Thursday, November 20, 2008
Sunday, March 2, 2008
Just Give Me One Good Reason To Impeach and/or Prosecute Bush, Cheney and Others!
Just Give Me One Good Reason To Impeach and/or Prosecute Bush, Cheney and Others!
The Issue of Torture and Inhumane Treatment is not even questioned; it is admitted and every attempt is being made to justify, permit, institutionalize and legitimize its’ utilization as a legitimate tool of this nation’s policies and actions in contravention of Our Laws, Our Constitution and every International law and convention we are legally bound as a nation and government to observe and obey.
Just Give Me One Good Reason Why Bush and Cheney Should Be Impeached!
Advocates of Impeachment, including myself, can list and discuss at book length all of the reasons Bush and Cheney should have long ago be Impeached, and in fact numerous books on just this subject have been written and achieved wide spread distribution and sales.
But there are those who advance the thesis that we ought to pursue Impeachment on the basis of one solid charge that the “average” person, meaning those who are not everyday “activist impeachers”, can understand and embrace. This is the rallying cry; circle the wagons, type of approach. And while I have some difficulty with that approach having been too long immersed in this issue; no approach is without merit.
I can say that because the most important thing that must be accomplished is that of moving the House Judiciary Committee to initiate Impeachment hearings, and I don’t care what it takes to cause that to happen and will not turn my back on any pathway that could lead to that moment. All other matters will follow and fall into place as a matter of process, and the multiplicity of unconstitutional and criminal actions will find hearing.
I am also mindful of the fact that States provides that: “The impeachment process provides a mechanism for removal of the President, Vice President, and other federal civil officers found to have engaged in "treason, bribery, or other high crimes and misdemeanors." (Article I, Section: 3 … And … Article II, Section 4)
The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. A number of means have been used to trigger the House's investigation, but the ultimate decision in all instances as to whether or not impeachment is appropriate rests with the House. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial.
Under the Constitution, the Senate has the unique power to try an impeachment.
The decision as to whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment.
Should a conviction occur, then the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of "honor, Trust or Profit under the United States." The precedents in impeachment suggest that removal may flow automatically from conviction, but that the Senate must vote to prohibit the individual from holding future offices of public trust, if that judgment is also deemed appropriate.
A simple majority vote is required on a judgment. Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation.
The Constitution precludes the President from extending executive clemency to anyone to preclude their impeachment by the House or trial or conviction by the Senate.
Article II, Section 4: speaks in the plural as regards a bill of Impeachment charges: "treason, bribery, or other high crimes and misdemeanors.”, and it is for this reason that I do not oppose the pursuit of a singular charge behind which the masses may hopefully coalesce. Likewise, The Geneva Conventions speak in the plural; War Crime(s), not a war crime.
In the final analysis the very nature of the Impeachment hearing process, once initiated, would/will inherently bring a large number of the charges levied by the legal scholars, Impeachment Advocates and the general populous of this nation to the table. All Impeachable offenses would “be on the table”.
Is there a singular issue, an issue so egregious that it can provide the basis for universal agreement and the point of unified focus? I would argue that the issue of torture and inhumane treatment is the best point of focus. It is easy to grasp.
It evokes personal images in the mind of everyone, and despite convoluted arguments of attempted justification premised on “situational ethics and exigencies” associated with our contemporary anti-terrorist, fear laden climate; the words “torture and inhumane treatment” are anathema to all but the most callous cynic who find acceptance in the fact that others, other governments, employ torture and inhumane treatment in the normal course of their existence.
We can forget, reject, these folks and their arguments out of hand as unprincipled and conscienceless lack any socially or morally redeeming content.
Let us begin our consideration, our deliberation of the Impeachable, Indictable, Prosecutable, and Imprison able, abhorrent, sadistic Issue/Crime of Executive, State conducted, executed, sanctioned and defended torture and inhumane treatment by the Bush/Cheney administration, mindful always that abuse tolerated and accepted becomes institutionalized practice not withstanding any code of morality, religious/philosophical prohibition to the contrary, statue, Constitutional proviso, or international law that provides the base for the status of illegality, let alone any generally accepted notion of simple right and wrong.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
—The Universal Declaration of Human Rights, Article 5 (1948)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article XIV.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Torture, according to the United Nations Convention Against Torture, is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."[2]
Throughout history, torture has often been used as a method of effecting political re-education. In the 21st century, torture is widely considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the United Nations Universal Declaration of Human Rights. In times of war, signatories of the Third Geneva Convention and Fourth Geneva Convention agree not to torture protected persons (POWs and enemy civilians) in armed conflicts.
International legal prohibitions on torture derive from a philosophical consensus that torture and ill-treatment are immoral.[4] These international conventions and philosophical propositions notwithstanding, organizations such as Amnesty International that monitor abuses of human rights report a widespread use of torture condoned by states in many regions of the world.[5]
Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g. tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, repeated administration of chemically pain inducing forced enemas, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, water boarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end.[3]
All of these practices presuppose that the torturer has control over the victim's body, e.g. the victim is strapped to a chair, etc.
Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain. However, all of these practices involve the infliction of extreme physical suffering, e.g. exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenseless person. If accidentally sears B with hot irons A have not tortured B; intention is a necessary condition for torture. Further, if A intentionally sears with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenseless. [4]
Is the intentional infliction of extreme mental suffering on a non-consenting, defenseless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B's friend, A, is being tortured, e.g. A is undergoing electric shock treatment, but that B himself is untouched — albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A. However, B believes that A is being tortured; so B's mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A. In that case surely he is not torturing B either. [5]
On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenseless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else's (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture.
In various national and international laws, e.g. Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (United Nations 1984 — see Other Internet Resources), a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g. flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g. causing a prisoner to pretend to have sex with an animal.
For our discussion we draw no distinction between the words “torture” and “inhumane treatment” as both are unacceptable conduct on the part of any civilized state and any executive leader of such a state, and certainly as conducted, applied, approved and defended by the Bush/Cheney administration are more than sufficient grounds for charges of Impeachment under both our laws and international law. The Semantic differentiation some would wish to apply and have accepted as an assumption of argument are rejected by this author and (hereinafter) the singular word “torture shall be defined as encompassing both terms as being equal affronts to human decency and violations of every standard of legality and right and wrong to which I subscribe.
Torture is manifestly morally wrong; it is an intolerable impeachable evil!
Those who would argue that there are “situations “when torture” seems” to be morally justifiable grasp at straws by hypothetical examples in the ludicrous extreme.
Consider the following points: (1) The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; (2) the police know that there is no other way to save those lives; (3) the threat to life is imminent; (4) the thousands about to be murdered are innocent — the terrorist has no good, let alone decisive, justificatory moral reason for murdering them; (5) the terrorist is known to be (jointly with the other terrorists) morally responsible for planning, transporting, and arming the nuclear device and, if it explodes, he will be (jointly with the other terrorists) morally responsible for the murder of thousands.
There are folks that some take seriously is this framing of the “situational acceptable incident” of torture, and given the fact that Antonin Scalia still sits on the Supreme Court, (this author supports his Impeachment), I guess we had best be aware of his thoughts and preaching, or is it screeching?
Scalia is a fan of Jack Bauer, and even references that murderous fantasy TV show in his speeches and interviews. That does not say much for his mental acuity. I kid you not!
We know Justice Scalia is a fan of Jack Bauer. As the Wall Street Journal quoted him last summer:
“Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives,” Judge Scalia reportedly said. “Are you going to convict Jack Bauer?” He then posed a series of questions to his fellow judges: “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer?”
“I don’t think so,” Scalia reportedly answered himself. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”
It seems Scalia has further elaborated on his position in an interview with the BBC via Think Progress. Click through to listen, but the basic gist is that Scalia doesn't believe it's clear that the government is prevented from using coercive interrogation in order to prevent an imminent terrorist attack.
His argument seems to rest on the fact that the Constitution forbids cruel and unusual punishment, but if the treatment is not meant as punishment, then there is some room for maneuver. That is a cavalier and unacceptable perversion of our Constitutional principles.
The show's host takes issue with his use of the ticking-time bomb scenario, which is often dismissed as so unlikely as to be irrelevant, but Scalia responds that once you accept the premise that there are conditions under which torture might be permissible, and he says it would be "absurd" to think otherwise, "then we're into a different game."
"How close does the threat have to be, and how severe [would the] infliction of pain be. I don't think it's easy at all, in either direction, but I certainly know you can't come in smugly and with great self-satisfaction and say 'oh, well it's torture, and therefore it's no good.' You would not apply that in some real life situations. It may not be a ticking bomb in Los Angeles, but it may be where is this group that we know is plotting some very painful action against the United States. Where are they and what are they planning?"
BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’
SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.
Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?
SCALIA: And you think it shouldn’t?
BBC: All I’m saying about it is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.
SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?
There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”
Guess Scalia has been skipping those CLEs. Torture is against United States law by treaty and statute. That’s right, passed by Congress to the be the law of the land. If conduct is alleged to violate the law, it is the Court’s job, ultimately, to state what the law is. Therefore, the true absurdity here is that Scalia sits as a jurist at all.
It nearly beggars belief that we have a Supreme Court justice who'd seek to justify torture, but that is exactly what Antonin Scalia did in a BBC interview .
"Original Intent" Scalia doesn't seem to care that Washington took an unequivocal stance against torturing captured prisoners during the young Republic's struggle for survival, at a time when the enemy were abusing American captives right and left. No more does Scalia give a damn about the constitutional prohibition of "cruel and unusual punishments". That, he told the BBC, applies to people only once they've been convicted of a crime. According to Scalia, if you're awaiting trial (or just plain hoping to get a trial someday), then maybe anything.
BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’
SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about "so-called" torture.
Yes siree, in Scalia's bizarro-world you gain the protection of law by right of being convicted. The Fifth Amendment's guarantee of due process? That little matter of the presumption of innocence, the very foundation of our system of criminal law? Pfffttt.
Actually, come to mention it, what we've got is not so much a legal "system" as a Nielsen profile of Supreme Court justices' TV viewing habits. And you can't rule out the possibility that this season's plot twists will need to involve some torture, just a wee tad.
SCALIA: Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth...
Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?
There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, "Oh, this is torture and therefore it’s no good." You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: "Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?"
Or, for that matter, any number of potential scenarios: "Have these punks been racing hot-rods lately?" "Let's see if the handyman knows who the burglars are." "What'cha say we beat the crap out of that bum over there?" In fact it's far from clear that any such confessions, in Scalia's world, would be treated as poisonous fruit.
If only the courts are willing to apply Scalia's "ends justify the means test" (definitively enunciated in Jack Bauer v. The World), they'll be able to justify almost any governmental activities. Just so long as officials don't call the torture "punishment", they're in the clear.
Presumably that explains why Scalia sees no need to take too seriously the federal torture statute, or international treaties. Geneva Conventions? Pfffttt. The UN convention on torture and cruel, inhuman or degrading treatment? Double pfffttt.
You'll be interested to learn that, notwithstanding his embrace of torture, there are indeed limits to what Antonin Scalia will tolerate. The practice of televising court proceedings, he told the BBC, is "sick"!
Scalia has become either obsessed with this matter or he is a stalking horse for the administration and its intentions to continue torture regardless of any road blocks placed in its way.
Scalia Says He Sees a Role for Physical Interrogations
By REUTERS February 13, 2008
WASHINGTON (Reuters) — Justice Antonin Scalia said Tuesday that some physical interrogation techniques could be used on a suspect in the event of an imminent threat, like a hidden bomb about to blow up.
In such cases, “smacking someone in the face” could be justified, Justice Scalia told the British Broadcasting Corporation. He added, “You can’t come in smugly and with great self-satisfaction and say, ‘Oh, it’s torture, and therefore it’s no good.’ ”
His comments come amid a growing debate about the Bush administration’s use of aggressive interrogation methods on terrorism suspects, including the widely condemned waterboarding, soon after the Sept. 11 attacks.
Justice Scalia, speaking in an interview with “Law in Action,” a program on BBC Radio 4, said it would be “extraordinary” to assume that the Constitution’s ban on cruel and unusual punishment applied to “so-called” torture in the face of imminent threat. He said that the Constitution “is referring to punishment for crime.”
“And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime,” he said.
But “is it really so easy,” he said, “to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?”
“It would be absurd to say you couldn’t do that,” the justice said. “And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?”
Justice Scalia also ridiculed European criticism of the death penalty in the United States.
“If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today,” he said.
“There are arguments for it and against it,” he said. “But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.”
Despite the existence of lunacy in high places; I cannot imagine an American who is not at least aware to the “torture” issue as it relates to this administration and its legal and moral excesses.
Is it possible that any American is so withdrawn, so utterly out of touch with facts, events and reality that they somehow have escaped each day’s escalating information about the appalling abuses inflicted upon men and women held by the United States in Iraq, Afghanistan, and elsewhere around the world?
U.S. forces have used interrogation techniques including hooding, stripping detainees naked, subjecting them to extremes of heat, cold, noise and light, and depriving them of sleep—in violation of the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This apparently routine infliction of pain, discomfort, and humiliation has expanded in all too many cases into vicious beatings, sexual degradation, sodomy, near drowning, and near asphyxiation. Detainees have died under questionable circumstances while incarcerated.
This must end. Torture or other cruel, inhuman, or degrading practices should be as unthinkable as slavery. U.S. Department of Defense officials have announced that certain stress interrogation techniques will no longer be used in Iraq. But President Bush should ban all forms of abuse during interrogation in Iraq and everywhere else that the United States holds people in custody. It is wrong in itself and leads to further atrocities.
The UN Committee Against Torture
2006, the United Nation's Committee Against Torture (CAT) will review the United States' compliance with the Convention Against Torture, commonly known as the Torture Convention. The review is a regular, periodic examination of countries that have ratified the treaty. This is the US's second review; the first took place in 2000.
This year's hearing is expected to be contentious and intensely scrutinized because of the much publicized and criticized US actions of the last six years, including the
revelations of torture at Abu Ghraib, the allegations of human rights violations at Guantanamo Bay, the leaked information about secret prisons throughout Europe, the use of rendition and torture for suspected Al Qaeda operatives and the Bush administration's changing interpretations of what constitutes "torture." Lethal injection as a form of capital punishment, an issue before the US Supreme Court, will also be examined.
According to Mercedes Morales, a UN human rights officer who serves as secretary to the UN Committee Against Torture, the list of issues the Committee expects the US to
address "is the longest list of issues I have ever seen." (From interview with Reuters in April 2006.)
At the end of the hearings, the UN will release public comments about its findings and make recommendations to the United States on policy changes. Many of these issues are expected to be raised again at the July 2006 review of the United States' human rights violations by the UN Human Rights Committee.
This treaty was signed by the United States in 1988 and ratified in 1994, making it legally binding.
Upon adopting the Convention Against Torture, the Senate added this document to limit and clarify its understanding of the treaty.
The Procedure
The United States submitted its report to the Committee in 2005. This was one year later than it was required to submit the report.
In response, the United Nations asked US non-governmental organizations (NGOs) to submit shadow reports (see below), reports that dispute the US official report or provide information on unreported violations. In addition, the NGOs will submit oral testimony in early May.
After reviewing the US official report and the shadow reports, the CAT issued a list of issues that it expects the US delegation to address this May at the hearing.
According to a recent Reuters article, as many as 30 members of the State Department, Defense Department, Department of Justice and other government agencies are expected to attend.
In late May, the CAT is expected to release its comments and recommendations to the US.
The Shadow Reports
As part of the process, the UN allows NGOs to submit "shadow reports" to the committee, to challenge the US official report. In September 2005, the US coalition of NGOs submitted a joint list of issues for the CAT to consider. Since then, several organizations have submitted their own full reports, each addressing issues specific to
their work:
Official US and UN Documents Regarding the Hearing
Previous Hearings
In 2000, the Committee Against Torture reviewed the United States for the first time. At the time, pre-9/11, the hearing was mostly focused on domestic issues. The following are
the documents related to that hearing:
Initial US Report to the Committee Against Torture (2000)
For the Press
If you are a member of the press, please contact Beth George at Fenton
Communications for more information: 212-584-5000 (office),
Links
Questions and Answers: United States Before the Committee Against Torture
For the first time since the Bush administration launched its global campaign against terrorism, the United States was called upon to answer internationally for its record on torture. On May 5 and May 8, 2005 the United Nation’s Committee Against Torture questioned some 30 high-level officials from the Departments of State, Justice, Homeland Security, and Defense on U.S. compliance with the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.
The U.S. officials spoke on the record about Washington’s human rights performance in the “war on terror,” in the session in Geneva attempting to ascertain a more comprehensive accounting than “usual” of the Bush administration’s views on these issues.
What is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture)?
The Convention against Torture is a multinational treaty that prohibits at all times and under all circumstances the use of torture and cruel, inhuman, and degrading treatment. The convention defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Among other things, the convention prohibits the practice of sending persons to states where they are likely to be tortured, and the use of evidence obtained through torture. It requires that states take measures to prevent the use of torture, hold torturers accountable, and provide effective remedies for claims of torture and abuse.
The United States ratified the Convention against Torture in 1994, 10 years after its unanimous adoption by the U.N. General Assembly. The convention has been ratified by 141 countries.
What is the Committee Against Torture?
The Committee Against Torture is the international body of experts responsible for monitoring compliance with the convention. It consists of 10 independent experts elected by states parties and meets in twice-yearly sessions to review the records of countries that have ratified the convention.
One year after a state becomes a party to the Convention against Torture, and every four years thereafter, it is required to submit a report to the committee on its compliance with the convention. The United States submitted its first report in 1999, four years overdue. The second, originally due in 2000, and which the committee agreed to extend to 2001, was sent to the committee in 2005 and supplemented with an addendum in January of this year.
