UN to Obama: Failure to Prosecute Torture is Illegal

Rahm Emmanuel on This Week: "This is not a time for Retribution or Anger"



Via Thinkprogress

The UN Special Rapporteur stated in a recent interview with Australia's Der Standard

STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?

NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.

Word!

Despite what Rahm or Obama says, this is not about "Retribution or Anger" it's simply about Justice and the Law.

STANDARD: In other words, by making this announcement, Obama has violated international law?

NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.

The UN Convention Against Torture, which was signed by Ronald Reagan and ratified by a Republican Congress in 1995 says this.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.

No exceptions, in plain English means - NO EXCEPTIONS.

This is the Law, ignorance of the Law - is NO EXCUSE!

This is something that someone really needs to tell GOP Torture shills like Frank Gaffney


Despite what Frank says the fact is that the Geneva Conventions and the UN Convention Against Tortue aren't just some irrelevant "International Law" that has nopower within the sovereign United States. These are Treaties that WE SIGNED and Ratified and as such have the full force and binding aspect of our own Constitution as noted under Hamdan v Rumsfeld (pdf).

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

These treaties are executed under U.S. law as 18 USC 2340 (Torture) and 18 USC 2441 (War Crimes).

Nothing in these statutes says the U.S. should only prosecute "when it's politically convenient" - in fact, I suspect Obama's open refusal to persue these charges may have left himself and A.G. Holder vulnerable to legal action by those who have been tortured under U.S. policy or their surviving families.

Suites like those already in progress against Donald Rumsfeld.

Oct. 27, 2004 – Four men, who were formerly detained at the US detention center in Guantanamo Bay, filed a lawsuit today against numerous pentagon officials, including Secretary of Defense Donald Rumsfeld, for allegedly authorizing torture and other human rights violations during their detention.

The plaintiffs, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith -- all British citizens -- claim they were arbitrarily detained and suffered abuse and mistreatment while in US custody. They are each seeking $10 million in damages from those responsible in their individual capacities. This is the first case of its kind.
.

Chances are, it won't be the last.

There is also a compelling argument to made that as signatories to these treaties we are Obligated to oblige by Universal Jurisdiction (a concept that has already been employed by These states include: Australia, Austria, Belgium, Canada, Denmark, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States.)

"All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those which are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law."[10]

So, yes, Frank - Spain can prosecute Americans for Torture, even if Obama doesn't.

Oddly enough one of the few people whose got this issue right - except for his desire to keep the truth hidden so that America won't be "embarrassed" - is John McCain.



The arguement that tools such as Waterboarding are "neccesary and effective" is done and over - something isn't effective when you have to do it 183 times to get results. The CIA says that got "good information", the FBI (who had to go out and verify that info says they didn't - I trust the FBI on this one, since the same CIA said Saddam had mobile WMD labs! (A false allegation that also came about via Torture)

We have to come to realize that prosecuting criminals, especially War Criminals, is not "vindictive" - it's our responsibility as a civilized nation - if we fail at that, we fail as a society and force the hand of others to do what needs to be done.

Vyan

Update: There is some dispute as to whether or not the UN Conventions would override Prosecutorial Descretion since they were not Self-Executing and Congress choose to ignore the automatic provisions. I think that's a fair debate to have. Would the courts really reject a Civil Suit like the one I suggest (considering the fact they have already accept several including Hamdan, Hamdi and Boumedine already?) if it's sole purpose was primarily to argue that the failure to investigate and prosecute would be a clear violation of treaty obligations or would this have to be addressed in a Foreign Court (like Spain) or International Tribunal such as the Hague?

One other point I want to make is that Obama's argument against prosecution doesn't really follow the U.S. or the DOJ's own guidelines. He absolutely does have "credible evidence" that War Crimes took place, most of the arguments put forth in the Bybee/Yoo memos have been roundly defeated by the SCOTUS - and there are various memos, particularly those from then White House Counsel Gonzales that indicates willful knowledge that these policies may have been in violation of 18 USC 2441, and thereofore subsequent arguements were made to subvert the law such as President Bush's baseless claims that Geneva didn't apply to Al Qeada, when it clearly did and still does.
Obama's choosing not to prosecute for political reasons, not criminal ones.

Obama's choosing not to prosecute for political reasons, not criminal ones.

Obama speaking today at CIA!


Not a very inspiring speech IMO. It doesn't matter whether our Enemies are constrained by the "Rule of Law" or not - WE ARE! It might be true that the AG has prosecutorial descretion not to persue these charges based on a reasonable legal analysis, but does the President have the ability to block an thorough investigation for Politics?

Powell: Close Gitmo Now!

This morning on Meet the Press former Secretary of State Colin Powell strongly denounced America's use of Guantanemo Bay to detain terrorist suspects as well as the Military Commission system which so far, has completely failed to implement justice for even a single detainee.

Watch it:

[It's] a major problem for America’s perception. Iif it was up to me, I would close Guantanamo — not tomorrow, this afternoon.

But it's not like he would simply let them go....

I would simply move them to the United States and put them into our federal legal system.

Preempting the argument that this might give some of them "access to lawyers" and "habeas corpus".

So what? Let them. Isn’t that what our system’s all about? And oh, by the way, we have over 2 Million people in our jails who all had access to lawyers and habeas corpus - we know how to handle bad people in this country.

Then he truly hit the nail on the head when it comes to why some in our government continue to insist on the need for Gitmo.

