone ever ask you to sign such a document?

DH: I had two surgeries while in GTMO. One was for a double hernia, while the other was to remove painful golf ball size lumps on my chest. The cause of the lumps or what they were was never explained to me but research since my release indicates that it was either the mediations I was forced to take or the extreme stress levels may have been responsible. On the two occasions I was operated on I was asked to sign a consent form, which I did. However my permission was not sought nor had I any choice when it came to being forced fed tablets, or the numerous injections that we were all given. Many blood tests were also taken consistently over the years I was detained.

TO: How typical was it, do you think, that interrogators attempted to get prisoners to become agents for their government?

DH: Interrogators attempted to bribe detainees with food, bed sheets, toilet paper and other “luxuries‚” to become spies and to give information about other detainees. On occasion some detainees in GTMO became so drained and broken that they would succumb to the temptation. Interrogators tried everything to make detainees “confess,” including being asked to lie via imagination or simply to agree to an interrogator’s theories. Interrogators became desperate with the passing of time to find and pin actual crimes on detainees, and paper trails have shown they were willing to manipulate evidence in their favor. There was one time in 2003 when we were all asked if we would work for the US government performing secret operations off the island, somewhere abroad. Nearly every detainee laughed at this question and word quickly spread so we knew we weren’t alone. Apparently the proposition was a part of their profiling system. Interrogators worked around the clock to break us. Once broken, detainees were asked to agree to anything by interrogators, to repeat after them, to sign confessions, to be false witnesses, or to sow discord amongst detainees.

TO: When did you become aware that journalists were writing about torture at Guantanamo and at prisons in Iraq and Afghanistan?

DH: Not until the photos from Abu Ghraib in Iraq had become public. I found the public debate interesting. At first it was, “are they being tortured or not.” Then once torture was confirmed, the debate evolved to, “is it acceptable, is it justified, is it legal?” I am surprised by how many people still try to justify torture and support it as government policy, as an extra “necessary” tool to tackle terrorism.

TO: Do you know if any prisoners ever died at Guantanamo while you were there?

DH: Four died during my time in Guantanamo.

TO: Have you heard about the three prisoners who allegedly committed suicide in June 2006? Do you know anything about them? Do you believe they committed suicide?

DH: Suicide is possible in that situation, but evidence has emerged in various forms and from various sources suggesting foul play. Some witnesses are soldiers and have said that they believe that the detainees were “accidentally‚” killed during an interrogation at a secret camp on the island called “Camp No‚” as in no, it doesn’t exist. It seems they pushed their dangerous techniques too far. The fact that the organs were removed from the bodies so that an independent autopsy could not be carried out raises more questions than answers. This topic is covered in detail in my book with researched references pointing to foul play.

TO: Did you ever interact with Shaker Aamer, the last British resident still held at Guantanamo?

DH: I saw him on the odd occasion over the years and exchanged greetings, otherwise I never had the chance to talk or interact with him. The military has often kept him separated from other detainees and I believe subjected him to horrific treatment. When I left GTMO in early 2007 I knew that he was being held in isolation in Camp Echo because that is where I was. Whenever I saw him he always looked so skinny, weak, and tired. I cannot understand why they continue to hold him and the nearly two hundred men still detained there.

TO: Were dogs ever used to invoke fear in you? You describe the use of chainsaws in your book. What was the purpose of this?

DH: Not personally, dogs were mainly used against detainees known to have a fear of them. Our individual fears and weaknesses were used against us as customized interrogations. The chainsaw engines kept at full revs were used as part of their noise manipulation program. It prevented detainees from communicating with each other, prevented sleep, and basically drove us mad.

TO: Can you tell me whether you have any flashbacks and if so what triggers it? When that happens, what do you start to feel?

DH: Day time flashbacks consist of those moments of vivid clarity as I described previously, but it is the dreams that are the worst. I see myself having to begin the long process of imprisonment again accompanied with vivid feelings of hopelessness and no knowledge of the future or how long it will last. The other dreams consist of gruesome medical experimentations too horrible to describe. Losing my personality, my identity, memories and self is much more frightening to me than any physical harm. It is these dreams that are the most common and terrifying.

