Obama’s Gitmo policy: Franz Kafka, meet the Star Chamber

This really eery piece of news was in yesterday’s WaPo:

    An interagency review of all cases at Guantanamo Bay concluded that about 50 prisoners will have to be held in some form of prolonged detention without trial, because the evidence against them was obtained through the use of harsh interrogation methods or because its revelation in court would compromise intelligence gathering. The government says the detainees are too dangerous to release.

Let’s deconstruct this so everyone can see what’s been happening here:

    1. The U.S. authorities use “harsh interrogation methods” against someone held in their custody.
    2. They claim they have “reason to believe” that this person is “too dangerous to release”– but refuse to make their evidence for this public.
    3. Here’s the kicker: Precisely because this individual was tortured, and may reveal details of his torture if brought into any open courtoom, no public court hearing can ever be held for this person.
    (4. If the person had not been tortured, he might well have been brought into a courtroom.)

In other words, these 50 individuals who have been tortured by the U.S. authorities or people acting on their behalf now have to suffer the additional punishment of being detained indefinitely– precisely because they were tortured.
(If the only “problem” about trying them would be because disclosing the evidence against them could compromise collection methods, there would certainly be ways of dealing with that, including through private lawyers’ conferences, etc. Therefore I conclude that the fact of prior torture is an issue in all these cases, with or without the applicability of “intel collection methods” concerns.)
I realize that all this is a legacy from the Bush years of operating outside the law. But Obama promised us all something different.
If these people were tortured, then surely we all– U.S. citizens and others– need to have the full facts about this disclosed in an open courtroom. That way, we Americans can understand fully what was done in our name. And we can take all the steps necessary to ensuring our government never does it again.
And as six billion non-Americans around the world will see us disclosing the truth about these matters in an open, constitutional way, they will think the better of us for it– just as, when the South African authorities disclosed the whole truth about the ghastly deeds done by a predecessor regime there, people thought the better of them for it.

Gitmo, Kafka, and the abuse of ‘law’

Kudos to Christopher Flavelle of ProPublica for his article about the case of Kuwaiti citizen Fouad Mahmoud al-Rabiah. Rabiah’s been held at Gitmo since 2002– and finally, last month, received a judgment of ‘Habeas Corpus’ from US District Court for the District of Columbia Colleen Kollar-Kotelly.
‘Habeas Corpus’ is Latin for, “that you may have the body”. Basically it means the government now needs to give due cause to the judge as to why they want to continue to hold Rabiah– or else, to release him.
Let us only hope for the sake of this man and the others like him that this next step is speedily accomplished.
Kollar-Kotelly’s judgment is important because in it she disposes speedily and abruptly with many of the claims made by the US government defendants in the case. Also, because the transcript of her carefully reasoned judgment, which ProPublica makes available in the lightly redacted form in which the court gave it to them, makes clear that the only evidence the US government ever had against Rabiah was (a) evidence provided by fellow detainees after interrogations that were, presumably, extremely abusive, and (b) ‘confessions’ that he made after very abusive interrogations and after he’d been told that other people had ‘informed’ against him and that he needed to confess to something if he ever wanted to return to his home again.
It is so very, very complex and painful for the US justice system to unwind the many contortions and distortions into which the Bush-era policy of detentions and interrogations wound it.
I wish Obama and Attorney-General Eric Holder would work much faster on this. All this junk evidence that emanates only from abusive interrogations should be summarily thrown out and all the detainees freed against whom there is not good, untainted, independent evidence of wrongdoing.
The rest of the detainees should speedily be brought to trial– preferably within the US, or anyway with all the protections to which they would be due in a US courtroom– on the basis of that good, untainted evidence and only that evidence.
To do anything else only further degrades the bedrock of our country’s constitutional system.