[E]very morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds,

That's right kiddies, we've been hiding these people in Gitmo not because of what they've done - but because of what we've done to them in our efforts to gain information using illegal methods. The entire Military Commissions Act was designed to protect and hide the use of coercive interrogation techniques, to allow for the use of that coereced evidence and even stripped away the 5th amendment protection against self-incrimination. As Jonathan Turley has pointed out...

It's only through Habeas, that you have access to all your other rights.

By striping Habeas from "alien unlawful enemy combatants" the MCA attempted to block access to all of their rights, because without that one - none of the others can even be addressed. This strategy was the perfect follow-on to the Detainee Treatment Act of 2005 which claimed to prohibit torture, yet at the same time blocked the ability of detainees to bring mistreatment claims before a court in their own defense. So sure, "we don't torture" - but if we did, there's nothing anyone can do about it is there?

Exactly why some people seem enamoured with this Jack Bauer bullshit is beyond me. It doesn't even work in fantasyland. Last night I saw a 24 rerun, where they captured CTU techinician Gial after he had been helping the Salazar Cartel as Jack broke it's leader out of prison. Ryan Chappele ordered chemical torture techniques to be used on him and guess what... he didn't break. Not until Tony Almeada showed up and let them know he, Gial and Jack had been setting up and undercover sting operation on the Salazars.

Oops.

And now we've taken this cowardly macho bullcrap and implemented it internationally. U.S. CIA operatives are being tried for kidnapping in Italy. Many of our own NATO allies are furious with us over our Secret Prisons.

We don't need to do this, we never did - just as Powell summarized.

[W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open… We don’t need it, and it’s causing us far more damage than any good we get for it.

Amen to that.

It's feuling the international Jihad, it's fueling the insurgency. It's part of the perpetual insurgency engine. It's long past time we switched that engine off.

Vyan

Gitmo's Combatant Kangaroo Court

Under both the Geneva Conventions and the newly passed Military Commissions Act, hearings are required for each detainee to determine if they are in fact an "Enemy Combatant" or not. With the virtual revokation of Habaes Corpus under the MCA these Status Tribunals are currently the only measure of justice that these detainee's are likely to see. But a university review of 390 of such hearings has found that they are little more than a "Sham".

SAN JUAN, Puerto Rico - The U.S. military called no witnesses, withheld evidence from detainees and usually reached a decision within a day as it determined that hundreds of men detained at Guantanamo Bay were "enemy combatants," according to a new report.

Their report, based on an analysis of records of military hearings of 393 detainees, comes as the U.S. government seeks to severely restrict detainee access to civilian courts, arguing that the Combatant Status Review Tribunals should be their main legal recourse.

We've already found that the U.S. Government is far from infallable when it comes to identifying who may be an "Enemy" and who may not especially in regards not just those held in Gitmo, but to the estimated 14,000 detainees currently being held in Bush's Secret Prisons (or rendered) all around the globe.

We have the case of Maher Arar, a Canadian national who was detained at Kennedy Airport when his name was mistaken on a watchlist, before the mistake was corrected he had been transported to Syria and tortured.

There is Abu Omar, an innocent man who was mistakenly kidnapped by CIA agents in Italy, transported to Egypt and also tortured.

Even being a member of the media is no protection, as Pulitzer Prize winning AP Photographer Bilal Hussein has discovered during the seven months that he's been held by the U.S. Military on suspicion of aiding insurgents in Iraq - and has not yet been granted his Status Review hearing. (Disturbingly the original AP Story on Hussein has also disappeared, not that the story can't still be found as various Newspaper editorial boards have begun to speak out).

The ban on Habeas is quite far reaching and includes even immigrants living legally in the U.S.

WASHINGTON - Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.

Ali Saleh Kahlah Al-Marri, a citizen of Qatar, was arrested in 2001 while studying in the United States. He has been labeled an "enemy combatant," a designation that, under a law signed last month, strips foreigners of the right to challenge their detention in federal courts.

That law is being used to argue the Guantanamo Bay cases, but Al-Marri represents the first detainee inside the United States to come under the new law. Aliens normally have the right to contest their imprisonment, such as when they are arrested on immigration violations or for other crimes.

Now the only method for persons such as Al-Marri to question his detainment is before the Combat Status Review - and that process is basically rigged.

The one peice of good news is that although Habeas for Non-U.S. Citizens is now none existent under the MCA and the Detainee Treatment Act of 2005 the findings of the Combatant Status Review Tribunal can be appealed to the DC Circuit. However one must temper this encouraging news for the wrongly accused by considering the reality that before he was even allowed access to his attorney Hamdan had to frist plead guilty, and that even after winning his case before the Supreme Court Lt. Cmd. Swift was passed up for promition and effectively drummed out of the military. So Hamdan's isn't exactly a course we can expect to be readily followed by other defendants or attorney's which is troubling since there may indeed be fertile grounds for the reversal of many of the findings of this court.

The military held Combatant Status Review Tribunals for 558 detainees at the U.S. Naval Base at Guantanamo Bay in southeast Cuba between July 2004 and January 2005 and found all but 38 were enemy combatants. Handcuffed detainees appeared before a panel of three officers with no defense attorney, only a military "personal representative."

According to the report, the representatives said nothing in the hearings 14 percent of the time and made no "substantive" comments in 30 percent. In some cases, the representative even appeared to advocate the government's position, the report said.

The report is based on transcripts of tribunals that the government first released earlier this year in response to a Freedom of Information Act lawsuit filed by The Associated Press as well additional records provided by lawyers for 102 Guantanamo detainees.

