Fate of GTMO in Justice Kennedy's Hands

Yesterday it was announced that the Supreme Court will hear habeas claims of Guantanamo detainees. The writ of habeas corpus-- which allows all persons to challenge the grounds of their detention-- was stripped from 'unlawful enemy combatants' last year by passage of the Military Commissions Act. The Supreme Court will hear the case as early as December 2007.
The fate of the detainees are now likely in Justice Kennedy's hands. The four most conservative members of the court-- John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.-- will undoubtedly side with the government. The four liberal justices-- John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter-- will weigh in on the side of the detainees right to challenge their detention. The vote of Anthony M. Kennedy is key. According to the New York Times:

Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The court’s increasingly marginalized liberals — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

Fortunately, on the issue of Guantanamo, Kennedy has been clear. He sided with the majority in Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld. While it will likely be a close 5-4 decision, the vote of Kennedy should reaffirm habeas-- thus help reinstate the rule of law in the United States.

BBC World Interview

In May 2007, I was interviewed by BBC World about American Torture-- the four-minute clip is now on YouTube. Have a look, some interesting questions were raised:

WP Editorial Board: Close Gitmo and look at administrative detention

The Washington Post Editorial Board today urged President Bush to close the U.S. prison at Gitmo and seek another way to hold suspected terrorists. The overall message is a welcome one as the Post recognizes that the prison camp at Gitmo has been a public image disaster for the U.S. I am not 100% convinced that the second suggestion from the editorial, that the President should seek to create an administrative system to hold suspects, is as wise.

While the WP is correct when it suggests that the methodology for trying suspects in Israel and the U.K. is a step above current U.S. practice and would be an improvement if enacted in the U.S., the lack of confidence in the overall U.S. governmental approach to terror cases makes adoption of an administrative system look like a risky proposition.

In recent years too many high ranking Bush Administration figures have made questionable choices regarding the detention of suspected terrorists. Additionally there is still evidence that the administration is allowing the use of illegal tactics in the interrogation arena. These two issues make it hard to defend an administrative system to try suspected terrorists.

I will concede that if the next U.S. administration agrees to be more judicious in its approach to the arrest of suspected terrorists and is willing to end the use of torture and other illegal interrogation approaches, Congress should look at innovative approaches to trying terrorists that could be based systems like the one used until recently in the U.K.

The CIA's Modified Limited Hang Out

Much has been made in the press about the CIA's declassification of the "Family Jewels"-- a nearly 700 page document listing various CIA plots and cover-ups from the pre-Watergate era. The full file, available here, is interesting but underwhelming. The file includes significant redactions and many of the so-called revelations have already been revealed elsewhere. The 1976 Church Committee findings, for instance, detail CIA human experimentation operations stretching back to the late 1940s. The "Family Jewels" gives esoteric drug research only passing reference. So far, it seems, the Jewels are nothing more than a Nixon-style "modified limited hang out."

America's Brightest Kids Make a Statement

Signs of hope....

President Bush was handed a letter yesterday signed by 50 high school seniors from the Presidential Scholars program. The letter urged a halt to "violations of the human rights" of terror suspects held by the U.S....well done....very well done.

Cheney at the Center of American Torture Policy

The WP blog carries an important piece from Gellman and Becker titled “Pushing the Envelope on Presidential Power.” It highlights how the VP has been at the center of the Administrations interrogation policy development since January 11^th 2002, the day CIA officials raised the challenges facing Guantanamo interrogators. The blogger's go on to note that:

“Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning.”

The whole piece is worth reading and it underscores the need for an Independent Bipartisan Commission on Interrogation/Torture.

Rizzo Testifies to Torture

John Rizzo, top lawyer at the CIA, testified today before the Senate Select Intelligence Committee. During his tenure at the CIA, Rizzo oversaw the implementation of tortures including waterboarding, induced hypothermia, and standing for up to 40 hours. At his confirmation hearing for the job of CIA General Counsel, he admitted that agreed with the shameful 2002 US Department of Justice determination that torture must produce pain equivalent to "death" or "organ failure" to constitute torture under US law. Rizzo also refused to deny that the US does not outsource torture and conceded that the CIA treatment of detainees fell below the guarantees of Common Article Three [banning "torture" and " humiliating and degrading treatment"].

More on his stunningly forthright testimony here, here and here.

Taguba, In His Own Words

If you haven't already read the new Sy Hersh Abu Ghraib expose-- do so immediately. It recounts the willful blindness of Donald Rumsfeld and other high ranking Pentagon officials as the 2004 torture scandal unfolded. Antonio Taguba, the first officer to investigate the torture at the prison, provides a vivid insiders account into the pressure exerted to keep the scandal from thorough investigation and total exposure. Tuguba insists that top White House and Pentagon officials were aware of the abuses occuring at the prison at a very early stage, contrary to the official testimony. [The White House and Pentagon have denied this charge.]