The committee also publishes its broader interpretations of the Convention against Torture and the prohibition against torture and other ill-treatment in “general comments” on thematic issues.
How does the review process work?
Upon receiving a country’s report, the committee sends the sending country a list of follow-up questions. This year, the committee sent the United States an unusually long list of 59 questions (PDF) that covered a wide range of practices implemented by the United States as part of its “war against terrorism.” The committee is seeking answers about the U.S. role in “disappearing” persons (holding persons in unacknowledged or secret detention); the practice of rendition (sending persons to other countries without legal process); and the lack of accountability of the military chain of command for abuse of detainees in Iraq, Afghanistan, and at Guantanamo Bay, among other issues.
At briefing sessions on May 5 and May 8, the delegation of U.S. officials formally responded to the committee’s questions. Human Rights Watch e attended the open hearing and monitoring the exchanges between the U.S. delegation and the committee members.
What is notable about the committee’s questions that year?
The last time the United States was before the committee, it was primarily questioned about its domestic practice, such as prison conditions and ill-treatment of criminal suspects by the police. This time, the committee has again questioned the U.S. about these important domestic issues, but has added to the agenda panoply of questions about the use of torture and other coercive interrogation methods as part of the fight against terrorism and in armed conflict.
Human Rights Watch Supplemental Submission to the Committee Against Torture: During its Consideration of the Second Periodic Report of the United States
In August 2005, Human Rights Watch submitted a list of questions for the Committee to inquire of the United States. We welcome the comprehensive and careful list of questions submitted to the United States in February.
Since our last submission, the United States has enacted or begun to undertake new laws, policies, and practices that reflect the continuing failure of the U.S. to fully accept its obligations under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. We outline here some of those developments, and hope the Committee will consider these matters as well. We also wish to apprise the Committee of relevant new research that Human Rights Watch has completed since our last submission.
I. Detainee Treatment Act (Articles 1, 2, 10, 11, 13, 14 and 16)
In December 2005, President George W. Bush signed into law the Detainee Treatment Act (DTA). On the positive side, the DTA includes the “McCain amendment,” which prohibits the use of torture and cruel, inhuman, or degrading treatment by any U.S. official or employee operating anywhere in the world. It also sets the Army Field Manual on Intelligence Interrogation as the standard for all interrogations carried out by the Department of Defense.
Unfortunately, the DTA raises important new concerns. The DTA includes a provision, known as the “Graham-Levin amendment,” that precludes detainees at Guantanamo Bay from bringing any future challenge to their ongoing detention or conditions of confinement before the courts.
In ongoing litigation, the administration has taken the position that the Graham-Levin amendment precludes detainees at Guantanamo Bay from challenging in federal court the use of torture and cruel, inhuman or degrading treatment. If the courts of appeal agree with this position and uphold the amendment’s constitutionality, the gains from the McCain amendment will be significantly vitiated, with victims of abuse held at Guantanamo having no independent legal forum in which to seek to vindicate their rights. Denying these individuals the opportunity to redress such abuse violates the U.S.’s obligations under Article 13, 14, 16 of the Convention.
The United States also continues to circumvent its obligations under the Convention – and undermine the McCain amendment – by defining torture in a manner that is inconsistent with the Convention’s definition of torture. Of particular concern, the United States has failed to denounce “waterboarding,” a type of mock drowning, as a form of torture or cruel and inhuman treatment. In an interview with ABC news on November 29, 2005, CIA Director Porter Goss refused to state that waterboarding was an impermissible interrogation technique.
Human Rights Watch is also concerned that planned revisions to the Army Field Manual on Intelligence Interrogation, which will reportedly include a classified annex, will also undercut the gains of the McCain amendment. Given that military personnel have been authorized to use abusive interrogation techniques against terrorist suspects in the past, and given the administration’s continued refusal to denounce waterboarding as torture, Human Rights Watch is worried that the contents of this annex will allow for practices that violate the prohibition against torture and other abuse. Human Rights Watch hopes that the Committee will inquire of the United States as to the need for and scope of interrogation techniques that will be included in the classified annex.
Moreover, the United States has also never stated what steps if any it has taken to ensure compliance with the provisions of the McCain amendment by the Department of Defense and the Central Intelligence Agency (CIA). The McCain amendment does not provide a mechanism for individual victims of torture and abuse to bring civil court cases to seek redress for violations of the amendment. As a result, the administration’s role in internally monitoring and enforcing the amendment takes on heightened importance. Has the CIA issued and promulgated new interrogation guidelines in response to the passage of the McCain amendment? How are the new rules communicated to agents and contractors in the field? What steps is the United States taking to monitor and enforce these obligations?
Our concerns in this respect are magnified by the President’s “signing statement” issued at the time the McCain amendment became law, in which the President suggested that his powers as Commander-in-Chief trumped any restrictions on the use of torture and cruel, inhuman and degrading treatment imposed by the amendment.
II. Use of Evidence Obtained Through Torture (Article 15)
The Detainee Treatment Act includes a troubling provision that appears to sanction the use of evidence obtained through torture. Specifically, the DTA requires the Combatant Status Review Tribunals and Annual Review Boards (military bodies convened to evaluate the status of detainees at Guantanamo Bay) to assess whether statements from the detainee were obtained through coercion and then assess the “probative value of the statement.” The implication of this rule is that statements obtained through torture or cruel, inhuman or degrading treatment could be used as evidence if they have sufficient probative value. Moreover, there is no prohibition on the use of statements of other witnesses against the detainees that are obtained through torture or other coercion. According to Pentagon documents, Mohammed Al-Qahtani accused 30 fellow prisoners of being Osama bin Laden's bodyguards -- after Qahtani was reportedly tormented by weeks of sleep deprivation, isolation and sexual humiliation.
Somewhat more positively, the Pentagon released a Military Commission Instruction in April that bars the use of evidence obtained through torture in any of the military commission proceedings at Guantanamo Bay. However, the Instruction falls far short of what is required under the Convention. It does not bar the use of evidence acquired by abusive interrogations that fall short of torture but nonetheless violate the prohibitions against cruel, inhuman or degrading treatment. It is also unclear how evidence acquired through torture would be excluded in practice. The Instruction does not oblige the prosecution to ascertain and disclose that evidence was obtained through torture. Nor does it establish who has the burden of proof in a case where the defendant raises a challenge to evidence on the grounds that it was obtained through torture. If the burden is placed on the defendant, without a concomitant obligation on the prosecution to disclose, this will be a meaningless prohibition. It will be extremely difficult, if not impossible, for a defendant to corroborate a claim of torture or abuse, without the assistance of an independent investigation by the prosecution who, unlike the defense, has access to the interrogators and interrogation logs.
Another area of concern is the recent case that appears to turn a blind eye to the use of evidence based on torture. In November, Ahmed Omar Ali was convicted on terrorism conspiracy charges and subsequently sentenced to thirty years in prison. At trial, the government relied extensively on a confession made by Ali while he was detained in Saudi Arabia. Ali maintains that he was tortured, beaten, whipped, and ultimately coerced into confessing. The court, however, denied the defense team’s request to present evidence of scars on his back suggesting that he had been tortured. It also precluded the defense from presenting general evidence regarding Saudi Arabia’s poor human rights record on torture, instead taking at face value Saudi officials’ statements denying the existence of torture in Saudi Arabia. In so doing, they ignored U.S. Department of State reports of widespread abuse of prisoners by the Saudi Arabian government.
III. “Disappearances” (Articles 2, 5, 1, 13, 14, 16)
In April, John Negroponte, Director of National Intelligence, acknowledged to media sources that the Central Intelligence Agency continues to hold approximately three dozen al-Qaeda suspects in secret overseas prisons. He maintained that the United States is likely to keep them in captivity for as long as the “war on terror continues.” These detainees are effectively “disappeared,” denied access to the International Committee of the Red Cross, and subjected to treatment and interrogation that is not monitored by any court or independent entity. The only plausible reason for “disappearing” these detainees is that the United States wants to keep their treatment and conditions of confinement secret – presumably because it includes torture and abuse.
Notably, the State Department, in its recent Annual Country Reports on Human Rights Practices (released on March 8, 2006 and covering events in 2005), condemned Belarus, Burma, China, Equatorial Guinea, Ethiopia, Indonesia, Nepal, North Korea, Philippines, Russia, Sudan, Syria, Uzbekistan, and Zimbabwe for holding individuals in incommunicado detention and for engaging in “disappearances.”
Human Rights Watch hopes that the Committee will vigorously question the United States about its “disappeared” detainees and the use of practices that it rightly condemns when engaged in by other nations.
IV. Diplomatic Assurance and Rendition to Torture (Article 3)
The United States continues to promote its policy of relying on diplomatic assurances as a safeguard against a return to torture. In December, Secretary of State Condoleezza Rice stated: “The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.” But the United States does not have any meaningful mechanism to monitor these assurances – even when the individual is being sent to a country with a known record of engaging in torture. Moreover, there do not appear to be any opportunities for individuals to formally challenge their rendition or transfer on the grounds that the diplomatic assurances are not likely to provide sufficient protection from torture. Despite numerous examples in which diplomatic assurances were secured and individuals were subjected to torture anyway, the United States continues to rely on these unenforceable assurances.
(a) Past Cases
The Committee is already well aware of the highly publicized case of Maher Arar, a Canadian citizen who was detained by the United States. in September 2002. U.S. immigration authorities held him for two weeks, during which time he was unable to challenge either his detention or imminent transfer to a country likely to torture him. Relying on diplomatic assurances from Syria, the United States then flew Arar to Jordan, where he was driven across the border to Syria and detained there for ten months. The United States relied on the Syrian assurances despite repeated statements from Arar to immigration authorities that he would be subject to torture if sent to Syria. Arar reports that he was beaten by security officers in Jordan and tortured repeatedly, often with cables and electrical cords, during his confinement in a Syrian prison.
But the Arar case is not the only instance in which someone in United States custody has been rendered to torture.
Another example is that of Mamdouh Habib, who was arrested in Pakistan in 2001 and transferred by U.S. officials to a prison in Egypt where he says he was tortured with electric shocks until he fainted, kicked, punched, beaten, and rammed with what he describes as an electric cattle prod. Dr. Hajib al-Naumi, Qatar’s former justice minister provides corroboration for Habib’s account. Dr. al-Naumi states that contacts of his in Egypt told him that Habib “was in fact tortured. He was interrogated in a way which a human cannot stand up… We were told that he -- they rang the bell that he will die and somebody had to help him.”
An additional case is that of Mohammad Saad Iqbal Madmi, who was arrested in Jakarta allegedly at the request of the CIA and flown to Cairo, where he says he was held for 92 days and severely tortured with electrodes. Madmi was subsequently sent from Egypt to Afghanistan and then to the U.S. detention facility at Guantanamo Bay. Other detainees in Guantanamo Bay have given similar accounts to the media and to their attorneys of being transferred to a third party country and tortured before being sent to Guantanamo.
Presumably the United States followed its stated policy of reliance on diplomatic assurances before it sent either Habib or Madmi to Egypt. Alternatively, it rendered these individuals to Egypt without such assurances despite the State Department’s own finding that “[t]orture and abuse of prisoners and detainees by [Egyptian] police, security personnel, and prison guards remained common and persistent.”
Human Rights Watch hopes that the Committee will ask the United States whether it obtained diplomatic assurances in these cases. If not, why not, given the evidence of persistent torture and abuse of detainees. And if so, what did they do to follow up to ensure that these detainees were not subject to torture?
(b) Future cases
Human Rights Watch is extremely concerned about the potential for large-scale reliance on diplomatic assurances in future transfers of individuals out of Guantanamo Bay. There is growing international pressure on the United States to close Guantanamo Bay. The United States has begun making public statements that it has slated 14 detainees eligible for release and 120 for transfer to their home country.
There is no administrative or legal mechanism, however, for a detainee at Guantanamo Bay to challenge his transfer to a country on the grounds that he would be in danger of torture and that diplomatic assurances are not likely to provide sufficient protection from torture. Prior to the passage of the DTA, some detainees were able to raise such claims in federal court as part of their habeas challenges. In several cases, the federal court required the government to give 30-days notice prior to any such transfer. Now, the administration has taken the view that the DTA cuts off even this limited avenue of review for the detainees.
V. Lack of Accountability (Articles 1, 4, 5, 6, 7, 16)
Human Rights Watch, Human Rights First, and the Center for Human Rights and Global Justice at NYU School of Law have jointly undertaken a Detainee Abuse and Accountability Project (“DAA Project”) to collect and analyze information about allegations of detainee abuse in U.S. custody in Afghanistan, Iraq, and the Guantanamo Bay detention facility; and to assess what actions if any were taken in response, from investigations to, where appropriate, disciplinary actions and punishments. These findings have just been released in a report published on April 26, 2006. Among the findings are the following:
• There are over 330 cases in which U.S. military and civilian personnel are credibly alleged to have abused or killed detainees. These cases involve at least 600 U.S. personnel and over 460 detainees. Allegations have come from U.S. facilities throughout Afghanistan, Iraq and at Guantánamo Bay.
• Only fifty-four military personnel—fewer than ten percent of the more than 600 U.S. personnel implicated in detainee abuse cases—are known to have been convicted by court-martial. Forty of these individuals have been sentenced to prison time, but only a small number have resulted in significant prison time. Many sentences have been for less than a year, even in cases involving serious abuse. Of the hundreds of personnel implicated in detainee abuse, only ten people have been sentenced to a year or more in prison.
• Of the hundreds of allegations of abuse collected by the DAA Project, only about half appear to have been properly investigated. In numerous cases, military investigators appear to have closed investigations prematurely or to have delayed their resolution. In many cases, the military has simply failed to open investigations, even in cases where credible allegations have been made.
• DAA Project researchers found over 400 personnel have been implicated in cases investigated by military or civilian authorities, but only about a third of them have faced any kind of disciplinary or criminal action. And even in cases where U.S. military investigations have substantiated abuse, military commanders have often chosen to proceed with weaker non-judicial forms of disciplinary action instead of criminal prosecution.
• No U.S. military officer has been held accountable for criminal acts committed by subordinates under the doctrine of command responsibility. That doctrine provides that a superior is responsible for the criminal acts of subordinates if the superior knew or should have known that the crimes were being committed and failed to take steps to prevent them or to punish the perpetrators. Only three officers have been convicted by court-martial for detainee abuse; in all three instances, they were convicted for abuses in which they directly participated, not for their responsibility as commanders.
• The CIA has investigated several cases of abuse involving its personnel, and reportedly referred some individuals to the Department of Justice for prosecution. But few cases have been robustly investigated.
• Out of twenty civilians, including CIA agents, referred for criminal prosecution for detainee abuse by the military and the CIA since 2002, the Department of Justice has prosecuted just one civilian contractor. Two of the cases have been closed for “insufficient evidence,” and the other seventeen remain “under investigation.” The Department of Justice has not indicted a single CIA agent for abusing detainees.
One case that particularly highlights the failure of accountability is that of Mohammad al-Qahtani. Human Rights Watch has obtained an unredacted copy of al-Qahtani’s interrogation log, detailing interrogations from a six-week period from November 2002 to January 2003. The interrogation log reveals that al-Qahtani was subjected to a regime of physical and mental mistreatment from mid-November 2002 to early January 2003. For six weeks, he was intentionally deprived of sleep, forced into painful physical positions (known as stress positions) and subjected to forced exercises, forced standing and sexual and other physical humiliation, including the administration of a forced enema. In 2005, the Judge Advocates General of the U.S. Army, Navy and Marine Corps told the U.S. Senate Committee on Armed Services that the techniques used on al-Qahtani violated the U.S. Army Field Manual on Intelligence Interrogation, and would have been illegal if perpetrated by another country on captured U.S. personnel.
In December 20, 2005, the Army Inspector General, completed a report, obtained by salon.com in April 2006, that investigated the allegations of abuse in the al-Qahtani case. The report contains a sworn statement by Lt. Gen. Randall M. Schmidt that implicates Defense Secretary Donald Rumsfeld in the abuse of detainee Mohammad al-Qahtani. Gen. Schmidt, who conducted an investigation into the case in early 2005 that included two interviews with Rumsfeld, describes the defense secretary as being “personally involved” in al-Qahtani’s interrogation. Gen. Schmidt describes Rumsfeld as “talking weekly” with General Geoffrey Miller, then a senior commander at Guantanamo, about the interrogation of al-Qahtani.
The report’ findings and recommendations were rejected by the head of U.S. Southern Command, Gen. Bantz J. Craddock, who said in July 2005 that the al-Qahtani interrogation did not violate military law or policy. As a result, neither Secretary Rumsfeld, General Miller, nor any of the interrogators who took part in the interrogations have been criminally investigated or made to account in any way for their actions.
VI. Lethal Injection (Articles 13, 14, and 16)
Thirty-seven of the thirty-eight death penalty states and the federal government have adopted lethal injection as the procedure by which the death penalty is administered; for nineteen states it is the only legal method of execution. Human Rights Watch has just completed a report examining these practices, which finds that the states have failed to develop methods of lethal injection that will, in accordance with international law, reduce to the greatest extent possible the risk of pain and suffering during the execution. Indeed, there is growing evidence suggesting that in a number of cases the method used may have caused an agonizing death.
In the standard method of lethal injection used in the United States, the prisoner lies strapped to a gurney, a catheter is inserted into his vein with an intravenous line attached. A series of three drugs is injected into his vein by executioners hidden behind a wall. A massive dose of sodium thiopental, an anesthetic, is injected first, followed by pancuronium bromide, which paralyzes voluntary muscles, but leaves the prisoner fully conscious and able to experience pain. A third drug, potassium chloride, quickly causes cardiac arrest, but the drug is so painful that veterinarian guidelines in the United States prohibit its use unless a veterinarian first ensures that the pet to be put down is deeply unconscious. No such precaution is taken for prisoners being executed.