Among their findings:

* The government did not produce any witnesses in any hearing.
* The military denied all detainee requests to inspect the classified evidence against them.
* The military refused all requests for defense witnesses who were not detained at Guantanamo.
* In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
* In 91 percent of the hearings, the detainees did not present any evidence.
* In three cases, the panel found that the detainee was "no longer an enemy combatant," but the military convened new tribunals that later found them to be enemy combatants.

"No American would ever consider this to be hearing," Denbeaux said. "This is a show trial."

Showing that the light at the end of this long dark tunnel really isn't an oncoming train. Yesterday Senator Chris Dodd (D-CT) introduced legislation "that would amend the existing law governing military tribunals of detainees. Among other things, the bill "seeks to give habeas corpus protections to military detainees" and narrow the definition of "unlawful enemy combatant" to individuals who directly participate in hostilities against the United States."

Dodd's bill, which currently has no co-sponsors, seeks to give habeas corpus protections to military detainees; bar information that was gained through coercion from being used in trials and empower military judges to exclude hearsay evidence they deem to be unreliable.

Dodd's bill also narrows the definition of "unlawful enemy combatant" to individuals who directly participate in hostilities against the United States who are not lawful combatants. The legislation would also authorize the U.S. Court of Appeals for the armed forces to review decisions made by the military commissions.

Moreover, Dodd seeks to have an expedited judicial review of the new law to determine the constitutionality of its provisions.

Make no mistake, this move by Dodd is a risky one. He will be swiftboated, accused of "coddling our enemies" and being "Soft on terrorism" for simply requiring that Justice be Served.

We seem to have forgotten that this nation is built on a foundation that the innocent be protected, that those who are accused of crimes by the government be given the benefit of the doubt and considered innocent until proven guilty. The Military Commissions Act of 2006 is a travesty that has violated our core principles, but regaining what was lost will most certainly be an uphill battle. Dodd is simply attempted to correct our mistake.

Yes or course, we all want to fight terrorism - we just want to make sure it's against the right terrorists. We wouldn't want to go off half-cocked and invade the wrong country based on false confessions we gained through use of torture now would we?

Ooops. Never mind.

Vyan

By Every Means Unneccesary - Why Habeas is Gone Forever

This week President Bush in his head-long rush for Jack Bauer Justice signed the "Military Commissions Act of 2006 (pdf)", and act which essentially ends the great Writ of Habeas Corpus, allows for coerced and hearsay evidence and codifies various forms of torture as authorized under the law.

But the most shocking element of all of this is the very strong likelyhood that we just might not see the return of Habeas in our lifetimes.

Why not?

Because under the Consitution the Congress actually does have the authority to do what they did - Suspend Habeas.

In Hamdi V Rumsfeld the SCOTUS stated:

Likewise,we have made clear that,unless Congress acts to suspend it,the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance,serving as an important judicial check on the Executive 's discretion in the realm of detentions.

Habeas Defined:

The basic premise behind habeas corpus is that you cannot be held against your will without just cause. To put it another way, you cannot be jailed if there are no charges against you. If you are being held, and you demand it, the courts must issue a writ or habeas corpus, which forces those holding you to answer as to why. If there is no good or compelling reason, the court must set you free. It is important to note that of all the civil liberties we take for granted today as a part of the Bill of Rights, the importance of habeas corpus is illustrated by the fact that it was the sole liberty thought important enough to be included in the original text of the Constitution.

Military Commission Act:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

U.S. Constitution Under Article I (Limits and Powers of the Congress) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In this case the "Invasion" is the ongoing infiltration of the United States by the agents of al Qeada - an endless condition of War where the public safety is always in jeopardy. So when exactly will the "public safety" no longer require it?

Never.

Historically speaking, George Bush isn't the first President to attempt to suspend Habeas. In 1861 President Lincoln Suspended Habeas during the Civil War, and had his decision overtuned by Justice Taney in Ex Parte Merryman.

Ex parte Merryman (literally "from one side," and therefore meaning "on behalf of Merryman") is the case of Lt. John Merryman, of the Baltimore County Horse Guards, who was imprisoned on May 25, 1861, in, of all places, Baltimore's Fort McHenry, on order of Union General Winfield Scott. Union troops had just occupied the city and began arresting suspected secessionists.

In Taney's response he stated:

As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.

The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives."

In 1864 Congress passed a law which fit Haney's requirements and Suspended Habeas for the duration of the War and Reconstruction - this eventually lead to Ex Parte Milligan.

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War ended.

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States only provided for suspension of habeas corpus if these courts are actually forced closed. In essence, the court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.

In short, the Congressional Suspension of Habeas in response to a Rebellion (or Invasion) was upheld, and most likely would be upheld again even by the current Supreme Court since Congressional Authorization is exactly what they requested under Hamdi, which leaves all of us pretty much screwed for the foreseable future.

Even a New Congress is unlikely to overturn this law since 34 Democrats in the House and 12 in the Senate supported it - with only a slim margin projected for the Demcratic Majority in November - such a reversal would be far from Veto proof.

There are however some potential bright spots among the darkness.

in response to Hamdan V Rumsfeld John Dean argued against the MCA as it was being drafted.

Since the inception of the Bush Administration's war against terror, the President has claimed - unreasonably and without justification - that the Geneva Conventions do not apply to this war with stateless forces such as al Qaeda (or similar organizations) for they are not signatories to the Geneva Conventions. But Bush is wrong.

The Hamdan Court explained that "Article 3, often referred to as Common Article 3 because ... it appears in all four Geneva Conventions" applies here. Moreover, the Court noted, Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

So the question is no longer purely a Constitutional one, but one which begs whether the Military Tribunals which have now been authorized actually satisfy Geneva as "regularly constituted courts". But clearly they do not include "all the judicial guarantees" - since Habeas is regards to "Enemy Combatants" is now non-functional.

