April 30, 2009
If you ask most people what Obama has done about Guantanamo, most would say, "He shut it down."
Most don't know that Obama has said he might take as much as a year to shut it down.
If you ask most people what Obama has done about torture and rendition, most would say, "He's ended them."
Most don't know that Obama has declared that he will continue rendition, that he reserves the right to go beyond the Army Field Manual for interrogations, and that by not acting affirmatively to ensure otherwise, he has allowed conditions to worsen at Gitmo.
If you ask most people what Obama's done about restoring habeas corpus, most people would first say, "What's habeas corpus?"
Then, after you explain to them that habeas corpus is your right to challenge your detention, most people would say, "He's restored habeas corpus, hasn't he?"
Most people don't know that Obama has said that Bagram prisoners have no right to habeas corpus and that Gitmo detainees don't have a right to it prior to June 2008.
The latest news about what Obama is up to on these fronts follows.
Obama's DOJ pressed the Court of Appeals to rule that Gitmo prisoners aren't "persons," aren't entitled to the rights of "persons," and that if the Court does find that they are indeed "persons," then US officials who ordered and carried out torture and abuse of prisoners should be immune from prosecution for that.
The Court of Appeals found for Obama.
From Raw Story, April 22, 2009:
A Court of Appeals for the Washington, D.C. Circuit ruled Friday that detainees at the U.S. military prison at Guantanamo Bay, Cuba, are not "persons" according to it's [sic] interpretation of a statute involving religious freedom.
The ruling sprang from an appeal of Rasul v. Rumsfeld, which was thrown out in Jan. 2008. "The court affirmed the district court's dismissal of the constitutional and international law claims, and reversed the district court's decision that the Religious Freedom Restoration Act (RFRA) applied to Guantanamo detainees, dismissing those claims as well," the Center for Constitutional Rights said.
After the Supreme Court recognized, over objections from the Bush administration, that terror war prisoners have the right to habeas corpus petitions, it also directed the D.C. court of appeals to reexamine the case.
The suit, Rasul v. Rumsfeld, charges numerous Bush administration officials with "violations of the Alien Tort Statute (ATS), the Fifth and Eighth Amendments to the U.S. Constitution, the Geneva Conventions, and the Religious Freedom Restoration Act (RFRA)," CCR said,"In its first filing on detention and torture under the Obama administration, the Department of Justice filed briefs in March urging the Court of Appeals to reject any constitutional or statutory rights for detainees," says a release.
"The Obama Justice Department further argued that even if such rights were recognized, the Court should rule that the previous administration's officials who ordered and approved torture and abuse of the plaintiffs should be immune from liability for their actions."
Further source material. This is broken down by segment with the segment stated first, followed by further supporting source materials.
Obama's continuing rendition
The LA Times reports:
Reporting from Washington -- The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.
But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.
"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.
Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street. (Greg Miller, "Obama Preserves Rendition as Counter-Terrorism Tool," LA Times, 2/1/09)
The UK Telegraph writes:
Despite ordering the closure of Guantanamo and an end to harsh interrogation techniques, the new president has failed to call an end to secret abductions and questioning.
In his first few days in office, Mr Obama was lauded for rejecting policies of the George W Bush era, but it has emerged the CIA still has the authority to carry out renditions in which suspects are picked up and often sent to a third country for questioning.
The practice caused outrage at the EU, after it was revealed the CIA had used secret prisons in Romania and Poland and airports such as Prestwick in Scotland to conduct up to 1,200 rendition flights. The European Parliament called renditions "an illegal instrument used by the United States".
According to a detailed reading of the executive orders signed by Mr Obama on Jan 22, renditions have not been outlawed, with the new administration deciding it needs to retain some devices in Mr Bush's anti-terror arsenal amid continued threats to US national security.
"Obviously you need to preserve some tools -- you still have to go after the bad guys," an administration official told the Los Angeles Times.
"The legal advisers working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."
Section 2 (g) of the order, appears to allow the US authorities to continue detaining and interrogating terror suspects as long as it does not hold them for long periods. It reads: "The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis." (Alex Spillius, "Barack Obama to allow anti-terror rendition to continue," UK Telegraph, 2/2/09)
And, as I wrote in my linked to article, "Undermine the Foundation, What Happens to the Structure?"
