Jack A. Smith : Big Brother's Getting Bigger

Another sign of the times. Image from City Limits.
Our civil liberties under attack:
Big Brother's getting even bigger

Abuses of civil liberties are taking place with increasing frequency, but the public outcry has mainly been muted, an enticement for the authorities to go even further.

By Jack A. Smith / The Rag Blog / April 18, 2012

Government surveillance and attacks on the privacy of American citizens were bad enough under the Bush regime but they are getting even worse during the Obama years.

In addition to his retaining President George W. Bush's many excesses, such as the Patriot Act, new information about the erosion of civil liberties emerges repeatedly during the era of President Barack Obama from the federal government, the courts, and various police forces.

The Supreme Court added judicial insult to personal injury April 2 when it ruled 5-4 that jail officials may strip-search anyone arrested for any offense, even a trifle, as they are being incarcerated, even if they are awaiting a hearing or trial. The four ultraconservative judges were joined by Justice Anthony M. Kennedy.

According to the ACLU's Steven R. Shapiro, the "decision jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses. Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion."

A day before the strip-search outrage, the New York Times reported that

law enforcement tracking of cellphones... has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show... One police training manual describes cellphones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

Other abuses of civil liberties are taking place with increasing frequency, but the public outcry has mainly been muted, an enticement for the authorities to go even further. On March 23, the American Civil Liberties Union reported:

The Obama administration has extended the time the National Counterterrorism Center (NCTC) can collect and hold on to records on U.S. citizens and residents from 180 days to five years, even where those people have no suspected ties to terrorism. The new NCTC guidelines, which were approved by Attorney General Eric Holder, will give the intelligence community much broader access to information about Americans retained in various government databases...

Authorizing the "temporary" retention of non-terrorism-related citizens and resident information for five years essentially removes the restraint against wholesale collection of our personal information by the government, and puts all Americans at risk of unjustified scrutiny. Such unfettered collection risks reviving the Bush administration's Total Information Awareness program, which Congress killed in 2003.

The news, evidently, was underwhelming. Tom Engelhardt wrote April 4:

For most Americans, it was just life as we've known it since September 11, 2001, since we scared ourselves to death and accepted that just about anything goes, as long as it supposedly involves protecting us from terrorists. Basic information or misinformation, possibly about you, is to be stored away for five years -- or until some other attorney general and director of national intelligence thinks it's even more practical and effective to keep you on file for 10 years, 20 years, or until death do us part -- and it hardly made a ripple.

A week earlier, new information was uncovered about Washington's clandestine interpretation of the Patriot Act. Most Americans are only aware of the public version of the Bush Administration's perfidious law passed by Congress in a virtual panic soon after 9/11. But the White House and leaders of Congress and the Justice department have a secret understanding of the Patriot Act's wider purposes and uses.

Alex Abdo of the ACLU's National Security Project revealed March 16:

The government has just officially confirmed what we've long suspected: there are secret Justice Department opinions about the Patriot Act's Section 215, which allows the government to get secret orders from a special surveillance court (the FISA Court) requiring Internet service providers and other companies to turn over "any tangible things." Just exactly what the government thinks that phrase means remains to be seen, but there are indications that their take on it is very broad.

Late last night we received the first batch of documents from the government in response to our Freedom of Information Act request for any files on its legal interpretation of Section 215. The release coincided with the latest in a string of strong warnings from two senators about how the government has secretly interpreted the law. According to them both, the interpretation would shock not just ordinary Americans, but even their fellow lawmakers not on the intelligence committees.

Although we're still reviewing the documents, we're not holding our breath for any meaningful explanation from the government about its secret take on the Patriot Act.

The Senators involved were not identified, but they were Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), both of whom went public about the secret Patriot Act last May. Wyden declared at the time: “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” Udall echoed, “Americans would be alarmed if they knew how this law is being carried out.”

The Obama Administration has not sought to mitigate much less abandon the Patriot Act. Indeed, in the 10 ½ years since the act was passed the law has only become stronger, paving the way for other laws assaulting civil liberties and increasing government surveillance.

Three months ago, for example, Obama signed the National Defense Authorization Act (NDAA) containing a sweeping worldwide indefinite detention law allowing the U.S. military to jail foreigners and U.S. citizens without charge or trial.

Just last month, Wired magazine revealed details about how the National Security Agency "is quietly building the largest spy center in the country in Bluffdale, Utah."

Investigative reporter James Bamford wrote that the NSA established listening posts throughout the U.S. to collect and sift through billions of email messages and phone calls, whether they originate within America or overseas. The Utah surveillance center will contain enormous databases to store all forms of communication collected by the agency. The NSA previously denied domestic spying was taking place.

In his article Bamford quoted a former NSA official who "held his thumb and forefinger close together" and said: “We are that far from a turnkey totalitarian state.”

The Associated Press has been dogging the New York City police department for several months to uncover its domestic spying activities. On March 23 it reported that "Undercover NYPD officers attended meetings of liberal political organizations [for years] and kept intelligence files on activists who planned protests around the country, according to interviews and documents that show how police have used counterterrorism tactics to monitor even lawful activities." Some of these snooping activities took place far from New York -- in New Orleans in one case.

Commenting on the new guidelines allowing Washington "to retain your private information for five years," the satirical Ironic Times commented March 26: "If you're guilty of no crimes, never owed money, don't have a name similar to that of someone who has been in trouble or owed money and there are absolutely no computer glitches in the government's ancient computer system during the next five years, then you have nothing to worry about."

The American people, of course, have a lot to worry about since both ruling political parties are united in favor of deeper penetration into the private lives and political interests of U.S. citizens. The only recourse for the people is much intensified activism on behalf of civil liberties.

[Jack A. Smith was editor of the Guardian -- for decades the nation's preeminent leftist newsweekly -- that closed shop in 1992. Smith now edits the Hudson Valley Activist Newsletter, where this article was also posted. Read more articles by Jack A. Smith on The Rag Blog.]

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Bob Fitrakis and Harvey Wasserman : Hell of a Way to Begin a Year

Image from DNY59 / iStockphoto / MNN.
Apocalypse now!
Death knell for civil liberties

It's a hell of a way to begin a year many believe will mark the end of the world.