Under Article VI it states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

By Ratifying Geneva in 1948, we have made it a part and equal to our own law and Constitution. This is further reiterated by Justice Stevens in Hamdan.

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

Even though Bush has attempted to Redefine both Geneva, Torture and War Crimes with this Act - rewriting 18 U.S.C.18 U.S.C.§2441 into a laundry list what allegedly is and isn't covered - the core issue here is still whether these new tribunals are "regularly constituted" and whether this breach of Geneva would actually overide Congresses own legitimate authority to suspend Habeas?

On that point I am far from certain of the outcome.

There is another argument to made however - the Suspension of Habeas under the MCA (quoted above) clearly applies to "Alien Enemy Combatants" not neccesarily U.S. citizens, although U.S. Citizens can clearly be considered Enemy Combatants under this law - Hamdi (who is a U.S. Citizen) supports this view - the disparate treatment here between U.S. Citizens (who still retain some form of Habeas relief) and Non-Citizens who do not may present a 14th Amendment Equal Protection Challenge.

Hamdi was the first case to extend the 14th to cover areas outside the U.S. (such as those being held in Gitmo), this just might be the first case that I know of - if such a challenge is brought - to extend the 14th to Non-citizens under U.S. Jurisdiction and control. There are two suits against the MCA already, time will tell...

Although Habeas is now gone for aliens, the ability to challenge ones status as an Unlawful Enemy Combatant itself has been upheld and is retained in the current law (as part of the Combatant Status Review Tribunal).

``(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.--A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Basically there are two Tribunals, the first of which is established by the President or SecDef for establish the status of a detainee. (Ironically, this is in according with Geneva, which requires that all persons of unknown status be given a hearing to determine their status). Under both the MCA and the Detainee Treament Act of 2005, the findings of the CSRT can be appealed to the DC Circuit Court.

This Judicial Obsticle Course is at least a maginal improvement over the current sitaution where we already know most of the combatants held at Gitmo are innocent and we've refused to release them.

[A deposition by Brig. Gen. Karpinski's (former Abu Ghraib CO)] cited the comments of another official, Maj. Gen. Walter Wojdakowski, who told her, "I don't care if we're holding 15,000 innocent civilians! We're winning the war!" A former commander of the 320th Military Police Battalion notes in a sworn statement, "It became obvious to me that the majority of our detainees were detained as the result of being in the wrong place at the wrong time, and were swept up by Coalition Forces as peripheral bystanders during raids. I think perhaps only one in ten security detainees were of any particular intelligence value."

Clearly if one is found by the CSRT to not be an Unlawful Combatant, one would not automatically go free. What should occur - in a far more prefect world than this one - is that they would then be relegated to the regular Civilian or Courts Marshal as a "Lawful Enemy Combatant". The CSRT itself is far from a "Get out of GITMO Free" Card. If the CSRT finding is "Unlawful", the detainee then skips "Go" and heads forward to his Military Tribunal Only if the President subsequently seeks to press charges -- if he does not, that person disappears into a black hole. Forever.

The very existence of this law is extremely onerous - particular the section which reduces the Geneva-based prohibitions against "Offenses to Personal Dignity" and instead prohibits torture - sort of.

TORTURE: Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commis-sion under this chapter may direct.

...

The term `serious physical pain or suffering'
means bodily injury that involves--
``(I) a substantial risk of death;
``(II) extreme physical pain;
``(III) a burn or physical disfigurement of a
serious nature (other than cuts, abrasions, or
bruises); or
``(IV) significant loss or impairment of the
function of a bodily member, organ, or mental
faculty.

Guess what folks, the Bybee memo is now the law. A simple reading makes it plainly obvious that non-lethal methods of humiliation, and "non-severe" pain, which leave no visible marks, burns, cuts or abrasion and do not risk "organ failure" -- are absolutely permissable. This act is like a "How To" manual on how to became a Totalitarian Dictatorship, which is further underscored by the fact that coerced testimony is now allowed

STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.--A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
``(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
``(2) the interests of justice would best be served by admission of the statement into evidence.

And for coercion which occured after the DTA this is added:

``(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

What is most tragic here, is the well known fact that Coercive Interrogation Techniques Simply don't Work. The subject is more likely to lie and fabricate than actually provide valid information. These heavy-handed uber-macho measures by the Administration are completely unneccesary. Ibn al-Libi was tortured and lied to us. Abu Zubaydah actually gave us some good information before he was tortured, then started lying after he was. If we want good and accurate information to protect Americans, coercian and pseudo torture is not the way - and it completely destroys the moral justification for our War against terror when we behave like terrorists.

Innocent muslims such as Abu Omar and Maher Arar have already been unlawfully detained (kidnapped actually in Omar's case) rendered to Egypt and Syria where they were tortured.

In Iraq AP Reporter Bilal Hussein has been held by U.S. Forces for the past five months - without a hearing.

These are not isolated cases - to date the U.S. nearly 50,000 people under detention worldwide. We're talking about a major humanitary crises here.

But if you listen to the Wingnut Brigade, the Human Rights and Dignity of these individuals of no concern to them what so ever - the goal of this law is FEAR - especially the fear into the New York Times and WaPo Editorial Board.

