May 11 2012

Torture: The Bush Administration on Trial


By Andy Worthington

 

While Rodriguez — like John Yoo, Jay S. Bybee and senior Bush administration officials, up to and including the president — have never been criminally prosecuted, it is uncertain whether, overall, the apologists for torture are winning. Despite their protestations over the years, they have no proof that torture worked.

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Law-abiding U.S. citizens have been appalled that Jose Rodriguez, the director of the CIA’s National Clandestine Service until his retirement in 2007, was invited to appear on CBS’s 60 Minutes program last weekend to promote his book, “Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives,” in which he defends the use of torture on “high-value detainees” captured in the Bush administration’s “war on terror,” even though it was illegal under U.S. and international law.

Rodriguez joins an elite club of public officials — including George W. Bush, Dick Cheney, and Donald Rumsfeld — who have not been prosecuted for using torture or authorizing its use. Instead, they have been writing books, going on book tours, and appearing on mainstream TV to attempt to justify their unjustifiable actions.

They all claim to be protected by a “golden shield,” a legal opinion issued by the Justice Department’s Office of Legal Counsel crafted by attorney John Yoo. While the office’s mandate is to provide impartial legal advice to the executive branch, the opinion redefined torture and approved its use — including the use of waterboarding, an ancient torture technique and a form of controlled drowning — on a supposed “high-value detainee,” Abu Zubaydah. The opinion came in the form of two memos, dated August 1, 2002, that will forever be known as the “torture memos.”

A four-year internal ethics investigation concluded in January 2010 that Yoo and Bybee had been guilty of “professional misconduct,” which ordinarily would have led to professional sanctions, but a senior Department of Justice official, David Margolis, overrode that conclusion, stating that both men had been under great pressure following the 9/11 attacks, and had merely exercised “poor judgment,” which was the equivalent of nothing more than a slap on the wrist.

No one bothered mentioning that Article 2.2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the U.S. became a signatory under Ronald Reagan, declares, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

And so, this past Sunday, Jose Rodriguez was invited to undertake his own redefinition of torture, essentially unchallenged, and on mainstream TV. Rodriguez brushed off criticism of the use of torture by saying, “We made some al-Qaeda with American blood on their hands uncomfortable for a few days, but we did the right thing for the right reason. The right reason to protect the homeland and to protect American lives.”

As Amy Davidson noted in The New Yorker, he also “bragged about its use in proving the manhood of the torturer,” stating, “We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed,” and he “talked as if torture were an expression of strength, rather than momentary domination masking the most abject moral and practical weakness.” For Glenn Greenwald, the reference to “big boy pants” exposed “a whole new level of psychosexual creepiness.”

On specific techniques, Rodriguez defended the use of waterboarding by saying, of Khalid Sheikh Mohammed, who was subjected to waterboarding 183 times, “I don’t know what kind of man it takes to cut the throat of someone in front of a camera like that [a reference to KSM’s unproved confession that he personally killed U.S. journalist Daniel Pearl], but I can tell you this is probably someone who didn’t give a rat’s ass about having water poured on his face.”

He also defended the use of physical violence and nudity by pointing out, “The objective is to let him [the detainee] know there’s a new sheriff in town and he better pay attention,” compared sleep deprivation to “jet lag,” and, reflecting on the use of “stress positions” over many hours, said, “I was thinking about this the other day. The objective was to induce muscle fatigue, and most people who work out do a lot more fatiguing of the muscles.”

At another point in the interview, Rodriguez made reference to the psychologists — including James Mitchell and Bruce Jessen — who had worked on the U.S. military’s program for using torture to train U.S. personnel to resist interrogation if captured by a hostile enemy, which was reverse-engineered and provided the basis of the torture program in the “war on terror.” Their particular contribution was to emphasize that detainees must be broken down to a state of “learned helplessness” (a concept developed by U.S. psychologist Martin Seligman in the 1960s), in which all resistance is futile and the detainee becomes completely dependent on his interrogators. Speaking of that, Rodriguez stated, “This program was about instilling a sense of hopelessness and despair on the terrorist, on the detainee, so that he would conclude on his own that he was better off cooperating with us.”