By Bob Fitrakis and Harvey Wasserman / The Rag Blog / January 23, 2012

In case you missed it, President Barack Obama has signed a death knell for the Bill of Rights. It's a hell of a way to begin a year many believe will mark the end of the world.

The National Defense Authorization Act (NDAA) makes a mockery of our basic civil liberties. It shreds the intent of the Founders to establish a nation where essential rights are protected. It puts us all at risk for arbitrary, indefinite incarceration with no real rights to recourse.

The Act authorizes a $626 billion dollar defense budget (which does not include the CIA, special ops, various black box items, etc.). Obama's signing statement says it does address counterterrorism at home and abroad as well as Defense Department modernization, health care costs, and more.

But it also includes Sections 1021 and 1022, bitterly opposed by the American Civil Liberties Union and Human Rights Watch, among many others. The New York Times urged Obama to veto the bill because of them. The UK-based Guardian said NDAA 2012 allows for indefinite detention of U.S. citizens "without trial [of] American terrorism subjects arrested on U.S. soil, who could then be shipped to Guantanamo Bay." The Kansas City Star was equally blunt, stating that the NDAA is "trampling the bill of rights in defense's name."

Section 1021 reasserts the President's authority to use the military to detain any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." It also includes the military's power to detain anyone who commits a "belligerent act" against the U.S. or its coalition allies under the law of war.

Despite widespread public pressure, Obama did not veto the bill. In his signing statement he said: "I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

Citing the Authorization for Use of Military Force (AUMF) passed by the United States Congress on September 14, 2001, the NDAA states that those detained may be detained "without trial, until the end of the hostilities authorized by the [AUMF]." The NDAA also allows trial by military tribunal, or "transfer to the custody or control of the person's country of origin," or transfer to "any other foreign country or any other foreign entity." This last practice is known as "rendition."

It's been widely documented that the United States has used rendition as a way to let individuals be tortured outside of U.S. soil. "Extraordinary rendition" -- used during the second Bush administration -- is the kidnapping and transfer of individuals to a third country for purposes of "enhanced interrogation," otherwise known as torture.

An amendment to the NDAA offered by Senator Mark Udall forbidding the indefinite detention of U.S. citizens failed by a vote of 37-61. A compromise amendment to preserve current law concerning the detention of U.S. citizens and lawful resident aliens within the United States proposed by Senator Dianne Feinstein passed, but only sparked more controversy.

Feinstein insisted the reference to current law meant that U.S. citizens could not be indefinitely detained, while Senators Carl Levin and John McCain argued that it does allow indefinite detention. Senator Levin cited the Supreme Court as stating that, "There is no bar to this nation's holding one of its own citizens as an enemy combatant."

Section 1022 of the NDAA deals with the "Requirement for military custody." Section 1022 requires that all persons arrested and detained under Section 1021, including those detained on U.S. soil whether held indefinitely or not, will be in the custody of the United States Armed Forces. Thus, Section 1022 of the NDAA 2012 clearly allows the U.S. military the option to arrest and indefinitely detain U.S. citizens.

The ACLU stated that, "The statute contains a sweeping worldwide indefinite detention provision… [without] temporal or geographic limitations, and can be used by this and future Presidents to militarily detain people captured far from any battlefield."

Civil libertarians are calling for the specific repeal of Sections 1021 and 1022, asking elected officials to come out in favor of this repeal. Civil libertarian activists are also calling on local governments to pass ordinances and statutes declaring their municipalities and states "Bill of Rights Enforcement Zones" or "Rendition-free Zones."

The ACLU believes that "the breadth of the NDAA's detention authority violates international law because it is not limited to people captured within the context of an actual armed conflict as required by the laws of war." Sections 1021 and 1022 pose a threat to U.S. citizens on U.S. soil who may be seized and held indefinitely because of so-called "belligerent acts."

For a long while we have been hearing apocalyptic predictions about the end of the world through solar flares, natural disasters, invasions from outer space, and the like. All that is believed to be slated for December 2012.

But what most of the nation doesn't realize is that the end of our basic civil liberties, in place since the December 1791, ratification of the Bill of Rights, has already taken place.

[Bob Fitrakis and Harvey Wasserman have co-authored four books about election protection. Bob's Fitrakis Files are at freepress.org, where this article was first published. Harvey Wasserman's History of the U.S. is at HarveyWasserman.com, along with Solartopia! Our Green-powered Earth. Read more of Harvey Wasserman and Bob Fitrakis' writing on The Rag Blog.]

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Imprisonment Without Trial : The American Way?

Image from the ACLU.
When we fail our own ideals:
The unconstitutional practice
Of indefinite detention

By Ted McLaughlin / The Rag Blog / March 21, 2010

When our forefathers created this great nation, one of the ills they desperately wanted to correct was to insure that government could no longer put people in prison and keep them there for extended periods of time without a trial.

This was a tactic many governments had used to stifle free speech and punish people who they didn't like. Because this is anathema in a free country, the writers of the Constitution included safeguards like habeas corpus to rein in those kind of governmental powers.

Sometimes in our history, we have not lived up to that ideal of justice. For instance, almost everyone now believes it was wrong for the U.S. government to imprison American citizens of Japanese descent during the Second World War. These people had committed no crime and posed no real danger to this country. Their incarceration was due to a racist and irrational fear.

We are now doing it again. We have been holding and torturing people (although I hope the torture has now been stopped) in Guantanamo Bay for many years without giving them a trial. This started under the administration of George Bush, when he decided he could imprison Muslims without reason or trial just by labeling them enemy combatants or terrorists, and keep them in prison for as long as he wanted.

To his shame, President Obama has continued this unconstitutional practice. He is now considering moving these prisoners out of Guantanamo Bay and into either another prison in Bagram in Afghanistan or a facility here in the United States. He is trying to do this to keep his promise to close the facility in Guantanamo Bay. Personally, I think this looks far more like a shell game than an effort to keep a promise.

What difference does it make whether these people are imprisoned in Guantanamo Bay, Afghanistan, or the United States? They are still being imprisoned with no charges and no trial, and are not allowed to present a defense or make a plea to be released. This is exactly the kind of thing our forefathers tried their best to prevent.

Now I know some will say these are prisoners of war and should be held until the war ends. The fact that not all of them were soldiers captured by our own troops belies this. Not to mention the fact that many have been released already. Others say they are terrorists and we will put ourselves in danger by releasing them. But a nation governed by the rule of law does not put people in prison because they may be scary people.