From RedState.com

One sees immediately why the definition of treason makes the Washington Post editorial board queasy. If they vacation in the Caribbean (how déclassé) they would prefer it not be at Club Gitmo and definitely not preceded by Donald Rumsfeld's bully boys kicking in their door, being flexi-cuffed, tossed in a blacked out LearJet with bogus registration numbers, dressed in an orange jumpsuit and then allotted a no-amenities guest room with Abdul.

Let's get serious - this isn't about stopping the next major bombing attack on U.S. Soil - it's about shutting up James Risen and all the reporters who've released classified material (like Bob Woodward) which happen to be a) True and b) Display a propensity for the Bush Administration to violate the law (such as FISA).

Now they've managed to use the law itself to justify their lawbreaking. Undoing this law completely will be difficult if not impossible until the Presidency changes hands, and even if it is corrected the damage to our international prestige may in fact be permenent. Meanwhile Al Qaeda is laughing at us as we gradually destroy ourselves and our own values.

Heckuvajob Bushie.

Vyan

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.

Vyan

Turley on Countdown: Enemy to Rule of Law

Last night on Countdown with Keith Olbermann Law Professor Johnathon Turley of George Washington University made a series of startling statements, yet in my opinion Turley's comments where actually somewhat behind the curve of the facts. From Dkos.

OLBERMANN: We haven't even addressed and for time's sake, now, there's study after study that indicates that torture presents falsely positive information. People will say anything they think the torturer wants to hear. But... about again the layout between Bush and McCain: one question being asked a lot that I have not heard definitively answered anywhere... Is there really a difference between what the President has proposed on this and what the McCain/Warner/Graham version? Are they both torture? Aren't they both redefining the Geneva Conventions to some degree?

TURLEY: Well you really hit, I think, the most salient aspect of this. Whatever comes out of a compromise, it does seem to be an effort to redefine the Geneva Conventions because otherwise, why are you doing this? You don't need to redefine the Geneva Conventions - you don't have to do anything with it. It's a treaty. We're a signatory. We've never had to do this before. We've gotten along just fine, as has the world, with the language of the Geneva Convention. If we make any effort at all to try to redefine it or tweak it or to amplify it, the world will see that as our effort to lawyer the Geneva Convention to try to create some type of loophole or excuse for conduct

Actually we have done it before, we did it in Vietnam - we did it in South America. What we haven't done before is admit it, or even openly discuss it as the President has done.

OLBERMANN: You'll remember Mr. Gonzales' description of this five years ago as "quaint" - the Geneva Conventions or portions of it -

TURLEY: [laughs] Right -

For some reason the "quaint" memo gets a ton of play, but is in fact of little consequence. In that memo Gonzales were referring to some rather minor and trivial Geneva requirements. The big memo is the one which was revealed by MIchael Isikoff of Newsweek, which indicates Gonzales advice to the President to deny Geneva protections to detainees - specifically to avoid War Crimes Prosecution - 8 months prior to the Bybee memo.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes--defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions--such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners--was "undefined."

When the President says that the language "outrages upon personal dignity" are "vague" -- this is what he's talking about. He was advised in 2002 by his attorney that his actions in regards to detainees could put him under personal criminal liability. The President did indeed give the order to exclude detainees from Geneva, hence avoiding potential War Crimes prosecution -- that is until the Supreme Court brought Geneva back to the table with the Hamdan decision. Between that orginal decision 5 years ago and now has been a long, dirty road. SecDef Rumsfeld had been the chief architect of the "new expanded" interrogation policies that were first used at Gitmo, and then exported to Bagram AFB and Abu Ghraib.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

The fact that Powell is speaking out now, is not nearly as strange as Turley has made it appear - he's been speaking out about this issue for quite some time while he was within the Administration. He has little choice but to continue to speak out although he is no longer an "insider".

OLBERMANN: - to some degree. Last Friday here you were telling us that some of the detainees from the secret CIA cells, when moved to Guantanamo, might have the opportunity in the immediate future to talk to the Red Cross about their own interrogations, is there anything more to the possibility that that's going to happen, which might explain the President's anger and his rush over this as having more to do with what his Administration has already sanctioned and not about what is yet to come?

TURLEY: It has all the indications that that is exactly what is happening. The Administration for years has conspicuously attempted to get things like waterboarding approved as non-torture. Waterboarding, when you convince someone they're going to drown by drowning them. At least to the point of death. And waterboarding is defined as torutre around the world.

Now obviously the Administration has not gotten that thus far. But there is a strong suspicion that we have indeed been engaging in torture. Remember, some of these people were captured when the White House had signed a memo that defined non-torture as anything short of organ failure. That they believed that as long as they didn't cause organ failure or death, they were not engaged in torture. That shocked the world.

So what has happened in the past in our name has many of us wondering. But there is a feeling - and I am one of those people that has it - that we're about to hear some accounts coming out that our President may have ordered American personnel to become torturers. And that is so serious it is almost beyond definition.

I don't think we have to wait until the former "ghost detainees" talk to the RedCross - we already have documents from the FBI and Dod available at a single click right --> here.

Among the documents released today by the ACLU is a May 19, 2004 Defense Intelligence Agency document implicating Sanchez in potentially abusive interrogation techniques. In the document, an officer in charge of a team of interrogators stated that there was a 35-page order spelling out the rules of engagement that interrogators were supposed to follow, and that they were encouraged to “go to the outer limits to get information from the detainees by people who wanted the information.” When asked to whom the officer was referring, the officer answered “LTG Sanchez.” The officer stated that the expectation coming from “Headquarters” was to break the detainees.