Although supporters of lethal injection believe the prisoner dies painlessly, there is mounting evidence that prisoners may have experienced excruciating pain during their executions. Logs from recent executions in California, and toxicology reports from recent executions in North Carolina, suggest prisoners may in fact have been inadequately anesthetized before being put to death. This should not be surprising given that corrections agencies have not taken the steps necessary to ensure a painless execution. The sequence of drugs and a method of administration used were created three decades ago, and were then adopted unquestioningly by state officials with no medical or scientific background. Little has changed since then. As a result, prisoners in the United States are executed by means that the American Veterinary Medical Association regards as too cruel to use on dogs and cats.
Human Rights Watch has found that none of the states that employ lethal injection consulted medical experts to ascertain whether the original three-drug sequence could be adapted to lessen the risk of pain to the prisoner by using other drugs or methods of administering them. Human Rights Watch opposes capital punishment in all forms as inherently cruel. But until the 38 death penalty states and the federal government abolish capital punishment, they have an obligation to develop methods of execution that will reduce, to the greatest extent possible, the condemned prisoner’s risk of mental or physical pain and suffering. Human Rights Watch hopes that the Committee will question the U.S. about its failure to ensure that the method of lethal injection does not cause needless agony.
What was to happen at the end of this review?
After consideration of the U.S. responses, the committee will issue a list of concluding observations, listing positive aspects, subjects of concern, and recommendations. The committee expects to release its concluding observations on Friday, May 19.
Is the United States alone in answering questions from the Committee?
No. This session, the committee will also be considering reports from Peru, Georgia, Guatemala, Qatar, Togo, and South Korea. In the past, the Committee has expressed strong concerns to a range of other countries, including China, Egypt, Spain, Sweden and Uzbekistan, about many of the same practices it will be inquiring of the United States – such as abusive interrogation techniques, secret and indefinite detention, and rendition to torture.
U.N. Convention Against Torture Observations-2006
Gabor Rona, International Legal Director for Human Rights First is in Geneva observing the United States’ presentations to the Committee and will also brief the Committee on several issues of concern. He is reporting daily on the events in Geneva as they unfold.
-Diary Entries
-May 9, 2006 - Last day in Geneva: The United States faces the UN Committee for the Second Time
-May 6, 2006 - Geneva – Day 3: U.S. on the Spot before the Anti-Torture Committee
-May 5, 2006 - Geneva – Day 2: U.N. Committee Listens to NGOs
-May 4, 2006 - Geneva – Day 1: Meeting the Experts of the UN Anti-Torture Committee
-May 3, 2006 - Preparing for the U.S. Appearance Before the U.N. Anti-Torture Body
May 9, 2006
Last day in Geneva: The United States faces the UN Committee for the Second Time
Today was the United States’ second and final appearance before the Committee. As I mentioned in my earlier blog entries, the United States was represented by a very large – 26-member – delegation which included representatives from the Department of Justice, Department of State, Homeland Security and Department of Defense. The United States also submitted a voluminous (185-page) supplemental report purporting to answer specific questions raised by the Committee members in response to the United States’ Second Periodic report. This suggests a return from the brink of international disengagement. At the same time, however, the United States did not move away from its most criticized positions. For example, despite some pointed challenges from members of the Committee, the United States continued to maintain that the law of war applies to the U.S. conflict against al Qaeda (but not any other terrorist group) world-wide, that human rights rules do not apply to situations of armed conflict or to the conduct of U.S. officials beyond U.S. borders (even in peacetime), and that secret detention and rendition are not prohibited practices under the Torture Convention. The U.S. also continued to insist that abuses of detainees in U.S. custody are aberrations rather than manifestations of policy and are thoroughly investigated and punished; the delegation did admit, however, that there were some failures in leadership.
One change in the U.S. position: waterboarding would be explicitly prohibited in the Army Field Manual, due to be released shortly. (The United States previously refused to comment on specific interrogation techniques). At the same time, however, the head of the US delegation, State Department Legal Advisor Bellinger made the startling assertion that even systematic torture in another country would not necessarily prevent the transfer of a detainee to that country. He also stated the government’s position that such transfer is not subject to judicial review – that is, the detainee has no right to habeas corpus, or any other independent means to challenge the process.
Another frank but disquieting admission by the United States came in response to a question about the future of Guantánamo. Bellinger noted the President’s assertion that Guantánamo detention facilities should not stay open indefinitely. However, he stated that alternatives were lacking and suggested that the detainees cannot be prosecuted either because they were not U.S. nationals (which is simply untrue), or because they did not plot or commit specific crimes against the United States. This was a startling statement and the first time I heard a government official say that we need to hold people without charges because they have not committed any crimes!
Over the course of the hearings, the United States has been confronted with an overwhelming body of facts that raise serious doubts about its adherence to international and domestic legal requirements. Unfortunately, the United States has responded with numerous misleading assertions and unsubstantiated counterclaims. For example, the United States claims that there is no exception to the legal obligation of humane treatment, but has indicated no willingness to rescind the President’s memorandum of February 7, 2002 that asserts precisely the contrary – that certain persons are “not legally entitled” to humane treatment. The Untied States claims that the McCain Amendment reflects the Administration’s commitment to humane treatment, but omits to mention that it fought tooth and nail against the law and supported a law that prevents Guantánamo detainees from asserting claims of torture in any U.S. court of law. The United States pleads for understanding when it claims to provide unprecedented due process for wartime detainees, but does not mention that its definitions of “war” and “enemy combatant" are so broad that, in its estimation, even little old ladies who unwittingly contribute to charities that funnel money to terrorist causes can be detained as “enemy combatants.”
In less than two weeks, the Committee against Torture will publish its concluding. Although it is unlikely that the United States will concede much in response to Committee’s findings, it will hopefully be deterred from some of the practices and positions it has embraced in violation of international and domestic law.
Human Rights First will report on the Committee’s findings when they are released.
United States
Among positive developments in the second periodic report of the United States, the Committee welcomed the State party’s statement that all officials, from all Government agencies, including its contractors, were prohibited from engaging in torture at all times and in all places, and from engaging in cruel, inhuman or degrading treatment or punishment. The Committee noted with satisfaction the State party’s statement that it did not transfer persons to countries where it believed that it was “more likely than not” they would be tortured, and that that also applied, as a matter of policy, to the transfer of any individual in the State party’s custody or control, regardless of where they were detained. The Committee also noted with satisfaction the enactment of the Prison Rape Elimination Act of 2003, which addressed sexual assault of persons in the custody of correctional agencies. The Committee also noted the intention to adopt a new Army Field Manual for intelligence interrogation, applicable to all its personnel, which, according to the State party, will ensure that interrogation techniques fully comply with the Convention.
The Committee reiterated its concern with regard to the absence of a federal crime of torture consistent with Article 1 of the Convention and requested, among others, that the State party ensure that acts of psychological torture, prohibited by the Convention, were not limited to “prolonged mental harm”, but constituted a wider category of acts, which caused severe mental suffering, irrespective of their prolongation or its duration. The Committee regretted the State party’s opinion that the Convention was not applicable in times and in the context of armed conflict, and that the Convention’s application would result in an overlap of the different treaties which would undermine the objective of eradicating torture.
The Committee urged the United States to register all persons it detained in any territory under its jurisdiction to prevent acts of torture. In that regard, the Committee was concerned by allegations that the State party had established secret detention facilities, which were not accessible to the International Committee of the Red Cross. Detainees were deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures with respect to their detention. The Committee was also concerned by allegations that those detained in such facilities could be held for prolonged periods and faced torture or cruel, inhuman or degrading treatment. The Committee considered the “no comment” policy of the State party regarding the existence of such secret detention facilities, as well as on its intelligence activities, to be regrettable. In addition, the United States should cease to detain any person at Guantánamo Bay and close that detention facility. It should permit access by the detainees to judicial process or release them as soon as possible, ensuring that they were not returned to any State where they could face a real risk of being tortured.
UN Committee Against Torture Asks The Us Government To Close The Guantanamo Bay Detention Centre
30 May 2006-
The UN Committee Against Torture against Torture on May 19, 2006, ended its three-week spring session and issued its concluding observations and recommendations on country reports including the report of the United States which it reviewed during the session. In its concluding remarks concerning the report of the United States, the Committee recommended that the United States cease to detain any person at Guantánamo Bay and that it close that detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they were not returned to any State where they could face a real risk of being tortured.
The US government has ratified the UN Convention against Torture and is therefore obligated to present regular reports to the UN Committee Against Torture, outlining the progress it has made in implementing its international obligations under the Convention. Furthermore, by ratifying the UN Convention, the US has undertaken the obligation to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. In Article one of the UN Convention, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing the person or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The UN Committee Against Torture also urged the United States to register all persons it detained in any territory under its jurisdiction to prevent acts of torture. In that regard, the Committee was concerned by allegations that the State party had established secret detention facilities, which were not accessible to the International Committee of the Red Cross. Detainees were deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures with respect to their detention. The Committee was also concerned by allegations that those detained in such facilities could be held for prolonged periods and faced torture or cruel, inhuman or degrading treatment. The Committee considered the "no comment" policy of the State party regarding the existence of such secret detention facilities, as well as on its intelligence activities, to be regrettable. In addition, the United States should cease to detain any person at Guantánamo Bay and close that detention facility. It should permit access by the detainees to judicial process or release them as soon as possible, ensuring that they were not returned to any State where they could face a real risk of being tortured.
In a previous statement issued on 21 February 2006, the North American Dominican Justice Promoters had already urged the United States Government to comply with its international obligations and to act on the recommendations of the another UN report on the Situation of detainees in Guantánamo Bay (February 2006). especially the recommendation to close immediately the detention centre in Guantánamo Bay and bring all detainees before an independent and competent tribunal or release them. The February 2006 report was published after an 18-month joint study by independent experts on the situation of detainees in Guantánamo Bay. by five independent investigators of the UN Commission on Human Rights.
Philippe LeBlanc, OP, the Permanent Delegate of the Order at the UN in Geneva, said that any action on the part of North American Dominican justice promoters and others to press the US administration to comply with its international obligations especially under the UN Convention Against Torture would assist in bringing an end to the serious situation of violations of human rights and fundamental freedoms in the Guantanamo Bay Detention Centre.
Philippe LeBlanc, OP
The UN Committee against Torture urged the US to ensure no one was ... "We hope that the United States will take heed of this report and really begin to ...
U.N. Torture Committee Critical of U.S. (Human Rights Watch, 19-5 ...
(Geneva, May 19, 2006) The United Nations Committee against Torture today ... The committee asked the United States to report in one year on compliance with...
Security Detainees/Enemy Combatants
Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Read daily updates by Human Rights First representatives who monitored the military commissions.
Dec 7, 2007 - All in a Day's Work: Day Two of Salim Hamdan's Status Determination Hearing
Dec 3, 2007 - Another Hearing at Guantánamo, Another Day of Government Policies on Trial
Nov 9, 2007 - When Judges Take Heat
Nov 7, 2007 - The Troubling Track Record of Military Commissions
June 5, 2007 - Is This the End of the Military Commissions?
June 4, 2007 - Back to Guantanamo One Year Later
March 31, 2007 - "Surrealism at Guantanamo"
March 30, 2007 - "Freedom Is Not Free"
March 27, 2007 - "I Don’t Look at it as a Victory"
March 26, 2007 - Australian before Guantanamo military commissions
April 27, 2006 - Another Guantanamo Detainee Asks to Represent Himself
April 26, 2006 - Defendant Testifies Before the Military Commissions Regarding Confinement
April 25, 2006 - Al Qahtani Joins Line of Defendants Refusing to Participate in Military Commissions
April 24, 2006 - Military Commissions Preview: Al Qahtani, Al Sharbi, and Barhoumi
April 7, 2006 - On Trial: U.S. Detention and Interrogation Practices at Guantanamo
April 5, 2006 - Khadr Boycotts Hearings, Challenges Conditions of Confinement
April 4, 2006 - Open Questions Remain on Use of Torture Evidence
April 3, 2006 - Background: The Specter of Hamdan
March 2, 2006 - Not Full and Fair
March 1, 2006 - Yes, Commissions Can Allow In Evidence Obtained Under Torture
March 1, 2006 - Flaws in the Process and Dracula?
February 28, 2006 - Military Commissions in Context as Guantanamo Enters Its Fifth Year
January 13, 2006 - The Guantanamo Spin Zone
January 12, 2006 - Boycott - United States v. Al Bahlul
January 11, 2006 - Chatty Prosecutors and Old Camp X-Ray
Nov. 8, 2004 (cont.): Enter the Federal Court
Nov. 8, 2004: A New Week at Guantanamo
Nov. 2-3, 2004: Equal Protection
Nov. 2, 2004 (cont.): Transient Life at Guantanamo
Nov. 1-2, 2004: Setting the Stage for Justice
Aug.27: The End of the Beginning
Aug 26: A Defendant Asks to Represents Himself
Aug. 25: David Hicks' Father Speaks
Aug. 24: Good People, Flawed System
Aug. 23: Four Issues of Concern
DISCLAIMER: The following remarks were dictated by Deborah Pearlstein from Guantanamo Bay. She has made minor edits to clarify the original text since her return to the United States.
Day Five/Aug.27: The End of the Beginning
Today began just like each of our days here at Guantanamo Bay – very early in the morning and with a spectacular sunrise. Rather than taking our usual heavy ferry transport from the remote, leeward side of the bay where we’ve slept to the windward side for the day’s proceedings, the Coast Guard today gave us a ride on a small, fast harbor patrol boat (separate from the press and few migrant workers who had been our commuting partners earlier in the week).
Events in the Commission chamber were similarly efficient, a stark contrast to the sense of confusion that prevailed as the Commission struggled with serious translation difficulties and the defendant’s request to represent himself yesterday (see Day Four). Commission participants today devoted just over an hour to the case of Ibrahim Ahmed Mahmoud al Qosi of Sudan. The government’s charge sheet accuses him of conspiracy with Osama bin Laden and others to commit terrorism, attack civilians, and other offenses deemed “triable by Commission.” The government alleges that al Qosi provided logistical support to al Qaeda, including managing al Qaeda funds, helping to transport explosives and weapons from Sudan, and acting as bin Laden’s body guard and driver until his capture after the U.S. invasion of Afghanistan in the fall of 2001.
There was no translator retained by the defense. Following the now familiar script swearing in counsel and other participants, Presiding Officer Brownback turned immediately – and for the first time this week expressly – to the issue of translation. It is the duty of the translator, Brownback began his remarks, to provide an accurate translation of everything said, to translate only the words actually spoken, and not to explain, repeat questions, clarify or summarize. The three official commission translators – contractors through a company called International Language Services, hired by the military – were unchanged from the day before. But Brownback’s decision to devote several minutes to the importance of accuracy (at pains to speak slowly to allow the non-simultaneous translation to proceed) seemed a clear indication that the Commission was aware of the severe inadequacies that contributed to the confusion in Al Bahlul’s proceedings. It is one of the Commission’s most important early tests whether it can resolve this basic issue of translation quality and fairness before any detainee next steps into Commission chambers.
The balance of the proceedings were devoted to resolving the status of Al Qosi’s military defense counsel, who was appointed as Deputy Chief Defense Counsel to represent Commission defendants in February 2004, and in May was informed that she had been selected for reassignment (a promotion in the usual military court system to the role of trial judge). Shaffer’s early request for an assistant counsel she asked for by name had been denied, and in June when Al Qosi’s conspiracy charge was referred to the Commission, Shaffer was now in an ethical bind. She had to report to her new fulltime assignment in July, and Al Qosi would fall through the cracks. Shaffer filed a motion to withdraw as counsel so that another would be appointed, and the presiding officer suspended all activity in the case on August 6 until the issue could be resolved. Shaffer thus arrived in the Commission today without any of the motions or preparations for voir dire that defense counsel earlier in the week had put forward.
Just days before Al Qosi’s first scheduled appearance before the Commission today, Shaffer managed to secure orders from her new post detailing her to the Commission until her representation of Al Qosi was complete (she told us as we sat in the Commission room, waiting for proceedings to begin). As she explained to Brownback, the conflict issue had just been resolved; the resource issue hadn’t. Her trial team was still just her and a translator -- no co-counsel, no paralegal, no other administrative support. Brownback and prosecutors seemed to acknowledge these concerns, and appropriately set a pre-trial schedule for voir dire and other motions on the condition that Shaffer receives the resources she needs. voir dire was set for October 4 (would have been earlier, but for the ongoing renovation of the building in early September). A hearing on pretrial motions was set for the first week of November, with a tentative trial date of December 7 (which would make Al Qosi the first of the first 4 defendants to move to trial). In the meantime, Mr. Al Qosi returns to his cell.
Post-Commission briefings by defense and prosecution counsel shed more light on the inadequacies that have emerged so clearly this week. Shaffer -- a well-spoken, no-nonsense, zealous advocate – met with press and observers early this afternoon and made no bones about the inadequate conditions of defense’s resources. “It’s a shame,” she said when asked about her feelings about having been earlier denied assistant counsel, that proceedings of this historic significance are being handled this way. Her client told her just after leaving the courtroom that all he got from the translation through his headphones were broken, fractions of sentences. It’s one thing to have only a partial understanding of what’s going on in these preliminary proceedings, Shaffer said Al Qosi indicated in his holding cell just outside the Commission chambers. But how could this work for trial when he needed really to know what was going on? Still, Shaffer said, Al Qosi was “relieved” at least to have a lawyer again.