Yesterday the New York Times reported:
"The Obama administration said Friday that it would abandon the Bush administration's term 'enemy combatant' as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.
"But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration." (William Glaberson, "US Won't Label Terror Suspects as 'Combatants,'" New York Times, 3/13/2009)
By not acting affirmatively to ensure otherwise, he has allowed conditions to worsen at Gitmo:
2/5/09 - LONDON (Reuters) - Abuse of prisoners at Guantanamo Bay has worsened sharply since President Barack Obama took office as prison guards "get their kicks in" before the camp is closed, according to a lawyer who represents detainees.
Abuses began to pick up in December after Obama was elected, human rights lawyer Ahmed Ghappour told Reuters. He cited beatings, the dislocation of limbs, spraying of pepper spray into closed cells, applying pepper spray to toilet paper and over-forcefeeding detainees who are on hunger strike.
The Pentagon said on Monday that it had received renewed reports of prisoner abuse during a recent review of conditions at Guantanamo, but had concluded that all prisoners were being kept in accordance with the Geneva Conventions.
"According to my clients, there has been a ramping up in abuse since President Obama was inaugurated," said Ghappour, a British-American lawyer with Reprieve, a legal charity that represents 31 detainees at Guantanamo.
"If one was to use one's imagination, (one) could say that these traumatized, and for lack of a better word barbaric, guards were just basically trying to get their kicks in right now for fear that they won't be able to later," he said.
"Certainly in my experience there have been many, many more reported incidents of abuse since the inauguration," added Ghappour, who has visited Guantanamo six times since late September and based his comments on his own observations and conversations with both prisoners and guards.
He stressed the mistreatment did not appear to be directed from above, but was an initiative undertaken by frustrated U.S. army and navy jailers on the ground. It did not seem to be a reaction against the election of Obama, a Democrat who has pledged to close the prison camp within a year, but rather a realization that there was little time remaining before the last 241 detainees, all Muslim, are released.
"It's 'hey, let's have our fun while we can,'" said Ghappour, who helped secure the release this week of Binyam Mohamed, a British resident freed from Guantanamo Bay after more than four years in detention without trial or charge.
"I can't really imagine why you would get your kicks from abusing prisoners, but certainly, having spoken to certain guards who have been injured in Iraq, who indirectly or directly blame my clients for their injuries and the trauma they have suffered, it's not too difficult to put two and two together." (Luke Baker, "Exclusive: Lawyer says Guantanamo abuse worse since Obama," Reuters, 2/5/2009)
Following a January 22 order from Obama, the U.S. Defense Department conducted a two-week review of conditions at Guantanamo ahead of the planned closure of the prison on Cuba.
Admiral Patrick Walsh, the review's author, acknowledged on Monday that reports of abuse had emerged but concluded all inmates were being treated in line with the Geneva Conventions.
"We heard allegations of abuse," he said, asked if detainees had reported torture. "And what we did at that point was to go back and investigate the allegation... What we found is that there were in some cases substantiated evidence where guards had misconduct, I think that would be the best way to put it."
Walsh said his review looked at 20 allegations of abuse, 14 of which were substantiated, but he did not go into details. Generally he said the abuse ranged from "gestures, comments, disrespect" to "preemptive use of pepper spray."
Ghappour said he had spoken to army guards who, unsolicited, had described the pleasure they took in abusing prisoners, whether interrupting prayer or physical mistreatment. He said they appeared unconcerned about potential repercussions.
He also saw evidence of guards pulling identity numbers off their uniforms or switching them once they were on duty in order to make it more difficult for them to be identified.
Ghappour said he had filed two complaints of serious detainee abuse since December 22 but received no response from U.S. authorities. In one case his client had his knee, shoulder and thumb dislocated by a group of guards, Ghappour said.
In one of the six main camps at Guantanamo, the lawyer said all the detainees he knew were on hunger strike and subject to force-feeding, including with laxatives that induced chronic diarrhea while they were strapped in their feeding chairs.
"Several of my clients have had toilet paper pepper-sprayed while they have had hemorrhoids," Ghappour said.
Another area of concern was evidence that detainees were being abused on the way to meetings with their lawyers -- sometimes so badly that they no longer wanted to meet with counsel for fear of the beatings they would receive, he said.