The ACLU also released an Information Paper entitled “Allegations of Detainee Abuse in Iraq and Afghanistan” dated April 2, 2004, two weeks before the world saw the pictures of torture at Abu Ghraib prison. The paper outlined the status of 62 investigations of detainee abuse and detainee deaths. Cases include assaults, punching, kicking and beatings, mock executions, sexual assault of a female detainee, threatening to kill an Iraqi child to “send a message to other Iraqis,” stripping detainees, beating them and shocking them with a blasting device, throwing rocks at handcuffed Iraqi children, choking detainees with knots of their scarves and interrogations at gunpoint.

“These documents are further proof that the abuse of detainees was widespread and systemic, and not aberrational,” said Amrit Singh, a staff attorney with the ACLU Immigrants’ Rights Project. “We know that senior officials endorsed this abuse, but these officials have yet to be held accountable.”

Turley continued...

OLBERMANN: How serious would that be for the President? Are there elements of the Constitution that refer to international treaties that make an American President violating international agreements like that liable or subject to criminal action within this country, let alone internationally?

TURLEY: It is a violation of both domestic and international law. But more importantly, torture is a moral under every major religion. That you cannot fight a moral war with immoral means. And if we're ready to embrace immoral means, if that's how we're going to fight this war, then we have lost. And no one will come to our aid. Wil will be alone. And that's what happens when you become - in the view of many - an enemy to the rule of law. And we cannot afford that to happen [sic].

It's already happened Mr. Turley - it's already happened. The only real question is not whether the compromise bill coming out of the Senate changes Geneva, which it probably won't, the real danger is that it will - yet again - abrogate Habeas Corpus by denying detainees held of foreign soil the right to challenge the basis for their detention in court. This would not only affect -11 mastermind Khallid Sheik Mohammad, but also Pulitzer Prize winning AP Photographer Bilal Hussein who has been held by U.S. Forces for five months without charges or a hearing.

Chances are that any such law would eventually be struck down, just at the Graham-Levin Amendment to the Detainee Treatment Act was by Hamdan - but that eventually is years away, and quite a bit of "alternative interrogation" could certainly take place during that time, while the subjects of such methods would have no representation and no legal recourse available to them.

Vyan

Crossroads for America:To Torture or Not

We live in interesting times. The center of a watershed moment where America will either stand true to it's own core values, or slide down the slippery slope toward torture and totalitarianism that the President desperately desires.

With little time left before a very likely Democratic Congress and Senate come into power - the President's desperation to avoid culpability for his own War Crimes grows more palpable.

As I outlined on July 1st, the Hamdan decision has effectively sealed this President's fate and legacy as a War Criminal, his last gasp is to end-run Common Article 3, if he can.

To this end the President has pursued the enactment of New Detainee Torture Act, which would effectively make the treatment they've already been using, essentially legal.

Q Thank you very much, sir. What do you say to the argument that your proposal is basically seeking support for torture, coerced evidence and secret hearings? And Senator McCain says your plan will put U.S. troops at risk. What do you think about that?

THE PRESIDENT: This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article III of the Geneva Convention. And that Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, "outrages upon human dignity"? That's a statement that is wide open to interpretation. And what I'm proposing is that there be clarity in the law so that our professionals will have no doubt that that which they are doing is legal. You know, it's -- and so the piece of legislation I sent up there provides our professionals that which is needed to go forward.

Vague? Vague?!! Common Article III has been in existence for 50 years and this is the first time that I know of that someone has claimed it is - Vague! "No" means "NO" Asshole! Zero. None. Zilch. That statment is not open to interpretation, it's pretty clear and obvious. Those who oppose the Administration on this point, such as Colin Powell are not "confused", they are not "appeasers" -- or let's be honest because we know what they're really thinking - they are not "girly men".

Even Tony Snow has sheepishly begun to admit that he'd gone over the line (via Glenn Greenwald) when he reflexively bashed Powell.

Tony Snow yesterday had to retract his statement calling Colin Powell "confused" all because Gen. Powell thinks the U.S. should continue to abide by the Geneva Conventions, and as part of that retraction, Snow oh-so-generously added: "I know that Colin Powell wants to beat the terrorists, too." They exploit terrorism for political gain so reflexively that accusations of being sympathetic to terrorists just comes pouring out of their character-smearing mouths even when the targets are individuals who have devoted their adult lives to service in the American military.

More from Yesterday's Rose Garden Press Conference:

Q Thank you, Mr. President. Mr. President, former Secretary of State Colin Powell says the world is beginning to doubt the moral basis of our fight against terrorism. If a former Chairman of the Joint Chiefs of Staff and former Secretary of State feels this way, don't you think that Americans and the rest of the world are beginning to wonder whether you're following a flawed strategy?

THE PRESIDENT: If there's any comparison between the compassion and decency of the American people and the terrorist tactics of extremists, it's flawed logic. I simply can't accept that. It's unacceptable to think that there's any kind of comparison between the behavior of the United States of America and the action of Islamic extremists who kill innocent women and children to achieve an objective, Terry.

Bush may find it "Unacceptable" - but thinking that the United States has an obligation and a duty to abide by it's own law and it's own treaties - is exactly what much of the world thinks. This line of arguement by Bush effectively ducked the question - and follows the path the Administration has been following for quite some time -- attack the critic, not the argument.

Four years ago, then White House Counsel Alberto Gonzales urged the President to deny Geneva protections to terrorist detainees, not because they didn't deserve them - but because he expected that doing so would leave The President Vulnerable to War Crimes Prosecution Under U.S. Law

When the President talks now about "providing clarity" such as in this passage:

...the Court said that you've got to live under Article III of the Geneva Convention, and the standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals. They don't want to break the law. These are decent, honorable citizens who are on the front line of protecting the American people, and they expect our government to give them clarity about what is right and what is wrong in the law. And that's what we have asked to do.