Closing Gitmo: The Abe Lincoln solution

I understand the degree of difficulty that pres. Obama and many members of Congress feel they have in closing Gitmo. A proportion of the people incarcerated there– some for more than seven years now– are people against whom no credible evidence of wrongdoing has yet been found; but a proportion are people who, serious-minded US officials believe, are guilty of serious misdeeds in the past who could be reasonably expected to engage in serious anti-US misdeeds if released in the future.
Many members of Congress have now loudly gone on the record saying they don’t want these “terrorists” shoved into their back yard.
(We can also remember that the way they have been treated since their capture and incarceration may well have increased rather than mitigated their level of anti-Americanism.)
I have a solution, that we could call the Abe Lincoln solution.
The biggest point to remember is that the conundrum Obama faces regarding Guantanamo is not of his making. It is the responsibility of the Bush-Cheney team.
Back during the US civil war, as the war dead from both sides notched up to unprecedented levels, Pres. Lincoln decided to turn the extensive grounds of Robert E. Lee’s mansion in northern Virginia into a war cemetery. Because Lee was responsible for starting the civil war (correction: for prolonging the civil war ~HC), Lincoln felt it was only appropriate to bury a good portion of the war dead on Lee’s front lawn. That was the origin of the Arlington Cemetery.
My solution is therefore to find out where George W. Bush and Dick Cheney plan to spend the rest of their lives and build US Supermax prisons right in their back yards. Expropriate some of their own, no doubt extensive, lawns to do this, if possible. (Better still, build prison facilities that are far more humane than the present breed of Supermaxes.)
This is a policy headache, and a moral dilemma, that Bush and Cheney got our country into. We should never forget that– and never let them forget it, either.

From Specialst Armer to Obama: Actions vs. Words

The WaPo today informs us that US troops are increasingly “uneasy” in Iraq. No mention is made of the carnage being inflicted on Gaza as a concern.
Instead, journo Ernesto Londoño informs us that the concern is over “the new security agreement that demands that American combat troops depend more heavily than ever on their often-bungling Iraqi counterparts.” That, we are told, has left some troops feeling “vulnerable.”
Londoño quotes a US Army Specialist Cory Aermer, age 23:

“We’ve got to walk on eggshells…. I understand you can’t go out and shoot everyone and play Rambo. But war is war. We shouldn’t be falling under the jurisdiction of a country we’re at war with.”

Excuse me? Assuming Londoño didn’t put words in his mouth, somebody should explain to Specialist Armer that the US Army is not at war with the country of Iraq, but with, “the bad guys.” The idea of course is to get the good people of Iraq to reject the “bad guys,” to help them stand independently for themselves.
When not taking condescending swipes at Iraqi soldiers, Londoño appears to be siding with complaints about US troops being “forced” to “comply with the new requirement that bars the U.S. government from holding suspected criminals who have not been charged by Iraqi authorities.” According to a US Captain Dominic Heil,

“We used to detain people for their intelligence value only…. We can’t do that anymore.”

One hopes the Captain comprehends that the policy shift is actually good for American interests. It’s far easier to convince Iraqis of the merits of things like the rule of law when the US practices what it preaches. National Security “Mom” has it right: “Actions speak louder than words.”
An all-too-sad excuse often made for US soldiers behaving badly in Iraq was their civilian leadership’s winking and nodding at human rights abuses. I still have hopes for the incoming administration, but Barrack Obama’s comments on Sunday explaining why he’s in no apparent rush to close the Guantanamo Bay are disconcerting:

It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true.

Obama apparently wants to create “a process” by which we can keep them and get around (e.g., “balance”) those pesky human rights concerns that the world finds so important. Glen Greenwald draws out the implications of Obama’s apparent stance here:

What he’s saying is quite clear. There are detainees who the U.S. may not be able to convict in a court of law. Why not? Because the evidence that we believe establishes their guilt was obtained by torture… But Obama wants to detain them anyway…. So before he can close Guantanamo, he wants a new, special court to be created…. where evidence obtained by torture… can be used to justify someone’s detention….. That’s what he means when he refers to “creating a process.”

Mr. President elect, say it isn’t so. Please stop even implying actions that will drown out our words. In your campaign, you eloquently said that, “we will send a message to the world that we are serious about our values.”
Just what message would a “process” that permits the use of evidence obtained through torture send?