As concerning as the early denial of her request for additional counsel – which she believed would soon be resolved – was the denial of all but a small amount of the discovery Shaffer had sought to build her client’s defense. Shaffer has asked for access to multiple potential witnesses, including investigators, alleged co-conspirators, and translators who served in Al Qosi’s interrogations. All of these requests so far have been denied by the Office of Military Commissions on the grounds (in June, two months before proceedings began) that they were premature. Shaffer had no trouble, in contrast, meeting with Al Qosi’s family in Sudan. “I have visited them,” Shaffer stated. “They are very concerned.”
Chief Prosecutor Swann then spoke to the assembly for the first time all week, offering assurances that he had told the Chief Defense Counsel that he would do anything he could to assist defense in getting the resources they needed. Swann, who seemed irritated, aggressive, and impatient with questions from the outset, did himself no favors with the media. Apart from his general assurance, he seemed to deflect most of the questions defense counsel had raised about resources, translation concerns, and discovery – repeatedly stating that whatever the issue, everyone here and no one more than he wanted to make sure these trials were “full and fair.” Swann did offer some specifics on next steps, including the news that there were 9 more Guantanamo detainees who would soon be charged and referred to the Commission over the next few months, including some whose names the public would recognize as previously arrested terrorist suspects.
The press and we observers spent the afternoon packing and trying to think (and write) about the bigger picture of what happened here this week. It was already unclear which of the media outlets would send correspondents back to cover all of the proceedings (including the substantive pretrial motions now scheduled to heard in November); perhaps some could come back for one of the trials in January. The military staff involved in the Commissions had also been having daily meetings on how things were going, and would soon be facing their own substantial after-action review. At no remove yet at all, I suspected perspective would be hard to achieve.
Nonetheless, I am left thinking about at least three themes that carried through the week and will be on our minds when proceedings resume. First was the chance to see in action some of the structural commission rules that Human Rights First had commented and reported upon as the Commission developed over the past three years. It is one thing to say that the fusion of judge and jury was inconsistent with U.S. traditions and seemed inconsistent with fair trials. It was another to hear the Presiding Officer try to explain to non-lawyer Commission members (who will be both jury and judge) what “jurisdiction” means, or to hear one Commission member admit with admirable candor that he wasn’t really sure what the Geneva Conventions were but knew that there were three of them (there are four). There are some pretty good reasons why the U.S. legal system generally separates questions of fact (which lay juries decide) and questions of law (which are left to judges). This week was an object lesson in those reasons.
Second were the failures – of translators, resources, and planning – not at all a function of the military commission rules. There was no good reason, and no very good excuse, for such problems. All at Guantanamo seemed to agree that these were problems that should be remedied. It gave me hope that they will soon be remedied, but made it much harder to fight skepticism that the Commission process was actually designed to take seriously the task of answering open questions of a defendant’s innocence or guilt.
Third was the chance for those present to confront as individuals what had for years been hundreds of generally undifferentiated Guantanamo detainees. We can now say that Hamdan looked small and vulnerable; Hicks beloved by his family; Al Bahlul (despite all translation problems) educated and articulate; and Al Qosi for whatever reason determined to keep the military lawyer he was assigned on his case. Some or all of these men may in fact harbor enormous ill-will toward the United States. But for those who sat feet from them in the Commission chamber, it should be much harder to picture just “Gitmo” writ large.
Finally, at risk of distracting from the real issues at Guantanamo, I offer a word about my own role this week. Over the past 25 years, my organization has engaged in trial observation and reporting in countries around the world, from the Middle East to South America. We have also participated – as counsel, amicus curiae, or otherwise – in countless legal proceedings in the United States. As a domestic human rights lawyer focused on U.S. national security, I always expected I would do far more of the latter. The fundamental fair trial rules that we human rights observers look for in trials abroad – in nations transitioning to democracy or in nations with a history of unfairness – have been so well engrained here in the United States for so long, I really never considered I would be reviewing U.S.-run proceedings against that kind of baseline compliance. We know how to try people in the United States. It would be crazy to start building a new legal system from scratch. But this past week, as we shuffled in and out of the still-being-renovated court building, using adjacent port-o-potties on top of windswept hill on this hot, dusty base, it felt very clear that we were trying to do exactly that.
In many respects, the situation was unique for all of us – for military lawyers trying to practice in something other than well established courts martial, for the non-lawyer commission members trying to understand basic concepts from first-year law school, for an international press corps (unsure whether to send Defense or Justice Department correspondents) trying to put these proceedings in perspective, and for the Gitmo base military staff trying to cope with an influx of demanding visitors whose roles they were only beginning to understand. It was as though everyone had been thrust from some darkened room into the blinding sun, all blinking to adjust to the light. The relative novelty of the situation no doubt contributed to the camaraderie among all of us that last week would have seemed extraordinarily unlikely.
In some ways, this dynamic made my role more difficult; I am here to be independent from all of these actors, to interact with them skeptically as I would a stranger. I remain hopeful I’ve managed to do this regardless. In other ways, I am deeply indebted to my colleagues from the Commission staff, base staff, media, and fellow NGOs, who were also all away from their families under less-than-ideal conditions and were also just trying to do their jobs. So I would be remiss if I neglected to thank all of them, particularly the uniformed Legal men, Lieutenants, Captains, Majors, Colonels, and many others who played the none-too-easy role of our keepers this past week. (I would include their names here but err on the side of caution in case they or their families would prefer to stay out of the public eye. Suffice it to say, they know who they are.) It is my hope that we will have an opportunity to work together again someday under circumstances in which there is no question that justice is being done.
Day Four/Aug 26: A Defendant Asks to Represent Himself
August 26, 2004
Despite the best efforts of a lot of well meaning people here, this was an embarrassing day for American justice.
The translation issue -- the roots of which have been chronicled in each of my previous updates -- finally erupted. And, the commission system proved itself to be unprepared for even the most basic test of its effectiveness.
Today was the preliminary hearing for Hamza Ahmed Sulayman al Bahlul of Yemen.
Mr. al Bahlul is accused of conspiring with Osama bin Laden and others to commit terrorism. His charge sheet describes more than a dozen "overt acts" committed between 1999 and 2001, including training at an Afghan Al Qaeda military camp and preparing videotapes intended to inspire violent attacks against the United States and other countries. He is also alleged to have served as bin Laden’s armed bodyguard.
It was a dramatic and eventful day – because of the translation problems, because the defendant said he wished to represent himself, and because the defendant made a sudden and startling statement during the proceedings. He announced that he was a member of al Qaeda and appeared poised to make some additional comment related directly to the attacks of September 11.
The proceedings departed from the relative formality of the previous two days when Mr. al Bahlul announced that he wanted to represent himself. Appointed military defense counsel had known of the issue for some time, and had made Col. Peter Brownback, the Presiding Officer, aware that it was coming before the day’s events. The Presiding Officer initially told him that he could not – that the rules required a defense counsel to be a U.S. citizens and a military officer with security clearance.
Rather than determining Mr. al Bahlul’s willingness to proceed under the rule as stated, Col. Brownback then tried to engage Mr. al Bahlul in a discussion of whether he was qualified to represent himself, and whether he wanted to argue that the rule should be changed. From my seat in the courtroom (and recalling his fairly open answer about the legality of the commission process as a whole from earlier in the week), it struck me that Col. Brownback was trying to be fair. He had read the rules about self-representation one way, but wanted to leave the door open to a challenge. But the translation issues – and Mr. al Bahlul’s desire for a clear answer on the rules of the commission that have been anything but clear – made the exchange impossibly chaotic and confused.
To pick one small example, at one point, the Presiding Officer asked Mr. al Bahlul if he wanted a lawyer from Yemen.
The translator gave Mr. al Bahlul’s answer as “I know some law in Yemen.”
At that point, Mr. al Bahlul’s assigned defense counsel said that the statement was a mistranslation. A translator retained by the defense counsel said: “My understanding was he knew some people who practiced law in Yemen." Mr. al Bahlul asked if defense counsel could not interrupt.
Far more damaging was Mr. al Bahlul’s sudden comment during an exchange about the concern that self-representation would mean he would not have access to all the evidence against him. After saying he was speaking of his own will, and (as I later learned from one of the Arabic-speaking journalist’s translation) confessions were the best evidence of all, Mr. al Bahlul said: "I am from al Qaeda and the relationship between me and Sept. 11..."
He was quickly cut off by Col. Brownback, who instructed the military commission panelists to disregard the comment; since the defendant was not under oath, his admission could not be considered evidence.
The prosecution objected to Col. Brownback's statement, saying that he was misreading the law. Col. Brownback then ordered a recess to meet with counsel on both sides. When the hearing resumed, Mr. Al Bahlul never returned to or expanded on his statement.
In the end, the Presiding Officer ordered the assigned defense lawyers to file legal challenges to change the rule. The challenge would need to be addressed to the Appointing Authority, the official in charge of the military commissions. Brownback, at that point, suspended the day’s proceedings pending an answer.
I believe the Presiding Officer was trying his best to figure out what the defendant wanted. But it was made impossible by the nature of the proceedings – by the confusing and unclear rules and the unclear authority of the Presiding Officer.
These exchanges raised many issues about the preparation for these trials.
On the translation front: the English to Arabic and Arabic to English translations have been disastrously poor -- poor in a way that have made proceedings, especially today’s, incredibly complicated. This kind of problem in proceedings of this importance are inexcusable.
After today’s events, the military is clearly aware of the translation issue. I believe that they now understand that it makes everyone – and the commission process -- look bad. And of course, it is unfair. The question now is how quickly they will fix it.
The second issue about preparation deals with the defendant’s request to represent himself. This is a completely predictable request for the defendant to make. Yet the commission seemed unprepared to deal with it. The Presiding Officer did not know what to do. In any regular criminal proceeding, requests by the defendant to represent himself are handled as a matter of course. They are not always granted – for example, if the defendant is incompetent or for other reasons – but there is a standard approach to addressing them. The confusion today was because there is no precedent here. There is nothing standard. And what rules there are made up as we go along.
That gives a flavor of the proceedings for the day. Afterward, our group of human rights and legal observers received a tour the commission building.
We saw the holding room where the defendant is kept. It’s small with one window that looks into an adjacent room; this window allows the defendant to be observed. The room has a couple of chairs and in front of one chair is a metal plate in the floor, with chains. When the defendant needs to be secured, the chain in this plate on the floor is fastened to his leg chains. There’s a small bathroom without a door right off the holding room.
We also saw the defense counsel’s office, and as I’ve chronicled on earlier days, there is a real disparity in resources for the prosecution and defense lawyers. The prosecution counsel’s rooms have already been renovated. As for the defense counsel, they are all in one, not-very-big room. There are four desks pushed up against the wall, and four computers. Some of the lawyers have brought their laptops. One day this week, there were 12 or so people in the room at once. A conference table they had earlier in the week had since, without explanation, been removed. The lawyers are representing different clients and it is pretty awkward to have everyone in one room – not just from a logistical point of view, but from a privilege point of view.
The defense counsel should not have to spend the first week of the commissions in one room that’s far too small to meet their needs and with facilities that are inadequate to promoting a vigorous defense.
Military commission officials say they are going to fix it. They say that, but it’s not as if this week was a trial run. Despite all that we saw today and throughout the week, this is the real thing.
Day Three: David Hicks' Father Speaks
August 25, 2004
Today was a heartening day, in a way, because of the professionalism of the lawyers involved and their vigorous efforts to try to make the proceedings fair. But also a heartbreaking day of watching a dysfunctional system in action.
It continues to be hard to watch everybody’s best effort to make something decent and fair out of this process, which is emerging as something that is neither decent nor fair.
Today we saw the personal cost of unfairness in new ways. I’ll cover three things from today.
1. David Hicks and his parents.
2. The continued dysfunction of the proceedings.
3. The emerging camaraderie here.
David Hicks and his parents.
Today was the preliminary hearing for David Hicks. David Hicks, 29, is one of two Australians detained on Guantanamo. Mr. Hicks' family believes that David was captured by Northern Alliance forces in Afghanistan, sometime in early December 2001, and handed over to U.S. troops shortly thereafter, as an alleged member of a Taliban militia group. He has been at Guantanamo since January 2002.
In June 2004, formal charges were issued against Mr. Hicks, with counts of conspiracy to commit war crimes, including terrorism; attempted murder by an unprivileged belligerent; and aiding the enemy. The charge sheet alleges that Mr. Hicks underwent military training at al Qaeda training camps in Afghanistan during 2001; that he returned to Afghanistan from a visit in Pakistan after September 11 to link up with "his al Qaida associates"; and that he then joined up with forces engaged in combat against the U.S.-led Coalition.
The charges do not allege that Mr. Hicks actually killed or injured any individual. Marine Corps Major Michael Mori is the assigned military defense counsel for Mr. Hicks.
Today’s proceedings were devoted, much like yesterday’s, to defense counsel questioning the military commission members about their ability to deliver a fair and impartial verdict. I’ll address this more below.
But first I want to tell you about the most dramatic part of the day – the remarks by Mr. Hicks’ parents at a press briefing after the day’s proceedings. This added an emotional aspect to the day that we had not yet experienced. Mr. Hicks’ parents haven’t seen their son in years. There was a moment before the proceedings where they embraced, and Terry Hicks, David’s father, described this to us in a press briefing after the proceedings.
Terry Hicks told us that it was much of what any of us would imagine. The family hugged and kissed and cried. They discussed family – in particular a cousin of David Hicks who was recently married. David Hicks asked his parents if family members were still on his side. His parents told him that they were, of course, and that so were most of the Australian people.
There were a very few moments when Terry Hicks seemed to be struggling with his emotions. I will paraphrase much of what he said. If we can get the transcript of his remarks, we will post it. Here are some highlights of what he said.
• Terry Hicks said David is worried about his own mental health, mainly because of his isolation – that he is finding it difficult to cope when he is alone. (David is in solitary confinement.)
• Terry Hicks thought his son looked well and even gained a bit of weight, though he wondered aloud if that might be from limited exercise.
• David Hicks told his parents some unpleasant stories of abuse. While the son said that he hadn’t experienced physical abuse on Guantanamo, he experienced it when he was first captured in Afghanistan. He said the abuse at Guantanamo was psychological.
• Terry Hicks said his son was happy with the day’s proceedings.
A reporter asked Terry Hicks if he felt any anger toward his son. The father said, “I don’t feel any anger toward David. He’s his own person and this could have happened to anyone.”
Another reporter asked about letters – had the family received letters from their son, and had David Hicks received their letters? Letters had been exchanged, the father said, but all had been censored. What was most surprising about this, to the father, was that “all the love bits had been taken out.” In the letters David Hicks received, the government censored references that indicated love and support. The “we love yous” and “we support yous” had been blacked out.
Terry Hicks was asked about his feelings toward the United States. He said he harbored no ill will against the United States. His anger, he said, was not with the American people or the military, but with those in power.
He ended by saying that his main aim was to get his son back to Australia to have proceedings take place there. When asked how it was to say goodbye. Terry Hicks said, “You can imagine it was an emotional parting. It’ll be some time before we see him again.”
Continuing dysfunction of the process.
Today was devoted to voir dire in Mr. Hicks’ case. (See yesterday’s entry for a description of this process.) Today’s voir dire was much the same as yesterday’s, but things went much more quickly today because there was no need for translation – the proceedings were all in English. The defense counsel also introduced the transcript from yesterday, so much of today focused on follow-up questions.
Again, the process focused on the ability of the commission members to hear and judge the case impartially. Defense attorneys have aggressively questioned the ability of the commission members – who will act as the jury in this case – to listen to the evidence impartially. Career military men, some of the commission members actually played an active role in Afghanistan operations which led to the detention of some of the men whose cases will be decided by the commission.
Some disturbing evidence about the potential partiality of the judges emerged today. Col. Peter Brownback, the Presiding Officer, who wields enormous authority in the day to day proceedings, turns out to be a longtime close friend of the Appointing Authority, Retired Major General John D. Altenburg. Maj. Gen. Altenburg roasted Col. Brownback at his retirement parity and Col. Brownback gave the roast at Maj. Gen. Altenburg’s retirement party. It’s a huge conflict and deeply concerning. This is in some ways like the prosecutor in a criminal case and the lead juror being best of friends.
The structural concern about judge and jury being in the same body continues. All of the commission members are supposed to have equal authority to decide matters of facts, and will also at times be called upon to determine matters of law. And yet the Presiding Officer naturally continues to exercise heightened authority.
In criminal and military justice systems, the jury is made up of one’s peers and they are the finders of fact. The judge is the finder of law – what “good cause” means in the law; whether we should follow international law or U.S. criminal law. The judge figures out what concepts such as “reasonable doubt” mean and then define them. The reason he does that is because he knows the law and he knows how to interpret law.
In this case, the military commission members – with the exception of the Presiding Officer – have no legal background, yet will be asked to appraise and to some degree interpret the law.
Here’s an example of a typical interchange: A defense counsel will ask one of the commission members: What do you understand due process to mean?
If you ask this question of a lawyer, you’ll get a certain answer. They’ll say due process is what you get under the 5th Amendment and other provisions of the Constitution – the right to counsel, the right to confront witnesses, the right to see adverse evidence, the protection against self incrimination, the right to an impartial jury of your peers, etc.
When asked today by the defense counsel what due process was, one member said: “Justice.”
These men are trying their best, but they have no idea what due process means as a legal concept and a legal right. Their understanding is generalized. And yet, we have two centuries that define due process – by binding authority, by decisions of the U.S. Supreme Court, by statute and by treaties. The panel effectively will be able to draw on none of this.