TO: Do you remember former Guantanamo guards Brandon Neely and Albert Melise?

DH: Unfortunately, I don’t remember Neely from Camp X-ray, it was a very confusing time for me. We established contact last year, but I became aware of Neely some time ago when he flew to the UK and publicly met some of the former UK detainees. He apologized for what he and his government had done. He is a brave man and I admire his courage and moral values so it was an honor to speak with him. I remember the polite and respectful soldiers, and the bad, but especially the good men and women I spent time with privately, such as in Camp Echo. One of those good men is Albert Melise who made contact with me to apologize, to offer help, and to see if I was alright. I remember him well because he did what he could in that controlled high security environment to help slow the deterioration of my sanity for the few months I spent with him. He is another brave man that I respect and admire, to add his voice to the growing number of witnesses that are coming forward to publicly share the truth and expose that shameful time in our history. Melise did a lot to help me in those dark times, and it was a joy to hear his voice that first time as a free man. I hope to gather enough funds so I can fly these two men to Australia to thank them personally and show my gratitude for their friendship and trust. I’d like to show them my hospitality and my country, and to show them how much I appreciate their past kindness and current bravery. Neely and Melise were not alone in covertly showing humanity to myself and other detainees whenever they had the opportunity. A handshake, an apology (though that responsibility shouldn’t have to have been shouldered by them), even a simple hello and a smile goes a long way in an environment drowning in hostility and hatred. There were other soldiers who helped me in their own way and apologized for what was happening when no one else was around. As bad as that place was, and some of the people who worked there, they were all human and there is good in all of us. A good percentage of the soldiers were very young and most were only reservists who had never expected to be deployed. It was always interesting to watch the shock on their faces when they first entered the camps, a scene they had often seen only in old war movies and the realization that their government “did torture.” Some of these poor souls suffered greatly as they experienced the “other” America and struggled to carry out questionable orders. It is not just the tortured who suffer.

TO: What do you think should happen, if anything, to the individuals who tortured you and the government officials who sanctioned it?

DH: As for the soldiers I don’t think “following orders” is an excuse. Interrogators should be disciplined and charged if found to have acted illegally. All medical personnel who participated in interrogations, whether doctors, nurses, corpsman, psychologists and psychiatrists should be investigated and banned from practicing, even if they only gave advice or kept silent if aware of what was happening. I also think that the highest ranking military officials, politicians, and lawyers who created and supported the system need to go in front of an international court.

But these are not the only issues. GTMO should be closed, torture abolished, military commissions scrapped, renditions ceased, indefinite detention should be a thing of the past, and people (including children) should no longer be made to “disappear” into unknown black site prisons.

Justice is coming slowly however. Former Guantanamo soldiers, translators, FBI and other US employees, even prosecutors, have gone public to expose the truth of GTMO and many documents have made it into the public realm. Spain and Germany had begun the process of prosecuting former president Bush and members of his regime but after being pressured by the US they dropped the proceedings. The latest country said to be exploring the possibility of prosecuting US officials is Poland for the US using its soil in its rendition program. Last year Italy convicted 26 CIA agents in absentia for their involvement in kidnapping an Italian citizen and then dumping him in the woods near his home in the middle of the night a year later. The former UK detainees were recently paid just over a million pounds each in compensation and the Australian government has just paid compensation to the other Australian who was held in GTMO after being tortured in Egypt. In both instances these men were required to drop their court cases against the state. Wikileaks has been another vehicle shedding light on what took place at GTMO and beyond, exposing those responsible for illegal acts. Sometime this year about thirteen hundred diplomatic cables are to be released concerning Australia. I have been told to look out for information concerning my case. Especially cables that talk about the treatment I was receiving, and who was involved with the political interference and creation of the plea deal that I was forced to sign if I was ever to come home. I will be watching with great interest once all that information comes to light.

TO: Is there anything the US government or the Australian government told you that you can never speak about?