Recruiting for the Enemy

The US occupation forces in Iraq have, from the beginning of the occupation more than five years ago, engaged in the arbitrary imprisonment (“detaining”) of Iraqi citizens. As one former US soldier testified: “I witnessed and participated in countless massive operations led by American commanders whose metrics for success were numbers of detainees apprehended.”–Louis Montalvan
If you were a YSM (young Sunni male) found in a night-time US military sweep through Iraqi neighborhoods you stood an excellent chance of being zip-tied, thrown into the back of a truck and taken downtown. “Most of the people they detain are innocent,” said Iraqi Vice President Tariq al-Hashimi.
This has resulted in US prison populations in Iraq of nearly 20,000 prisoners, with another 26,000 being held by our Iraqi surrogates.
As Afghanistan heats up, more Afghan citizens are being arbitrarily arrested and held in prison. In August construction began on a new facility for as many as 1,100 detainees and now the US Military has initiated an inquiry into possible detainee abuse
All of this, of course, is in direct violation of the Geneva Convention which calls for the military to be responsible for the welfare of citizens in a war zone or occupied territory.
Protected civilians MUST be:

    – Treated humanely at all times and protected against acts or threats of violence, insults and public curiosity.
    – Entitled to respect for their honour, family rights, religious convictions and practices, and their manners and customs.

Continue reading “Recruiting for the Enemy”

Bush not closing Guantanamo

Back in June 2006, Pres. Bush said he’d “like” to find a way to close the black-hole Guantanamo detention camp. In today’s NYT, Steven Lee Myers quotes un-named administration officials as saying that Bush has decided it can’t be done.
That, we should note, despite the fact that the president “never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.”
So I guess he never really was that serious about wanting to close this location of some of the worst rights abuses committed by the US government since the Indian Wars and slavery times.
Whether Guantanamo is closed or remains open, the situation of the roughly 250 men still incarcerated there remains dire. It will also, certainly, be very hard to get them out of the (il-)legal limbo in which– by the persistent efforts of leading administration officials over the past seven years– they still remain trapped.
Here’s the problem: There probably exists generally credible, prima-facie evidence of some kind of potentially prosecutable wrongdoing against some proportion (possibly small) of the detainees. Against others, it has now been established– after, in some cases, nearly seven years of detention without trial– that there is no such evidence. But there is also a complete spectrum between these two poles, of men against whom there may be some evidence, but it is of unknown and often very questionable value. Questionable precisely because a large portion of it was obtained through torture and coercion.
In any credible criminal-court system, all the evidence could be reviewed, sifted, and tested for its probative value, and a determination made regarding the culpability of each detained person for the justiciable acts of which he’s accused.
But precisely because of the degree of often horrendous ill-treatment to which these detainees have been subjected, the administration fears bringing the men into an open court lest the accurate descriptions of this abuse (or torture) themselves gain a public hearing.
Meanwhile, the reported conditions of the men’s continuing detention also, certainly, constitute ill-treatment, through sensory deprivation and other means, on a basis that continues month by month by month. They therefore remained trapped in an abusive, beyond-Kafka Catch-22 in which they continue to be punished, in effect, for the crimes of those who tortured them..
So Bush administration officials are now saying they cannot free these men from their (il-)legal limbo. The main concern that administration officials expressed to Myers is that if the detainees get brought to the within the “real” US for trial or anything else, then they’ll get more habeas and related rights than they have now; whereas if they’re released they might “return” to posing a threat to the safety of the US. (And regarding those who never actually were a threat in the past? My gosh, maybe some those– like a small number of those previously released from Gitmo– will feel motivated precisely because of the ill-treatment they received in Gitmo to go out and find an anti-US movement to join…)
The administration officials don’t actually speak publicly about their fears of what might get revealed if the men are given an open court hearing.
Myers quotes one official– un-named, like all those he quotes– who says, “The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close Guantánamo.”
Maybe not so– provided the new president links the decision to close Guantanamo to the establishment of an active, very fully empowered National Commission of Enquiry into how the Bush administration became dragged so far down the path of illegality and gross rights abuses in the first place.
That would enable the US public– and everyone else around the world– to see how easy it is, when a whole body politic becomes convulsed (and brain-addled) by fear, for leaders to manipulate those fears in order to commit the worst rights abuses imaginable and to trash even robust-seeming constitutional and international-law safeguards.
Having such a Commission, while also closing Guantanamo and finding a humane and effective way to deal with the remaining detainees, would do a hundred times more for the real security of the US citizenry than keeping Guntanamo going on the basis of the flimsiest of all possible bureaucratic/political “justifications.”
Would it be hard to design the procedures needed to sift through and deal effectively with the remaining Gitmo detainees? I’m sure there are plenty of other legal experts around the world who’d be happy to help.
Seven years of infamy is enough.