The Presiding Officer compounded the imbalance in the commission members’ knowledge by over-reaching repeatedly. Throughout the day, he rephrased the defense counsel’s questions – as a way, it seemed, to explain them. But his re-phrasings were leading, and at times they changed the meaning of the question or were conclusive. For instance, a defense counsel asked: "Is it important to a fair trial that the defendant be aware that his action was a crime when he committed it?"
One of the members answered, in effect, that ignorance of the law was no excuse.
The Presiding Officer then said something to the effect of: “Don’t all members agree that it’s not fair to hold someone accountable for a crime he did not know was a crime.” Such rephrasing prevents the defense counsel from ascertaining the real thinking and understanding of the other commission members.
Camaraderie
Just a note about how we all are getting on. Everyone involved in these matters is tired – make that exhausted. But there is a great deal of trust-building going on – between and among counsels, and among the NGO observers and the military. We have a great deal of rush, rush, rush and then wait. During our downtime, the participants have a chance to find out a bit about each other. There has been connecting across divides of backgrounds and experience and that has been really positive.
What has struck me most about it is that everyone here is struggling to do his and her best – and there is this feeling, this strong pull among us all toward the tradition of American law where the process is fair. Despite what we have been seeing in this courtroom, this at least is reassuring.
Day Two: Good People, Flawed System
Tuesday, August 24
Today was the first day of actual proceedings, and it began with another new rule. The other independent observers and I were handed an order from the Presiding Officer just minutes before proceedings began today, instructing us what would happen if classified or “protected” information was accidentally revealed in open court. Among other things, the order required us to turn over any notes we had taken so they could be reviewed and redacted if they contained such information. As it turned out, there was no occasion for the rule to be used today.
Defense lawyers spent the bulk of the day questioning members of the commission about whether or not they would be able to render an impartial verdict in the case of Salim Ahmed Hamdan. Mr. Hamdan, a Yemeni, has admitted that he was a driver for Osama bin Laden in Afghanistan, but has denied the military prosecutor’s charges that he conspired with al Qaeda to commit terrorist acts.
The members of the commission — the jury — are military professionals who have been selected by the Appointing Authority to hear and decide the cases of four suspected terrorists, all picked up in Afghanistan. (The Appointing Authority is Retired Major General John D. Altenburg, Jr., former Army Assistant Judge Advocate General. Altenburg was selected by Secretary of Defense Donald Rumsfeld.)
The Presiding Officer, Colonel Peter E. Brownback III, is a retired Army judge and the only member of the commission with legal training. He will act as both judge and jury member, managing the proceedings and, generally, ruling on motions, but also deliberating and voting with the other members of the panel.
Adding to the merging of roles, the Presiding Officer may, in his discretion, submit certain motions for decision by the panel. And, very important motions — ones that could decide the case — are immediately sent to the Appointing Authority.
From my vantage point (literally the last row of the courtroom with the four other human rights observers), this process looked a great deal like voir dire — the pre-trial jury selection process where defense and prosecution lawyers question potential members of a jury about their experiences, qualifications and biases.
In this case, however, the questioning was not of a jury of peers, but a panel of military officers selected by the same Appointing Authority who had referred the charges for prosecution. And the Appointing Authority’s supervisors (the President and Defense Secretary) have already and often described the Guantanamo detainees as unlawful combatants and terrorists.
The voir dire provided the day’s first illustration of the commission’s structural flaws; it was a reminder that the process is part of a new, parallel legal system, one that is largely being made up from scratch as we go along.
And the voir dire informed my overarching impression of the day, which is this: It appears to me that all involved here — the lawyers on both sides, the Presiding Officer, the “judge” and “jury” (the members of the commission panel) — seem to be good, decent people, people who are trying to do the right thing. But they are stuck in an impossibly bad system. They are trying to do the right thing when there is no possible right thing to do. The rules as they’ve been created and as they are being implemented cannot possibly give these defendants a fair trial.
I say this and yet much of what I saw today was admirable. Lt. Cmdr. Charles Swift, Mr. Hamdan’s military lawyer, spent much of the day questioning the members of the commission and the Presiding Officer about their ability to render an impartial verdict. Lt. Cmdr. Swift asked the commission members questions like: “Are you angry about September 11?” And the Commission members were honest. One said, “Yes I am angry.” Another spoke of how he went to the funeral of a friend who died in the World Trade Center bombing. I was impressed by the forthrightness of the answers, particularly the panelists’ ability to identify their strong and serious emotions surrounding what happened on 9/11.
When the defense counsel asked the Presiding Officer, Col. Brownback, whether he could have an open mind about the legality of the proceedings — about whether President Bush actually had the authority to establish these military commissions — Col. Brownback said, “Yes.” Lt. Cmdr. Swift pressed him: “Did you think these commissions were lawful when you were appointed?”
The Presiding Officer paused for a long time and thought, visibly. He put his chin in his hand and you could see him thinking. His response was fascinating. He said (and I’m paraphrasing): It is one thing if you receive an order you know to be unlawful. (He was referring to the military duty not to follow orders you know to be unlawful.) And it’s another thing, he said, not to be sure and to have questions and then to pursue those questions.
It was a very powerful and positive response. He took the legality of the commissions seriously and saw it as a duty of counsel on both sides to educate the commission on the law.
Those were the positive signs. There were also a series of negative ones.
Resources. The imbalance of resources between prosecution and defense was more in evidence today. There are 13 lawyers in the prosecution office, while the defense is begging for help. The military commission leaders addressed the prosecution’s resources first and they haven’t dealt with the defense side yet. That’s clearly not fair. Right now there isn’t a level playing field.
Flaws in the commission structure. The effect of the commission’s structural flaws also became visible today. The Presiding Officer is a lawyer, but the five commission members are not. In a criminal court or a court martial, the jury listens to the facts: Did this happen? Were you in this place on this day? They listen and they credit one side or the other. The judge always decides question of law. But in this system, the commission members will also need to decide matters of law and they have no background to do so. So, for instance, during voir dire, counsel was trying to ask “Do you understand that you cannot pass a law criminalizing conduct that was not criminal when it was committed?” This is the basic idea of the near-universal prohibition of ex post facto criminal laws, but it needed to be explained in detail to the commission. There was a prolonged exchange until the commission member was able to understand what the defense counsel was asking him.
This situation naturally gives the Presiding Officer inordinate power.
Another troubling feature that became evident today was the question of whether panel members could be impartial. A major part of the voir dire process is to make sure that you disqualify those who are unable to rule impartially.
One of the commission panel members was in charge of the logistics of getting detainees from Afghanistan to Guantanamo. That means the man who helped bring these individuals to Guantanamo could now be deciding their fate. He said he could be impartial — and perhaps he could. But it certainly does not give the appearance of justice. Another panelist was a senior intelligence officer in Afghanistan when the defendants were captured. The experiences of these panelists are just too close for comfort – and to close to avoid the appearance of partiality that can undermine the commission’s credibility in the eyes of the world.
The most dramatic moment of the day was the appearance of Mr. Hamdan himself, even though he came in with no fanfare at all. That was part of the drama. He came in wearing a white robe and a western-style men’s blazer. He was accompanied by two MPs. He had a scarf over his head. He wasn’t in shackles or chains, which was positive. It would have been disastrous if he had been; it would have been very difficult to overcome the appearance of guilt in front of the commission member jury that will decide his fate.
As he entered, he removed the scarf and patted down his hair, which was very short. He sat down at the counsel’s table. He came in looking a little uncertain, but as soon as he saw his lawyer, Lt. Cmdr. Swift, he burst into a huge beaming smile.
I couldn’t help thinking when I looked at him that the courtroom we were sitting in was built, basically, for him, for this moment. And of course, it wasn’t only the courtroom that was built — an entire, alternative system of law was built, from scratch. It was hard to reconcile those ideas when looking at this slight, frail man.
In the end, none of the facts of Mr. Hamdan’s case were discussed today; the day was entirely devoted to whether or not there could be a fair hearing. The day went slowly, mainly because of the translation, which is still a major problem.
At one point, the court switched translators and the new translator was not very good. Lt. Cmdr. Swift had a translator with him, and after the translator substitution, the defense’s translator told Lt. Cmdr. Swift that Mr. Hamdan wasn’t understanding the proceedings, and so the original translator returned.
It’s an exchange that sticks with me: the Defense Department was unable to provide a translator who spoke Arabic well enough so the defendant could understand the proceedings. It sticks with me because it so well represents the flaws of what is happening here — the lack of preparation for it, the seat of the pants nature of it, and the basic unfairness of it.
Day One: Four Issues of Concern
Monday, August 23
I arrived in Cuba over the weekend and am staying on the leeward side of the U.S. Naval Base here with 50-some reporters and four other observers from human rights and legal groups. After more than a year of negotiations, the Defense Department agreed to let Human Rights First and a handful of other groups attend the historic proceedings. Today was a day for orientation; and we began to glean some further information about the proceedings to come.
In each of the four cases to be heard this week, there will be preliminary hearings – one a day Tuesday through Friday. Though we made specific requests to meet with the full range of players today and for the week, we were denied visits with prosecution attorneys, military commission translators and law clerks – see the statement by the observer groups on this. We were allowed, however, to meet with a number of other participants.
Based on my observations and conversations today, there are four key issues of concern – issues that will be critical in determining the fairness of these trials, both under the rules the U.S. government has established and under accepted fair trial standards. Leading up to the trials, Human Rights First has criticized the military commission rules as providing fewer safeguards than either U.S. criminal or military court proceedings. We believe that these structural flaws violate international humanitarian law, which requires that enemy prisoners subjected to trial be afforded the same procedures and rights as would members of the armed forces of the detaining country. Read our statement on how the military commissions violate fair trial standards.
From my vantage point today, there are additional issues of critical concern beyond the issues raised by the rules themselves:
1. Resources
2. Interpreters
3. Conditions of the defendants
4. Lack of legal structure
On resources.
There is a stark and critical imbalance in the resources of the prosecution and defense attorneys. The prosecutors have an entire floor and a real staff – including researchers, clerks and paralegals. The defense attorneys – all six of them – work from one office. In the office there are just four computers and a copy machine that only periodically works. They have no administrative staff. They are, to my eye, under water. It appears difficult, if not impossible, to practice law in this type of environment. The contrast with the prosecution’s resources is stark.
On interpreters.
There is a strong sense and mounting evidence that interpreters have no experience in legal proceedings, that they do not know the words, in Arabic, for key legal terms – for voir dire, prosecution, cross examination, brief and the like. It also appears that some of the interpreters originally slated to work with the defense attorneys were involved in interrogations on Guantanamo. It would be unfair and inappropriate to have these interpreters participate in the defense. The interpreters should be able to answer, to the defense lawyers’ satisfaction, some key questions about their experience in legal proceedings and their qualifications to participate in these trials. It will be important for Arabic press to ask for, and critically evaluate, the translations of court documents to assess their quality and accuracy.
On the condition of defendants.
There is a great deal of concern about the deteriorating physical and psychological condition of at least one the defendants, particularly Salim Ahmed Hamdan, a native of Yemen. Hamdan and his lawyer have both filed declarations– as has a psychiatrist who has examined Hamdan – about his seriously weakened condition. The psychiatrist’s sworn declaration affirmed that the conditions of Hamdan’s detention “place him at significant risk for future psychiatric deterioration”; “make [him] particularly susceptible to mental coercion and false confession”; and may significantly impair “his ability to assess his legal situation and assist defense counsel.” Hamdan has been in solitary confinement since he was assigned a lawyer eight months ago. Hamdan’s lawyer says his client has lost 50 pounds since being placed in solitary.
In general, the techniques authorized for use at Guantanamo Bay did include at one time forced nudity, stress positions, isolation up to 30 days, forced grooming, and inducing stress by the use of dogs. The notion that coercive interrogation techniques might have induced false confessions from detainees at Guantanamo Bay is not hypothetical. As has been well-documented, the Tipton Three — the Britons recently released from Guantanamo — were coerced into making confessions later disproved by British Intelligence. The conditions of the detainees and the questionable reliability of any of their statements (compounded by questions about the accuracy of Arabic translation) are particularly problematic here because the military commissions do not require that a defendant be mentally competent to stand trial and do not provide evidentiary standards that would preclude the admission of coerced information.
On lack of legal structures.
There is a sense here that the U.S. military leaders overseeing these trials are making much up as they go. In the preceding weeks and months, it’s been a new rule every time we turn around. The law has been a moving target. For instance, in an ordinary trial, there would be preemptory challenges if one side felt the jury was biased. Here there is a “good cause” standard – that’s what’s written in the rules. The laws of the land right now are the “commission rules” – that’s what the Presiding Officer keeps talking about and referring to – yet these rules are being made up anew each day. This confounds the very notion of the “rule of law.” Here, the Presiding Officer writes a memoranda and that becomes the law. And yet, the memos and documents to date do not answer basic questions – questions for instance about what evidence could be introduced – really basic practical questions. Someone will ask, “May I have access to this piece of evidence?” and will be told by the Presiding Officer, “Well, I don’t know.” They are still constructing the system, and yet the stakes are so high: these defendants face being sentenced to life in detention with no opportunity for an independent appeal.
In the Courts
The Case of Salim Ahmed Hamdan
On July 14, 2004, the Department of Defense formally referred charges against Salim Ahmed Hamdan, a 34-year-old Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. Mr. Hamdan was captured by Afghan forces and handed over to the U.S. military in Afghanistan in late 2001. More»
U.S. Courts
The Case Against Secretary Rumsfeld
The Case of Salim Ahmed Hamdan
The Case of Ali Saleh Kahlah al-Marri
The Case of Jose Padilla, U.S. Citizen
The Case of Yaser Hamdi, U.S. Citizen
The Detentions at Guantanamo Bay
Read Legal Briefs Human Rights First Wrote or Coordinated in These Cases
Military Commissions
The Case of Jabran Said bin al Qahtani
The Case of Ghassan Abdullah al Sharbi
The Case of Al Hamza Ahmed Sulayman al Bahlul
The Case of Ibrahim Ahmed Mahmoud al Qosi
The Case of Salim Ahmed Hamdan
The Case of Binyam Ahmed Muhammad
Read about Military Commissions
US ACKNOWLEDGES TORTURE AT GUANTANAMO; IN IRAQ, AFGHANISTAN - UN
The acknowledgement was made in a report submitted to the UN Committee against Torture, said a member of the ten-person panel, speaking on condition of...
CNN.com - U.N.: Gitmo violates world torture ban - May 19, 2006
U.N.: Gitmo violates world torture ban ... as soon as possible," the U.N. Committee Against Torture said in an 11-page report issued in Geneva, Switzerland. ...
American Civil Liberties Union: Government Defies Recommendations...
Nov 7, 2007 ... NEW YORK - The American Civil Liberties Union today blasted the government's one year follow-up report to the U.N. Committee Against Torture...
The Legalization Of Criminality Is Possible If Permitted As Abuse Accepted And Tolerated By Inaction Becomes Institutionalized And Accepted. What would The World Be Like If There Were No Nuremberg Trials?
Under Bush/Mukasey The Effort Is To Ignore All Law And Create A Rationale And Justification For Permissible Torture That Stands Outside Of The Boundaries Of ALL LAW and therefore, beyond the reach of Impeachment of The Geneva Conventions.
NPR: Mukasey Withholds Opinion on Waterboarding
Oct 19, 2007 ... But yesterday, when the committee's Democrats pressed for a definition of torture, Mukasey demurred, saying that the comment would be...
I’d like to digress from my usual analysis of insurgent strategy and tactics to speak out on an issue of grave importance to Small Wars Journal readers. We, as a nation, are having a crisis of honor.
Last week the Attorney General nominee Judge Michael Mukasey refused to define waterboarding terror suspects as torture. On the same day MSNBC television pundit and former Republican Congressman Joe Scarborough quickly spoke out in its favor. On his morning television broadcast, he asserted, without any basis in fact, that the efficacy of the waterboard a viable tool to be used on Al Qaeda suspects.
Scarborough said, "For those who don't know, water boarding is what we did to Khalid Sheikh Mohammed, who is the Al Qaeda number two guy that planned 9/11. And he talked …" He then speculated that “If you ask Americans whether they think it's okay for us to waterboard in a controlled environment … 90% of Americans will say 'yes.'” Sensing that what he was saying sounded extreme, he then claimed he did not support torture but that waterboarding was debatable as a technique: "You know, that's the debate. Is waterboarding torture? … I don't want the United States to engage in the type of torture that [Senator] John McCain had to endure."
In fact, waterboarding is just the type of torture then Lt. Commander John McCain had to endure at the hands of the North Vietnamese. As a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California I know the waterboard personally and intimately. SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people. It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA for its terror suspects. What was not mentioned in most articles was that SERE was designed to show how an evil totalitarian, enemy would use torture at the slightest whim. If this is the case, then waterboarding is unquestionably being used as torture technique.
The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt. Couple that with waterboarding and the entire medley not only “shock the conscience” as the statute forbids -it would terrify you. Most people cannot stand to watch a high intensity kinetic interrogation. One has to overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred. It would leave you to question the meaning of what it is to be an American.
We live at a time where Americans, completely uninformed by an incurious media and enthralled by vengeance-based fantasy television shows like “24”, are actually cheering and encouraging such torture as justifiable revenge for the September 11 attacks. Having been a rescuer in one of those incidents and personally affected by both attacks, I am bewildered at how casually we have thrown off the mantle of world-leader in justice and honor. Who we have become? Because at this juncture, after Abu Ghraib and other undignified exposed incidents of murder and torture, we appear to have become no better than our opponents.
With regards to the waterboard, I want to set the record straight so the apologists can finally embrace the fact that they condone and encourage torture.