If scaring people was all it took to put people behind bars without a trial and deny them the right to defend themselves, then thousands of scary Americans should be behind bars right now. Frankly, Glenn Beck, Rush Limbaugh, Michele Bachmann, the KKK, the John Birch Society, the teabaggers, and anti-choice people who believe murder is a legal political act scare me far more than any so-called terrorist.

But I'll just have to wait until these people, vile though they may be, actually break a law. Because that's the way things are done in a country governed by the rule of law. We only arrest lawbreakers and then we give them a fair trial. And that's exactly what should happen to those that have been imprisoned in Guantanamo Bay.

Every prisoner in Guantanamo Bay should be given a constitutionally-fair trial if there is evidence that they have broken a law. If there is no evidence (or the evidence was gained through torture), then they should be released. Justice should always outweigh politics, and no person should be kept in prison for purely political reasons.

It comes down to something as simple as doing the right and just thing.

[Rag Blog contributor Ted McLaughlin also posts at jobsanger.]

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Losing Our Humor Over Guantanamo

On Guantánamo, Lawmakers Reveal They Are Still Dick Cheney’s Pawns
By Andy Worthington / October 6, 2009

I like to believe that, despite studying Guantánamo for four years, I still have a sense of humor, but last Thursday I lost it, after 258 members of the House of Representatives (including 88 members of President Obama’s own party) voted for an idiotic, paranoid and unjust motion proposed by Rep. Hal Rogers (R-Ken.), which was designed to “Prohibit the transfer of GITMO prisoners, period” (those were his exact words). Just 163 Representatives voted against the motion, which, as JURIST described it, also supports “adding Guantánamo detainees to the federal ‘no fly’ list, and adopting Senate language forbidding the release of photos showing detainee abuse.”

Just in case there was any doubt about the motion, Rep. Rogers, in his inimitable style, explained that he was concerned with “protecting the American people from all threats … including the warped intentions of terrorists and radical extremists,” and proceeded to explain that “This motion strengthens the House bill’s current restrictions on Guantánamo Bay detainees by ensuring their names have been put on the No Fly list and by clearly prohibiting their transfer to the United States — for whatever reason.”

After lambasting the Obama administration for having “No plan” for how to close Guantánamo, Rep. Rogers explained that “this motion prohibits the granting of any immigration benefit for any reason. Without such a benefit, there is no legal way to bring these terrorists to American soil and in our constituents’ backyards. And, that means these terrorists cannot be granted the same constitutional rights as American citizens.”

He added, “After all, these detainees are enemy combatants, caught on the battlefield. They are NOT common criminals and they should not be granted legal standing in our criminal courts by bringing them onto US soil. From my point of view, we cannot waver on this issue, nor can we be weak. There is no reason these terrorists, who pose a serious and documented threat to our nation, cannot be brought to justice right where they are in Cuba. And, I certainly think that is where the American people stand on this issue — they don’t want these terrorists in their hometowns, inciting fellow prisoners, abusing our legal system, and terrorizing their communities.”

This, then, is the reason that I have lost my sense of humor. In May, members of the US Senate voted by 90-6 to approve an amendment to the Supplemental Appropriations Act of 2009, eliminating $80 million from planned legislation intended to fund the closure of Guantánamo, and specifically prohibiting the use of any funding to “transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States.” Defending the amendment, Senate Majority Leader Harry Reid (D-NV), speaking for himself and his spineless colleagues who had bowed to a Republican fearmongering campaign, said, “This is neither the time nor the bill to deal with this. Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president. We will never allow terrorists to be released into the United States.”

In June, the House of Representatives followed up by passing a spending bill turning down the administration’s request for $60 million to close Guantánamo, which, as JURIST described it, “placed limits on the government’s ability to transfer detainees to the US and release detainees to foreign countries.” Approved by a vote of 259-157, the bill also prohibited funds from being used to release detainees from Guantánamo into the United States. In JURIST’s words, “The legislation [requires] the president to submit to Congress a detailed plan documenting the costs and risks of transferring a detainee to the US for trial or detention at least two months before the detainee is to be transferred. Additionally, the president [has] to notify the governor and legislature of the state to which the detainee is to be transferred at least 30 days before the transfer and must show that the detainee does not pose a security risk. The bill also requires that the president submit a report to Congress before releasing a detainee into his country of origin or last habitual residence unless that country is the US.

Last Thursday’s vote was for a non-binding motion to instruct conferees to follow Rep. Rogers’ motion (see an explanation here) rather than binding legislation, but, at the very least, it signals that lawmakers on both sides of the aisle are determined to scupper Barack Obama’s pledge to close Guantánamo by January 22, 2010, for two indefensible reasons.

The first is the NIMBY card (Not In My Back Yard), in which lawmakers wail, as Rep. Rogers put it, that “the American people … don’t want these terrorists in their hometowns, inciting fellow prisoners, abusing our legal system, and terrorizing their communities.” This requires everyone involved to conveniently forget that America’s Supermax prisons are the envy of prison-lovers the world over, that convicted mass-murdering criminals — including some convicted of terrorism — are safely locked away in these prisons, and that the rest of the world is looking on and laughing at the lawmakers’ feeble paranoia.

However, the second reason for my despair is rather more fundamental. To hear Harry Reid, the Senate Majority Leader, use the word “terrorists” when referring to the Guantánamo prisoners, and to hear this same word repeated ad infinitum by Rep. Rogers, and by those many members of the Senate and the House who have persistently voted to prevent the closure of Guantánamo, is to step back into those dark months after the 9/11 attacks, when former Vice President Dick Cheney and his closest advisors were hatching their plans to hold anyone who ended up in US custody as an “enemy combatant” — in other words, neither as a criminal nor as a prisoner of war, but as a whole new category of non-being without rights.

It involves stepping back to a time when Cheney and his associates were hatching their plans to hand out bounty payments, averaging $5,000 a head, to the US military’s Afghan and Pakistani allies, who seized at least 86 percent of the men who ended up in Guantánamo, the majority of whom were not “caught on the battlefield,” as Rep. Rogers cla.

