View Full Version : The GITMO Thang
01-28-2009, 01:48 AM
Obama Plans Guantanamo Close, US Trials
MATT APUZZO and LARA JAKES JORDAN | November 10, 2008 10:45 PM EST | AP
WASHINGTON ? President-elect Obama's advisers are crafting plans to close the Guantanamo Bay prison and prosecute terrorism suspects in the U.S., a plan the Bush administration said Monday was easier said than done. Under the plan being crafted inside Obama's camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials.
But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.
Many of the about 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.
Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final.
The plan being developed by Obama's team has been championed by legal scholars from both political parties. But as details surfaced Monday, it drew criticism from Democrats who oppose creating a new legal system and from Republicans who oppose bringing terrorism suspects to the U.S. mainland.
Obama foreign policy adviser Denis McDonough said the president-elect wants Guantanamo closed, but no decision has been made "about how and where to try the detainees, and there is no process in place to make that decision until his national security and legal teams are assembled."
Obama seeks a break from the Bush administration, which established military tribunals to prosecute detainees at the Navy base in Cuba and strongly opposes bringing prisoners to the United States. At the White House, spokeswoman Dana Perino said Monday that President Bush has faced many challenges in trying to close the prison.
"We've tried very hard to explain to people how complicated it is. When you pick up people off the battlefield that have a terrorist background, it's not just so easy to let them go," Perino said. "These issues are complicated, and we have put forward a process that we think would work in order to put them on trial through military tribunals."
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But Obama has been critical of that process and his legal advisers said finding an alternative will be a top priority. One of those advisers, Harvard law professor Laurence Tribe, acknowledges that bringing detainees to the U.S. would be controversial but said it could be accomplished.
"I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else," Tribe said. "We can't put people in a dungeon forever without processing whether they deserve to be there."
The tougher challenge will be allaying fears by Democrats who believe the Bush administration's military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on U.S. soil.
"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, said Monday. "We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems."
Senate Judiciary Committee member John Cornyn, R-Texas, said it would be a "colossal mistake to treat terrorism as a mere crime."
"It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes," Cornyn said Monday, noting that the Senate overwhelmingly passed a nonbinding Senate bill last year opposing bringing detainees to the U.S.
Obama did not vote on that measure. He has said the civilian and military court-martial systems provide "a framework for dealing with the terrorists," and Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started.
An Obama administration will want to avoid the criticisms that have marked the Bush administration's military commissions. Human rights groups and defense attorneys have condemned the commissions for lax evidence rules and intense secrecy. Some military prosecutors have even quit in protest.
"It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts," Tribe said. "It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard."
Some weren't so sure.
"There would be concern about establishing a completely new system," said Rep. Adam Schiff, D-Calif., a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. "And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system _ trying to establish that would be very difficult."
Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few options.
Prosecuting all detainees in federal courts raises many problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics.
That means something different would need to be done if detainees couldn't be released or prosecuted in traditional courts. Exactly what remains unclear.
"I don't think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent," Schiff said.
According to three advisers participating in the process, Obama is expected to propose a new court system and may appoint a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private.
One challenge will be figuring out what to do with the 90 or so Yemeni detainees _ the largest group in the prison. The Bush administration has sought to negotiate the release of some of those detainees as part of a rehabilitation plan with the Yemeni government. But talks have so far been fruitless.
Waleed Alshahari, who has been following Guantanamo issues for the Yemeni Embassy in Washington, said the plan being discussed by the Obama team was an improvement over the current system. But he said he expects most detainees to be released rather than stand trial.
"If the U.S. government has any evidence against them, they would try them and put them in jail," Alshahari said. "But it has been obvious they have nothing against them. That is why they have not faced trial."
Whatever Obama decides, he should move quickly, Tribe said
"In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark," Tribe said. "It has to be dealt with."
Secret List of U.S. Military Bases to Replace Gitmo
Pendleton, Leavenworth, Miramar Included as Possible New Home for 250 Detainees
By BRIAN ROSS and LUIS MARTINEZ
Jan. 16, 2009
The U.S. military has prepared a list of U.S. military bases that could be used to house as many as 250 detainees currently being held at the U.S. Naval base in Guantanamo Bay, military officials tell ABCNews.com.