To be spouting all of the above on mainstream TV without, essentially, any comeback from the host, Lesley Stahl, or from those who should be enforcing America’s obligations to prosecute torturers, is depressing enough, but it was not all that was wrong. Rodriguez also spoke openly of the crime for which he is most generally known — the destruction of 92 videotapes that contained the “interrogations” in Thailand of Abu Zubaydah and Abd al-Rahim al-Nashiri, another “high-value detainee” who was waterboarded. As Glenn Greenwald explained last week,

“At the time the destruction order was issued, numerous federal courts — as well as the 9/11 Commission — had ordered the U.S. Government to preserve and disclose all evidence relating to interrogations of Al-Qaeda and 9/11 suspects. Purposely destroying evidence relevant to legal proceedings is called ‘obstruction of justice.’ Destroying evidence which courts and binding tribunals (such as the 9/11 Commission) have ordered to be preserved is called ‘contempt of court.’ There are many people who have been harshly punished, including some sitting right now in prison, for committing those crimes in far less flagrant ways than was done here. In fact, so glaring was the lawbreaking that the co-Chairmen of the 9/11 Commission — the mild-mannered, consummate establishment figures Lee Hamilton and Thomas Kean — wrote a New York Times op-ed pointedly accusing the CIA of ‘obstruction’ (‘Those who knew about those videotapes — and did not tell us about them — obstructed our investigation’).”

As with John Yoo and Jay S. Bybee, Rodriguez was never punished. An investigation into the destruction of the videotapes began under Bush, and continued under Obama, but in November 2010 the Department of Justice announced that the investigation would be closed without filing any charges. As Greenwald explained, Judge Alvin Hellerstein, who had ordered the CIA to preserve and produce the tapes, “refused even to hold the CIA in contempt for deliberately disregarding his own order.” Instead, he “reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA “should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.’”
However, while Rodriguez — like John Yoo, Jay S. Bybee and senior Bush administration officials, up to and including the president — have never been criminally prosecuted, it is uncertain whether, overall, the apologists for torture are winning. For them to succeed in persuading enough ordinary Americans that criminal laws don’t actually apply to the U.S. president, or anyone working for him, they also need to establish that torture kept America safe. On that front, despite their protestations over the years, they have no proof that torture worked.

In his interview, Rodriguez wheeled out the tired old lies about torture’s leading to the capture of “high-value detainees.” In a moment of courage, Lesley Stahl mentioned well-established claims that Abu Zubaydah’s torture had led operatives on countless wild-goose chases, to which Rodriguez replied, “Bullshit. He gave us a road map that allowed us to capture a bunch of al-Qaeda senior leaders.” In contrast, of course, former FBI interrogator Ali Soufan pointed out last year that torture did not yield important leads, and that, for example, information from Abu Zubaydeh pointing to Khalid Sheikh Muhammad’s central role in the 9/11 attacks came before the CIA’s torturers took over his interrogations.

Soufan also pointed out the difference between torturers and skilled interrogators, which CNN described as follows:

“‘There is a difference between compliance and cooperation,’ he said. Compliance can result from torture — a detainee will do anything to make the rough treatment end. But real cooperation, says Soufan, comes from engaging the detainee after learning everything possible about them.”
Torture’s apologists always want to deny the importance of skilled interrogators, who conduct extensive research on their subjects and often spend a long time building up a rapport with them.

In Rodriguez’s case, he also resorted to claims that torture had led to the capture of Osama bin Laden. He told Dana Priest of the Washington Post last week, “I am certain, beyond any doubt, that these techniques, approved at the highest levels of the U.S. government, certified by the Department of Justice, and briefed to and supported by bipartisan leadership of congressional intelligence oversight committees, shielded the people of the United States from harm and led to the capture and killing of Osama bin Laden.”

In response, Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, and Sen. Carl Levin (D-Mich.), the chair of the Senate Armed Services Committee, issued a joint statement (PDF) condemning the remarks made by Rodriguez and others who had leapt on the bandwagon as the anniversary of bin Laden’s death approached. In their statement they said that such remarks were “inconsistent with CIA records” and “misguided and misinformed,” and they expressed their disappointment that “Mr. Rodriguez and others, who left government positions prior to the OBL operation and are not privy to all of the intelligence that led to the raid, continue to insist that the CIA’s so-called “enhanced interrogation techniques’ used many years ago were a central component of our success.”