There was a one year gag order upon my release and I had to sign a plea agreement that said I had never been mistreated by US officials or their employees while in US detention. I am also not allowed to challenge or “collaterally attack‚” my conviction, seek compensation or other remedies, or sue anyone for my illegal imprisonment and treatment. I have been advised that no court would uphold the plea agreement.

TO: There aren’t many Caucasians at Guantanamo? How were you treated by the other detainees? And now that you’ve been released, how have you been treated by the public?

DH: There weren’t many Caucasians at GTMO but I wasn’t the only one. Before the release of detainees began there must have been close to forty European citizens spread between eight or nine western European countries. Usually most detainees treated each other the same regardless of their geo-political or cultural background. The Australian public has been wonderful; very welcoming, glad to see me home and very helpful. I often have people approach me to say hello.

TO: How did you and your wife Aloysia meet?

DH: Aloysia has been involved in human rights activism for years and in her efforts for social justice became involved in the Australian campaign to see me released from Guantanamo bay. Over the years she came to know my dad quite well, and he played a part in our relationship.

TO: You have a long life ahead of you. What would you like to accomplish? What are your hopes and dreams?

DH: When I was released I wondered if refugees newly arrived in a country felt similar. I had to begin a new life from the beginning, from collecting a set of identification papers to such privileges as a vehicle license and obtaining a Medicare card. Despite long term plans such as owning a home I have been taking a day at a time, receiving treatment for physical and mental injuries, finding employment and working, and when I get the chance or in the mood fishing or socializing. Writing my book for two years took up a lot of my time, as does keeping abreast of all the continuous developments regarding GTMO, the so-called war on terror and its related policies, and those whose lives (detained or not) they continue to effect, including my own. Life is very busy for me. Finding the love of my life has been my biggest accomplishment, of course! And then writing my book. Otherwise there is a lot of work left to do and in the years to come I will continue to rebuild my life, seek normality, and to live in peace with the hardships of the past far behind me.

Obama Administration Demands Amnesia From Reporters Covering Gitmo May 7, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
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Dan Froomkin, www.huffingtonpost.com, May 7, 2010

Jack Newfield, the legendary investigative reporter, once wrote that if government officials had their way, journalists would be “stenographers with amnesia.”

The “amnesia” part, at least, was generally considered a bit of an exaggeration.

But now, the Pentagon has banned four reporters from covering the military commissions at Guantanamo Bay, Cuba, because they refused to forget something that had already been reported to the world.

The four reporters were covering military commission hearings at which defense attorneys for Canadian detainee Omar Khadr argued that confessions he made as a gravely wounded 15-year-old shouldn’t be admissible in his upcoming trial because they were made under duress.

And indeed, witnesses earlier this week described how Khadr’s interrogation began when he was still sedated and lying wounded on a stretcher. A medic testified that he once found Khadr chained by his arms to the door of his cage-like cell, hooded and in tears

But the defense’s star witness, on Thursday, was the first U.S. Army interrogator to question Khadr. The interrogator admitted that in an attempt to get Khadr to talk, he told the boy a “fictitious” tale of an Afghan youth who was gang-raped in an American prison and died.

And it wasn’t just what he said that was significant, it was also who he was. The interrogator was Army Sgt. Joshua Claus, who pleaded guilty in September 2005 to mistreatment and assault of detainees at the Bagram prison in Afghanistan.

Claus was a central figures in the interrogation of an Afghan taxi driver named Dilawar whose death in U.S. custody in 2002 was ruled a homicide by military investigators and was the subject of a New York Times investigation and the Oscar-winning documentary, “Taxi to the Dark Side”.

The military judge presiding over the hearing insisted that Claus’s name was protected information, and that he should only be referred to as Interrogator # 1.

But since it was already public record that Claus was Khadr’s first interrogator — and he’d even given an interview last year about his desire to testify — the four reporters used his name in their Wednesday reports, previewing his testimony.

That was enough to get them thrown off the island.

“That reporters are being punished for disclosing information that has been publicly available for years is nothing short of absurd,” Jameel Jaffer, deputy legal director for the American Civil Liberties Union, said in a statement. “Any gag order that covers this kind of information is not just overbroad but nonsensical. Plainly, no legitimate government interest is served by suppressing information that is already well known. ”

The decision was announced by Col. Dave Lapan, the Pentagon’s director of press operations. He emailed the four news organizations that they could send other reporters to cover military commissions in the future, but that another violation would get their organizations banned entirely.