History’s Lessons Ignored
Before arriving for my assignment at SERE, I traveled to Cambodia to visit the torture camps of the Khmer Rouge. The country had just opened for tourism and the effect of the genocide was still heavy in the air. I wanted to know how real torturers and terror camp guards would behave and learn how to resist them from survivors of such horrors. I had previously visited the Nazi death camps Dachau and Bergen-Belsen. I had met and interviewed survivors of Buchenwald, Auschwitz and Magdeburg when I visited Yad Vashem in Jerusalem. However, it was in the S-21 death camp known as Tuol Sleng, in downtown Phnom Penh, where I found a perfectly intact inclined waterboard. Next to it was the painting on how it was used. It was cruder than ours mainly because they used metal shackles to strap the victim down, and a tin flower pot sprinkler to regulate the water flow rate, but it was the same device I would be subjected to a few weeks later.
On a Mekong River trip, I met a 60-year-old man, happy to be alive and a cheerful travel companion, who survived the genocide and torture … he spoke openly about it and gave me a valuable lesson: “If you want to survive, you must learn that ‘walking through a low door means you have to be able to bow.’” He told his interrogators everything they wanted to know including the truth. They rarely stopped. In torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist Monk, a Catholic Bishop and the son of the king of Cambodia. He was actually just a school teacher whose crime was that he once spoke French. He remembered “the Barrel” version of waterboarding quite well. Head first until the water filled the lungs, then you talk.
Once at SERE and tasked to rewrite the Navy SERE program for the first time since the Vietnam War, we incorporated interrogation and torture techniques from the Middle East, Latin America and South Asia into the curriculum. In the process, I studied hundreds of classified written reports, dozens of personal memoirs of American captives from the French-Indian Wars and the American Revolution to the Argentinean ‘Dirty War’ and Bosnia. There were endless hours of videotaped debriefings from World War Two, Korea, Vietnam and Gulf War POWs and interrogators. I devoured the hundreds of pages of debriefs and video reports including those of then Commander John McCain, Colonel Nick Rowe, Lt. Dieter Dengler and Admiral James Stockdale, the former Senior Ranking Officer of the Hanoi Hilton. All of them had been tortured by the Vietnamese, Pathet Lao or Cambodians. The minutiae of North Vietnamese torture techniques was discussed with our staff advisor and former Hanoi Hilton POW Doug Hegdahl as well as discussions with Admiral Stockdale himself. The waterboard was clearly one of the tools dictators and totalitarian regimes preferred.
There is No Debate Except for Torture Apologists
1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.
2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.
Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.
Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.
Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an afterthought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraib, Baghram and Guantanamo. No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity water jets.
3. If you support the use of waterboarding on enemy captives, you support the use of that torture on any future American captives. The Small Wars Council had a spirited discussion about this earlier in the year, especially when former Marine.
Evan Wallach wrote a brilliant history of the use of waterboarding as a war crime and the open acceptance of it by the administration in an article for Columbia Journal for Transnational Law. In it he describes how the ideological Justice Department lawyer, John Yoo validated the current dilemma we find ourselves in by asserting that the President had powers above and beyond the Constitution and the Congress:
“Congress doesn’t have the power to tie the President’s hands in regard to torture as an interrogation technique....It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”
That is an astounding assertion. It reflects a basic disregard for the law of the United States, the Constitution and basic moral decency.
Another MSNBC commentator defended the administration and stated that waterboarding is "not a new phenomenon" and that it had "been pinned on President Bush … but this has been part of interrogation for years and years and years." He is correct, but only partially. The Washington Post reported in 2006 that it was mainly America’s enemies that used it as a principal interrogation method. After World War 2, Japanese waterboard team members were tried for war crimes. In Vietnam, service members were placed under investigation when a photo of a field-expedient waterboarding became publicly known.
Torture in captivity simulation training reveals there are ways an enemy can inflict punishment which will render the subject wholly helpless and which will generally overcome his willpower. The torturer will trigger within the subject a survival instinct, in this case the ability to breathe, which makes the victim instantly pliable and ready to comply. It is purely and simply a tool by which to deprive a human being of his ability to resist through physical humiliation. The very concept of an American Torturer is an anathema to our values.
I concur strongly with the opinions of professional interrogators like Colonel, and victims of torture like Senator John McCain. If you want consistent, accurate and reliable intelligence, be inquisitive, analytical, patient but most of all professional, amiable and compassionate.
Who will complain about the new world-wide embrace of torture? America has justified it legally at the highest levels of government. Even worse, the administration has selectively leaked supposed successes of the water board such as the alleged Khalid Sheik Mohammed confessions. However, in the same breath the CIA sources for the Washington Post noted that in Mohammed’s case they got information but "not all of it reliable." Of course, when you waterboard you get all the magic answers you want -because remember, the subject will talk. They all talk! Anyone strapped down will say anything, absolutely anything to get the torture to stop. Torture. Does. Not. Work.
According to the President, this is not a torture, so future torturers in other countries now have an American legal basis to perform the acts. Every hostile intelligence agency and terrorist in the world will consider it a viable tool, which can be used with impunity. It has been turned into perfectly acceptable behavior for information finding.
A torture victim can be made to say anything by an evil nation that does not abide by humanity, morality, treaties or rule of law. Today we are on the verge of becoming that nation. Is it possible that September 11 hurt us so much that we have decided to gladly adopt the tools of KGB, the Khmer Rouge, the Nazi Gestapo, the North Vietnamese, the North Koreans and the Burmese Junta?
What next if the waterboarding on a critical the captive doesn’t work and you have a timetable to stop the “ticking bomb” scenario? Electric shock to the genitals? Taking a pregnant woman and electrocuting the fetus inside her? Executing a captive’s children in front of him? Dropping live people from an airplane over the ocean? It has all been done by governments seeking information. All claimed the same need to stop the ticking bomb. It is not a far leap from torture to murder, especially if the subject is defiant. Are we willing to trade our nation’s soul for tactical intelligence?
Is There a Place for the Waterboard?
Yes. The waterboard must go back to the realm of SERE training our operators, soldiers, sailors, airmen and Marines. We must now double our efforts to prepare for its inevitable and uncontrolled use of by our future enemies.
Until recently, only a few countries considered it effective. Now American use of the waterboard as an interrogation tool has assuredly guaranteed that our service members and agents who are captured or detained by future enemies will be subject to it as part of the most routine interrogations. Forget threats, poor food, the occasional face slap and sexual assaults. This was not a dignified ‘taking off the gloves’; this was descending to the level of our opposition in an equally brutish and ugly way. Waterboarding will be one our future enemy’s go-to techniques because we took the gloves off to brutal interrogation. Now our enemies will take the gloves off and thank us for it.
There may never again be a chance that Americans will benefit from the shield of outrage and public opinion when our future enemy uses of torture. Brutal interrogation, flash murder and extreme humiliation of American citizens, agents and members of the armed forces may now be guaranteed because we have mindlessly, but happily, broken the seal on the Pandora’s box of indignity, cruelty and hatred in the name of protecting America. To defeat Bin Laden many in this administration have openly embraced the methods of by Hitler, Pinochet, Pol Pot, Galtieri and Saddam Hussein.
Not A Fair Trade for America’s Honor
I have stated publicly and repeatedly that I would personally cut Bin Laden’s heart out with a plastic MRE spoon if we per chance meet on the battlefield. Yet, once captive I believe that the better angels of our nature and our nation’s core values would eventually convince any terrorist that they indeed have erred in their murderous ways. Once convicted in a fair, public tribunal, they would have the rest of their lives, however short the law makes it, to come to terms with their God and their acts.
This is not enough for our President. He apparently secretly ordered the core American values of fairness and justice to be thrown away in the name of security from terrorists. He somehow determined that the honor the military, the CIA and the nation itself was an acceptable trade for the superficial knowledge of the machinations of approximately 2,000 terrorists, most of whom are being decimated in Iraq or martyring themselves in Afghanistan. It is a short sighted and politically motivated trade that is simply disgraceful. There is no honor here.
It is outrageous that American officials, including the Attorney General and a legion of minions of lower rank have not only embraced this torture but have actually justified it, redefined it to a misdemeanor, brought it down to the level of a college prank and then bragged about it. The echo chamber that is the American media now views torture as a heroic and macho.
Torture advocates hide behind the argument that an open discussion about specific American interrogation techniques will aid the enemy. Yet, convicted Al Qaeda members and innocent captives who were released to their host nations have already debriefed the world through hundreds of interviews, movies and documentaries on exactly what methods they were subjected to and how they endured. In essence, our own missteps have created a cadre of highly experienced lecturers for Al Qaeda’s own virtual SERE school for terrorists.
Congressional leaders from both sides of the aisle need to stand up for American values and clearly specify that coercive interrogation using the waterboard is torture and, except for limited examples of training our service members and intelligence officers, it should be stopped completely and finally –oh, and this time without a Presidential signing statement reinterpreting the law.
Updates by SWJ Editors
Links
Drowning in Questions - Newsweek Magazine
Expert Sheds Light on Waterboarding - Audio of NPR Interview with Malcolm Nance
Is Waterboarding Torture? - Audio of WNYC Interview with Malcolm Nance
The Truth about Torture | It's time to be honest about doing terrible things.
by Charles Krauthammer
By refusing to acknowledge at his confirmation hearing that waterboarding is torture, Mukasey appeared to throw his lot in with those who embrace an ...
Torture "Widespread" under U.S. Custody: Amnesty
May 1, 2006 ... "Although the U.S. government continues to assert its condemnation of torture and ill-treatment, these statements contradict what is ...
WhatReallyHappened.com: TORTURE SCANDAL Archives
US flouts human rights with secret prisons, torture: HRW. The United States continues to violate basic human rights by keeping secret detention facilities ...
February 17, 2008
White House to veto Senate ban on waterboarding
"This is an extremely valuable interrogation technique which has allowed us to identify many criminals. This soggy fellow right here, for example, has already confessed to shooting down Columbia, Challenger, and the Hindenberg, and this soggy guy here has admitted that he is Jack the Ripper." -- Official White Horse Souse - M. R.
February 15, 2008
London bombs justify 'torture', says Bush
Memo to President Bush; if this country is both utilizing and justifying torture as a normal procedure to garner information under American Law, we should withdraw from any and all human rights treaties this country has ever signed immediately, just to let the world know precisely where we stand.
And where we stand is precisely shoulder to shoulder right now with every repressive, contemptible regime which does this on a routine basis.
We cannot lecture the world about human rights, freedom, human dignity and democracy, and torture at the same time: the resulting mocking laughter is becoming deafening. - M. R.
Lieberman backs waterboarding; 'It's not like we're burning people with hot coals'
Memo to Senator Joe Lieberman; to paraphrase the American poet, Gertrude Stein, "torture is torture is torture", period, end of discussion, whether it is physical or psychological.
And sir, if you are unclear that this practice is torture, I suggest you volunteer to have the procedure done to yourself at one of the US's "black sites", or perhaps at Gitmo.
Additionally, this form of torture can lead to death; ask any scholar of the Inquisition. Or the Nazis.
As a final note, the question is not whether waterboarding is torture or not, but whether it is cruel and unusual punishment, which is prohibited by the 8th Amendment to the Constitution. The question is whether forced confessions are self-incrimination, which is prohibited under the 5th Amendment to the Constitution. - M. R.
February 14, 2008
Bush says US will waterboard whether legal or not
Which means Bush has just committed us to WW3, because otherwise, he will face international war crimes trials when he leaves office. - M. R.
Senate votes to ban waterboarding; Bush vows veto
Joining the House, the Senate has voted to prohibit waterboarding and other harsh methods of interrogation.
Senator McCain voted AGAINST this measure. - M. R.
Justice Dept: Waterboarding not legal
A senior Justice Department official says laws and other limits enacted since three terrorism suspects were waterboarded has eliminated the technique from what is now legally allowed, going a step beyond what CIA Director Michael Hayden has said.
Court rejects US secret flights lawsuit
"In sum, at the core of plaintiffs' case against Defendant Jeppesen are 'allegations' of covert US military or CIA operations in foreign countries against foreign nationals - clearly a subject matter which is a state secret," Judge James Ware wrote in a ruling.
February 13, 2008
White House pushes waterboarding rationale
After years of refusing public comment on a particularly harsh CIA interrogation method, top Bush administration officials have suddenly begun pressing a controversial argument that it was legal for the CIA to strap prisoners to a board and pour water over their face to make them believe they were being drowned.
Waterboarding, as we have known from the time of the Inquisition, doesn't really produce the truth: it produces whatever confession the torturer wants to hear.
After World War II, the practice was considered so heinous a violation of human rights that Japanese soldiers who waterboarded American soldiers were executed.
There is nothing which does not make this a heinous violation of human rights today. Not only has this practice tarred us morally; it has also destroyed the reputation of this country around the world.
It will be decades before this damage can be undone. - M. R.
February 12, 2008
Scalia says courts shouldn't prohibit torture
Scalia says courts shouldn't prohibit torture.
Supreme Court Justice Antonin Scalia rejected the notion that US courts have any control over the actions of American troops at Guantanamo Bay, argued that torture of terror detainees is not banned under the US Constitution and insisted
Unflipping believable.
People around the world used to appreciate America's respect for basic human right, but no longer..
And there's one other thing Justice Scalia might want to think about: we cannot begin to lecture other countries about freedom, human rights, and democracy when we torture. - M. R.
February 10, 2008
The Spanish Inquisition, unlike many American lawmakers and members of the executive branch, did not waffle about labeling waterboarding a torture. Waterboarding was not invented in Spain: Since the middle of the 13th Century it had been used by European civil and ecclesiastical courts, particularly the Papal Inquisition, in Rome. In Spain no one voiced doubts, as did Michael Mukasey during his October confirmation hearings for U.S. attorney general, and at a hearing just the other day, about whether waterboarding might not technically be torture.
This country cannot torture, then turn around and preach human and civil rights to the world, period, end of discussion. - M. R.
February 09, 2008
After World War II, Japanese soldiers were hanged for the war crime of waterboarding American soldiers. Indeed, patriots and prophets have made it clear from our earliest days that such abuse has no place in America.
Virginia patriot Patrick Henry insisted passionately that "the rack and the screw," as he put it, were barbaric practices that had to be left behind in the Old World, or we are "lost and undone."
How someone can say with a straight face "..."When we lift our hearts to God, we’re all equal in his sight. We’re all equally precious. ... In prayer we grow in mercy and compassion. ", and then authorize torture? - M. R.
Discovery Channel Drops Plans To Air ‘Taxi To The Dark Side’ Because It Is Too ‘Controversial’
Taxi to the Dark Side, a documentary about an innocent Afghan taxi driver tortured to death by U.S. officials at Bagram Air Base, has received wide critical acclaim since its debut in April at the Tribeca Film Festival. The New York Times’s A.O. Scott said, “If recent American history is ever going to be discussed with the necessary clarity and ethical rigor, this film will be essential.”
Apparently, telling the truth about what this country does has become a crime.
So the powers that be will simply make absolutely certain that most of the general public, (which needs to see what is being done in their names and with their tax dollars) will never see this documentary. - M. R. How about now that it has been awarded and Oscar?
Hayden Admits: Contractors Lead 'Enhanced Interrogations' at CIA Black Sites
In testimony before the Senate Select Intelligence Committee, Director of Central Intelligence Mike Hayden admitted to using contractors for "enhanced interrogation" at the CIA's secret prisons, the so-called black sites.
"Hell, we outsource darn near everything else these days: why not torture, using the services of folks who REALLY know how to make it work?" - Official White Horse Souse. - M. R.
Torture Is Impeachable and Has Been Confessed to
Now that George Bush and Michael Hayden have publicly confessed to government waterboarding in a press conference on February 6, 2008, and in testimony before Congress on February 5, 2008, you may find the following information useful:
The law review article referenced below (available at no cost at:http://www.law.utah.edu/_webfiles/ULRarticles/150/150.pdf ) makes clear that waterboarding is torture and is a crime and a war crime punishable under a number of treaties to which the United States is a party and several U.S. statutes.
The article also explains that there is no defense available due to either (1) prior legal advice, or (2) circumstances (including, without limitation, terrorist acts – see citations in Footnotes 21 and 25 in the article), contrary to the claims of Bush and Hayden.
The law review article (see pages 359 to 374) also establishes that under a number of treaties to which the United States is a party, the U.S. has an obligation to initiate an official investigation regarding confessed acts of torture.
Waterboarding should be prosecuted as torture: U.N.
The controversial interrogation technique known as waterboarding and used by the United States qualifies as torture, the U.N. human rights chief said on Friday.
Bush administration acknowledges and defends use of torture technique
The White House publicly acknowledged on Wednesday that President Bush has authorized the use of waterboarding, and that he may do so again in the future.
"If it's good enough for the Nazis and the Inquisition, it's good enough for us! Also, it's very effective at washing away the blood from those, umm, other things." -- Official White Horse Souse - M. R.
February 06, 2008
White House defends interrogation method
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.
President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.
So, there you have it: we torture, consider it legal, and the president believes he has the right to order it be done again.
The US should immediately unilaterally withdraw from any human rights treaty it has ever signed, just to be clear about the US position on torture.
And for all those who steadfastly claim that this practice is not torture, why don't you give it a try at one the US's "secret sites", and just get a real perspective on the process? - M. R.
February 02, 2008
UK Government blocks access to secret military papers on Diego Garcia - Government blocks access to secret military papers on Diego Garcia.
Ministers have blocked an attempt by an influential parliamentary committee to secure the release of secret military papers which they believe will reveal whether the British island territory of Diego Garcia was used as a detention centre for rendition prisoners.
Imagine my complete (lack of) surprise. - M. R.