Below are the most important snippets from the long piece, in Taguba's words:

“The whole idea that Rumsfeld projects—‘We’re here to protect the nation from terrorism’—is an oxymoron. He and his aides have abused their offices and have no idea of the values and high standards that are expected of them. And they’ve dragged a lot of officers with them.”

“From what I knew, troops just don’t take it upon themselves to initiate what they did without any form of knowledge of the higher-ups. [...] These M.P. troops were not that creative. Somebody was giving them guidance, but I was legally prevented from further investigation into higher authority. I was limited to a box.”

"[The Military Police at Abu Ghraib] were being literally exploited by the military interrogators. My view is that those kids were poorly led, not trained, and had not been given any standard operating procedures on how they should guard the detainees.”

"[I saw] a video of a male American soldier in uniform sodomizing a female detainee.”

"This could not have happened without people in the upper echelon of the Administration giving signals. I just didn’t see how this was not systemic.”

"Rummy did what we called ‘case law’ policy—verbal and not in writing. What he’s really saying is that if this decision comes back to haunt me I’ll deny it.”

“There was no doubt in my mind that this [torture depicted in the photographs] was gravitating upward. It was standard operating procedure to assume that this had to go higher. The President had to be aware of this.”

“From the moment a soldier enlists, we inculcate loyalty, duty, honor, integrity, and selfless service. And yet when we get to the senior-officer level we forget those values. I know that my peers in the Army will be mad at me for speaking out, but the fact is that we violated the laws of land warfare in Abu Ghraib. We violated the tenets of the Geneva Convention. We violated our own principles and we violated the core of our military values. The stress of combat is not an excuse, and I believe, even today, that those civilian and military leaders responsible should be held accountable."

Pakistan and Secret Prisons

Channel 4 in the U.K. just screened an important documentary showcasing much of the important work done by Stephen Grey. It focuses on the secret prisons and rendition program run by the CIA and the U.S. government. The film looks at Pakistan's role in the program and notes that:
"Since 9/11, the state's intelligence services have apprehended over a five hundred people as terror suspects. Grey investigates what happens to the 'disappeared' amid claims that America pays Pakistan a bounty for every suspect they capture."
We need to learn more about this aspect of the CIA program....let's hope that Grey and others can share additional info with the public.

Very Important Editorial in The Australian

I believe that this editorial in The Australian should be required reading for policy makers across the globe. The key quote:

"The American practice of outsourcing torture through the process of extraordinary rendition, as has occurred since September 11 cannot be justified. It is hard to see how sending Habib to Cairo on a CIA-chartered flight protected the US or its allies from imminent attack. His captors may have had reason to suspect Habib for his presence in Pakistan at the time of the 9-11 attacks but this does not justify incarceration without trial in an Egyptian dungeon."

Key U.S. ally Facing Public Inquiry into Iraqi Torture

The British government is facing a pubic inquiry into their use of torture in Iraq after the Law Lords found for the family of Baha Mousa, an Iraqi hotel receptionist who died in British Army custody. He died after being held and tortured by British forces over a 36 hour period. An inquiry now seems inevitable and, as it begins to unfold, it will surely increase the pressure on the U.S. to form an Independent Bipartisan Commission to look into torture and interrogation issues.

The Great Unraveling, Cont.

The Council on Europe, the EU's human rights watchdog, has spoken. In its final report on CIA rendition, Dick Marty, the lead Swiss investigator, concluded the US has maintained secret prisons around the globe, including in Poland and Romania, where inmates were tortured by CIA staff using methods of interrogation drawn from our Nazi and Soviet enemies. The elegantly worded report-- jaw dropping in its detail-- begins:

1. What was previously just a set of allegations is now proven: large numbers
of people have been abducted from various locations across the world and
transferred to countries where they have been persecuted and where it is known
that torture is common practice. Others have been held in arbitrary detention,
without any precise charges levelled against them and without any judicial
oversight – denied the possibility of defending themselves. Still others have
simply disappeared for indefinite periods and have been held in secret prisons,
including in member states of the Council of Europe, the existence and operations
of which have been concealed ever since.

2. Some individuals were kept in secret detention centres for periods of
several years, where they were subjected to degrading treatment and so-called
“enhanced interrogation techniques” (essentially a euphemism for a kind of
torture), in the name of gathering information, however unsound, which the
United States claims has protected our common security. Elsewhere, others have
been transferred thousands of miles into prisons whose locations they may never
know, interrogated ceaselessly, physically and psychologically abused, before
being released because they were plainly not the people being sought. After the
suffering they went through, they were released without a word of apology or any
compensation – with one remarkable exception owing to the ethical and
responsible approach of the Canadian authorities – and also have to put up with
the opprobrium of doubts surrounding their innocence and, right here in Europe,
racist harassment fuelled by certain media outlets. These are the terrible
consequences of what in some quarters is called the “war on terror.”