Their statement, as the New York Times explained, “rebutted various claims that critical information about bin Laden’s courier” came from Khalid Sheikh Mohammed or from Abu Faraj al-Libi, another “high-value detainee” seized in Pakistan in 2005 and held at Guantánamo since September 2006 like Khalid Sheikh Mohammed and 13 other “high-value detainees.” In addition, the Times noted that the statement “rejected claims that tough treatment drew valuable information about bin Laden’s courier from a third detainee, unidentified in the statement,” but elsewhere identified as Hassan Ghul, another “high-value detainee,” who was seized in Iraq in 2004 and who was never held at Guantánamo. The statement noted, “While this third detainee did provide relevant information, he did so the day before he was interrogated by the CIA using their coercive interrogation techniques.”

“Instead,” according to the Times, Sens. Feinstein and Levin stated, without elaborating, that “the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.”

That is important, but what is needed now is for the Senate Select Committee on Intelligence to complete its comprehensive review of the CIA’s former detention and interrogation program and publish it. As the statement also explained, “Committee staff have reviewed more than 6 million pages of records and the Committee’s final report, which we expect to exceed 5000 pages, will provide a detailed, factual description of how interrogation techniques were used, the conditions under which detainees were held, and the intelligence that was — or wasn’t — gained from the program.”

As Dan Froomkin explained in the Huffington Post last Monday, the investigation by Democrats, which has taken nearly three years and in which Republican lawmakers have refused to take part, “concludes that records from the Bush administration fail to support claims that torture was effective in stopping any terrorist attack” or in leading to the discovery and killing of Osama bin Laden last year.

While people such as Jose Rodriguez remain free to peddle their nonsense about torture, and to profit from it, America’s name continues to be tarnished and the American public continue to be shamefully misled. The long-awaited report into the CIA’s torture program should be published as soon as possible to let people know what really happened and, one hopes, to play a part in tearing down the “golden shield” that has so far protected Bush administration’s officials from prosecution.

Submitters Website: http://www.andyworthington.co.uk

Submitters Bio:

Andy Worthington is the author of “The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison” (published by Pluto Press), as well as and “The Battle of the Beanfield” (2005) and “Stonehenge: Celebration and Subversion” (2004). He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo.” Visit his website at: www.andyworthington.co.uk.


Nov 15 2011

Enhanced Interrogation: A Non-Thing

Herman Cain, Michele Bachmann, Rick Perry claimed they would reinstate illegal programs that have been dismissed by experts as ineffective and illegal. They have sought to foster the ignorance in the Republican party that comes with a belief in a non-thing. This non-thing is called, “enhanced interrogation”.

Each of these people continue an insult against real interrogators and other military and civilian service members who have been clear that they seek a trail to what is so, not what is previously concluded and then supported via confession. Whether it is Malcolm Nance, SERE instructor and counterterrorism and intelligence specialist, Matthew Alexander or Col Steve Kleinman, military interrogators who have clearly rejected the idea of an ‘enhanced interrogation’, Glenn Carle, Ali Soufan, the list goes on. Each of these people have come forward to denounce torture and discredit the idea of ‘enhanced interrogation’. Each of these people has direct experience with interrogation and are adamant that torture does not work, that waterboarding wasn’t the only torture happening and that it was not only ineffective but delayed information, sent agents on white noise chases, and in some cases ended in deaths of both civilians and military service members because of the bad intelligence.

OBAMA ALLOWING ACLU TO RUN CIA
It didn’t take long for right wing nonsense like “Obama is allowing the ACLU to run the CIA” to come from Michele Bachmann. If this were true, Guantanamo would be closed, many detainees would be freed, the cases pending would be underway and Dick Cheney would likely be in prison. But from a dog whistle idiot like Bachmann, this is just another tune. She has no respect for the interrogation specialists in the FBI or US military. Though I’m sure some CIA officers are familiar with interrogation now, all accounts by former CIA officers in the public sphere for the past 6 or so years have been clear that no such wing ever existed in CIA until now. At the request of the White House, contractors were used to do what officers wouldn’t. Ali Soufan was there when the shift took place from conventional and probably legal to clearly illegal and clearly values destructive.