January 31, 2008
US flouts human rights with secret prisons, torture: HRW
The United States continues to violate basic human rights by keeping secret detention facilities abroad, holding people illegally as "disappeared" and justifying torture, Human Rights Watch (HRW) said Thursday.
This country used to be a beacon of moral light and inspiration to the rest of the world: not any more. - M. R.
US attorney general hints at Bush's permission for torture
When Democratic senator Dianne Feinstein asked if the current path to authorizing waterboarding - a request from the CIA director, followed by approval from the attorney general, followed by consultation with the president - had applied in the past, Mukasey said yes.
We absolutely cannot lecture other countries about human rights, human dignity, and the value of freedom when have a national policy which allows torture: it's just that simple.
- M. R.
January 30, 2008
US attorney general says CIA not currently authorized to use waterboarding
Well, THAT will stop them! - M. R.
February 08, 2008
CIA Likely Let Contractors Perform Waterboarding
The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.
Well, I wonder how THAT looks on a resume! - M. R.
Justice Dept. 'Cannot' Probe Waterboarding, Mukasey Says
Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey said Justice Department lawyers concluded that the CIA's use of waterboarding in 2002 and 2003 was legal, and therefore the department cannot investigate whether a crime had occurred.
Everything Hitler did was legal too. - M. R.
Cheney: 'Damn right' I back Bush use of waterboarding
"And anyone who disagrees can go quail hunting with me!" - M. R.
February 07, 2008
Cheney: 'Damn right' I back Bush use of waterboarding
Cheney said that he supported President Bush's national security decisions, which included the approval of waterboarding along with other harsh interrogation tactics. "I've been proud to stand by [Bush], by the decisions he's made," said Cheney, who then asked aloud, "Would I support those decisions today?"
"You're damn right I would," he answered himself, to loud cheers.
OK, it's out in the open: we torture.
The US has just joined the despicable ranks of such "human rights' espousing states" as Egypt, Syria, Kazakhstan, and Saudi Arabia.
So Vice President, let's take this all the way to its logical conclusion.
The executive branch of the government should now, immediately, withdraw from any human rights treaty we have ever signed.
Just get them out of the way, pronto, so the entire world can know just where we stand.
And by the way; by doing this, it means that any military of any country on the planet absolutely doesn't have to play by any humanitarian rules of engagement if they capture any of our military.
They now have an absolutely free pass to torture any captured member of our armed forces, because you have stated, very clearly, that this country tortures, and you endorse that. - M. R.
Waterboarding is legal, White House says
Everything Hitler did was legal, too.
Did that make it right? Did that make it morally justified? Did that make it legal?
Does the fact that Hitler declared everything he did to be legal grant absolution to the Germans of Nazi Germany who went along with what Hitler did ... because it was legal?
So, when George Bush says that torture is now legal in the United States, and you go along with that, what does that make you?
February 20, 2008
Mukasey's skillful evasions on torture
On television, and in the transcript of Attorney General Michael Mukasey's Jan. 30 testimony before the Senate Judiciary Committee, he certainly showed that he is semantically much more skilful in evading questions than his predecessor, Alberto Gonzales. But Mr. Mukasey also demonstrated that he will not restore the credibility of the Justice Department's commitment to the rule of law — under this administration
Daily Kos: Impeach Mukasey Now: Waterboarding Not Torture ...
Torture degrades our democracy. Majority opinion in America is against waterboarding and other forms of torture. Mukasey should be impeached. ...
February 28, 2008
Disturbing New Photos From Abu Ghraib
Actually, most of these are not new, and have been seen previously at WRH. But since you all paid for this, you may as well watch the encore. - M. R.
February 27, 2008
Pentagon General Counsel Resigns
William J. Haynes, the Pentagon's chief legal officer and overseer of Guantanamo's Military Commissions, is stepping down, amid mounting controversy over the tribunal process, so he can "return to private life," the Department of Defense announced late on Monday. Haynes' resignation comes exactly two weeks after landmark charges were brought against six "high-value" Guantanamo detainees.
And Yet The Position Of The Administration Has not Changed One Iota.
George Bush is threatening to veto a bill passed by the Senate which doesn't allow the CIA to use waterboarding, limiting it to interrogations allowed in the U.S. Army Field Manual.
CIA Director Hayden's admitted to Congress that government interrogators had used waterboarding on three men detained in Guantanamo. Tapes of those interrogations were destroyed, but it's recently been revealed that there are thousands of more hours of tapes of interrogations. Six of the detainees will be tried in military commissions, where the government is asking for the death penalty, and plans to allow no acquittals.
Will this president --or the next one -- be stopped from approving torture? None of Bush's likely successors voted for the bill. "I will not restrict the CIA to only the Army Field Manual," McCain said before he voted against the bill. Neither Senator Obama nor Senator Clinton voted at all.
But remember, "The United States does not torture." (George W. Bush, repeatedly).
Is torture a settled issue in 2008? No. Kiefer Sutherland, the star of the hit TV show '24', has been "invited by the US army to discuss why it is wrong to torture prisoners. Sutherland plays agent Jack Bauer in the series and agreed to talk to cadets at the West Point military academy in New York State after army chiefs claimed that the show's torture scenes were influencing new recruits." The US military can blame a TV show for promoting torture, but what about the Vice President's endorsement of "going to the dark side" and using all possible means to extract information?
Does it matter if the United States tortures in our name? The US Army field manual allows wide latitude in so-called "psychological" methods of torture, which have been developed with the help of members of the American Psychological Association, leading to a battle inside the association over such participation.
The field many allows 19 approved interrogation techniques, including "good cop/bad cop," "false flag" - making prisoners think they are in the custody of another country - and the separation of a prisoner from other prisoners for up to 30 days at a time.
The manual prohibits military interrogators from hooding prisoners or putting duct tape across their eyes. They may not be stripped naked or forced to perform or mimic sexual acts. They may not be beaten, electrocuted, burned or otherwise physically hurt. They may not be subjected to hypothermia or mock executions. It does not allow food, water and medical treatment to be withheld, and dogs may not be used in any aspect of interrogation.
All of these techniques were used in Abu Ghraib. The whole world has seen the photos.
(1) Torture and Illegal Detention: Showing that the Bush administration authorized:
1. the use of torture and abuse
2. the transfer (“rendition”) of persons held in U.S. custody to foreign countries where torture is known to be practiced
3. indefinite detention of persons from other countries
4. The round-up and detention of thousands of immigrants without charge or trial
5. Committing murder by authorizing the CIA to kill those that the president designates, either US citizens or non-citizens, anywhere in the world.
Testimony by Brig. Gen. Janis Karpinski describing the chain of command that authorized the infamous tortures at Abu Graib in Iraq. Ambassador Craig Murray on the tortures being conducted for the U.S. and the U.K. by the government of Uzbekistan.
Camilo E. Mejia, member of Iraq Veterans Against the War, Dr. Stephen Miles describes the homicide of an Iraqi prisoner.
Barbara Olshansky from the Center for Constitutional Rights describes the Constitutional issues in this illegal grab for presidential power
grounds for impeachment of bush, Cheney, Rumsfeld, and others ...
Here are the exact words of the Federal Law regarding Torture, ... thus are guilty of the crime of "conspiracy to commit torture," an impeachable offense. ...
Impeachment Project: Torture and Wiretapping
This Monday, the American Bar Association overwhelmingly voted to officially condemn the Bush's July 21 executive order allowing torture as an interrogation ...
We Want Our Humanity Represented! Impeachment for Torture, Now ...
Today’s topic, torture and how impeachment for torture is necessary to the representation of humanity in our democracy, does not even cover the subset of ...
Torture Is Impeachable and Has Been Confessed to ...
Torture Is Impeachable and Has Been Confessed to. Submitted by davidswanson on Sat, 2008-02-09 00:40. Impeachment. From Head On Radio Network ...
Now that George Bush and Michael Hayden have publicly confessed to government waterboarding in a press conference on February 6, 2008, and in testimony before Congress on February 5, 2008, you may find the following information useful:
The law review article referenced below (available at no cost at:http://www.law.utah.edu/_webfiles/ULRarticles/150/150.pdf
makes clear that waterboarding is torture and is a crime and a war crime punishable under a number of treaties to which the United States is a party and several U.S. statutes.
The article also explains that there is no defense available due to either (1) prior legal advice, or (2) circumstances (including, without limitation, terrorist acts – see citations in Footnotes 21 and 25 in the article), contrary to the claims of Bush and Hayden.
The law review article (see pages 359 to 374) also establishes that under a number of treaties to which the United States is a party, the U.S. has an obligation to initiate an official investigation regarding confessed acts of torture. For example, the 1984 U.N. Convention Against Torture, (1465 UNTS 85), Article 12 reads as follows:
“Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” (NOTE: The article also explains why “territory under its jurisdiction” includes GITMO and all DOD and CIA secret detention sites for the United States.)
The following case, among others, has held that waterboarding is torture:
In re Estate of Ferdinand E. Marcos Human Rights Litigation, 910 F. Supp. 1460, 1463 (District of Hawaii, 1995)
Waterboarding is torture regardless of the surrounding circumstances – there is no circumstantial or necessity defense to torture claims.
It is time for the appointment of a special prosecutor – General Mukasey must recuse himself because of his refusal to publicly state that waterboarding is criminal torture. As explained in the law review article and elsewhere, the following individuals played primary roles in the authorization of waterboarding and should be immediately identified as the primary subjects of the investigation:
George W. Bush
Richard “Dick” Cheney
John Ashcroft
Alberto Gonzales
Donald Rumsfeld
George J. Tenet
John E. McLaughlin
Porter Goss
David Addington
Jay S. Bybee
John Yoo
Jack Goldsmith
General Ricardo Sanchez
General Geoffrey Miller
General Janis Karpinski
Bush/Cheney Pardon Calendar
Under the circumstances – a public confession of criminal acts by George W. Bush — you should expect that immediately after the November elections George W. Bush will pardon all of the people listed above, then resign. At that point, Richard “Dick” Cheney would become President, and you should expect that in that capacity Cheney will immediately pardon George W. Bush.
Immediate Appointment of Special Prosecutor
As a result of the expected pardons, a special prosecutor should be appointed immediately
Commencement of Impeachment Proceedings
As a result of the expected pardons, on the day after the November elections, the House of Representatives should impeach George W. Bush and Richard “Dick” Cheney for high crimes — torture — violating the following statutes, among others:
18 USC 3231
18 USC Sections 2340-2340A
18 USC 2441
Please note the strategic importance of simply presenting the impeachment to members of the House with no hearings and an immediate vote on the day after the November elections. There is no reason for hearings or delay, since George W. Bush has admitted the criminal act that is the basis of the impeachment.
International Crimes Not Subject to Pardon Power
It is worth pointing out that torture violations of the Law of War and international treaties are not subject to the Presidential pardon power. We will see these individuals on trial in the Hague for their publicly confessed war crimes.
“Above the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying and Claims to Unchecked Executive Power,” Jordan J. Paust, Utah Law Review, 2007, Number 2, Pages 345 to 419
Article available free at:
(5) Wars of Aggression, details the violations of international law, the Geneva Conventions, and the Nuremberg principles. This outstanding video features testimony by: Scott Ritter, former UN weapons inspector, on why and how the Bush administration knew that there were no weapons of mass destruction in Iraq Amy Bartholomew, professor of law, Carleton University, on the structure of international law that prohibits wars of aggression Larry Everest, author of Oil, Power & Empire: Iraq and the U.S. Global Agenda, on the global agenda behind the U.S. war on Iraq Dahr Jamail, independent journalist who has reported extensively from Iraq, on war crimes being committed by U.S. forces in Iraq Jeremy Scahill, writer for The Nation and former correspondent for Democracy Now!, on the targeting of journalists in Iraq Camilo Mejia, Iraq vet and member of Iraq Veterans Against the War, on what U.S. soldiers are called on to do to the Iraqi people David Swanson, organizer of Camp Democracy, on the meaning of the Downing Street memo Dr. Thomas Fasy, Mt. Sinai School of Medicine, on the use of depleted Uranium weapons
http://counterpunch.org/worthington02122008.html
… As Time magazine revealed in an interrogation log made available in 2005, al-Qahtani was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation (including being smeared with fake menstrual blood by a female interrogator), threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a "fake rendition," in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.
In addition, as I explain in my book The Guantánamo Files, "The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently -- sometimes as often as three times a day -- and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping."
Even more significant, perhaps, is what al-Qahtani's torture reveals about how the whole process that led to these proposed trials could have, and should have been different. It was the interrogation of al-Qahtani that finally prompted the FBI -- which was already alarmed at the random, self-defeating violence at Guantánamo perpetrated by other agencies -- to make an official complaint to the Pentagon in June 2004, highlighting abuses witnessed by its agents and singling out al-Qahtani's treatment for particular criticism. The letter stated that al-Qahtani was "subjected to intense isolation for over three months" and began "evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)." …
Oct 26, 2005 ... Vice President Cheney has become an open advocate of torture. Congress should reject his proposal and instead prohibit cruel, inhuman and ...
Lie Spies and More.http://counterpunch.org/roberts02202008.html
Final Report of the Independent Panel to Review DoD Detention Operations [PDF]
Asylum And Convention Against Torture Guide To Research
http://library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/Asylum.cfm
Military Law, Law of Armed Conflict - War, Military Justice ...
Federal Court Locator, from Villanova Law Library, with links to court home pages - includes federal ...... Legal Information Institute, Cornell Law School ...
http://www.au.af.mil/au/awc/awcgate/awc-law.htm
http://listproc.ucdavis.edu/archives/law-lib/law-lib.log0406/0141.html
http://library.law.pace.edu/research/Prisoners1.html
Links To Additional International Law Sites
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/info_res_othersites_law?OpenDocument
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions
http://www.salon.com/news/abu_ghraib/2006/03/14/introduction
http://en.wikipedia.org/wiki/Abu_Ghraib_prisoner_abuse
http://www.albasrah.net/images/iraqi-pow/iraqi-pow1.htm
- John Alan Appleman, Military Tribunals and International Crimes (Greenwood Press 1971 c. 1954)Main JX 6731 W3 A6 1971This is a reprint of a 1954 title that provides an historical foundation for understanding the position of military tribunals in a post 9/11 world.
- Beyond September 11th: An Anthology of Dissent (Phil Scranton ed., Pluto Press 2002).Main HV 6431 B495 2002Dissent expressed in these essays are grounded in a wide variety of theories including religious, political and historical positions.
- Civil Liberties vs. National Security: In a Post-9/11 World,(M. Katherine B. Darmer, Robert M. Baird, & Stuart E. Rosenbaum eds., Prometheus Books 2004).Main KF 5060 C48 2004A collection of essays including historical materials and essays relating to the treatment of enemy combatants.
- Richard A. Clarke, Against All Enemies: Inside America’s War on Terror (Free Press 2004).Main HV 6432 C53 2004This title presents a before and after perspective on 9/11.
- Cyberterrorism (Alan O’Day ed., Ashgate 2004).Main HV 6773 C94 2004This is the international library of essays in terrorism.
- Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York Review Books 2004).Main DS 79.76 D36 2004Focuses Iraqi prisoners and related issues.
- Dissent from the Homeland: Essays After September 11(Stanley Hauerwas & Frank Lentricchia, eds., Duke University Press 2002).Main E903 D47 2002A wide range of post 9/11 essays including religious and political perspectives.
- Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge University Press 2005).Main KZ 6795 T47 D84 2005This title focuses on international law as it relates to the United States war on terrorism.
- Jennifer Elsea, Treatment of “Battlefield” Detainees in the War on Terrorism (Novinka Books 2003).Main KZ 6495 E44 2003This title specifically focuses on the treatment of detainees at Guantanamo and Congress’ role in this detention.
- Michael Freeman, Freedom or Security: The Consequences for democracies Using Emergency Powers to Fight Terror (Praeger 2003).Main JC 571 F6749 2003A good review of war and emergency powers.
- Dore Gold, Tower of Babble: How the United Nations Has Fueled Global Chaos (Crown Forum 2004).Main JZ 4984.5 G65 2004Presents a view of the United Nations historical response to instances of international terrorism.
- Arif Marouf Hasian, In the Name of Necessity: Military Tribunals and the Loss of American Civil Liberties(University of Alabama Press 2005)Main KF 7625 H37 2005Includes the history of military tribunals as well as comments on the future use of these tribunals.
- Dilip Hiro, War Without End: The Rise of Islamist Terrorism and Global Response (Routledge 2002).Main BP63 “A35 H57 2002Discusses the rise of Islam, and describes the ongoing war against terror as an uncharted territory.
- Homeland Security (Norris Smith & Lynn M. Messina eds., Wilson 2004).Main HV 6432 H657 2004Essays focus on homeland security issues including the safety of U.S. port, remaining threats to U.S. security, and the possibility of another 9/11.
- Human Rights in the War on Terror (Richard Ashby Wilson ed., Cambridge University Press 2005).Main JC 585 H865 2005A broad collection of essays focusing on human rights and terrorism.
- Law in the War on International Terrorism (Ved P. Nanda ed., Transnational 2005).Main KZ 6795 T47 L39 2005A series of essays focusing on various legal issues relating to the war on terrorism including the use of military tribunals.
- The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force (Howard M. Hensel ed., Ashgate Pub. Co. 2005).Main KZ 6385 L39 2005This is a series of essays focusing on various aspects of the use of military force including civilian protections as well as the protection of cultural objects.
- Lost Liberties: Ashcroft and the Assault on Personal Freedom (Cynthia Brown ed., Norton 2003).Main JC 599 U5 L63 2003These essays are organized around for topics: tools for a new kind of war; the Ashcroft approach; privacy, secrecy and public health; and global threat, global citizen.