It also involves stepping back to when these same men — and defense secretary Donald Rumsfeld — were hatching their plans to prevent the military from conducting competent tribunals under Article 5 of the Geneva Conventions.

Pioneered by the US, and conducted during every war from Vietnam onwards, competent tribunals were designed to separate soldiers from civilians, in situations in which enemy soldiers did not wear uniforms, by holding tribunals close to the time and place of capture, in which these men could call witnesses to establish their credentials. In the first Gulf War, these tribunals led to nearly three-quarters of 1,200 men being released, but in Afghanistan the administration’s decision not to proceed with the tribunals (which was dictated from the highest levels of government) not only contributed to the filling of Guantánamo with people who were neither soldiers nor terrorists, but also led the administration to conclude that the humane standards of treatment required by the Geneva Conventions for all prisoners (whether uniformed personnel or not) did not apply to “enemy combatants.”

This was just the beginning. Voting to prevent the Obama administration from bringing Guantánamo prisoners to the US for any reason — even for federal court trials — endorses the notion that, having randomly rounded up hundreds of prisoners, and having refused to screen them, it was then justifiable to deprive them of the protections of the Geneva Conventions and to transport them to Guantánamo, where they continued to be held without rights, and where, if the lawmakers had their way, they would remain in that perpetual limbo.

What the nation’s lawmakers seem to be forgetting is that the legal black hole of Guantánamo’s early years was only maintained until June 2004, when no less a body than the US Supreme Court was required to intervene. The Supreme Court took the unprecedented step of granting the prisoners habeas corpus rights because, although some of them may well have been soldiers, who should have been held as prisoners of war, or terrorists, who should have been prosecuted as criminals, the Bush administration’s decision to hold them as “enemy combatants” without rights meant that those who claimed that they were innocent men seized by mistake — perhaps in connection with those bounty payments mentioned above — had no way whatsoever of challenging the basis of their detention. Without the intervention of the Supreme Court, they could have been held for the rest of their lives without ever having been screened adequately to determine whether they were, in fact, terrorists, soldiers or innocent men seized by mistake or sold for money.

Even then, this miserable story was far from over, as lawmakers should recall. In an attempt to ignore the impact of the Supreme Court’s ruling, the Bush administration introduced one-sided military tribunals to evaluate the prisoners’ cases, relying on supposed evidence that in fact consisted largely of “confessions” extracted from other prisoners, either through torture or coercion, or through bribery (the promise of better living conditions, or the false promise of freedom), and persuaded Congress (including many of the same cowardly propagandists responsible for the votes in May, June and last Thursday) to pass two hideously flawed pieces of legislation — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — which purported to strip the prisoners of the habeas rights granted by the Supreme Court.

Last June, the Supreme Court rose up again, this time granting the prisoners constitutionally guaranteed habeas corpus rights, and setting in motion a process of reviews that, to date, has led to District Court judges examining the government’s supposed evidence in 38 cases, and ruling that, in 30 of these cases (in other words, in 79 percent of the cases), the government failed to establish that the men in question were members of, or supported al-Qaeda and/or the Taliban. If the lawmakers cared to read the rulings, they would discover that this was largely because the judges concluded that the government was relying on supposed evidence that in fact consisted largely of “confessions” extracted from other prisoners, either through torture or coercion, or through bribery (the promise of better living conditions, or the false promise of freedom).

Fortunately, the lawmakers are no longer able to prevent these cases from taking place — as no doubt, if they were able, they would yet again cast the remaining prisoners into a lawless abyss — but by making such sweeping generalizations about the “terrorists” in Guantánamo, and about preventing the government from transferring any of these “terrorists” to the US mainland to be imprisoned and to face trials, they are committing a number of grievous errors.

They are preventing justice from being delivered in the cases of the small number of prisoners actually accused of involvement in the 9/11 attacks and other acts of international terrorism, and they are shamelessly, ridiculously, and unforgivably tarring everyone held at Guantánamo as a “terrorist,” even though the majority of the men have never been charged with any crime, even though the lack of screening and the bounty payments that I mentioned above have been assiduously chronicled by lawyers and writers — myself included — who have not succumbed to a witless parroting of Dick Cheney’s hollow propaganda, and even though judges in US courts continue to demonstrate that, behind the hype and hyperbole, the majority of these men are not “terrorists” at all.

My sense of humor will return (you don’t deal with Guantánamo day in and day out without having a sense of humor, however dark), but my despair at the spinelessness and stupidity of the majority of the nation’s lawmakers will only dissipate when these men and women can be bothered to examine the facts, rather than letting themselves remain infected by the lies and paranoia of the most disgraceful Vice President in American history.

[Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK).]

Source / Andy Worthington

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Bush Lawyer: Prolonged Indefinite Detention Already Widespread

A flag waves behind the barbed and razor-wire at the Guantanamo Bay detention center. Photo by AP.
Richard Klingler:

'the wartime framework underlying [these tactics] have settled well within the mainstream of the American tradition,' setting the stage for 'a broader recognition of the established legal basis for indefinite detention.'

By Daphne Eviatar / June 9, 2009

At the Senate Judiciary Committee hearing this morning titled “The Legal, Moral, and National Security Consequences of ‘Prolonged Detention,’” it was actually Richard Klingler, a former lawyer in the Office of White House Counsel under President George W. Bush and former general counsel on the National Security Council staff, who presented the dilemma most starkly in his testimony. From his prepared remarks:

The debate over indefinite detention often wrongly focuses on Guantanamo Bay. The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications. The U.S. military indefinitely detains enemy combatants, including members and supporters of al Qaeda and other terrorist organizations, on a wide scale in Iraq and Afghanistan, as well as at Guantanamo, and press reports indicate that U.S. officials work closely with our allies to detain al Qaeda members in other countries.

“Prolonged” detention is thus not something proposed for the future, for just a small subset of Guantanamo detainees. It is, instead, a practice that this Administration is already conducting on a widespread scale, will continue to pursue, and has already defended repeatedly in federal court. No matter how Guantanamo detainees are handled, this Administration will continue, directly or indirectly, to detain hundreds if not thousands of enemy combatants indefinitely in many places for many years to come.