Jon Huntsman and Ron Paul disagree. Ron Paul was determined to state that waterboarding is torture. He is correct. Jon Huntsman was even more clear that as an ambassador, he was able to tell first hand how these events shaped views of the United States and that real clout comes from moral compass not this idiot might that is so lauded by the Blind Candidates, Cain, Bachmann, Perry, Romney and Gingrich.

Now while Romney and Gingrich didn’t weigh in on the waterboarding question, to which we can predict their delightful glee at the idea, we can see that Mitt Romney is into the macho ‘kill them’ talk when it comes to Anwar al-Awlaki and even worse was Newt Gingrich. Gingrich couldn’t distinguish between a jury and a presidential finding.

WATERBOARDING AND THE NEWS MEDIA
This play to the extreme is only part of the problem. When the moderators and news junkies continue the ‘enhanced interrogation’ term, they do their viewers and readers a disservice. There is no further enhancement in harming people, even if they are bad people.

Brains, Not Brutality, to take down the deadliest man in Iraq

How To Break A Terrorist by Matthew Alexander

In his book, How To Break A Terrorist, Matthew Alexander describes in detail the interaction with confessed bomb makers. He is able to get past the bullshit of the front each seems to put on. He is a skilled seeker of what is So. He is looking for accurate information to put in a larger picture that will help end bombings. If he gets the wrong information, military resources will likely strike the wrong house resulting in the deaths of both civilians and service members. He is aware of this at all points. Rick Perry could care less about the truth if it would get him more votes.

Ali Soufan knows that Abu Zubaydah was speaking with them before the torture crew of Jessen and Mitchell arrived to fulfill executive orders that were illegal and were not going to get approval from FBI. Herman Cain has never heard of any of these people and wouldn’t be able to tell you the first thing about EITs or CSRTs. Yet as he disavows ‘torture’ he is clear in finding a way to say he’d endorse ‘enhanced interrogation’…as if it existed. This was dog whistle nonsense. Cain is hedging his right wing bets. As GuestBlogger from ThinkProgress noted Cain said he’d accept the wisdom of the military leaders and they have been clear that torture isn’t condone.

Malcolm Nance has clearly issued the call to each of the previous apologists for waterboarding that he can clear up their views if they’d submit to being waterboarded. He knows and the SERE program knows. Waterboarding isn’t done to our soldiers any where near what was done to KSM, Abu Zubaydah and Abd al-Rahim al-Nashiri. This wasn’t the only torture done to these men. And while one can argue how bad they are, how bad is less important when accurate is what you are looking for. A confession is quite easy to illicit. If a confession is all you want, that doesn’t take much. If you are trying to conclude with a previously ordained notion, then you aren’t looking for intelligence, you are looking to fix the narrative. This was the MO of the Cheney administration. No respect for intelligence officers, no respect for interrogators, no respect for the law, or our treaties.

This new batch of candidates seeks to bring back a New American Century as if we forgot what the last Project attempted to bring with its failed war in Iraq. In the end Americans lost, our economy is shot for quite a while, we weren’t greeted as liberators and were asked to leave and don’t let the door hit our ass on the way out. Bill Kristol predicted the war would last a few weeks opposite Daniel Ellsberg on Washington Journal in March 2003. He was cocky and sure of himself. Romney and the rest of Mt Assmore show us that they don’t really care about intelligence but to pandering to the base reactionary elements of the right wing. They don’t care that the government hasn’t been able to make a case against Abu Zubaydah for any actions against the United States. Being a terrorist somewhere in the world isn’t a US crime. Being a terrorist against the United States is no longer being alleged. There isn’t a candidate up on stage that knows any of these cases. They don’t care.

