Tuesday, October 17

Habeas Corpus dies with nary a whimper

From Thinkprogress:

President Bush signs the "Military Commissions Act of 2006″ today in the Rose Garden, a bill that will not grant detainees legal counsel. "Also, it specifically bars detainees from filing habeas corpus petitions challenging their detentions in federal courts." The new law sets the stage for what many analysts believe will be yet another historic showdown between the courts, the president, and Congress.

That's putting it mildly.

But what's so truly amazing about this event, is how little it's being covered, how little it's being noticed and how there is pratically no outcry at the undermining of our constitutional foundations what-so-ever.

That isn't to say that there hasn't been a reaction. Even before the legislation was signed two lawsuits were filed.

The new legislation, passed a week ago Friday, bars judges from hearing detainee lawsuits. Instead, it sets up a much more limited appeals process for detainees who are seeking to challenge their designation as an enemy combatant or to challenge a war crimes conviction by a military commission.

One suit was filed on behalf of Majid Khan, one of the 14 so-called high value Al Qaeda suspects recently transferred from secret Central Intelligence Agency prisons to the terrorist detention camp at Guantánamo Bay, Cuba. The other was filed on behalf of 25 detainees being held among some 500 men at Bagram Air Force Base in Afghanistan.

The outstanding question of course is whether this law actually bars these suits themselves, a decision which will have have to wait until a judge decides whether a judge can decide on this matter. Talk about Catch-22.

Major news outlets have virtually ignored this story, allowing the President's rhetoric about "our desperate need to question detainees" being one of our most "vital tools" in the War on Terror. The fact that the people who we are coercively questioning may not be terrorists at all doesn't seem to enter into his thinking.

From Yahoo News:

KABUL, Afghanistan - Sixteen Afghans and one Iranian released from years in captivity at Guantanamo Bay prison arrived in Afghanistan on Thursday, an Afghan official said, maintaining that "most" of the detainees had been falsely accused.

The 16 Afghans appeared at a news conference alongside Sibghatullah Mujaddedi, head of Afghanistan's reconciliation commission, which assists with the release of detainees from the American detention center at Guantanamo Bay, Cuba, and the U.S. prison at the Bagram military base north of Kabul.

Mejadedi said many of the detainees, who are now free, had served up to four years in Guantanamo. He said "most" of the prisoners were innocent and had been turned in to the U.S. military by other Afghans because of personal disputes.

"For four years they put me in jail in Cuba for nothing," said Shah, a doctor from the eastern province of Paktia whose hands shook from nervousness when he spoke.

"All these people (the other prisoners) and all those Afghans still in Cuba, they are innocent," he told reporters. "All were arrested because of false reports, and the Americans, without investigating, they arrested innocent people and put them in jail for a long time."

Another former prisoner, 20-year-old Habib Rahman, said he was arrested because he had a weapon in his home.

"They told me, 'You are against us, you are anti-American and anti-government and you are fighting with us,'" said Rahman. "At that time in our area everyone had weapons. I was innocent and I hadn't participated in any fighting."

Rahman said that he was treated harshly at Guantanamo, and was once kept awake for 38 hours while being questioned about ties to terrorists.

"The last time they tortured me like that was four months ago," he said. "They were kicking us all the time, beating us with their hands."

Please note that Rahman is 20-years-old now, that means that when he was taken to Gitmo - he was only 16.

Many of the detainee currently at Gitmo were actually sold into captivity by Afghan warlords.

Bounties ranged from $3,000 to $25,000, the detainees testified during military tribunals, according to transcripts the U.S. government gave The Associated Press to comply with a Freedom of Information lawsuit.

A former CIA intelligence officer who helped lead the search for Osama bin Laden told AP the accounts sounded legitimate because U.S. allies regularly got money to help catch Taliban and al-Qaida fighters. Gary Schroen said he took a suitcase of $3 million in cash into Afghanistan himself to help supply and win over warlords to fight for U.S. Special Forces.

Even though the ACLU has obtained a literal mountain of documention via the Freedom of Information Act - the issue of how these people, many of them innocent, are being treated still falls on deaf ears. Even when ABC News features reports of abuse from a former Gitmo Marine.
From Thinkprogress:

President Bush has consistently touted the U.S. detention facility in Guantanamo Bay as a "model prison," saying the American people should "ftake great pride" in the facility.

