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).


Jun 5 2010

Tonight’s Show, Saturday, June 5, 2010

Prof. Amos Guiora,
Dahr Jamail,
Brig. Gen David Irvine,
Larry Siems (ACLU),
Coleen Rowley,
Jess Levin (MediaMatters),
and a audio from a reading of Rachel Corrie’s letters and Cindy Corrie.
Segment One – Amos Guiora – The Bagram Habeas Decision: Bad Law, Bad Policy
Listen Here
Segment Two – Dahr Jamail / Brig Gen David Irvine
Listen Here
Segment Three – Larry Siems (ACLU) – Fmr. FBI Agent Coleen Rowley-Jess Levin from Media Matters
Listen Here
Segment Four – Rachel Corrie Letters and Cindy Corrie
Listen Here
Segment Five – Tony Hayward, Who’s your daddy?
Listen Here

Click here to listen to this week’s show

Good evening,

Welcome to VeracityRadio. It has been a busy news week and we’ll cover some of those important items in tonights show. This week we saw BP continue to flounder in the Gulf with our disaster. Animals are dying in the gulf and BP’s CEO wants his life back. Currently BP claims its “top cap” is working a little to bring oil to the surface for containment but considering their credibility right now, little they say is worth much.

In international news, Israel raided a flotilla of ships destined for Gaza. The flotilla has been in planning for some time now and we’ll get reports on what happened and have some discussion on the results of this action.

George Bush was quoted this week as admitting to authorizing the waterboarding of Khalid Sheikh Mohammed and stated that he would do it again. Though no audio or video of the event was published, local papers and attendees have shared this “news” with us. This comes a year and half after his Vice President admitted to ABC and PBS that he was instrumental to the passage of this program.

Tonight we have a jam packed show for you and I hope that you will appreciate the words of our various guests and I’m very humbled to have the opportunity to speak with them. As always we welcome your feedback at veracityradio@gmail.com or visit the blog at veracityradio.

First up we’ll hear a reading of the op-ed by University of Utah College of Law professor Amos Guiora called The Bagram Habeas Decision: Bad Law, Bad Policy. Then I’ll play an interview I did with Mr. Guiora on Monday with comments on the flotilla and the global war on terror.

Then we’ll talk to Dahr Jamail about the flotilla, a revisit to the attack on the USS Liberty, oil in Canada, theft of Iraqi culture, and the need for independent Journalism.

We’ll have a discussion about George Bush’s comments with retired Brigadeer General David Irvine. I especially want to thank him for joining us on short notice to clarify the comments in this week’s Huffington Post and the consequences of Bush’s admission.

Then as we enter June it is important to recognize that this is Torture Awareness Month. Joining us to discuss the details and events will be Larry Siems of the ACLU and then an interview with former FBI special agent Coleen Rowley. Rowley and I also discussed the Free Gaza Flotilla, the war on terror and the media coverage of such important events.

We’ll have a visit with Jess Levin from Media Matters about BP’s contributions, individual contributions, and Obama. What is the truth behind the $71,000 in contributions?

And last, I’ll feature some archived audio from an event held in Houston a few years ago with the family of Rachel Corrie. This features letters written by Rachel as read by local activists and finishes with a few words from Cindy Corrie.


May 22 2010

Saturday, May 22, 2010 show

Listen Now

Listen Now

Segment One – Jason Leopold discusses BP catastrophe – Atlantis rig safety – Bush DOJ ignored whistleblower
Segment 1 –
Segment Two-Rep. Luis Gutierrez sends letter to Ken Salazar as part of Ban Permanently campaign
Segment 2 –
Segment Three-A look at the story of Abu Zubaydah, John Kiriakou and the War on Terror with Jason Leopold of Truthout.org
Segment 3 –
Segment Four-Our weekly logical fallacy segment and a listen to Ali Soufan testimony regarding Abu Zubaydah
Segment 4 –

This week we talk about BP’s Disaster in the Gulf. Is this to become Obama’s Katrina? We’ll listen to a few of the stories from this week’s events. Then Jason Leopold and I talk about BP’s dodge of criminal indictments under the Bush DOJ and the story of Scott West. Then we’ll hear from the Press Secretary for Rep. Luis Gutierrez (Illinois 4th) on the “Banned Permanently” campaign and other congressional options to handle the BP/Halliburton Disaster in the Gulf of Mexico.

Then tonight’s featured segment is a further examination of the John Kiriakou – Abu Zubaydah stories. We’ll speak with Jason Leopold about his interview with Kiriakou and reevaluate the past comments and the account given by Ali Soufan, the FBI interrogator who was pulled by Mueller after reports were coming in that Zubaydah was being tortured.

And, we will try to have an open phone segment later if possible, tune in to see.