The decision Is being appealed.

“The company lawyers are looking at the ground rules, the timing of this, and Carol’s reporting, in preparation for appealing this decision,” said John Walcott, Washington bureau chief for McClatchy Newspapers. Carol Rosenberg, one of the four banned reporters, works for McClatchy’s Miami Herald.

The other three reporters are Michelle Shephard of the Toronto Star, Paul Koring of Toronto’s Globe and Mail and Steven Edwards of CanWest Newspapers.

“I’m not sure I understand the logic of trying to redact a name that has been in public for some time, of a man who has granted at least one major interview, and been convicted and sentenced,” Walcott told HuffPost.

“I hope that this decision is about what the Pentagon said it’s about, and that is an attempt to protect a witness — and not about some of the embarrassing testimony that emerged in the tribunal this week.

“I also hope it is not intended to have a chilling effect of tribunals going forward,” he said. “It won’t on us… In fact, it may have the opposite effect.”

John Stackhouse, editor in chief of the Globe and Mail, was also skeptical. “Banning the information now — when it is already known around the world — serves no apparent purpose other than to raise more questions about the credibility of the Guantanamo courts,” he said in a statement.

Khadr was shot twice in the back during a Special Forces raid on a suspected al Qaida compound in Afghanistan. He confessed under interrogation to having thrown a hand grenade that killed U.S. Army Sgt. 1st Class Christopher Speer, 28, and has been charged with murder as a war crime and conspiring with al Qaida. Khadr is now 23.

Claus gave an interview to Michelle Shepard of the Toronto Star (one of the four banished reporters) in March 2008. Shepard wrote:

A former U.S. soldier who spent weeks interrogating Omar Khadr says he wants to testify before a Guantanamo Bay court and rejects any accusations that he harshly treated the Canadian detainee.
In the first interview he has given since leaving the army, Joshua Claus told the Toronto Star that he feels he has been unfairly portrayed concerning his work as an interrogator at the U.S. base in Bagram, Afghanistan.

“They’re trying to imply I’m beating or torturing everybody I ever talked to,” Claus said by telephone yesterday. “I really don’t care what people think of me. I know what I did and I know what I didn’t do.”

 

Shepard also reported in that story:

Khadr’s lawyers fought to get access to Claus at a Guantanamo hearing earlier this month after the prosecution had dropped him from a previous witness list.
Navy Lt.-Cmdr. Bill Kuebler accused the prosecution of trying to hide Claus’ identity because he had been involved in the interrogation of an Afghan detainee who died in U.S. custody.

 

Nancy A. Youssef reported Thurdsay for McClatchy Newspapers:

On Wednesday, the judge in the case, Col. Patrick Parrish, reminded reporters that even though Claus’ name was public, a protective order intended to keep him anonymous applied to journalists as well.
Rosenberg’s report that day included the following sentences: “Canadian reports have identified that interrogator as Army Sgt. Joshua Claus, who pleaded guilty in September 2005 to mistreatment and assault of detainees at Bagram. He was sentenced to five months in jail.”

Rosenberg said her story was filed before the judge’s warning. She said Claus’ name had already been revealed.

“All I did was report what was in the public domain,” Rosenberg said….

Pentagon officials said it didn’t matter that Claus’ name was already widely known.
“If his name was out there, it was not related to this hearing. Identifying him with Interrogator No. 1 was the problem,” Lapan said.

“The judge shouldn’t have had to remind them. The stories that appeared before violated the rules.”

 

The Reporters Committee for Freedom of the Press on Friday announced it is seeking a meeting with Department of Defense officials to discuss the banishment. The committee also notes that the president judge had previously insisted that a video of an interrogation of Khadr be played in a closed session with no spectators, despite the video’s availability to the public on YouTube.

President Obama severely criticized the Bush administration’s military commissions during his presidential campaign, and immediately suspended them upon taking office. But five months later, he reopened the door to their use, and now they’re up and running again.