"Some detainees are convinced they are going to be locked up there forever, despite the promises to close the camp," he said.
A freed Guantanamo prisoner has said conditions at the US detention camp in Cuba have worsened since President Barack Obama was elected, claiming guards wanted to "take their last revenge".
Binyam Mohamed, the first detainee to be transferred out of Guantanamo Bay since Obama took office, also said British agents "sold me out" by cooperating with his alleged torturers, in his first interview since release which was published Sunday. ("Guantanamo's worse since Obama's election: ex-detainee," Breitbart.com, 3/7/2009)
Reserving the right to go beyond the Army Field Manual
Were I to write this sentence again, I would have said something even stronger, that
- Obama's famous statements about staying within the AFM doesn't preclude torture and
- he's allowed himself wiggle room to go even beyond the AFM in selective cases.
As for a:
Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.
The case is laid out convincingly by Dr. Jeffrey S. Kaye, a clinical psychologist specializing in the analysis and treatment of torture victims. Dr. Kaye has been tirelessly fighting the US torture regime through both his clinical work and his blog Invictus under the pseudonym Valtin. In a comprehensive article originally published at AlterNet, and cross-posted at Invictus, he filets open the Army Field Manual lie.
In early September 2006, the U.S. Department of Defense, reeling from at least a dozen investigations into detainee abuse by interrogators, released Directive 2310.01E. This directive was advertised as an overhaul and improvement on earlier detainee operations and included a newly rewritten Army Field Manual for Human Intelligence Collector Operations (FM-2-22-3). This guidebook for interrogators was meant to set a humane standard for U.S. interrogators worldwide, a standard that was respectful of the Geneva Conventions and other U.S. and international laws concerning treatment of prisoners...
There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world....
The viral instructions in the AFM transform into an abusive and illegal torture program. Most of these "instructions" can be found hidden in the proverbial fine print of the document, in its very last appendix, labeled with no apparent irony as regards the mythology of James Bond, Appendix M. Appendix M, titled "Restricted Interrogation Technique -- Separation," misrepresents itself from the very beginning. (One wonders if it was rewritten from an earlier draft, at a time when the Pentagon wanted to keep these procedures classified.) It is not actually a technique (singular), but a set of techniques, though one has to read deeply into its 10 pages of text and be somewhat sophisticated in the history of psychological torture procedures, to assemble a full view of the viral program.
This program is nothing less than the one established in researcher Albert Biderman's Chart of Coercion, which, as revealed by the recent Senate Armed Services Committee investigation into detainee abuse, was the blueprint used by SERE instructors at Guantanamo in late 2002 to teach abusive interrogation techniques. (SERE stands for Survival, Evasion, Resistance, Escape and is the military program to "inoculate" certain military personnel against torture or abusive treatment by an enemy that doesn't recognize Geneva protocol.) ... What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).
This is the lie. The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.
The Guantanamo virus is spreading. Its agent is Appendix M of the Army Field Manual. It will be very difficult to eradicate. It will require the effort of every person who believes in human rights and is opposed to torture to spread the word....
The AFM as constituted must not be made the "one national standard" until the virus is eradicated. Appendix M must be rescinded in its totality, and portions of the document, such as the section on Fear Up, rewritten. Otherwise, Bush's and Rumsfeld's attempt to sneak coercive methods of interrogation into the main document of human intelligence gathering used by the military will succeed.
(Empty Wheel, "Obama, the Crawford Torture Admission, and the Army Field Manual," 1/19/09)
Before long, opponents of U.S. torture policy were championing the new AFM as an appropriate "single-standard" model of detainee treatment. Support for implementing the revised AFM, as a replacement for the hated "enhanced" techniques earlier championed by Defense Secretary Donald Rumsfeld and the CIA, began to appear in legislation out of Congress, in the literature of human-rights organizations and in newspaper editorials. Some rights groups have felt the new AFM offered some improvements by banning repellent interrogation tactics, such as waterboarding, use of nudity, military dogs and stress positions. It was believed the AFM cemented the concept of command responsibility for infractions of the law.
There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.
The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU's National Security Project, has stated that portions of the AFM are "deeply problematic" and "would likely violate the War Crimes Act and Geneva," and at the very least "leave the door open for legal liability." Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.