Bush at Monticello: The Irony

Dan Jordan, outgoing and venerated President of the Thomas Jefferson Foundation, is getting more “love” than usual this past week. Many were dismayed that Monticello, Jefferson’s historic home, had invited George Bush to speak at its annual naturalization ceremony on July 4th. Others were miffed that the Foundation “permitted” the audience to include “indecent” demonstrators who were less than impressed by the President. (See this link for debate within the local activist community on the propriety of protests.)
To clarify, the Foundation every year issues an invitation to the sitting President to speak at Monticello. This year, President Bush accepted the invitation.
Previously scheduled speaker Kenneth Burns deferred to the President. Burns would have been following last year’s outstanding speaker, actor Sam Waterson. I commented on Waterston’s magnificent “Commencement Speech for America” here.
As for the many hecklers in the audience, the Foundation released 1,000 or so free general audience tickets on Wednesday morning. To its credit, no attempt was made to restrict who could get those tickets. Early birds got those worms. How refreshing it was that the President encountered some “free speech,” unlike so many other venues where potential protesters are kept far, far away.
I too was moved to comment upon the profound irony of the spectacle — the 43rd President belatedly getting around to visiting with the 3rd President, known to many as the “author of America.” My commentary with Ruhi Ramazani was distributed via Agence Global. I can now post it here, with notes and links we couldn’t put into the original:
Bush’s Last Fourth
by Wm. Scott Harrop and R. K. Ramazani Released: 5 Jul 2008

Irony abounds in President George W. Bush’s decision to speak at Monticello, the home of Thomas Jefferson, on the last July 4th that he will occupy the Oval Office.
For it was Jefferson who wrote in America’s Declaration of Independence that “a decent respect to the opinions of mankind requires” the colonies to set forth the reasons for their rebellion before a “candid world.” America’s founders agreed — international legitimacy mattered. Two hundred and thirty-two years later, the conscious disregard for the “opinions of mankind” has come to define the Bush presidency.

If that sounds a little strong, it’s calmer than an earlier draft, which wondered if Bush came seeking to wrap his foreign policies in the cover, the perceived legitimacy that speaking from Jefferson’s porch would afford to his controversial legacy.

In the Bush view, the world commonly reduced to being either “with us or against us.” His former press secretary Scott McClellan illustrates the problem in his recent book, What Happened. Lacking respect for international opinion, Bush created alliances with leaders of a “coalition of the willing,” not their citizens. Bush praised those leaders who stood with him for being “tough” and “strong” despite intense criticism from their own publics.
This disregard for the opinions of mankind yielded a bitter harvest. In the aftermath of 9/11, most of the world sympathized with America. But America’s reputation abroad plummeted since 2002, as documented by multiple international public opinion surveys.

Continue reading “Bush at Monticello: The Irony”

More on coercing confessions at Gitmo

The NYT’s Scott Shane has an excellent piece of reporting today, on how,

    The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of “coercive management techniques” for possible use on prisoners, including “sleep deprivation,” “prolonged constraint,” and “exposure.”
    What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners.
    … Several Guantánamo documents, including the chart outlining coercive methods, were made public at a Senate Armed Services Committee hearing June 17 that examined how such tactics came to be employed.
    But committee investigators were not aware of the chart’s source in the half-century-old journal article… The 1957 article from which the chart was copied was entitled “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War” and written by Alfred D. Biderman, a sociologist then working for the Air Force, who died in 2003. Mr. Biderman had interviewed American prisoners returning from North Korea, some of whom had been filmed by their Chinese interrogators confessing to germ warfare and other atrocities.