The White House is widely expected to overrule Attorney General Eric Holder’s decision to try the highest-profile terror suspects, including alleged 9/11 mastermind Khalid Sheikh Muhammad, in federal court, and send them to military commissions instead. Holder, for his part, is gamely trying to defend military commissions to skeptics.

But nothing says “kangaroo court” quite like banning the free press.

*************************

Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

In Praise of the Gitmo Bar March 11, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
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Thursday 11 March 2010

by: David Frakt, t r u t h o u t | News Analysis

photo
(Image: Jared Rodriguez / t r u t h o u t; Adapted: david drexler, Paul Keller)

A number of prominent conservative lawyers have now come to the defense of the Department of Justice attorneys who previously represented detainees or advocated for detainee rights. While their eloquent defense of “[t]he American tradition of zealous representation of unpopular clients” is appreciated, their letter overlooked one of the basic fallacies of the original and continuing attacks on these lawyers. Aside from the obvious point that lawyers who advocate on behalf of persons with odious viewpoints do not necessarily share the views of the clients they represent (think about the ACLU fighting for the right of Nazis to march in Skokie, Illinois), it must also be emphasized that to represent a detainee is not necessarily to represent “a terrorist” at all, much less “al-Qaeda.”

As an important study by Mark Denbeaux at Seton Hall has shown, according to the evidence relied upon by the US as a basis for detention, most detainees at Guantanamo had little or no connection with al-Qaeda. Only a small fraction of the detainees have even been alleged, much less proven, to bear any responsibility for any acts of terrorism. Recently, after an exhaustive year-long review, the Obama administration determined that there was sufficient evidence to charge only 35 detainees with any crimes – less than 5 percent of the total of 774 detainees who have been held at Guantanamo. Before President Obama took office, the Bush administration voluntarily released two-thirds of the Guantanamo detainees after determining there was simply no legal basis to continue to hold them; dozens more had been cleared for release and were awaiting a country to take them in. Of the approximately 240 detainees remaining when President Obama assumed office, allegedly “the worst of the worst,” two-thirds of them have now been released or cleared for release.

Of course, a small fraction of detainees at Guantanamo actually are al-Qaeda. But most of the truly committed al-Qaeda detainees, like my former client, Ali Hamza al Bahlul, refused to be represented by an American lawyer, either military or civilian. (Mr. al Bahlul repeatedly attempted to fire me, and I was present when Mr. al Bahlul ordered his habeas attorney, authorized by Mr. al Bahlul’s family to file the petition, to drop the case.) Even accepting that there may be a few actual al-Qaeda terrorists represented by American lawyers, if one were to review the hundreds of thousands of pages of legal documents filed on behalf of all the Guantanamo detainees by American lawyers over the last eight plus years, one would be hard pressed to find a single sentence that could be construed as pro al-Qaeda or pro-terrorism, in the sense of endorsing the al-Qaeda ideology or endorsing terrorist methods.

So, what exactly have the “pro-terrorist,” “pro al-Qaeda” lawyers been fighting for?

In essence, the Gitmo Bar, as we detainee lawyers proudly refer to ourselves, fought for the restoration of the rule of law in the treatment of detainees in the “war on terror.” The Bush administration’s staunchly held position was that Guantanamo was a legal black hole where a detainee could be held indefinitely, without charge, without being informed of the basis for their detention and without any ability to challenge the basis for detention. Detainees had no right to consult counsel and no right of access to any court, anywhere, ever. Indeed, they were not protected by any law at all. The Gitmo Bar fought back against these positions which were inconsistent with international law, the US Constitution and cherished American values. The bulk of the litigation on behalf of detainees has focused on three core principles:

First, the Gitmo Bar fought for humane treatment for all detainees and against torture, cruelty and abuse. Humane treatment is the baseline guaranteed by Common Article 3 of the Geneva Conventions for all persons detained in war, and is a basic human right. The Bush administration said Common Article 3 didn’t apply. The Supreme Court said otherwise.