Yet, the interrogation manual is still praised by politicians, including then-presidential candidate Barack Obama, who in December 2007 said he would "have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors." (Jeffrey Kaye, "How the U.S. Army's Field Manual Codified Torture -- and Still Does," Alternet, 1/7/09)
And as to b,
The unfine print of Mr. Obama's order is that he's allowed room for what might be called a Jack Bauer exception. It creates a committee to study whether the Field Manual techniques are too limiting "when employed by departments or agencies outside the military." The Attorney General, Defense Secretary Robert Gates and Director of National Intelligence-designate Dennis Blair will report back and offer "additional or different guidance for other departments or agencies."
In other words, Mr. Obama's Inaugural line that "we reject as false the choice between our safety and our ideals" was itself misrepresenting the choices his predecessor was forced to make. At least President Bush was candid about the practical realities of preventing mass casualties in the U.S.
The "special task force" may well grant the CIA more legal freedom to squeeze information out of terrorists when it could keep the country safe. An anecdote former Clinton counterterror czar Richard Clarke recounts in his memoir "Against All Enemies" is instructive. In 1993, White House Counsel Lloyd Cutler was horrified by Mr. Clarke's proposal for "extraordinary rendition," where our spooks turn over prisoners to foreign countries like Egypt so they can do the interrogating.
While Mr. Clinton was still chewing his fingernails and seemed to side with Mr. Cutler, Al Gore arrived late to the meeting. "Clinton recapped the arguments on both sides," Mr. Clarke writes. "Gore laughed and said, 'That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass.'" ("The Jack Bauer Exception: Obama's executive order wants it both ways on interrogation," Wall Street Journal, 1/23/09)
From my 3/15/09 article, "If You Undermine the Foundation, What Becomes of the Structure?":
Obama during a September 8, 2008 campaign rally stated: "Habeas corpus ... is the foundation of Anglo-American law, which says very simply, if the government grabs you, then you have the right to at least ask, `Why was I grabbed?' and say, `Maybe, you've got the wrong person." (Thanks to Rachel Oswald's article in Raw Story for this reference.)
"The reason we have that safeguard is we don't always have the right person," said Obama at the campaign rally. "We don't always catch the right person. We may think this is Muhammad the terrorist. It might be Muhammad the cab driver."
On March 12, 2009, the Obama Justice Department kicked this foundation out from under the edifice of Anglo-American law by arguing that the June 2008 Supreme Court decision (Boumediene v Bush) that held that Gitmo detainees had a right to challenge their detention, did not apply to those detainees held (and tortured) prior to Boumediene.
The Justice Department states in its brief:
"Boumediene - decided four years after plaintiffs' detention ended - cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct violated the Constitution or the RFRA [Religious Freedom Restoration Act] statute."
As Rachel Oswald recounts:
The brief was filed as part of the Rasul v. Rumsfeld lawsuit of four former detainees, who include the 'Tipton Three,' and are seeking damages for their detention and reported torture at Guantanamo Bay against Rumsfeld, the Chairmen of the Joint Chief of Staffs and other top military officials. The suit charges them with violations of the Fifth and Eighth Amendments, the Alien Tort Statute, the Geneva Conventions and the Religious Freedom Restoration Act. The plaintiffs are individually each seeking $10 million in damages.
The men were held for more than two years at Guantanamo where they were reportedly subjected to regular beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point and religious and racial harassment. They were never charged with any crime. The men were released in March 2004 and returned to their home country of Britain. (Rachel Oswald, "Obama Justice Dept. defends Rumsfeld in torture case," Raw Story, 3/13/09)
As it turns out, these detainees were doing humanitarian work in Afghanistan when they were turned in to U.S. authorities by Afghan warlords seeking the bounty offered by the U.S. for "terrorists."
According to the Obama Justice Department then,
- habeas corpus was not a foundation of Anglo-American law before the June 2008 Supreme Court Boumediene decision because if it had been then they wouldn't be arguing now that these defendants are not and were not entitled to that right, and
- government officials who were engaged in beatings, death threats, sleep deprivation, extreme temperatures, forced nakedness, interrogations at gun point, religious and racial harassment, et al, were not aware that these acts were illegal until told so by the Supreme Court.