But a sworn statement by Marine Sgt. Heather Cerveny paints an entirely different picture. Cerveny has described how "she met several Navy prison guards at a club on the base where, over drinks, they described harsh physical abuse" of Gitmo detainees. The guards alledgedly told Cerveny of practices including "hitting the detainee's head into the cell door" and "punching [them] in the face." The Pentagon Inspector General today announced a new investigation into the claims.

Cerveny gave her first public comments on her charges last night to ABC News. You can read Cerveny's affidavit to the Pentagon Inspector General here (pdf).

Here's what Amnesty International (who over a year ago called for the Prosecution of George W Bush for War Crimes) has to say on the subject:

The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:

o Secret detention
o Enforced disappearance
o Torture and other cruel, inhuman or degrading treatment
o Outrages upon personal dignity, including humiliating treatment
o Denial and restriction of habeas corpus
o Indefinite detention without charge or trial
o Prolonged incommunicado detention
o Arbitrary detention
o Unfair trial procedures

Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".


There is a stark "disconnect" between the USA and the international community. After all, President Bush's speech came only weeks after two expert United Nations bodies - the Committee against Torture and the Human Rights Committee - told the US government that secret detentions violated the USA's international treaty obligations. In effect, the President was rejecting the conclusions of these UN bodies, as well as admitting that the USA had resorted to enforced disappearance, a crime under international law.

The response of the US administration to the Hamdan v. Rumsfeld ruling has perhaps been even more shocking, although apparently not shocking enough to nudge Congress finally into calling the executive to account for "war on terror" abuses. Indeed, President Bush's defence of the CIA's program of secret detention and "alternative" interrogation techniques policy, which he said had been called into question by the Hamdan ruling and therefore needed congressional approval, showed an administration in assertively unapologetic mood.

Again, one can begin to trace the administration's manipulation of the law to fit its policy. According to a document recently issued by the Director of National Intelligence, after "high-value" detainee Abu Zubaydah was captured in Pakistan in March 2002 and handed over to the USA, he stopped "cooperation" with his US interrogators. In order to overcome this lack of cooperation, "over the ensuing months, the CIA designed a new interrogation program" and "sought and obtained legal guidance from the Department of Justice that none of the new procedures violated the US statutes prohibiting torture."

Any such claim of legality rings hollow. For until the Detainee Treatment Act was passed in December 2005 (in the face of executive opposition), Department of Justice lawyers took the position that because of the reservation attached to the USA's ratification of the Convention against Torture in 1994, the USA had no treaty obligation on cruel, inhuman or degrading treatment with respect to foreign nationals held in US custody overseas. In addition, in August 2002, the Justice Department provided legal advice in a memorandum which only came to light in mid-2004 after the Abu Ghraib torture revelations. It was reportedly written in response to a CIA request for legal protections for its interrogators. The memorandum stated among other things that interrogators could cause a great deal of pain before crossing the threshold to torture, that there were a "significant range of acts" that might constitute cruel, inhuman or degrading treatment but would not rise to the level of torture and be prosecutable under the US torture statute, and that the President could override international or national prohibitions on torture.(1)

Conservatives have scoffed at claims that Zubaydah was "tortured" claiming that they simply kept the lights on and played Red Hot Chili Peppers music for hours. In a nation where Jackass Number Two is a hit movie, bright lights and loud music could hardly be considered torture - it sounds more like a RAVE right? To hear the Right tell it, they were just warming him up for Round II of Fear Factor: Electrodes to the Gonads. Let's face it: Torture is likely to be our next Extreme Sport, to be scheduled at the Triple-X Games right after Base Jumping while on fire and swallowing male-cow jism.

But all dark humor aside, Time Magazine and author Gerald Posner paint a different picture:

Posner elaborates in startling detail how U.S. interrogators used drugs--an unnamed "quick-on, quick-off" painkiller and Sodium Pentothal, the old movie truth serum--in a chemical version of reward and punishment to make Zubaydah talk. When questioning stalled, according to Posner, cia men flew Zubaydah to an Afghan complex fitted out as a fake Saudi jail chamber, where "two Arab-Americans, now with Special Forces," pretending to be Saudi inquisitors, used drugs and threats to scare him into more confessions.
This is known as a "False Flag" operation - where U.S. officials pretend to be Saudi, Egyption or Israeli interrogators who don't have any of the "limits" which U.S. law (used to) place on our own people - and is itself a direct violation of the Geneva Conventions (Article 37).

However, it should be noted that most of the valuable information we received from Zubaydah, such as the identity of "Muktar" as Khallid Sheik Muhammad, and the indentity of Jose Padilla came before he was tortured, not after. Oh, and by the way - Zubaydah is nuts.