- Jackson Nyamuya Maogoto, Battling Terrorism: Legal Perspectives n the Use of Force and the War on Terror(Ashgate 2005).Main KZ6374 M36 2005The resource chronicles the development of the law relating to the use of force in international law.
- New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts (David Wippman & Matthew Evangelista eds., Transnational Publishers 2005).Main KZ 6355 N49 2005This volume resulted from a June 2003 conference co-sponsored by the Clarke Center and the Berger Program for International and Comparative Legal Studies at Cornell Law School and the Cornell Peace Studies Program.
- The Politics of Terror: The U.S. Response to 9/11(William Crotty ed., Northeastern University Press 2004).Main E 902 P65 2004A series of essays focusing on various aspects of the U.S. response to 9/11.
- Michael Ratner, Guantanamo: What the World Should Know (Chelsea Green Pub. Co. 2004).Main KZ 6495 R38 2004Testimony and case details focusing on Guantanamo conditions and issues.
- Yoram Schweitzer, The Globalization of terror: The Challenge of Al-Qaida and the Response of the International Community (Transaction Publishers 2003).Main HV 6432.5 Q2 S3713 2003Provides an international perspective on terrorist attacks.
- Terrorism and International Justice (James P. Sterba ed., Oxford University Press 2003).Main HV 6431 T46144 2003Divided into 3 parts, this collection of essays looks at the nature and rhetoric of terrorism, who are terrorists and what do they hate and what is a morally justified response to terrorism.
- The Use of Force: Military Power and International Politics (Robert J. Art & Kenneth N. Waltz eds., Rowman & Littlefield 2004).Main JZ 1310 U83 2004Provides a pre and post 9/11 view of military power and the use of force in international law.
- The War on our Freedoms: Civil Liberties in an Age of Terrorism (Richard C. Leone & Greg Anrig, Jr. eds., BBS Public Affairs 2003).Main JC 599 U5 W313 2003These essays include an historical perspective as well as focusing modern terrorist threats.
- Lara Weibgen ed., U.S. National Debate Topic, 2005-2006: U.S. Civil Liberties (Wilson 2005).Main KF 4749 A2 U`14 2005Includes sections on terrorism, security versus freedom and related issues.Allhoff, Fritz, 2003, “Terrorism and Torture,” International Journal of Applied Philosophy, Vol. 17, No. 1, pp. 105-18.
- Arnold, M., 1984, The Testimony of Steve Biko, London: Smith.
- Davis, Michael, 2005, “ The Moral Justification of Torture and other Cruel, Inhuman, or Degrading Treatment,”International Journal of Applied Philosophy, Vol. 19, No. 2, pp. 161-78.
- Dershowitz, Alan M., 2003, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Melbourne: Scribe Publications.
- Ignatieff, Michael, 2005, “Moral Prohibition at a Price” in Kenneth Roth and Minky Worden (eds.) Torture: Does it Make us Safer? Is it Ever OK?, New York: The New Press.
- Luban, David, 2005, “Liberalism and the Unpleasant Question of Torture,” Virginia Law Review, Vol. 91, No. 6, pp. 1425-61.
- Machan, Tibor R., 1990, “Exploring Extreme Violence (Torture),” Journal of Social Philosophy, Vol. 21, pp. 92-7.
- Mendez, Juan E., 2005, “Torture in Latin America,” in Kenneth Roth and Minky Worden (eds.) Torture: Does it Make us Safer? Is it Ever OK?, New York: The New Press.
- Miller, Seumas, 2005, “Is Torture Ever Morally Justified?” International Journal of Applied Philosophy, Vol. 19, No. 2, pp. 179-92.
- Miller, Seumas and John Blackler, 2005, Ethical Issues in Policing, Aldershot: Ashgate.
- Miller, Seumas, 2001, Social Action: A Teleological Account, New York: Cambridge University Press.
- Public Committee Against Torture in Israel, 2003, Back to a Routine of Torture: Torture and Ill-treatment of Palestinian Detainees during Arrest, Detention and Interrogation (September 2001 — April 2003).
- Schauer, Frederick, 2003, Profiles, Probabilities and Stereotypes, Harvard: Belknap Press.
- Shue, Henry, 1978, “Torture,” Philosophy and Public Affairs, Vol. 7, pp. 124-43
- Stannard, B., 1988, “How We Got Finch,” The Bulletin Magazine, November 22, 1988.
- Sussman, David, 2005, “What's Wrong with Torture?”,Philosophy and Public Affairs, Vol. 33, pp. 1-33.
- Waldron, Jeremy, 2005, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, Vol. 105, No. 6, pp. 1681-1750.
- Walzer, Michael, 1973, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs, Vol. 2, pp. 160-80.
"Impeachment has to happen before Bush's term is up. There is no statute of limitations on war crimes. People think it's over when Congress refused to act, but we can go after him. It's time to bring justice down on Mr. Bush." ... Michael Moore - This Just In - http://www.michaelmoore.com/words/latestnews/
Concluding with the most dangerous action of that this administration has contrived, the last step, given any “reasonable excuse”, permits the establishment of a Dictatorship in The United States of America. It matters not the charge(s) brought against this administration to cause Impeachment; the fact is: Impeachment is essential for the integrity of this nation, and the restoration of Constitutional law!
The signing and assumption of the grant of powers authorized in The National Security and Homeland Security Presidential Directive (National Security Presidential Directive NSPD-51/Homeland Security Presidential Directive HSPD-20), signed by United States President George W. Bush on May 9, 2007, without “advise and consent” of The Congress, taking unto themselves dictatorial powers in said unilateral Presidential Directive which specifies the procedures for continuity of the federal government in the event of a "catastrophic emergency.", such an emergency construed as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions."
Post Script By Way Of Addendum
From the Brattleboro, VT Indictment Forum March 2nd, 2008 john
Note: David Swanson was invited to give the keynote speech to the Brattleboro, VT Town Forum on the Indictment Question to be voted on this Tuesday. It was a rousing speech that is included below. Photos and a discussion of the meeting will be included tomorrow.
By David Swanson
When citizens and voters go to the town meeting and primaries in Brattleboro, Vermont, on Tuesday, there will be a question on the back of all ballots, and a circle to mark Yes and one to mark No:
“Shall the Select board instruct the Town Attorney to draft indictments against President Bush and Vice President Cheney for crimes against our Constitution and publish said indictments for consideration by other authorities, and shall it be the law of the Town of Brattleboro that the Brattleboro police, pursuant to the above mentioned indictments, arrest and detain George Bush and Richard Cheney in Brattleboro if they are not duly impeached, and prosecuted or extradite them to other authorities that may reasonably contend to prosecute them?”
A public forum was held Sunday in Brattleboro to discuss the upcoming vote. Kurt Daims, the Brattleboro citizen who drafted the measure, was there, along with leading New England activists for peace and justice, including U.S. Senate candidate from Maine Laurie Dobson who is seeking indictments of Bush and Cheney in Maine as well.
If this thing passes on Tuesday I know a lot of cops around the country who are going to be jealous of the Brattleboro police force. I’m thinking of all the police officers I’ve seen arrest activists in Washington, D.C., and elsewhere, but accept impeachment t-shirts from them and hide them under their hats. Here is an opportunity for law-abiding and law-upholding working men and women to arrest the biggest criminals of our age, and the two men most responsible for the human and financial costs we and others have suffered these past seven years. Who wouldn’t want to be in on this?
Now, I know what you’re thinking. If we just wait one more year, only a couple of more hundred thousand Iraqis and some hundreds of US troops will die, we’ll only launch at most one more foreign war beyond the ones we’re running now, our actions might not provoke an attack in this country, we’ll still have several years left in which we can try to reverse global warming if we hurry, the millions of American families about to lose their homes to foreclosures will only have one winter to brave and it may be a warm one, and then a completely unreliable and probably fraudulent election will give us in 2009 a new president who - if we’re lucky - won’t be that crazy old senator who wants to stay in Iraq for 10,000 more years, and if we’re really lucky future presidents will go ahead and obey laws even though they’re not required to anymore . . . so what are we getting all excited about? Right? Admit it, that’s what you’re thinking, isn’t it?
How could you not be when THE MOST IMPORTANT ELECTION IN HISTORY is forecast as imminent every day for two straight years every four years? Seriously, raise your hand if you do not know which presidential candidates are married, how many kids they each have, what their religions are, or if you could not rank them by age, height, or hair color.
Do you know what the most important election in history was? It was the one they decided not to hold between King George of England and his challenger. If they had held that election, and the American colonists had devoted all of their energies for two straight years to reading pamphlets about who had the whiter wig, we never would have had a Declaration of Independence, and we never would have had a democracy.
Oh, well, but that was different. Those colonists weren’t fat and happy like we are, and that King George had committed crimes.
Had he? I think legally, it’s the other way around. As Vermont impeachment activist Dan DeWalt has pointed out, it was the Declaration of Independence that had no force of law. The current president and vice president, on the other hand, live and work in a society of laws under a Constitution, and their violations of the law and of the Constitution are firmly established.
In a December 31, 2007, editorial, the New York Times faulted Bush and Cheney for kidnapping innocent people, denying justice to prisoners, torturing, murdering, circumventing U.S. and international laws, spying in violation of the Fourth Amendment, and basing their actions on “imperial fantasies.”
Bush and Cheney’s lies about Iraqi ties to al Qaeda are on videotape and in writing, and they continue to make them to this day. Their claims about Iraqi weapons have been shown in every detail to have been, not mistakes, but lies. Their threats to and lies about Iran are on videotape. Bush being warned about Katrina and claiming he was not are on videotape. Bush lying about illegal spying and later confessing to it are on videotape.
Torture, openly advocated for by Bush and Cheney and their staffs, is documented by victims, witnesses, and public photographs. Torture was always illegal and has been repeatedly re-criminalized under Bush and Cheney. Bush has reversed those and other laws with signing statements. Those statements are posted on the White House website, and a GAO report found that with a significant percentage of Bush’s signing statements in which he announces his right to break laws, he has in fact proceeded to break those laws.
Bush and Cheney have exposed an undercover agent as punishment of a whistleblower. They’ve commuted the sentence of a top assistant who obstructed an investigation that included themselves. They’ve hired and fired public prosecutors based on their willingness to abuse the law in support of a political party.
Bush and Cheney have stripped the people of this country of protections under Amendments 1, 4, 5, 6, 7, and 8, not to mention 13 and 15. We now arrive at the question of whether there is any life left in Amendments 9 and 10. The Ninth Amendment reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
If those people referred to in that old document still exist anywhere, it is in
Brattleboro, Vermont. And nowhere does the Constitution deny the people of Brattleboro the power to arrest, detain, or try in fair trial individuals whom they have probable cause to believe guilty of mass murder.
Imagine if one of the esteemed Selectmen in Brattleboro were discovered to be accepting bribes, handing out public dollars to his friends, and torturing children in the basement. Would an appropriate response be “How awful, but you know he’s retiring in another year and those children are used to being tortured by now anyway?” That response is not even imaginable.
But when the crime becomes larger and less intimate, when we begin discussing hundreds of thousands of murders and countless cases of torture carried out at a distance by loyal underlings, all of a sudden our conviction that accountability is called for becomes less absolute. Why, though, should the need for accountability shrink as the crime grows? This makes no sense to me and would have made none to the authors of the Declaration of Independence and the Constitution.
Now, that Constitution provides very prominently and discusses in six places a remedy for presidents and vice presidents who abuse it. In such cases, the Congress can impeach, try, remove from office, and bar from ever holding office again. But Article I, Section 3 also says:
“the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and punishment, according to Law.”
In other words, whether a president or vice president or other civil officer of the United States is impeached and convicted in the U.S. Senate or not, he or she is subject before, during, or following that process to exactly what Brattleboro may propose to do on Tuesday.
And I would suggest that the failure of Congress to even consider impeachment gives Brattleboro and every other town in this country something more than the right to take justice into their own hands. We have a responsibility to make use of our democracy in those places where it still resides, where money and military and media have not killed it off. We have a duty, not just a right, to attempt at this late hour to make this again a nation ruled not by men but by laws.
The United States Department of Justice could take up this matter at the national level, it’s true. It’s also true that a chicken can squawk before a fox comes in the door. It’s true that Blackwater can investigate itself. It’s true that the New York Times comes with a built-in critic of its own mistakes. The trouble is that the Department of Justice is now an arm of the Republican Party. The most spineless Congress in the history of the country has asked that Justice Department to hold noncompliant witnesses in contempt, and it has refused.
Congress has a tool called inherent contempt in which the Capitol Police arrest and hold witnesses on Capitol Hill, but our invertebrate representatives are afraid to use that even on former staffers. They are not about to use it on Bush and Cheney.
We are in completely uncharted waters in Washington. We have not only unprecedented spinelessness from the first branch of our government, but we have previously unimagined offenses by the second branch, offenses that can best be called, in the words of the Brattleboro initiative, crimes against the Constitution.
Congress can now pass horrendous bills that become law or good bills that get vetoed. Or it can pass mixed bills in which the bad parts become law, but anything Bush doesn’t like is undone with a signing statement. Yes, previous presidents wrote signing statements, but not in this volume and not in this way, not to announce the intention to violate laws and proceed to violate them. Congress has held hearings on this and countless other abuses. Some of these hearings lay out all the facts, but then nothing is done because the only thing Congress could do would be to impeach, and that would require integrity.
At other hearings, witnesses don’t show up, or show up having forgotten everything prior to breakfast that day. And Congress thanks them for coming, turns the other cheek, and begs to be slapped. Sometimes an abused spouse needs an intervention from a friend, and Congress right now has no better friend than the people of Brattleboro, Vermont.
Who would dare tell Brattleboro it is not its place to act? In recent times, we have seen nations around the world indict foreign criminals for crimes committed elsewhere. The crimes of Bush and Cheney directly impact the people of Brattleboro. The people of Brattleboro have officially paid some $11 million so far to occupy Iraq, or six times that if you consider the costs calculated by Nobel laureate Joseph Stiglitz. Vermont and Brattleboro have lost lives in Iraq and Afghanistan, and had lives devastated. Vermont’s National Guard has been sent to guard somebody else’s nation. You have the right to bear arms, but they have the right to put you on a plane and ship you to wherever the most oil is.
The abuse inflicted on our nation by the current president and vice president makes a lot of people angry. Responding with violence would be foolish and counterproductive. Responding with an election might be cathartic, but would not solve the problem. The only response that can work is one that calls the crimes what they are and upholds the rule of law. If we had really gotten this right under Nixon or Reagan or Clinton, we might have prevented some of the same people involved back then from committing new offenses.
More importantly, only a serious law-enforcement response will set a precedent for future administrations. Raise your hand if you are a Republican who wants Hillary Clinton or Barack Obama to have the power to spy without warrants, detain without charges, torture, murder, and rewrite any law passed by Congress.
And only a proper criminal trial can possibly lead to the restorative justice the
occasion demands, to an open confession and apology for the crimes committed, and to a plan for those war profiteering individuals and corporations closest to the president and vice president, and including the vice president, to make restitution to the people of this country and the people of Iraq.
This must be about the law, but not merely the law. We need a restoration of our culture. Far too often around this nation we are seeing local police officers engage in brutality that seems to imitate the actions of those taking their orders from the White House and abusing captives in foreign lands. Let’s begin to bring a new world out of this toxic one through the noble and honest actions of local police officers, those employed by Brattleboro.
Their first job can be assisting with poll watching, exit polling, and observation of a hand-count of Tuesday’s ballots. Their next job can be making sure that Bush and Cheney get something they’ve denied so many other people: a fair trial.
Vets Break Silence On War Crimes
Iraq Veterans Against the War argues that well-publicized incidents of U.S. brutality like the Abu Ghraib prison scandal and the massacre of an entire family of Iraqis in the town of Haditha are not the isolated incidents perpetrated by "a few bad apples", as many politicians and military leaders have claimed. They are part of a pattern, the group says, of "an increasingly bloody occupation".
"The problem that we face in Iraq is that policymakers in leadership have set a precedent of lawlessness where we don't abide by the rule of law, we don't respect international treaties, so when that atmosphere exists it lends itself to criminal activity," argues former U.S. Army Sergeant Logan Laituri, who served a tour in Iraq from 2004 to 2005 before being discharged as a conscientious objector.
Laituri told IPS that precedent of lawlessness makes itself felt in the rules of engagement handed down by commanders to soldiers on the front lines. When he was stationed in Samarra, for example, he said one of his fellow soldiers shot an unarmed man while he walked down the street.
"The problem is that that soldier was not committing a crime as you might call it because the rules of engagement were very clear that no one was supposed to be walking down the street," he said. "But I have a problem with that. You can't tell a family to leave everything they know so you can bomb the shit out of their house or their city. So while he definitely has protection under the law, I don't think that legitimates that type of violence."
Iraq Veterans Against the War is calling the gathering "Winter Soldier," after a quote from the U.S. revolutionary Thomas Paine, who wrote in 1776: "These are the times that try men's souls. The summer soldier and sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman."
Organizers say video and photographic evidence will also be presented, and the testimony and panels will be broadcast live on Satellite TV and streaming video on ivaw.org.
Winter Soldier is modeled on a similar event held by Vietnam Veterans 37 years ago.
Finished? Not By A Long Shot, but the question at the moment is: “Has there been sufficient study, research, both private and public examination and investigation, to provide reasonable grounds of cause for any American Citizen to be concerned, to be convinced that on this charge alone that there is obligation on the part of the House of Representatives, under their “Oath of Office” to initiate Impeachment hears against George Bush and Richard Cheney?”
Any reasonable, rational person must conclude that the answer is “YES”.
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