Second, the Gitmo Bar fought for the right of detainees to be informed of the basis for their detention and to have an opportunity to prove their innocence in a court of law. The Supreme Court has repeatedly affirmed that detainees had this right.

Third, the Gitmo Bar fought for the right of the few detainees facing criminal charges to be tried “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” as guaranteed by the Geneva Conventions. The Supreme Court agreed that detainees are entitled to nothing less, invalidating the original kangaroo court, military commissions devised by the Bush administration. 

After nearly seven years of fighting for the restoration of these basic rights to detainees, a few lucky members of the Gitmo Bar have now had the opportunity to prove their client’s factual innocence. In 33 of 44 cases to get to a habeas corpus hearing on the merits in federal court, the detainees have won (my client, Mohammed Jawad, was one of the winners.) That’s right; in 75 percent of cases a federal judge determined that the government had failed to prove by a preponderance of the evidence (more likely than not) that there was a lawful basis for detention. Had the Gitmo Bar not fought for the restoration of the rule of law, who knows how much longer long these 33 innocent men would have been locked up?

The legal fight over the rights of detainees has been the defining human rights battle of our generation. The hundreds of dedicated members of the Gitmo Bar, for no pay, and at great personal sacrifice, have fought this battle and won. Their victories are not victories for the terrorists; their victories are victories for us all.

Professor David Frakt is director of the Criminal Law Practice Center at Western State University College of Law, a lieutenant colonel in the US Air Force Reserve JAG Corps and a former lead defense counsel with the Office of Military Commissions. He also served as habeas counsel for a Guantanamo detainee, Mohammed Jawad, who was released in August 2009.

Spanish Justice for American Crimes? June 25, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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Published on Thursday, June 25, 2009 by Mother Jones

Can a court in Madrid bring Gonzales, Yoo, and company to justice? Mother Jones talks to the lawyer seeking indictments of the “Bush Six.”

by Bruce Falconer

Will former US Attorney General Alberto Gonzales and other senior Bush administration officials end up in jail for crafting the policies that led to the torture of prisoners at Guantánamo? As of yet, no government prosecutor is targeting them in the United States. But thousands of miles away, Spanish attorney Gonzalo Boyé is chasing after Gonzales and five other lawyers, and he has a chance-perhaps not a large one-of convincing his country’s legal system to charge these former Bush aides with human rights violations.

For more than a decade, Spanish courts have been the terror of torturers and genocidaires the world over. Operating under the principle of “universal jurisdiction,” the country has claimed the right to investigate and, if necessary, prosecute human rights cases that occurred beyond its borders if the countries in question fail to act. Spain first invoked its status as the world’s court of last resort in 1998, when Judge Baltazar Garzón of the National Court in Madrid issued an arrest warrant for former Chilean dictator Augusto Pinochet for his regime’s torture and murder of Spanish citizens. Pinochet ultimately escaped prosecution in Spain, but Garzón’s move paved the way for more cases. Sixteen are currently moving through Spanish courts, targeting perpetrators from Israel, China, Guatemala, Argentina, and El Salvador, among other countries. Still, for all the shuffling of paper, Spain has produced only one conviction under the banner of universal jurisdiction: that of Adolfo Scilingo, an Argentinean convicted in 2005 of assassinating left-wing dissidents during the country’s “dirty war.”

Most recently, Garzón has turned his attention to six former Bush administration figures accused of putting forth specious legal arguments to justify clear violations of the United Nations Convention Against Torture. The so-called “Bush Six” case targets Gonzales; John Yoo, former Justice Department attorney and lead author of the “torture memos“; Douglas Feith, former deputy secretary of defense for policy; William Haynes II, Pentagon general counsel; Jay Bybee, former assistant attorney general; and David Addington, former chief of staff and legal adviser to Vice President Dick Cheney.

The investigation is the handiwork of Boyé, a human rights lawyer who represents several former Guantánamo detainees. According to their criminal complaint, they allege that the Bush Six “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights to a large number of prisoners,” and legitimized “the implementation of new interrogation techniques including torture.”  In March, Garzón took up Boyé’s case and initiated an official investigation; another National Court judge, Ismail Moreno, has since taken over the matter. Theoretically, assuming investigators gather sufficient evidence, indictments and prosecutions could follow, though it’s unlikely that any of the Bush administration lawyers would choose to show up in Spain for a trial.