The list -- which includes Camp Pendleton in California, Fort Leavenworth in Kansas; the Marine Air Station in Miramar, California; and the U.S. Naval Consolidated Brig in South Carolina -- has been circulated in a classified brief to members of Congress and was prepared by the Pentagon's Joint Staff.
President-elect Barack Obama is expected to order that the Guantanamo Bay detainee facility be closed on his first day in office, officials say. Officials say it would take at least a year to prepare a new prison and transfer the detainees.
The preliminary list was based on cost, logistic, and security concerns, but the Department of Defense is expected to present a more comprehensive recommendation based on a variety of factors, according a military official.
Camp Pendleton was determined to be the least expensive option and officials say its vast 125,000 acre size would allow for a new prison to be built in an isolated and secure area.
60,000 Residents, Employees at Camp Pendleton
Camp Pendleton has a daytime population of 60,000, according to its website, including military personnel, their families and civilian employees.
Three San Diego county Congressmen have already voiced opposition to sending the terror detainees to Camp Pendleton.
Congressmen Duncan Hunter (R-CA), Brian Bilbray (R-CA) and Darrell Issa (R-CA) sent a letter Tuesday to Defense Secretary Robert Gates saying Camp Pendleton was too busy preparing Marines for combat.
Guantanamo represents only 1% of the secret TORTURE prisons around the globe where the USA DOES practice TORTURE. Diego Garcia, Bagdad, Jordan, Uzbekistan, Afghanistan and many others are not mentioned in the main stream media and it does not make part of Obama’s PR program.
This is a very important point. The Bush administration has set the bar so low that any small concession to common decency is now seen as a massive shift. To my knowledge the rendition program is still ongoing and the secret torture centers operational. Of course the mainstream media considers this issue settled and passé. Lawrence Summers and Timothy Geithner are beholden to Wall Street financiers (not to mention Summers' disturbing statements while at the head of Harvard regarding women's intelligence etc.), national security adviser James Jones is a tried and true proponent of American world dominance, Robert Gates is Robert Gates and Zbigniew Brzezinski is doing lord knows what in the basement.
The whole propaganda triumph is made complete by the notion that to express suspicion towards power now that Obama is the nominal person in power is self-defeating "cynicism", a notion that seems to have currency even among otherwise critical and open-minded people.
01-28-2009, 01:55 AM
Obama's orders leave framework of torture, indefinite detention intact
By Tom Eley
23 January 2009
On Thursday, President Barack Obama issued executive orders mandating the closure of the Guantánamo Bay prison camp in a year’s time, requiring that Central Intelligence Agency (CIA) and military personnel follow the Army Field Manual’s prohibitions on torture, and closing secret CIA prisons overseas.
While the media is portraying these orders as a repudiation of the detention and interrogation policies of the Bush administration, they actually change little. They essentially represent a public relations effort to refurbish the image of the United States abroad after years of torture and extralegal detentions and shield high-ranking American officials from potential criminal prosecution.
In cowardly fashion, Obama staged his signing of the orders in a manner aimed at placating the political right and defenders of Guantánamo and torture and underscoring his intention to continue the Bush administration’s “war on terror.” He was flanked by 16 retired generals and admirals who have pushed for the closure of the prison camp in Cuba on the grounds that it impedes the prosecution of the global “war” and reiterated in his own remarks his determination to continue the basic political framework of the Bush administration’s foreign policy.
The continuation of the ideological pretext for wars of aggression and attacks on democratic rights ensures that the police state infrastructure erected under the Bush administration will remain intact. This is further reinforced by Obama’s assurances that his administration will not investigate or prosecute those officials—including Bush, Cheney, Rumsfeld, Alberto Gonzales and others—who were responsible for the policies of torture and illegal detention.
The orders signed by Obama do not undo the Bush administration’s attacks on constitutional and international law. They do not challenge the supposed right of the president to unilaterally imprison any individual, without trial and without charges, by declaring him to be an “enemy combatant.” Nor do they end the procedure known as “extraordinary rendition,” by which the United States during the Bush years kidnapped alleged terrorists and shipped them to foreign countries or secret CIA prisons outside the US, where they were subjected to torture.