The report describes torture within the secret prisons-- interrogation regimes engineered to elicit fear and total dependency:

253. In the process of being transferred into secret detention, all detainees are physically screened in order to assess their health and conditioning, identify any injuries or scars they may bear, and get a complete picture to compare them against once they are in detention. These screenings, for which the subject is stripped naked, used a body chart, similar to the inventory diagrams provided by rent-a-car companies upon leasing a vehicle, on which specific marks are noted. In every case, the subject is videotaped or at least photographed naked before transfer.

254. The air in many cells emanated from a ventilation hole in the ceiling, which was
often controlled to produce extremes of temperature: sometimes so hot one would
gasp for breath,sometimes freezing cold.

255. Many detainees described air conditioning for deliberate discomfort.

256. Detainees were exposed at times to over-heating in the cell; at other times drafts of freezing breeze.

257. Detainees never experienced natural light or natural darkness, although most
were blindfolded many times so they could see nothing.

258. Detainees speak hatefully about the surveillance cameras,
positioned so that in every inch of the cell they would be observed.

259. Detainees were also listened to by interrogators, over hidden microphones in the walls.

260. Notwithstanding the presence of video cameras inside the cells,
masked prison guards regularly looked in and knocked on the door of the cell,
demanding detainees to raise their hands to show that they are alive.

261. Breakfast was delivered in the morning, followed by lunch in the early afternoon. The morning food was typically two or three triangles of cheese with no foil, two slices of tomato, some boiled potatoes, bread and olives. The afternoon food was typically boiled white rice with sliced luncheon meat.

262. On some special occasions, including certain religious holidays, special foods including cooked meat with sauce, nuts and dates, fresh fruit and vegetables, or pieces of chocolate were delivered to the cells. There was even provision for treats like unwrapped candy bars and dessert cakes.

263. Special routines developed around the delivery of food. The light bulb, which was always on,would be briefly turned off; the food would be delivered; and then the light bulb would be turned back on again. There was a hatch in the door of the cell for delivery of food but it was completely unpredictable whether the guards would use the hatch, or open the doors and bring the food in.

264. Detainees had a bucket for a toilet, which was about a foot deep and ten inches in diameter.

265. At time the electricity supply went dead. The music stopped and the light went out. For a brief period one could heard different voices shouting, some more distant than others but all incoherent.

266. There was a shackling ring in the wall of the cell, about half a
metre up off the floor.Detainees’ hands and feet were clamped in handcuffs and
leg irons. Bodies were regularly forced into contorted shapes and chained to this
ring for long, painful periods.

267. Most persons in CIA custody attempted sooner or later to resist or protest their treatment and interrogation. Yet their efforts would largely be in vain. According to one source involved in CIA interrogation: “you know they are starting to crack when they come back at you; when they get really vocal or they try to challenge your authority. So you hold out… you push them over the edge”.

268. The sound most commonly heard in cells was a constant, low-level hum of white noise from loud speakers. Other recollections speak of an external humming noise, like aircraft, engines or a generator. The constant noise was punctuated by blasts of loud Western music – rock music, rap music and thumping beats, or distorted verses from the Koran, or irritating noises – thunder, planes taking off, cackling laughter, the screams of women and children.

269. Detainees were subjected to relentless noise and disturbance were deprived of the chance to sleep.

270. The torture music was turned on, or at least made much louder, as punishment for perceived infractions like raising one’s voice, calling out, or not waving quickly enough when guards demanded a response from you.

271. The gradual escalation of applied physical and psychological exertion, combined in some cases with more concentrated pressure periods for the purposes of interrogation, is said to have caused many of those held by the CIA to develop enduring psychiatric and mental problems.

Finally, the report also makes some very serious conclusions about the counter-productivness of using terror to fight terror:

14. We are fully aware of the seriousness of the terrorist threat and the
danger it poses to our societies. However, we believe that the end does not
justify the means in this area either. The fight against terrorism must not
serve as an excuse for systematic recourse to illegal acts, massive violation of
fundamental human rights and contempt for the rule of law. I hold this view not
only because methods of this nature conflict with the constitutional order of
all civilised countries and are ethically unacceptable, but also because they
are not effective from the perspective of a genuine long-term response to
terrorism.