Candidate Obama thinks that habeas corpus is a foundational principle for our law but President Obama apparently has rethought that terribly rash statement and now holds that habeas corpus has only been around for less than a year and not since the Magna Carta of nearly nine hundred years ago.
From my post, "Obama: Bagram Prisoners Be Damned," 2/21/09,
Contrary to his public pronouncements about taking the "moral high ground," "restoring due process," ending torture, and that "no one is above the law," the Obama administration yesterday declared (John Byrne, "Despite rhetoric, Obama continues Bush policy on detainees: Indefinite detention, no legal rights," Raw Story, 2/12/09) that the hundreds of prisoners in Bagram, Afghanistan being held by US forces, and subjected to torture and murder since our invasion of Afghanistan, do not have the right to challenge their indefinite detentions or the fact that they have been tortured. They are, according to this new White House, outside the law that the Obama team has made such a fetish of claiming that they uphold.
"This Court's Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan," Acting Assistant Obama Attorney General Michael Hertz [an apropos name!] wrote in a brief filed Friday. "Having considered the matter, the Government adheres to its previously articulated position."
"Having considered the matter, the Government adheres to its previously articulated position."
Having considered the matter, the Obama administration adheres to the previously articulated position of the Bush administration, despite the fact that the legitimacy of the Obama administration, the reason that so many people were overjoyed to see him elected and to see the Bush team out of office, was because they thought that Obama was going to right these wrongs and make things different. Just how wrong this idea was is becoming clearer by the day to people who are paying attention.
Obama - who ran on a platform of "change" - has, by this action, placed himself to the RIGHT of the Scalia/Thomas/Alito/Roberts et al Court and in consonance with the Bush regime on Bagram.
He has determined that change doesn't mean ending the torturous treatment of people who have been mostly incarcerated by bounty hunters (including jealous neighbors) and by Afghan warlords who seek to scapegoat innocents such as Dilawar, the taxi driver guilty of nothing and murdered in custody by beatings by US personnel, featured in the Oscar winning documentary "Taxi to the Dark Side:"
On the day of his death, Dilawar had been chained by the wrists to the top of his cell for much of the previous four days. A guard tried to force the young man to his knees. But his legs, which had been pummeled by guards for several days, could no longer bend. An interrogator told Mr. Dilawar that he could see a doctor after they finished with him. When he was finally sent back to his cell, though, the guards were instructed only to chain the prisoner back to the ceiling. 'Leave him up,' one of the guards quoted Specialist Claus as saying. Several hours passed before an emergency room doctor finally saw Mr. Dilawar. By then he was dead, his body beginning to stiffen. It would be many months before Army investigators learned that most of the interrogators had in fact believed Mr. Dilawar to be an innocent man who simply drove his taxi past the American base at the wrong time." (The Times)
Having considered the matter, the American people who previously adhered to the position that Obama represents a "change" from Bush, hereby reconsider the matter. So much, after all, is riding on this. The Dilawars of the world are counting on us to do what must be done.
And, this is what the NY Times editorialized about Obama saying that Bagram prisoners have no right to habeas corpus,
The Obama administration is basking in praise for its welcome commitment to shut down the American detention center at Guantánamo Bay. But it is acting far less nobly when it comes to prisoners held at a larger, more secretive military detention facility at Bagram Air Base in Afghanistan.
In February, the new administration disappointingly followed the example of the Bush White House in opposing judicial review for prisoners who have been indefinitely detained at Bagram without any charges or access to lawyers. The administration has now added to that disappointment by appealing a new federal court ruling extending the right of habeas corpus to some Bagram detainees. ("The Next Guantanamo," New York Times, 4/13/09)
We Don't Torture. . . But Torture Does Work
Jacob Hornberger, Campaign for Liberty, 05.09.2009
Abusive Power and the Culture of Obedience
Bretigne Shaffer, Campaign for Liberty, 05.07.2009
Religion and torture, polling and statistics
Mark Kleiman, The Reality-Based Community, 05.01.2009
Obama: Gitmo Prisoners Aren't 'Persons'
Dennis Loo, WorldCantWait,org, 04.30.2009
Five Things You Should Know About the ‘Torture’ Memos
Judge Andrew Napolitano, FOX News Senior Judicial Analyst, 04.21.2009