The idea of “enhanced interrogation” needs to be put to rest as a petty coward’s rhetoric about being tough when there are already real tough guys doing a good job at protecting lives on all sides. Seeking to inject further testosterone nonsense serves nothing to protecting American interests and many Pentagon reports indicate that the opposite is true; torture leads to acts of violence against American interests and increased confusion in the intelligence chain.

These candidates aren’t serious. The news centers are irresponsible and it doesn’t take long to find someone who has done this work for a while to tell you that intelligence isn’t about Jack Bauer television dramatics.  Speech writers like Marc Theissen are flat out liars when it comes to lauding their own expertise. Theissen is a tool with Michael Hayden’s hand up his ass. Frank Gaffney and the other cowardly chickenhawks are utterly discredited outside their own thinktank circle jerks.

Major Garrett and Scott Pelley should know that there is no such thing as, Enhanced Interrogation. They should have pressed these candidates to explain where they learned about these “techniques”. As supposed Journalists, they should have asked for sources of their information. Mine are easy to share, Matthew Alexander, interrogator, Malcolm Nance, SERE instructor, counterterrorism, intel, Ali Soufan, FBI interrogator, Col. Steve Kleinman, interrogator, Glenn Carle, CIA officer,  and and the vast documentation released under FOIA that clearly demonstrates torture has an adverse effect upon gaining intelligence.

These candidates represent the absurdist notions of Dick Cheney who spent his prime days with 5 deferments. He’s never been there, they’ve never been there, and yet they are always right and always claim to be the toughest. When it comes to national security, these idiots of the GOP party insult the very values established under General George Washington when he issued orders to do no harm to captured British or Hessian troops. He may have done this for moral purpose, but he clearly did it for tactical purpose. These GOP candidates have no place in the company of the founders.


Oct 10 2011

CIA: Detainee’s Torture Drawings, Writings, “Should They Exist,” to Remain Top Secret

Wednesday 5 October 2011
by: Jason Leopold, Truthout

In 2002, not long after he was subjected to so-called “enhanced interrogation techniques” by Bruce Jessen and James Mitchell, psychologists under contract to the CIA, high-value detainee Abu Zubaydah made about ten drawings depicting the torture he endured while in custody of the agency.

The drawings Zubaydah made were classified as top secret by the CIA. But according to two counterterrorism officials, one of the drawings Zubaydah had sketched captured in incredible detail the waterboarding sessions he underwent. Another drawing showed him being chained by his wrists to the ceiling of a CIA black site prison where he was held and another showed him strapped to a chair and being doused with water as part of his sleep deprivation program.

Zubaydah drew the pictures of the torture techniques he was subjected to on a sheet of paper measuring about 8 x 11 inches and on pieces of paper about the size of an index card. In some instances, Zubaydah drew several of the torture techniques on a single piece of paper.

Continue reading


Jul 17 2010

Author of Torture Memos Admits Some Techniques Were Not Approved By DOJ

Author of Torture Memos Admits Some Techniques Were Not Approved By DOJ

Author of Torture Memos Admits Some Techniques Were Not Approved By DOJ

Thursday 15 July 2010
by: Jason Leopold, reprinted from TruthOut.org
(make sure to support TruthOut with a donation today)

Jay Bybee, who as a senior Justice Department lawyer signed two memos in 2002 authorizing CIA interrogators to torture “war on terror” prisoners, told a congressional panel that more than a half dozen other brutal methods were used by the CIA without legal approval.

In a closed-door interview with members of the House Judiciary Committee on May 26, Bybee said his Office of Legal Counsel (OLC) did not allow the CIA to use diapering, water dousing, blackout goggles, extended solitary confinement, daily beatings, forcing a detainee to defecate on himself, hanging a detainee from ceiling hooks or subjecting prisoners to loud music or noise.

Bybee, who is now a federal appeals court judge in San Francisco, did sign off on a variety of other torture techniques, including the near-drowning experience of waterboarding. Prolonged diapering was included in a list of torture techniques that the OLC initially approved in 2002, but it was removed possibly because it might have resulted in a lengthy legal review.