Documents mentioned in show
BP Texas City Report –
Chemical Safety Board Investigation Final Report
Report of the BP Independent Refineries Safety Review Panel (Baker Panel Report) -�Baker Report

Abu Zubaydah
Abu Zubaydah testimony

Testimony of Ali Soufan – Judiciary Link

Tonight we take a look at BP�s disaster in the Gulf of Mexico, with Jason Leopold from TruthOut.org. We talked the 60 minutes segment, the Alantis Rig, and the Bush Administration�s willful failure to take action on BP�s criminal violations.

I also spoke with Doug Rivlin press secretary for Representative Luis Gutierrez�s office regarding the Campaign to Ban Permanently the drilling leases for BP.

Rep. Luis Gutierrez and the letter he sent to Ken Salazar.

Tonight�s feature is with Jason Leopold regarding the comments and claims made by John Kiriakou in his recent interview for TruthOut. Kiriakou was famously known as the agent who was involved in the capture of Zayn al-Abidin Muhammad Husayn, the man commonly known as Abu Zubaydah.

On September 6, 2006, George Bush proclaimed that Zubaydah was a key figure in al qaida and the subsequent years he, Dick Cheney, Marc Theissen, and others have used Zubaydah�s alleged role as an excuse to torture suspected combatants against the United States. As you will hear, Zubaydah�s role is not as portrayed and the veracity of Kiriakou�s claims haven�t stood the test of time. In fact, much of Kiriakou�s account in December 2007 was second hand, presented almost as first hand, and certainly relied upon as an authority on whether it was appropriate to torture a man for intelligence. We�ll hear audio from Kiriakou, Leopold�s interview, and the testimony of Ali Soufan.

Thanks for tuning in, we�d love your feedback.

First up, BP�s catastrophe in the Gulf.


May 15 2010

Saturday, May 15, 2010 show – 9pm EST

ANSWER coaliton SeizeBP campaign – Media Matters on BP/Halliburton spill and Andy Worthington
Segment 1 –

Matthew Alexander – How To Break A Terrorist
Segment 2 – (note: there are portions of the audio which dropped out and were boosted from remaining low volume. They were included to retain as much of what Mr. Alexander shared as possible.)

Hour Three included audio from Jason Leopold’s interview with John Kiriakou at TruthOut.org

and from CSPAN archives – John Kiriakou and Col. Steve Kleinmann

Our listening link will be available before airtime. CLICK HERE TO LISTEN Tonight’s show features Matthew Alexander, Author of How To Break A Terrorist, Andy Worthington on British Elections and Guantanamo Bay detainees, Media Matters discussion on Elena Kagan and BP, and a visit with ANSWER coalition about their Seize BP campaign.


May 11 2010

Video of Matthew Alexander from Daily Show Dec 2008

In preparation for our interview with Matthew Alexander, we’ll be posting videos and articles to understand the context of his book, “How to break a terrorist”.

This is Matthew Alexander from Daily Show in December 2008.

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Matthew Alexander
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

CSPAN.org


Apr 27 2010

Center for Constitutional Rights- The Torture Team

This site is a must see for accountability resources. Thanks to the Center for Constitutional Rights for this work.


Aug 24 2009

Cheney gets his wish, sorta

http://www.cheneywatch.org/documents/torture/cia-ksm-docs08242009.pdf

The documents Cheney requested are now released, redacted of course, and they do little to foster his view. Reading over the reports above, its clear to see that normal interrogation techniques were clearly productive. There is no portion of these reports, unredacted portions, that defend Cheney’s views on torture as necessary and fruitful.

If you see anything in these that demonstrates this, we’d love to know. Its a busy news day.


Aug 24 2009

CIA Inspector Report released

http://www.cheneywatch.org/documents/torture/cia_oig_report.pdf

Here is the long awaited report. Many new details have been released. We are reading the document and will elaborate the details here. And we will publish the news coverage related to this story. Stay tuned….


Jul 13 2009

Is Eric Holder going to appoint a special prosecutor?

Reports are flying that Eric Holder has read the soon, supposedly, to be released, supposedly, CIA torture report. Will Eric Holder be compelled to investigate the torture program?

At the same time we are reading that Dick Cheney instructed the CIA to withhold information to the Congress about a “program” that background talkers saying never fomented into action. The issue is, “how does the Vice President of the United States of America get this much power? How is he able to be outside the law? And why is he allowed to continue this if he has such contempt for the United States government he serves in?”
Continue reading


Jun 11 2009

Whitehouse Condemns Nation's "Descent into Torture" During Bush Years

Sheldon Whitehouse laid the truth on the Senate floor the other night:

Full text from Sen. Whitehouse site at Senate.gov

June 9, 2009

Mr. WHITEHOUSE. Mr. President, I wish to now change the subject and speak about an incident that is not part of anybody’s proud heritage and that is the evidence we have recently heard about America’s descent into torture. I know it is an awkward subject to talk about, an awkward subject to think about. On the one hand, we, as Americans, love our country, we hate the violence that has been done to us, and we want more than anything to protect our people from attacks. On the other hand, torture is wrong and we have known it and behaved accordingly in far worse circumstances than now.

Continue reading