15. We have said it before and others have said it much more forcefully,
but we must repeat it here: having recourse to abuse and illegal acts actually
amounts to a resounding failure of our system and plays right into the hands of
the criminals who seek to destroy our societies through terror. Moreover, in the
process, we give these criminals a degree of legitimacy – that of fighting an
unfair system – and also generate sympathy for their cause, which cannot but
serve as an encouragement to them and their supporters.

Tribunals Suspended (Again)

Clearly the best commentary about today's huge news of charges being thrown out in the cases of child-soldier Omar Ahmed Khadr and driver Salim Ahmed Hamdan come from Jack Balkin of always enlightening Balkinization. He writes: (emphasis mine)

There are two types of enemy combatants. Lawful enemy combatants are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention, which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III. If the CSRT hearings only determined that the detainees were enemy combatants but not that they were unlawful enemy combatants, then, as I read Article 5 of the Third Geneva Convention, the detainees are entitled to all of the protections of the Third Geneva Convention until such time as they are determined not to be prisoners of war.

Given the treatment the detainees have received at Guantanamo up to this point, the U.S. would be in clear breach of the Geneva Conventions with respect to all of these detainees. (Indeed, even if the detainees were adjudged unlawful enemy combatants, the U.S. is probably in breach of Common Article III. But let's not go there.).

[...]

[T]he Administration has screwed up the second group of tribunals it designed. I would say this is a disgrace, except that the Military Commissions Act which sets up the new tribunals is the true disgrace. This latest episode is a carbuncle on a wart on a disgrace.

CIA v The World

A recent article in the Harvard Political Review offers an interesting commentary on the controversial indictment of CIA agents earlier this year by Italian and German prosecutors. It is worth noting that while there is no provision under American law to prosecute torture as a specific crime, the same does not go for Italy and Germany, with both these countries allowing for universal jurisdiction over torture cases at the domestic level. The following paragraph is telling:

"Because they involve important issues of transnational political justice, these cases highlight America’s stance against any international court system, particularly the International Criminal Court, to which U.S. President George W. Bush has consistently voiced his opposition. Yet the prosecutors have deliberately brought suit not in international court, but in specific national courts that claim jurisdiction over such torture cases."

But so far the U.S. has refused to comply with extradition requests for the agents in question, citing harm to both intelligence gathering and diplomatic relations. In that vein, this article suggests that despite the fact that Italy and Germany should be wary about how far they push these cases, nevertheless powerful states in Europe and elsewhere, by showing that they are not afraid to put diplomatic relations on the line, can help shape a U.S. interrogation and anti terror policy that is more in line with internationally accepted norms of behavior. This is an encouraging argument and will be interesting to see how it unfolds in the current debate over U.S. interrogation policies and extraordinary rendition.

CIA Torture: The Great Unraveling

Illegal CIA programs continue to unravel on all fronts; a sampling of this weeks news:

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Senators Seek Legal Review of CIA Methods

The Senate Select Committee on Intelligence has demanded a legal review of the CIA's detention and interrogation program for terrorism suspects as part of its version of the fiscal 2008 intelligence authorization bill.

[...]

The panel's chairman, Sen. John D. Rockefeller IV (D-W.Va.), said that "significant legal issues about the CIA detention and interrogation program remain unresolved," along with questions about the agency's decision to operate under rules different from those governing military and law enforcement officers.

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Senate Panel Questions C.I.A. Detentions

WASHINGTON, May 31 — The Senate Intelligence Committee on Thursday questioned the continuing value of the Central Intelligence Agency’s secret interrogation program for terrorism suspects, suggesting that international condemnation and the obstacles it has created to criminal prosecution may outweigh its worth in gathering information.

[...]

“More than five years after the decision to start the program,” the report said, “the committee believes that consideration should be given to whether it is the best means to obtain a full and reliable intelligence debriefing of a detainee.”

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Interrogation Methods Are Criticized

WASHINGTON, May 29 — As the Bush administration completes secret new rules governing interrogations, a group of experts advising the intelligence agencies are arguing that the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable.

[...]

The science board critique comes as ethical concerns about harsh interrogations are being voiced by current and former government officials. The top commander in Iraq, Gen. David H. Petraeus, sent a letter to troops this month warning that “expedient methods” using force violated American values.

In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.

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ACLU to Sue Boeing Subsidiary in Alleged Torture Cases

The American Civil Liberties Union announced this morning that it would sue a Boeing subsidiary in San Jose federal court today, alleging that the company helped the Central Intelligence Agency with "the forced disappearance, torture and inhumane treatment" of three men the government suspected of terrorist involvement.

"Corporations should expect to get sued where they are making blood money off the suffering of others," said Clive Stafford Smith, an English lawyer who has been representing Binyam Mohammed and is serving as co-counsel with the ACLU lawyers in this case.

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