Pulitzer Prize-winning author Ron Suskind paints a more complicated picture of Zubaydah. In one of the most hotly discussed sections of his book "The One-Percent Doctrine," Suskind reveals that at least one top FBI analyst considered Zubaydah an "insane, certifiable, split personality" and that he was mainly responsible only for logistics like travel arrangements. According to Suskind's reporting, the interrogation methods used on Zubaydah -- waterboarding and sleep deprivation, among others -- only yielded information about plots that did not exist.

SUSKIND: In the case of Zubaydah, when it comes to some of the harsh interrogation tactics he was put through, what occurred then was that he started to talk. He said, as people will, anything to make the pain stop. And we essentially followed every word and various uniformed public servants of the United States went running all over the country to various places that Zubaydah said were targets, and were not.

Ultimately, we tortured an insane man and ran screaming at every word he uttered.

What has largely worked in all the interrogations, what we got -- and in many cases it's not very much -- but whatever we got, for the most part occurred because we were, let's just say, a little more clever than that. Instead of going medieval, which is the tactic our enemies here embrace, we essentially find a way to confuse their expectations. In many cases, just by treating them as human beings we have created an environment where we get what we so desperately need, which is information that might help save American lives.

That's the key. The key is to not give in to anger, but to do whatever works best. There's clearly been a learning curve on that; some of the harsh techniques used early on have been I think largely abandoned because they didn't work.

So let's review shall we?

We now have an Official Policy of Indefinate Detention without trial, access to a lawyer or a hearing for people who may in all likelyhood be completely innocent. We will be torturing these people even though doing so has repeatedly given us bad information (such as Zubaydah or Ibn Sheik al-Libi who lied to us about Saddam training Al-Qaeda on the use of chemical weapons, or Abu Omar an innocent Egyption man who was kidnapped by the CIA in italy and tortured or Maher Arar the innocent Canadian man who was taken into custody and tortured in Syria) but that using "soft techniques" such as "Treating them like Human Beings" actually works better. Imagine that, eh?

All of this has been implemented as an end-run around Hamdan and 18 US 2441 the War Crimes Act - which then White House counsel Alberto Gonzales claimed in 2002 that if applied might result in "unwarranted charges" against administation officials.

I would argue that they are entirely warranted, and long overdue.

It is also frequently overlooked that the definition of an "Enemy Combatant" does not exclude American citizens. Last Night during his interview with John Ashcroft, Keith Olberman - the lone broadcaster willing to seriously address this subject - put this very question to the former Attorney General:

OLBERMANN: In your new book, you have defended some of the more imposing efforts to fight terror and terrorism, and this subject is particularly relevant right now, because the president is set to sign the Military Commissions Act tomorrow, which is going to codify some of those efforts into law.

I`d like to read one of the definitions in the act and ask you a hypothetical about it, if I may. "The term `unlawful enemy combatant` means -- (i), a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant."

What is there in this new law that would check the president--or any president, not in terms of tradition or in terms of common sense nor even in terms of fear of bad publicity--but in that measure itself, if a president claims that you or I materially supported hostilities against America and declares us unlawful enemy combatants and he wants to send you and I off to Guantanamo Bay, where in the law does it say the president can`t do that?

ASHCROFT: Well, let me just first indicate that I have not read this new statute in its completeness.

I do believe that the president should have the authority to designate individuals who bear arms or take up hostility against the United States as enemy combatants. I think in doing so, the president has a responsibility to have a process that is consistent with the Constitution.

We have a president; we don`t have a king. And he has to make a determination based on facts.

Like the determination he made that Saddam Hussein was an imminant threat? The question posed by Olbermann is not an idle one. Jose Padilla is an American Citizen who has already been held as an "Enemy Combatant" without trial for years, as is Yaser Esam Hamdi. Normally it would be the job of the judiciary, an independant body free from the political winds, who would make the determination of what is fact and what is not regarding defendants and detainees (a Constitutional requirement which was recently reenforced by the Supreme Court in Hamdi v Rumsfeld (pdf)) -- but not anymore. Now the President himself can be judge, jury, torturer and even - executioner.

Is this what our nations forefathers fought and died to produce? Are these the actions of a nation which has touted freedom and justice as it's bedrock principles? I would hope and pray not - but with a stroke of a pen, President George W Bush has today murdered not only Habeas Corpus - not only our international moral standing and justification for our war against terror - he may have very well have murdered our democracy itself.


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