Some of the techniques, including diapering, were permitted by CIA Director George Tenet and other senior agency officials despite the lack of clear OLC sign-off in 2002. Diapering and other abuses, such as water dousing, were cleared by the OLC later after Bybee left to become a federal judge. Continue reading


Jul 13 2010

Accountability for Designing Torture

Complaint Filed on James Mitchell with Texas Board

Complaint Filed on James Mitchell with Texas Board

Intro and Interview with Jim Cox PhD – Forensic Psychologist Segment 1
Interview with Joseph Margulies – Lawyer/Professor of Law Segment 2
Audio reading of complaint filed Segment 3
Interview with Andy Worthington about complaint, BP, and World Cup Segment 4

TO listen in: CLICK HERE
Copy of Complaint PDF: CLICK HERE
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Jun 26 2010

Saturday, June 26, 2010 Show-Oil, Judges and Jobs-Maher Arar and James Yee

June 26 2010 show

June 26 2010 show

Intro and Kate Gordon from Center for American Progress Segment 1
Rep. Gene Green Segment 2
Maria Lahood (Center for Constitutional Rights) Segment 3
James Yee Segment 4
Op-Ed on Dick Cheney Segment 5

TO listen in: CLICK HERE Continue reading


Jun 25 2010

An Interview with Captain James Yee

Captain James Yee

Captain James Yee

James Yee is a former US. Army chaplain who was subjected to arrest, confinement and charges of sedition, aiding the enemy, spying, espionage, and failure to obey a general order. The charges were later reduced then dropped. But it raised the question about the U.S. attitude towards its own loyal service members who were also Muslim and whether the U.S. was capable of understanding a conflict it was in. Since his honorable discharge from the military, Yee has been a critic of the U.S. treatment of detainees, the treatment of the Koran by the U.S. military, and the treatment of service members who are Muslim. I spoke with Captain Yee about his experiences and his role in a panel discussion on torture for Torture Awareness Month.

Interview

The June 27th Panel will culminate a number of events for “June is Torture Awareness Month”
Sunday, June 27, 2010
3:00pm – 5:00pm
Plymouth Congregational Church
1900 Nicollet Ave. S (at Franklin)
Minneapolis, MN

Article info


Jun 12 2010

Saturday, June 12 Radio Show-Malcolm Nance and Scott Horton

   
Malcolm Nance (SERE Instructor) Segment 1
Segment 2
Segment 3
Scott Horton Listen Here
Democracy Now segment with PHR from this show Listen Here
ABCNews and Liz Cheney-Made ya look Listen Here
Op-Ed on British Reaction to U.S. reaction to BP destruction Listen Here
CSPAN audio of U.S. Helsinki Commission on torture from Dec 2007 Listen Here

TO listen in: CLICK HERE
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Jun 7 2010

Human Experimentation at the Heart of Bush Administration’s Torture Program

Reprinted with permission (and creative commons) from TruthOut.org
Don’t forget, it is very important to support independent journalist sites like TruthOut.org

by Jason Leopold – Sunday, June 6, 2010

PHR Reports Experiments in Torture

PHR Reports Experiments in Torture

High-value detainees captured during the Bush administration’s “war on terror,” who were subjected to brutal torture techniques, were used as “guinea pigs” to gauge the effectiveness of various torture techniques, a practice that has raised troubling comparisons to Nazi-era human experimentation. according to a disturbing new report released by Physicians for Human Rights, an international doctors’ organization.

PHR, based in Massachusetts, called on President Barack Obama, Attorney General Eric Holder and the US Congress to launch investigations into the role of physicians and psychiatric experts in the monitoring and assessments of the brutal interrogations.
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Jun 6 2010

Amos Guiora-The Bagram Decision: Bad Law Bad Policy

Amos Guiora - Constitutional Limits of Coercive Interrogation

Prof. Amos Guiora - Author of Constitutional Limits of Coercive Interrogation

Reprinted with permission from The Jurist – First JURIST publication link

Listen to interview with Prof. Amos Guiora from this week’s show
Listen to reading of Op-Ed and an interview on the Bagram Decision
Listen Here

Author of
Freedom from Religion –
Link
Constitutional Limits on Coercive Interrogation –
Link

The DC Circuit Court’s recent decision overturning a holding extending habeas corpusrights to Bagram detainees is a dark hour for the American judiciary. Simply put, the Court’s unanimous decision violates human rights.