So let’s spool back what happened here. Someone in the military (or the CIA?), wanting to use a quick and handy chart on coercive techniques that can generate “confessions”, finds one in the Biderman article and copies it verbatim. Do we assume that whoever copied the chart from the article, read the rest of the article and thereby became fully informed that the “confessions” generated by these techniques were, for the most part, quite false?
False ‘confessions’ have consequences, and not just in a courtroom (where they can rapidly lead to the collapse of the whole case against the individual who was tortured.) If the ‘confessions’ obtained in Gitmo through these coercive techniques were taken at face value and believed by members of the relevant US government agencies, then that would have led to actions that, being based on false information, would place in extreme jeopardy not only the US campaign against the terrorists but also the lives of many US service-members.
Therefore, whoever advocated and went along with the use of these coercive techniques should be investigated and perhaps even tried on charges of placing the lives of U.S. service-members at risk.
The FBI, for its part, has long known the risks and dangers– both inside the courtroom and outside it– of any reliance on coerced ‘confessions’. Some of their agents expressed their deep professional concern at the coercion they saw being applied in Gitmo and other US detention centers.
These coercive techniques– torture, as we should call them– are not only deeply, deeply, anti-humane and anti-humanitarian.
Not only has their revelation been deeply harmful to the US’s reputation around the world.
But in addition, their use– and any reliance the US and its allies might have had on the “information” obtained from them– have spread false “information” throughout the whole US intelligence system and put American lives at additional risk.
End it. Now. Close Guantanamo and all the US’s extraterritorial prisons. Return our country to the rule of law.

US Diplomats and Boumediene Case

I too am encouraged by the US Supreme Court’s Boumediene v. Bush ruling that detainees held at Gunatanamo Bay are entitled to Habeas Corpus protection — the right to challenge their detention in a US Court. I also appreciate this LA Times analysis on the “internationalist” considerations that likely influenced the Boumediene majority. Yet I’ve also been perplexed by the fury of the dissents and the hyperbolic claim by presidential candidate John McCain that the ruling was “one of the worst decisions in the history of this country.”
Three complaints stand out: First, dissenting Justice Scalia darkly warns that the ruling will “almost certainly” result in more American being killed. Second, because the US is deemed to be at”war” with those who don’t respect our values, we should not extend such rights to them. Cast as an inhuman “enemy,” they only understand the “language of force.”
Third, the critics condemn the Court for subjecting our laws to the dictates of international opinions — to the norms recognized by the rest of the world. That’s “judicial cosmopolitanism;” it’s “too French.” Or worse, it’d be like Thomas Jefferson in the first sentence of the US Declaration of Independence waxing about “a decent respect to the opinions of mankind.”
In researching case background (and hat tip to Helena for this resource) I came across a timeless and eloquent response to such concerns, in the form of a Friend of the Court filing, prepared last year by some of America’s best career diplomats. Endorsers include former US Ambassadors to Israel (and elsewhere) Sam Lewis, Thomas Pickering, and William (C) Harrop, as well as Bruce Laingen and the late William D. Rogers and our recently departed Charlottesville friend and mentor, David D. Newsom. (bless his memory)
Among their sage observations: (emphasis added):

If the mounting cost to American diplomatic interests is finally to be curbed, it is imperative, at minimum, to restore meaningful judicial review for prisoners at Guantanamo. Our nation cannot credibly champion the rule of law in the world, while being seen to disregard it in our own affairs….
[O]ur professional experience convinces us that American diplomatic credibility and effectiveness in many areas of international relations suffer greatly from the widely shared perception that, by denying prisoners at Guantanamo access to habeas corpus, our country has lost sight of its historic commitment to independent and effective judicial review of the lawfulness of detention…..
We have come to believe, in our representation of this country to other nations, that those nations are more willing to accept American leadership and counsel to the extent that they see us as true to the principle of freedom under the law. Indeed, the matter has rarely been better put than by President Bush in signing the Torture Victims Protection Act on March 12, 1992:

In this new era, in which countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that they are respected everywhere….