And he added:

“The extent of the current Administration’s continued use of war powers against terrorist organizations is hard to overstate. The Obama Administration has pursued nearly every aspect the prior Administration’s conduct of the war in Iraq and Afghanistan and against terrorist networks globally. As a formal matter, this Administration has embraced nearly all the components of wartime and related Executive powers asserted by its predecessor and then subject to controversy. In addition to continuing indefinite detention in Afghanistan, Iraq, and Guantanamo, and committing to do so for a subset of Guantanamo detainees even once transferred elsewhere, the Administration has, for example:

• continued, according to the Attorney General, a valuable foreign intelligence surveillance program, unsupported by warrants, that critics had characterized as “warrantless wiretapping”;
• continued to use provisions of the previously controversial PATRIOT ACT, including the most contested provisions, which the current FBI Director has defended and sought to have reauthorized;
• asserted through a Presidential Signing Statement that the Executive Branch would treat certain statutory provisions infringing on the President’s constitutional powers, as determined by the President, as “precatory” or “advisory”;
• denied habeas corpus rights to detainees held by the military at Bagram, Afghanistan and elsewhere beyond Guantanamo, avoiding judicial review of detention decisions previously criticized as creating a “legal black hole”;
• continued the robust use of the “state secrets doctrine” to prevent disclosure in litigation of national security information;
• fought against disclosure of documents, under the Freedom of Information Act, where the military finds that release would harm the national security;
• declined to extend the protections of the Geneva Conventions for prisoners of war to members of al Qaeda;
• continued to act against designated financiers of terrorism, and against would-be travelers placed on “terror watch lists,” without affording the affected individuals the due process protections demanded by critics; and
• committed to continue use of military commissions, virtually unmodified beyond formal recognition of requirements previously imposed by military judges. [All emphasis added.]

The upshot of all this, said Klinger, is that “the wartime framework underlying [these tactics] have settled well within the mainstream of the American tradition,” setting the stage for ” a broader recognition of the established legal basis for indefinite detention.”

That was clearly not what Sen. Russ Feingold (D-Wis.) hoped to establish by holding today’s hearing, which also included testimony from a range of established international law and human rights experts about the dangers such tactics have created. But Klinger’s testimony, although perhaps framed to legitimize the Bush administration’s actions now under assault, did make clear the importance of Congress taking a hard look at what the current administration is doing under its watch.

Source / The Washington Independent

Also see Statement of U.S. Senator Russ Feingold on 'Prolonged Detention' / CommonDreams / June 9, 2009

And go to Incoming: More Torture Documents By Dan Froomkin / Washington Post / June 10, 2009

Thanks to S.M. Wilhelm / The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Obama's Preventive Detention Policy Explained

See Rachel Maddow video below.

Facts and myths about Obama's preventive detention proposal
By Glenn Greenwald / May 22, 2009

In the wake of Obama's speech on Thursday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions). I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting:

(1) What does "preventive detention" allow?

It's important to be clear about what "preventive detention" authorizes. It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding. That class is merely a subset, perhaps a small subset, of who the Government can detain. Far more significant, "preventive detention" allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally "dangerous" by the Government for various reasons (such as, as Obama put it yesterday, they "expressed their allegiance to Osama bin Laden" or "otherwise made it clear that they want to kill Americans"). That's what "preventive" means: imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be "combatants."

Once known, the details of the proposal could -- and likely will -- make this even more extreme by extending the "preventive detention" power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a "combatant." After all, once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain "dangerous" people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly "dangerous" combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(2) Are defenders of Obama's proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush's executive power expansions by asking them: "Do you really want these powers to be exercised by Hillary Clinton or some liberal President?"

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama's proposal of "preventive detention," shouldn't you first ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I'm comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents -- including Republicans -- having the power of indefinite "preventive detention"?

(3) Questions for defenders of Obama's proposal:

There are many claims being made by defenders of Obama's proposals which seem quite contradictory and/or without any apparent basis, and I've been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed -- and many Obama supporters are now insisting as well -- that there are hard-core terrorists who cannot be convicted in our civilian courts. For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion. What convinced you to believe that genuine terrorists can't be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can't possibly release, how do you know they are "dangerous" if they haven't been tried? Is the Government's accusation enough for you to assume it's true?

Above all: for those justifying Obama's use of military commissions by arguing that some terrorists can't be convicted in civilian courts because the evidence against them is "tainted" because it was obtained by Bush's torture, Obama himself claimed just yesterday that his military commissions also won't allow such evidence ("We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods"). How does our civilian court's refusal to consider evidence obtained by torture demonstrate the need for Obama's military commissions if, as Obama himself claims, Obama's military commissions also won't consider evidence obtained by torture?

Finally, don't virtually all progressives and Democrats argue that torture produces unreliable evidence? If it's really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence -- evidence we obtained by torture -- should be the basis for concluding that someone is so "dangerous" that they belong in prison indefinitely with no trial? If you don't trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as "dangerous"?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to "preventive detention" and that his proposal therefore isn't radical ("other countries have grappled with this question; now, so must we"). Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question. In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days -- and then either have to charge them or release them. In 2006, Prime Minister Tony Blair -- citing the London subway attacks and the need to "intervene early before a terrorist cell has the opportunity to achieve its goals" -- wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days -- a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown's own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty. Ultimately, Brown's 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite -- meaning without any end, potentially permanent. There's no time limit on the "preventive detention." Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do. The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being "the worst of the worst" yet ended up being released because they did absolutely nothing wrong. Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high? For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now? Here is what Anne-Marie Slaughter -- now Obama's Director of Policy Planning for the State Department -- said about Bush's "POW" comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this "war" "a year from now, five years from now, and -- in all probability -- 10 years from now." No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage. That's why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it "due process" when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

(7) Can we "be safe" by locking up all the Terrorists with no charges?

Obama stressed yesterday that the "preventive detention" system should be created only through an act of Congress with "a process of periodic review, so that any prolonged detention is carefully evaluated and justified." That's certainly better than what Bush did: namely, preventively detain people with no oversight and no Congressional authorization -- in violation of the law. But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn't make it justified. As Professor Amann put it: "no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty." Dan Froomkin said that no matter how many procedures are created, that's "a dangerously extreme policy proposal."

Regarding Obama's "process" justification -- and regarding Obama's primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe -- Digby said it best:

We are still in a "war" against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be "the enemy" forever. The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It's nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a "danger to Americans.")