They do not affect the hundreds of prisoners—600 at the Bagram prison camp in Afghanistan alone—incarcerated beyond the barbed wire of Guantánamo. If and when Guantánamo is closed, the US government will simply ship alleged terrorists caught up its international dragnet to other American-run prison camps.
On the question of so-called “harsh interrogation techniques,” i.e., torture, Obama’s orders leave room for their continuation. White House Counsel Gregory Craig told reporters the administration was prepared to take into account demands from the CIA that such methods be allowed. Obama announced the creation of a task force that will consider new interrogation methods beyond those sanctioned by the Army Field Manual, which now accepts 19 forms of interrogation, as well as the practice of extraordinary rendition.
Retired Admiral Dennis Blair, Obama’s nominee for director of national intelligence, told a Senate confirmation hearing that the Army Field Manual would itself be changed, potentially allowing new forms of harsh interrogation, but that such changes would be kept secret.
Obama also announced a second task force that is to consider the fate of the 245 detainees remaining at Guantánamo. Earlier this week he suspended the military commission procedures at the prison camp, but has not abolished the military commissions themselves.
The new administration has ruled out the only constitutional remedy for those who have been held under barbaric conditions, without due process, for years—either releasing them or giving them a speedy trial in a civilian court, with all of the accompanying legal protections and guarantees. There has been a great deal of speculation that the administration may support the establishment of a special National Security Court within the civilian court system to try Guantánamo prisoners and other alleged terrorists. This would represent yet another attack on civil liberties, setting up a drumhead court system to railroad those charged with terrorism—something that could in future be used to repress political opposition.
According to NBC Nightly News on Thursday, the administration is considering keeping some 20 Guantánamo detainees, including the five alleged 9/11 conspirators currently facing military commission trials, imprisoned indefinitely without charges in a military brig within the US.
Commentators have noted that the Obama administration wants to prevent noncitizens detained as terrorists from being able to exercise habeas corpus rights.
Two separate measures taken Tuesday and Thursday by Obama point to a further major consideration behind his moves to close Guantánamo and finesse the issue of torture. On Thursday the administration requested a stay in the habeas corpus appeal to the Supreme Court by the only alleged enemy combatant now held on US soil—Ali al-Marri, of Qatar, whom Obama has called “dangerous.” Al-Marri’s lawyers are challenging the right of the president to arrest and jail individuals by declaring them enemy combatants, and it was expected that the Supreme Court’s hearing of the appeal would force Obama to reveal his position on the issue.
This followed Tuesday’s request for a stay from the Federal District Court in Washington in similar appeals that could affect the cases of more than 200 Guantánamo prisoners.
Thus, the immediate effect of the new administration’s moves is to halt civilian trials that could prove immensely damaging to the government by revealing systematic torture of the detainees and could potentially entangle high government officials.
01-28-2009, 01:57 AM
How Obama's New Rules Keep Intact
The Torture Ban That Doesn't Ban Torture
January 26, 2009
If you're lying on the slab still breathing, with your torturer hanging over you, you don't much care if he is an American or a mere United States - sponsored trainee.
When President Obama declared flatly this week that "the United States will not torture" many people wrongly believed that he'd shut the practice down, when in fact he'd merely repositioned it.
Obama's Executive Order bans some -- not all -- US officials from torturing but it does not ban any of them, himself included, from sponsoring torture overseas.
Indeed, his policy change affects only a slight percentage of US-culpable tortures and could be completely consistent with an increase in US-backed torture worldwide.
The catch lies in the fact that since Vietnam, when US forces often tortured directly, the US has mainly seen its torture done for it by proxy -- paying, arming, training and guiding foreigners doing it, but usually being careful to keep Americans at least one discreet step removed.
That is, the US tended to do it that way until Bush and Cheney changed protocol, and had many Americans laying on hands, and sometimes taking digital photos.
The result was a public relations fiasco that enraged the US establishment since by exposing US techniques to the world it diminished US power.
But despite the outrage, the fact of the matter was that the Bush/Cheney tortures being done by Americans were a negligible percentage of all of the tortures being done by US clients.
For every torment inflicted directly by Americans in Iraq, Afghanistan, Guantanamo and the secret prisons, there were many times more being meted out by US-sponsored foreign forces.