(Perhaps this entire subject ought to be re-framed as, “Bush vs. Bush.”)

The admiration and respect for this nation abroad is a function of our own commitment to liberty under law. In this, we have led the world. The success of our interests in the wider arena turns importantly on the extent to which this nation is perceived as continuing to abide by these principles. Any hint that America is not all that it claims, or that it is prepared to ignore a “nonnegotiable demand of human dignity,” that it can accept that the Executive Branch may imprison whom it will and do so beyond the reach of the due process of law, demeans and weakens this nation’s voice abroad.
We have taken it as our duty to so state to this Court. There is no doubting America’s power at this juncture. But values count too. And, for this nation, there is no benefit in the exercise of our undoubted power unless it is deployed in the service of fundamental values: democracy, the rule of law, human rights, and due process. To the extent that we are perceived as compromising those values, to that extent will our efforts to promote our interests in the wider world be prejudiced. Such at least is our collective experience.
George Kennan’s Long Telegram from the American Embassy in Moscow to the State Department in 1946 defined the authoritarian bestiality of the Soviet system and its aim to break “the international authority of our state.” It was perhaps the most important American diplomatic communication of the last century. In closing, Kennan spoke for us all and for all time:

[T]he greatest danger that can befall us in coping with this problem of Soviet communism, is that we shall allow ourselves to become like those with whom we are coping.

I recommend this document as an enduring resource for policymakers, educators, and citizens alike, challenging us to consider that we don’t have to toss aside our values to defend them, that our values are a component of our potential influence abroad, that defending our principles need not detract from our “power.”

Israeli lawyers: Treatment of Gitmo detainees worse than what Israel does

I was interested, and encouraged, to see that among the 23 ‘amicus curiae’ (friend of the court) briefs presented to the U.S. Supreme Court in support of the habeas corpus petition submitted by Gitmo detainees Boumediene and Al-Odah was this one (PDF), sent in by seven Israeli law professors, one of whom has done his military reserve service as a military judge since 1994, and another who was previously President of the IDF’s tribunal for the Southern (Gaza) Command.
The Boumediene ruling (PDF) was, of course, the one that the Supreme Court delivered yesterday that stated that yes, the detainees held at Guantanamo do indeed have the right to file habeas corpus petitions to the civilian US courts.
If you go to p.17 of the PDF file of the Israeli lawyers’ amicus brief (p.2 of the original doc), you can read the summary of the argument they make. It says:

    Judicial review of executive and military detention, the indispensable core of habeas corpus, need not be sacrificed to protect public safety and national security, even in the face of an unremitting terrorist threat. Israel has demonstrated that security detainees and prisoners of war, including alleged unlawful combatants, can and should be afforded the opportunity for prompt, independent judicial review of the factual basis for their confinement. Israeli experience
    demonstrates unambiguously that providing such review to Guantánamo detainees would not be “impracticable and anomalous.”
    The safeguards provided under Israeli law, though denied to Guantánamo detainees, are not only workable but also are essential components of the rule of law. No process that lacks these core features can be considered an adequate substitute for time-honored forms of judicial review, such as the traditional writ of habeas corpus. Israeli authorities, executive as well as judicial, support these rights as necessary elements of the response to terrorism in a resilient democratic society governed by law.

Bottom line: the “CSRT” review system that the DOD established in Guantanamo provided even fewer safeguards for the rights of those detained than the hearing system used by Israel in its lengthy and often challenging administration of the occupied territories… And these lawyers tell us that these detainee rights are “necessary elements of the response to terrorism in a resilient democratic society governed by law.”
Human rights organizations have frequently criticized several aspects of the Israeli system for military-judicial review of detention orders– including the ruling the Israeli Supreme Court gave some years ago that states that “moderate pressure” is a permitted way of extracting “information” and does not taint evidence presented to these review bodies. allowed those engaging in the crime of torture to provide an ill-defined “necessity” defense for their acts. (See first comment below.) So I would not say that the Israeli system is anywhere near perfect.
But it is sobering to hear these Israeli specialists telling our Supreme Court how much worse the Guantanamo system is.