Boyé himself is no stranger to terrorism cases. He spent eight years in a Spanish prison for his involvement in the 1988 kidnapping of businessman Emiliano Revilla, who was held hostage for eight months by members of ETA, a Basque separatist group that appears on the US State Department’s list of international terrorist organizations. Boyé claims to only have lent the kidnappers his ID and characterizes his incarceration as the result of “a very unfair trial.”

Now, Boyé has become something of a de facto prosecutor. But a recent resolution passed by the Spanish parliament could undermine his case. Spain’s two leading political parties-the Socialists and the People’s Party-overwhelmingly passed a measure on May 19 calling for a law that would restrict the use of universal jurisdiction. Will the measure quash the Bush Six investigation? Mother Jones discussed the case with Boyé. 

Mother Jones: How was it that you came to be involved with the Bush Six case?

Gonzalo Boyé: I was concerned about the situation in Guantanamo and was searching for more information about it. Then I found several books, including The Torture Team by Philippe Sands. Reading it, I was sure that the key problem was the lawyers. The lawyers who created the legal framework for Guantanamo are the basis for all that happened there. Without the lawyers, the crime would never have been committed, or at least not in that form and with such a degree of impunity.

MJ: What are you hoping to accomplish?

GB: To get a conviction against the people responsible for what happened in Guantánamo. Accountability is the first step toward deterrence. With criminal offenses like this, it is necessary to send a clear message: No one is above the law, no matter their intentions. The security of any country can only exist within the rule of law. The war on terror is no exception. Thanks to Guantánamo, no evidence obtained there can be used in any court of law. Bush and his advisers have done a great favor for Islamic terrorists.

MJ: Are there any legal precedents for what you are attempting to do?

GB: Yes, at the Nuremberg trials several lawyers and judges were convicted for actions similar to those of the Bush Six. And in other countries, legal advisers and physicians have been convicted for taking part in torture. I do not see any reason why this case should be different.

MJ: A similar case in Germany against the Bush administration failed. Why? And what do you plan to do differently in order to optimize your chances of success?

GB: Because in Germany only the state prosecutor can exercise criminal action. In Spain, victims and civil society can do so themselves. There is no political control over what can go to court. According to the Spanish constitution, anyone can file criminal charges. That is the main difference between Spain and any other legal system in which universal jurisdiction is recognized.

MJ: What would you characterize as success in this case? Indictments?

GB: We are seeking more than just indictments. These people will be convicted, either in Spain or in the United States. I would prefer that the trial take place in North America, as that would be the best example of a legal system working for everyone.

MJ: The Spanish parliament passed a draft law on May 19, setting additional restrictions on universal jurisdiction cases like yours, presumably with the intent of making them more difficult to file. How might the new law affect the Bush Six case? Does it target your investigation specifically?

GB: The Spanish parliament is in the process of approving new regulations, but that will have no effect on this case. We represent Spanish victims, so there is sufficient relevance to Spain for the case to go forward. The new regulations are being devised in order to obtain impunity for the Chinese and Israeli authorities involved in other universal jurisdiction cases. They will not apply to people involved in torture committed at Guantánamo. In the Bush Six case, we fulfill all the new requirements of the draft law, so there is no reason for the Bush Six to relax or celebrate.

MJ: How likely is it that this draft law will pass? When do you expect it will?

GB: The law will be passed without a doubt, as it is in the interest of both major political parties. For the first time in several years, they are in agreement on something. They want to grant impunity to people who have committed the most serious criminal offences as defined under international treaties. Sooner than later, the government will regret changing the law and its collaboration with the opposition. The draft law would never have been written without political pressure exerted by both Israel and China.

MJ: Why do you think both major parties in Spain are so eager to weaken universal jurisdiction?