The truth is - that HE doesn't want to be tried for War Crimes because the President, after denying Geneva, has long ago authorized measures which clearly violate the "human dignity" of detainees, and he knows this.

As I stated in July the ACLU has found a paper trail leading directly from Bush to Gitmo and Abu Ghraib.

In January 2002 Gonzales argues that Geneva shouldn't apply to "Enemy Combatants" because it would make "U.S. Officials" vulnerable to Federal War Crimes violations.

In February, the Administration announces that al Qaeda and Taliban are "not included" in Geneva (although they conduct no tribunal as required by Geneva to determine this).

In August of that same year the Bybee memo is written which redefines what "Torture" is.

In October 2002 Gitmo commanders request "that additional techniques beyond those in the field manual be approved for use.""

In December of 2002 SecDef Rumsfeld allows for "stress positions," hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq." according to documents obtain by the ACLU.

Also in December the FBI begins complaining to the Defense Department about the conditions at Gitmo, and in Afghanistan some detainees are "killed during interrogation" at Bagram AFB.

To date we have had 26 Deaths-in-Custody, which have been ruled as "Homocide" due to mistreatment. Those deaths, as well as those of tens of thousands of innocent Iraqis, lay directly at the feet of George W. Bush.

Everything he is doing right now - trying to push the Geneva redefinition through Congress - is meant to do nothing more than cover his ass, Period.

If he fails, and I'm certain he doesn't intend to fail - he can't afford too - he will face a Democratic Congress with subpeona power and one John Conyers as head of the Impeachment Committee - Judiciary. A man who has already called for Special Prosecutor to investigate War Crimes by the Bush Administration. If that call is ever answered in the wake of Hamdan, Bush is Doomed.

This is his last chance, and I for one expect to see him pull out all stops.

But he MUST. NOT. SUCCEED.

America can not openly go down the road he is headed. We can not turn our backs on Geneva, and begin to play around with the margins human decency, pretending that the use of extreme cold and/or loud music is an acceptable method of treatment - whether you like Red Hot Chili Peppers or not - these can never acceptable methods for how we treat people who haven't been put on trial yet.

Never mind Geneva, the 4th and 8th Amendments makes this clear.

It's not just a matter of protecting American soldiers who may be captured, there is also a military case for this. During WWII many Italian and Germany soldiers surrendered to U.S. - rather than the Russians - because they knew they would be well treated.

The Germans committed Genocide, but not only that they commited War Crimes against American soldiers at Malmedy. U.S. soldiers held by the Japanese were regularly tortured, starved and murdered. Geneva was intended to put an end to this, and the U.S. was at the forefront of creating Geneva.

Even during the first Gulf War, Iraqi military units were very willing to surrender when outmatched rather than fight to the death -- and thus the bloodshed was minimized and victory achieved in a fairly short time. Colin Powell, who command our troops during Gulf War I understands this - George Bush who protected the Texas Skies from the Vietcong - doesn't.

And so came Abu Ghraib.

After which we suddenly we faced an enemy - actually several enemies - that would absolutely do anything - but surrender.

Since then we've had Task Force 6-26 a U.S. Special Forces Unit who used Saddam's old torture chambers to continue the exact same work, Haditha (where 24 civilians were gunned down in cold blood), Fallajah where the U.S. used chemical warfare on the population and the rape and murder of a teenage Iraqi girl and her entire family by U.S. soldiers.

Clearly, we're sliding down the slope - not climbing upwards. Meanwhile, the insurgency and impending Civil War in Iraq continues to get stronger. Going the way we have been - even if we do achieve "Victory", capture and/or kill Osama bin Laden and break up the Al Qaeda Network, we will still have lost and disgarded far more than we will have gained.

This is what Human Rights Watch has to say about it.

Following the terrorist attacks [of September 11], many Americans understandably wanted their government to do anything possible that might protect them from terrorism. The Bush administration exploited that fear to push through various measures with scant regard to international human rights standards. Systematic prisoner abuse, widespread detention without trial, and proposed kangaroo courts were the result. Abu Ghraib, Guantánamo, and secret CIA prisons became the unfortunate symbols of U.S. counterterrorism efforts. Even within the United States, the rights of many Muslim men were compromised through the misuse of laws such as those on detaining immigrants and "material witnesses." Governments around the world, in turn, exploited the U.S. government's example to launch or defend repression of their own.

These abuses are wrong as a matter of fundamental rights. Though done in the name of protection from terrorism, they are also counterproductive. Fighting terrorism effectively requires not just stopping existing terrorists but also preventing the generation of new ones. By all accounts, U.S. abuses in the name of fighting terrorism have been a boon to terrorist recruiters. The loss of the moral high ground has made it harder to dissuade angry young men from resorting to the deliberate killing of civilians.

This Country has to make a choice: Will we honor the sacrifices made to fight fascism and totalitarianism made by our forefathers by remaining true to the ideals of the 8th Amendment and Bill of Rights -- or will we fail them?

Bush has made it clear which way he intends to go, and it's also clear that this path has made us less safe, not moreso.

Contact your Senators and Congressmen at let them know which fork in the road to take. Congressional Operator Toll Free: 888-355-3588

Vyan

Bush tries to squirm out of War Crimes

From the Washington Post.

The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments.

The draft U.S. amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.