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That's just not true. Guantanamo is a symbol, true, but it's a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn't solve the problem.

I know it's a mess, but the fact is that this isn't really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It's patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they "can't kill Americans."

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the "war" will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama's speech. His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable. But the fact that a Democratic President who ran on a platform of restoring America's standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention -- something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters -- is by far the most consequential event yet in the formation of Obama's civil liberties policies.

UPDATE: Here's what White House Counsel Greg Craig told The New Yorker's Jane Mayer in February:

"It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law," Craig said. "Our presumption is that there is no need to create a whole new system. Our system is very capable."

"The first President of the United States to introduce a preventive-detention law" is how Obama's own White House Counsel described him. Technically speaking, that is a form of change, but probably not the type that many Obama voters expected.

UPDATE II: Ben Wizner of the ACLU's National Security Project is the lead lawyer in the Jeppesen case, which resulted in the recent rejection by the 9th Circuit Court of Appeals of the Bush/Obama state secrets argument, and also co-wrote (along with the ACLU's Jameel Jaffer) a superb article in Salon in December making the case against preventive detention. I spoke with him this morning for roughly 20 minutes regarding the detention policies proposed by Obama in yesterday's speech. It can be heard by clicking PLAY on the recorder below. A transcript will be posted shortly.



UPDATE III: Rachel Maddow was superb last night -- truly superb -- on the topic of Obama's preventive detention proposal:



UPDATE IV: The New Yorker's Amy Davidson compares Obama's detention proposal to the internment of Japanese-Americans during World War II (as did Professor Amann, quoted above). Hilzoy, of The Washington Monthly, writes: "If we don't have enough evidence to charge someone with a crime, we don't have enough evidence to hold them. Period" and "the power to detain people without filing criminal charges against them is a dictatorial power." Salon's Joan Walsh quotes the Center for Constitutional Rights' Vincent Warren as saying: "They’re creating, essentially, an American Gulag." The Philadelphia Inquirer's Will Bunch says of Obama's proposal: "What he's proposing is against one of this country's core principles" and "this is why people need to keep the pressure on Obama -- even those inclined to view his presidency favorably."

UPDATE V: The Atlantic's Marc Ambinder -- who is as close to the Obama White House as any journalist around -- makes an important point about Obama that I really wish more of his supporters would appreciate:

[Obama] was blunt [in his meeting with civil libertiarians]; the [military commissions] are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

Ambinder doesn't mean me personally or exclusively; he means people who are criticizing Obama not in order to harm him politically, but in order to pressure him to do better. It's not just the right, but the duty, of citizens to pressure and criticize political leaders when they adopt policies that one finds objectionable or destructive. Criticism of this sort is a vital check on political leaders -- a key way to impose accountability -- and Obama himself has said as much many times before.

It has nothing to do with personalities or allegiances. It doesn't matter if one "likes" or "trusts" Obama or thinks he's a good or bad person. That's all irrelevant. The only thing that matters is whether one thinks that the actions he's undertaking are helpful or harmful. If they're harmful, one should criticize them. Where, as here, they're very harmful and dangerous, one should criticize them loudly. Obama himself, according to Ambinder, "finds this outside pressure healthy and useful." And it is. It's not only healthy and useful but absolutely vital.

UPDATE VI: Bearing in mind what Obama repeatedly pledged to do while running, this headline from The New York Times this morning is rather extraordinary:



As Greg Craig put it: "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law."

Source / Salon

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Preserving the Evidence of CIA Secret Detentions

The Combatant Status Review Tribunal Notice is read to a detainee at Guantanamo Bay, Cuba, July 13. Photo by Airman Randall Damm, USN.
CIA Director Asked to Preserve Secret Prisons
By William Fisher / April 17, 2009

NEW YORK -- Lawyers for a Guantanamo detainee who claims he was held and tortured in one of the "black site" secret prisons run by the U.S. Central Intelligence Agency is demanding that the CIA preserve cells and interrogation paraphernalia there as evidence of mistreatment.

Military and civilian counsel to Abd Al-Rahim Hussain Mohammed al-Nashiri sent a letter to CIA Director Leon Panetta requesting that the CIA "black site" buildings, interrogation cells, prisoner cells, shackles, waterboards and other equipment be preserved for inspection and documentation.

Disclosure of the letter came on the heels of Thursday's release of four more top-secret "legal memoranda" prepared by the Justice Department's Office of Legal Counsel during the administration of former President George W. Bush. The memos approved "enhanced" interrogation techniques they claimed were not torture – a claim rejected by both the Barack Obama administration and human rights advocates. Nine other OLC memos were previously released by the Obama administration.

OLC is the DOJ office that provides authoritative legal advice to the president and all executive branch agencies. It drafts legal opinions of the attorney general and also provides its own written opinions and oral advice in response to requests from the executive branch.

Al-Nashiri, who is now detained at Guantánamo, was held in the secret CIA prison facilities from 2002 to 2006. While President Obama has ordered the closure of CIA black sites, al-Nashiri's attorneys are concerned that the CIA intends to destroy the sites, including the buildings and the equipment used to interrogate and torture al-Nashiri and other detainees. They say that would amount to destroying evidence of his mistreatment.

Panetta told CIA personnel on April 9, 2009, that the CIA would be "decommissioning" the CIA secret facilities. The letter asks Panetta to "preserve all the secret sites."

The CIA has admitted that al-Nashiri was subjected to waterboarding while in CIA custody. Videotapes depicting his abusive interrogations have already been destroyed by the agency and are the subject of ongoing litigation by the American Civil Liberties Union (ACLU).

Through its John Adams Project with the National Association of Criminal Defense Lawyers, the ACLU worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees including al-Nashiri during the military commissions process.

The lawyers' letter put Panetta "on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself."


The lawyers added, "We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them."

They note that Panetta's predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to waterboarding, "which is a form of torture, while in the custody of the CIA."

According to the recently released report from the International Committee of the Red Cross (ICRC), 'waterboarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA," the lawyers' letter said.

They claim that, according to the ICRC report, "While in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time - extending to several days - and was threatened with sodomy and with the rape and arrest of his family members."

Throughout that time, the letter says, Al-Nashiri "was not able to communicate with his family, a lawyer or anyone. Effectively the CIA 'disappeared' him for four years while it tortured him at will and beyond the eyes of the world."