GB: They are bending to pressure from abroad. Politicians never considered changing the law until we brought criminal cases against some Israeli and Chinese officials. At the end of the day, the new draft law was not planned in Madrid, but in Tel Aviv and Beijing. Instead of keeping a dignified and independent position, Spanish politicians are running to meet the demands of these two foreign governments. Spain does not have a long-standing democratic culture, so it feels the need to be friendly with everyone rather than only those countries that respect human rights. In cases like this, a middle-of-the-road position is unacceptable: Either you are with the victims, or you are with the perpetrators. Spain was to play a major role in a peaceful solution to the Israeli-Palestinian problem, but with decisions like this, its position will become unacceptable to the Palestinian side. Politicians have a double standard when it comes to these types of crimes. That is quite evident.

MJ: How far along is the investigation? Have you requested that Judge Moreno call any witnesses? Gather any documents?

GB: We have requested a lot of documents and are waiting for US authorities to respond. We have presented some expert reports to the court. The next step will be to call witnesses.

MJ: Do you intend to urge the court to call members of the Bush Six to testify?

GB: Yes, all of them will be called as defendants. They are people responsible for serious criminal offences. We will guarantee them due process, as that is the only way to achieve proper justice.

© 2009 Mother Jones

Bruce Falconer is a reporter in Mother Jones’ Washington bureau. For more of his stories, click here.

OMG Gitmo! Miss Universe Visits Guantanamo Bay, Finds it ‘Relaxing’ ‘Calm and Beautiful’ March 30, 2009

Posted by rogerhollander in Humor, Torture.
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Posted by Liliana Segura, AlterNet at 2:30 PM on March 30, 2009.

Dayana Mendoza on the U.S. prison camp: “I didn’t want to leave.”

Ever wondered what it takes to be Miss Universe? Thanks to Venezuela’s Dayana Mendoza, we can now be sure it’s not a finely tuned sense of current events. The reigning beauty queen visited Guantanamo Bay last week, courtesy of the U.S.O, and, in a truly astonishing feat of self-parody, wrote the following description of her trip, including rave reviews of the jails, the military dogs, and of course, the beaches.

 

 

I am posting it in its entirety, in case the original post is removed for being just too damn embarrassing to beauty queens everywhere. (Perhaps somewhere Miss Teen South Carolina is feeling a little bit better.)

 

 

(H/T to Arun Gupta for not allowing this to go unnoticed.)

 

 

This week, Guantanamo!!! It was an incredible experience.

 

 

 

We arrived in Gitmo on Friday and stared going around the town, everybody knew Crystle [Stewart, Miss USA] and I were coming so the first thing we did was attend a big lunch and then we visited one of the bars they have in the base. We talked about Gitmo and what is was like living there. The next days we had a wonderful time, this truly was a memorable trip! We hung out with the guys from the East Coast and they showed us the boat inside and out, how they work and what they do, we took a ride around the land and it was a loooot of fun!

 

 

We also met the Military dogs, and they did a very nice demonstration of their skills. All the guys from the Army were amazing with us.

We visited the Detainees camps and we saw the jails, where they shower, how the recreate themselves with movies, classes of art, books. It was very interesting.

 

 

 

We took a ride with the Marines around the land to see the division of Gitmo and Cuba while they were informed us with a little bit of history.

 

 

 

The water in Guantanamo Bay is soooo beautiful! It was unbelievable, we were able to enjoy it for at least an hour. We went to the glass beach, and realized the name of it comes from the little pieces of broken glass from hundred of years ago. It is pretty to see all the colors shining with the sun. That day we met a beautiful lady named Rebeca who does wonders with the glasses from the beach. She creates jewelry with it and of course I bought a necklace from her that will remind me off Guantanamo Bay 🙂

 

 

 

I didn’t want to leave, it was such a relaxing place, so calm and beautiful.

 

 

 

I was back in NY on Wednesday and on Thursday I did some paper work at the office and went out for dinner. On Friday I flew to Miami for the weekend because I had a photo shoot for the magazine People en Espanol. So hopefully I might be a little lucky and have some time off to take the sun for a while 🙂

 

 

Liliana Segura is a staff writer and editor of AlterNet’s Rights and Liberties and War on Iraq Special Coverage.

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