Left off the list would be what the Geneva Conventions refer to as "outrages upon [the] personal dignity" of a prisoner and deliberately humiliating acts -- such as the forced nakedness, use of dog leashes and wearing of women's underwear seen at the U.S.-run Abu Ghraib prison in Iraq -- that fall short of torture.

Although 26 detainees have already died in custody from what investigators say was mistreatment and torture - there have yet to be any prosecutions under the War Crimes Act 18 USC § 2441. Make no mistake, prosecutions under the Uniform Code of Military Justice - which also includes the Geneva Conventions as part of it's struction have taken place against "low-level" grunts, but as pointed out by The Nation, Administration officials who are not part of the miliatary are not subject to the UCMJ, hence the War Crimes Act was created to make thier level of responsibility and culpability the same as those in uniform. This change to the current law would open a fissure and in all likelyhood allow even more of these types of deaths to occur, certainly not less - and would help to ensure that those not in uniform have an "escape hatch" to avoid responsibilty for the consequences of their actions and orders.

The Bush Administration long been fully aware of those consequences has already shown Malice of Forethought when Alberto Gonzales originally attempted in 2002 to circumvent the WCA by having detainees declared as exempt from the Geneva Conventions as revealed Michael Isikoff for Newsweek.

The concern about possible future prosecution for war crimes—and that it might even apply to Bush adminstration officials themselves— is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

The fact is that both the Supreme Court and other Federal Judges have made judicial determinations which indicate that Bush has violated this act. In Hamdan v Rumsfeld Justice Kennedy stated:

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821

Thisi dig was followed by a total smackdown of Bush's Unitary Executive Theory last month when Federal Judge Anna Diggs Taylor ruled that the Administration Domestic Spying program was Unconstitutional, violating the 4th Amendment, 1st Admentment and the criminal statutes of the FISA law itself.

It's just fortunate for Bush that his primary co-defendant for any formal charges happens to be the Attorney General of the United States.

If Bush manages to makes technical changes in the War Crimes Act before the Congress turns Democratic and gains Subpeona power - he just might squirm out of this, unless.... we have another replay of the filibuster follies of earlier this year in the Senate.

I've always enjoyed reruns of my favorite programs, haven't you?

Vyan

Waterboard Congress

Ray McGovern, a former CIA Analyst with 27 years experience, the man who directly challenged Donald Rumsfelds lies and also testified at the original Downing Street Forum with Cindy Sheehan and Joe Wilson has an idea.

A real good idea.

Waterboard Congress until they tell us the truth about Iraq (and Afghanistan, and Global Warming, and Abstinance Only Sex Ed and.... you get the picture.)

A Modest Proposal: Waterboard Congress
Maybe White House-favored interrogation techniques would coax lawmakers to tell the truth about U.S. anti-terror policies
by Ray McGovern

In response to the Supreme Court's June decision in Hamdan vs. Rumsfeld, the Bush administration has proposed a new Enemy Combatant Military Commissions Act. If passed by Congress, this act would revolutionize American jurisprudence.

The White House wants military tribunals hearing the cases of terrorism suspects to be able to use "coerced" confessions. As Acting Asst. Atty. Gen. Steven Bradbury helpfully assured Congress last month, "there are gradations of coercion much lower than torture."

Because many in the administration and Congress feel strongly that coerced confessions constitute the "best practice" to get truth from people suspected of bad things, then, under the equal protection clause of the 14th Amendment, American citizens should be permitted to use the same method to pry the truth out of their elected representatives.

The "Best Practice?" Is that why everything we tortured out of Ibn Sheik al-Libi about Saddam being connected to Al Qaeda was totally bogus?

One such method is waterboarding: strapping someone to a board and pushing him underwater to make him feel like he's drowning. Since then-CIA Director Porter Goss assured Congress last year that this was a "professional interrogation method," not torture, citizens should be permitted to bring splintery planks, leather straps and water tanks to expedite discussions with any member of Congress who continues to insist that things are going swimmingly for the U.S. military in Iraq.

Defense Secretary Donald Rumsfeld has during his tenure approved the use of a dozen extreme interrogation methods above and beyond those previously permitted by the Pentagon, including, but not limited to, hooding, disrobing, placing detainees in stress positions and exploiting their "fear of dogs." When the resulting Abu Ghraib photos leaked out in 2004, Sen. James Inhofe (R-Okla.) declared that he was more "outraged by the outrage" than by the actual evidence of detainee abuse.

So: Inhofe should be blindfolded, put in a straitjacket and left in a room full of crazed chihuahuas until he explains why he believes that the U.S. military should not be constrained to follow the laws of the land, such as the Anti-Torture Act.

Sounds good to me, I got an ironing board and a bathtub all ready to go. In fact, I think this would be a great demonstration to have several thousand people show up on the capital mall with big buckets and splinters of wood.

Just to make a point, because it's pretty obvious that Congress isn't getting the point - yet.

It's been pretty clear to me for some time that the entire "secret testimony" argument that scuttled Hamdan, isn't about protecting our sources and methods of intelligence gathering, it's about protecting the Chimp in Chief's ass from War Crimes Prosecution under 18 USC § 2441. They don't want the defendant in the room for certain testimony because illegal methods may have been used to gather that evidence. This was the original impetous for denying Geneva Conventions to detainees, long before the Bybee Memo which essentially redefined torture into "organ failure" - which in plan english means death. Anything short of that - is just fine.

It's long past time certain Congress Critters, especially Senator Lindsay (Sure, we've banned torture, except that no one that's actually been tortured can sue over it) Graham, got a taste of their own medicine.

Vyan