The CIA and other government agencies also admitted to the purposeful destruction of at least 92 videotapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of videotapes of waterboarding and other observations of Mr. Al-Nashiri, the letter says.

It concludes, "Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA's plan until after the tapes had been destroyed and now they are forever gone."

"Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites - including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri - before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence - namely the actual secret facilities themselves," the lawyers wrote.

Al-Nashiri was charged in the military commission with offences that carried the death penalty. His lawyers note that, "Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted."

Evidence held by the CIA "is exculpatory evidence" and Al-Nashiri "will be entitled to it."

The letter concludes: "The CIA's secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons."

Following Thursday's release of the four OLC memos, it is likely that the government's treatment of detainees will attract increased public scrutiny – despite President Obama's pledge to close Guantanamo Bay and CIA black site prisons.

Continuing concern about U.S. credibility in war-on-terror detentions and prosecutions has been voiced by many U.S. legal scholars. David Cole, one of the country's preeminent constitutional authorities, told IPS, "For better or worse, the U.S. is a world leader on matters of human rights. When the U.S. violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism."

Source / IPS News North America

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

The Machiavellian Game of Distraction: Will It Continue with Obama?

Bagram Air Force Base, Afghanistan
Obama's Guantanamo? Bush's Living Legacy at Bagram Prison
By Karen J. Greenberg / March 5, 2009

Just when you think you've woken up from a bad dream…

When it comes to offshore injustice and secret prisons, especially our notorious but little known prison at Bagram Air Base in Afghanistan, let's hope the Obama years mean never having to complete that sentence.

In the Bush era, those of us who followed his administration's torture, detention, and interrogation policies often felt like we were unwilling participants in a perverse game of hide-and-seek. Whenever one of us stumbled upon a startling new document, a horrific new practice, a dismal new prison environment, or yet another individual implicated in torture policy, the feeling of revelation would soon be superseded by a sneaking suspicion that we were once again looking in the wrong direction, that the Bush administration was playing a Machiavellian game of distraction with us.

Okay, call it paranoia -- a state of mind well suited to the Age of Cheney -- but when Abu Ghraib finally came to light, it turned out that our real focus should have been on the administration's program of "extraordinary rendition" and the CIA secret flights to the foreign countries that were serving as proxy torturers for the United States. And when one case of torture by proxy, that of Maher Arar, achieved some prominence, we began looking at proxy torturers for the United States, when we should have been looking at legalized policies of torture by the U.S.

Several years ago, British human rights lawyer Clive Stafford Smith placed that jewel in the Bush administration's offshore crown of injustice, Guantanamo, in the category of distraction as well -- distraction, that is, from the far grimmer and more important American detention facility at Bagram Air Base in Afghanistan.

Distracted or not, for at least five years some of us have been seeking the hidden outlines of the torture story. Now, President Obama has given it a visible shape by providing a potential endpoint if not to our investigations, then to our focus. Much of what we focused on in these last years he's declared to be history. Guantanamo will be closed within a year and the American role in the war in Iraq will end as well; torture will once again be banned; a new task force, already assembled, will review all the Bush administration's detention policies; and people like me will, assumedly, finally be out of work and able to write those novels we used to dream about. For us, no more unwelcome obsessions with detention, abuse, and torture.

Bad Times at Bagram

Still, ever since the Oval Office changed hands in January, I've had a nagging feeling that something was amiss. And when I finally focused on it, a single question kept coming to mind: Whatever happened to the U.S. prison at Bagram?

I knew that it had been opened in 2002 on an abandoned Soviet air base the U.S. had occupied and was being massively upgraded after the invasion of Afghanistan, and that its purpose was to hold prisoners in the Global War on Terror at a place as far removed as possible from the prying eyes of American courts or international oversight bodies of any sort. In fact, many of those eventually transported to Guantanamo were originally held under even worse conditions at Bagram and, from early on, they had reported beatings, abuse, and a startlingly wide range of other forms of mistreatment there.

But what else did I know? Thanks to New York Times reporters Carlotta Gall, David Rohde, Tim Golden, and Eric Schmitt, as well as to Alex Gibney's documentary film Taxi to the Dark Side, I knew that two Afghans, Dilawar and Jullah Habibullah, had been beaten to death by U.S. Army interrogators at the prison in December 2002. I also knew that the use of such beatings, as well as various other forms of torture, had been normalized at Bagram at the very beginning of the Bush administration's long march of pain that led to Guantanamo and then on to Abu Ghraib and other prisons in Iraq as well as foreign torture chambers.

From the 2004 Church Report (written by Naval Inspector General Admiral T. Church), I knew that military interrogators and guards at Bagram had been given next to no relevant training for the mission of detention and interrogation. I knew as well that a secret CIA prison was allegedly located apart from the regular detention cells at Bagram. I knew that military officials had declared that the interrogation techniques at Bagram seemed to work better than those being used at Guantanamo in the same period. And that, after the Supreme Court issued a decision in 2004 to allow prisoners at Guantanamo to challenge their detentions, the prison population at Bagram began to grow.

What We Don't Know About a Prison Nightmare

But that was the past. What did I know about the situation in the first weeks of the Obama era?

The unnerving answer was precious little. So, as I had done with Guantanamo and Abu Ghraib, I began by asking the simple questions that had once been so difficult to answer about so many offshore detention facilities of the Bush era: Who was being held at Bagram? How many prisoners were there and from which countries? What status did they have? Were they currently classified as "enemy prisoners of war" or -- in the phrase the Bush administration had so favored in an attempt to confound U.S. courts -- "unlawful enemy combatants"? How were they being treated? What reports on prison conditions had either the U.S. government or interested non-governmental organizations released?

Setting aside the frustrations of the past seven years, I naively tried a basic Google search to see just what was instantly available, only to discover that the answer was essentially nothing.

It turns out that we can say very little with precision or confidence about that prison facility or even the exact number of prisoners there. News sources had often reported approximately 500-600 prisoners in custody at Bagram, but an accurate count is not available. A federal judge recently asked for "the number of detainees held at Bagram Air Base; the number of Bagram detainees who were captured outside Afghanistan; and the number of Bagram detainees who are Afghan citizens," but the information the Obama administration offered the court in response remains classified and redacted from the public record.