The Court argued that detainees held in an “active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign” are not entitled to habeas corpus. The decision results in a judicially sanctioned indefinite detention regime.

In its decision the Circuit Court sanctions the indefinite detention regime implemented by President Bush, largely maintained by President Obama. Indefinite detention flies in the face both of the rule of law and morality in armed conflict. In other words, the Court guarantees continued denial of basic due process rights to thousands of detained individuals.

Those individuals–some justifiably detained, others not—are innocent until proven guilty. Because of the Circuit Court, adjudication of guilt or innocence, much less habeas protection is but a pipe dream.

My 20 years experience in operational counterterrorism decision making unequivocally convinced me that detainees must have their ‘day in court’. Otherwise, adjudication of individual responsibility is placed in abeyance, more permanent than temporary.

While former Chief Justice of the Israeli Supreme Court, Aharon Barak, wrote “the logistical considerations of the state must not be a barrier to individual rights,” late Chief Justice Rehnquist argued that in times of armed conflict the Court must be reticent with respect to the executive branch.

Regrettably, the DC Circuit Court adopted Rehnquist’s approach; its decision flies in the face of Barak’s thesis that detainee rights outweigh other considerations. Operational counterterrorism demands respect for and application of human rights.

To that end, even under extraordinarily complicated operational circumstances, both initial detention and subsequent remand of Palestinians suspected of involvement in terrorism were subject to independent judicial review. In accordance with prosecutorial discretion, indictments were filed when supported by evidence.

At trial, either before Israeli civilian courts or Military Courts in the West Bank and Gaza Strip, defendants confronted their accusers in accordance with rules of criminal procedure and evidentiary requirements befitting a Western democracy. In other words, adjudication of criminal responsibility was guaranteed in a trial before a court of law.

Critics have pointed out that the overwhelming majority of Palestinians are convicted based on plea bargains, thereby suggesting a fundamental flaw in the system. However, similar statistics can be found in criminal cases in most major American cities. In both systems defendants have the right to a full trial. Unfortunately, the same cannot be said for the approximately 25,000 individuals held–directly and indirectly–by the US in Afghanistan.

Israel has, over the years, administratively detained tens of thousands of Palestinians. The primary justification is the requirement to protect intelligence sources that provide vital information regarding future terrorist attacks. During my military service I served both as military prosecutor and judge in administrative detention hearings. In addition, I was tasked with providing senior military commanders legal advice regarding individual detention decisions.

The process is highly problematic and controversial because the detainee is denied the right to confront his accuser; it has been widely criticized by the human rights community. However, the decision to detain is subject to independent judicial review by the Israel Supreme Court and is term-limited. The measure represents an unsatisfactory resolution to an improbable dilemma confronting decision makers seeking to prevent future terrorist attacks.

Flawed as it may be, this process seeks balancing legitimate national security considerations with equally legitimate civil liberties. There is, obviously, no perfect process with respect to counterterrorism. I have made innumerable decisions with inherently flawed and problematic dilemmas. However, the guiding light must be granting the detained individual rights.

Decision makers hiding behind the cloak of convoluted judicial decisions significantly hamper legitimate counterterrorism. The test is facilitating justice under fire. It is an extraordinarily complicated mission. Precedent suggests it can be achieved provided the executive branch is committed and the judiciary does not provide unwarranted protection of government.

The decision by the DC Circuit Court provides the executive branch deeply troubling cover. Comparative counterterrorism analysis demonstrates granting detainees’ rights are essential to lawful operational counterterrorism. It is easy to create legal constructions that justify denial of basic rights.

Our legal system is the beacon on the hill, when it protects otherwise deniable rights. The paradigm must be ‘why’, not ‘why not’.

Hopefully the DC Circuit’s decision is not the last word and the Supreme Court will render justice where justice is due. That is the essence of operational counterterrorism subject to the rule of law.

Amos Guiora is Professor of Law at SJ Quinney College of Law, University of Utah; his latest book is Freedom from Religion: Rights and National Security (OUP).