We don't even know the exact size of the prison or much about the conditions there, although they have been described as more spartan and far cruder than Guantanamo's in its worst days. The International Committee of the Red Cross has visited the prison, but it remains unclear whether they were able to inspect all of it. A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention.

We do know that a planned expansion of the facility is underway and will -- if President Obama chooses to continue the Bush project there -- enable up to 1,100 prisoners to be held (a step which will grimly complement the "surge" in American troops now underway in Afghanistan). There are no figures available on how long most of Bagram's prisoners have been held -- although some, it seems, have been imprisoned without charges or recourse for years -- or how legal processes are being applied there, if at all. Last spring, the International Herald Tribune reported that Afghans from Bagram were sometimes tried in Afghan criminal proceedings where little evidence and no witnesses were presented.

To students of Guantanamo, this sounds uncomfortably familiar. And there's more that's eerily reminiscent of Gitmo's bleak history. According to the New York Times, even four years after Bagram was established, wire cages were being used as cells, with buckets for toilets -- as was also true of the original conditions at Camp X-Ray, the first holding facility at Guantanamo. Similarly, as with Guantanamo, the U.S. has no status of forces agreement with Afghanistan, and so the base and prison can be closed or turned over to the Afghans only on U.S. say-so. Above all, while some Bagram detainees do have lawyers, most do not.

The Prison Where It All Began

While I was wondering about the state of our black hole of incarceration in Afghanistan, the Obama administration issued its first terse statement on the subject. When it came to granting Bagram detainees habeas rights (that is, the right to challenge their detention in U.S. courts), the administration simply stated that it "adheres to [the Justice Department's] previously articulated position": habeas would not be granted.

After all, reasoned the new government lawyers (like their predecessors), Bagram is in an indisputable war zone and different legal considerations should apply. But here's the catch neither the Bush administration, nor evidently the Obama administration, has cared to consider: It's quite possible that these four individuals, like others at Bagram, were not captured on an Afghan battlefield (as the prisoners claim), but elsewhere on what Bush officials liked to think of as the "global battlefield" of the War on Terror, and then conveniently transported to Bagram to be held indefinitely.

The U.S. government refuses to make public any documentation that would support its case and the new court documents, submitted by the lawyers of the Obama Justice Department, are frustratingly blacked out just as those of the Bush era Justice Department always were. At least for the moment then, when it comes to Bagram, tactics and arguments remain unchanged from the Bush years. No wonder journalists and human rights lawyers have lately taken to referring to that prison as the "other Guantanamo," or "Guantanamo II," or more combatively, "Obama's Guantanamo."

Sadly, however, even this is inaccurate. From the get-go, Guantanamo was actually the "other Bagram." The obvious question now is: How will the Obama administration deal with this facility and, in particular, with matters of detention, "enforced disappearance," and coerced testimony? Will these be allowed to continue into the future, Bush-style, or will the Obama administration extend its first executive orders on Guantanamo and torture practices to deal in new ways with the prison where it all began?

Facing Crimes of the Bush Era

President Obama has given a newly convened task force six months -- a long time when people are being held in harsh conditions without charges or recourse -- to consider the matter of Bush administration detention practices and formulate new policies (or, of course, retain old ones). Here are some guidelines that may prove helpful when it comes to Bagram:

1. On secrecy: The appeal to secrecy and national security has been an all-purpose refuge of official rogues for the last seven years. Reconsider it. A sunshine policy should apply, above all else, to detention practices. Ideally, the U.S. should simply release full information on Bagram and the prisoners being held there. When, in specific cases, information is not divulged, the reasons for not doing so should be fully revealed. Otherwise, the suspicion will always arise that such withheld information might be part of a cover-up of government incompetence or illegality. That must be ruled out. It is imperative that President Obama's administration not double down on the Bush administration's secrecy policy from a desire not to look back and so to avoid future prosecutions of Bush officials.

2. On classification of prisoners: The Obama administration should seriously consider declaring the prisoners at Bagram to be "prisoners of war," and so subject to the Geneva Conventions. Currently, they are classified as enemy combatants, as are the prisoners at Guantanamo, and so, in the perverse universe of the Bush administration, free from any of the constraints of international law. The idea that the Conventions are too "rigid" for our moment and need to be put aside for this new extra-legal category has always been false and pernicious, primarily paving the way for the use of "enhanced interrogation techniques."

3. On "ghost prisoners": The Obama administration should reject out of hand the idea that prisoner invisibility is acceptable anywhere, including at Bagram. The International Committee of the Red Cross must be granted access to all of the prisons or prison areas at Bagram, while conditions of detention there should be brought into accordance with humane treatment and standards. No "ghost prisoners" should be allowed to exist there.

4. On guilt and innocence: The belief that there is a categorical difference between guilt and innocence, which went by the wayside in the last seven years, must be restored. All too often, the military brass still assumes that if you were rounded up by U.S. forces, you are, by definition, guilty. It's time to change this attitude and return to legal standards of guilt.

In the Bush years, we taught the world a series of harmful lessons: Americans can be as cruel as others. Americans can turn their backs on law and reciprocity among nations as efficiently as any tribally organized dictatorship. Americans, relying on fear and the human impulse toward vengeance, can dehumanize other human beings with a fervor equal to that of others on this planet.

It's time for a change. It's time, in fact, to face the first and last legacy of Bush detention era, our prison at Bagram Air Base, and deal with it.

Call me a perpetual optimist, but President Obama has the right team in place to address this nightmarish legacy in a wise and timely way. We should expect no less from them than a full restoration of a government responsible to the law, and confident of its power to deter enemies legally -- be it on the battlefield or in the courtroom. So, too, we must expect them to possess the courage to confront truths, even if those truths mean heading down the path towards the prosecution of crimes of the Bush years.

[Karen J. Greenberg is the Executive Director of the Center on Law and Security at the New York University School of Law. Her latest book, The Least Worst Place, Guantanamo's First 100 Days (Oxford University Press), has just been published. She is also the co-editor of The Torture Papers: The Road to Abu Ghraib, among other works.]

Copyright 2009 Karen J. Greenberg

Source / TomDispatch

The Rag Blog

[+/-] Read More...

[+/-] Summary only...