Those forces were and are operating with US military, intelligence, financial or other backing in Egypt, Israel, Saudi Arabia, Ethiopia, Pakistan, Jordan, Indonesia, Thailand, Uzbekistan, Colombia, Nigeria, and the Philippines, to name some places, not to mention the tortures sans-American-hands by the US-backed Iraqis and Afghans.
What the Obama dictum ostensibly knocks off is that small percentage of torture now done by Americans while retaining the overwhelming bulk of the system's torture, which is done by foreigners under US patronage.
Obama could stop backing foreign forces that torture, but he has chosen not to do so.
His Executive Order instead merely pertains to treatment of "...an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict..." which means that it doesn't even prohibit direct torture by Americans outside environments of "armed conflict," which is where much torture happens anyway since many repressive regimes aren't in armed conflict.
And even if, as Obama says, "the United States will not torture," it can still pay, train, equip and guide foreign torturers, and see to it that they, and their US patrons, don't face local or international justice.
This is a return to the status quo ante, the torture regime of Ford through Clinton, which, year by year, often produced more US-backed strapped-down agony than was produced during the Bush/Cheney years.
Under the old -- now new again -- proxy regime Americans would, say, teach interrogation/torture, then stand in the next room as the victims screamed, feeding questions to their foreign pupils. That's the way the US did it in El Salvador under JFK through Bush Sr. (For details see my "Behind the Death Squads: An exclusive report on the U.S. role in El Salvador’s official terror," The Progressive, May, 1984 ; the US Senate Intelligence Committee report that piece sparked is still classified, but the feeding of questions was confirmed to me by Intelligence Committee Senators. See also my "Confessions of a Death Squad Officer," The Progressive, March, 1986, and my "Comment," The New Yorker, Oct. 15, 1990,[regarding law, the US, and El Salvador]).
In Guatemala under Bush Sr. and Clinton (Obama's foreign policy mentors) the US backed the army's G-2 death squad which kept comprehensive files on dissidents and then electroshocked them or cut off their hands. (The file/ surveillance system was launched for them in the '60s and '70s by CIA/ State/ AID/ special forces; for the history see "Behind the Death Squads," cited above, and the books of Prof. Michael McClintock).
The Americans on the ground in the Guatemalan operation, some of whom I encountered and named, effectively helped to run the G-2 but, themselves, tiptoed around its torture chambers. (See my "C.I.A. Death Squad," The Nation [US], April 17, 1995, "The Country Team," The Nation [US], June 5, 1995, letter exchange with US Ambassador Stroock, The Nation [US], May 29, 1995, and Allan Nairn and Jean-Marie Simon, "Bureaucracy of Death," The New Republic, June 30, 1986).
It was a similar story in Bush Sr. and Clinton's Haiti -- an operation run by today's Obama people -- where the DIA (Defense Intelligence Agency) helped launch the terrorist group FRAPH, the CIA paid its leader, and FRAPH itsef laid the machetes on Haitian civilians, torturing and killing as US proxies. (See my "Behind Haiti's paramilitaries: our man in FRAPH," The Nation [US], Oct 24, 1994, and "He's our S.O.B.," The Nation [US], Oct. 31, 1994; the story was later confirmed on ABC TV's "This Week" by US Secretary of State Warren Christopher).
In today's Thailand -- a country that hardly comes to mind when most people think of torture -- special police and militaries get US gear and training for things like "target selection" and then go out and torture Thai Malay Muslms in the rebel deep south, and also sometimes (mainly Buddhist) Burmese refugees and exploited northern and west coast workers.
Not long ago I visited a key Thai interrogator who spoke frankly about army/ police/ intel torture and then closed our discussion by saying "Look at this," and invited me into his back room.
It was an up to date museum of plaques, photos and awards from US and Western intelligence, including commendations from the CIA counter-terrorism center (then run by people now staffing Obama), one-on-one photos with high US figures, including George W. Bush, a medal from Bush, various US intel/ FBI/ military training certificates, a photo of him with an Israeli colleague beside a tank in the Occupied Territories, and Mossad, Shin Bet, Singaporean, and other interrogation implements and mementos.
On my way out, the Thai intel man remarked that he was due to re-visit Langley soon.
His role is typical. There are thousands like him worldwide. US proxy torture dwarfs that at Guantanamo.
Many Americans, to their credit, hate torture. The Bush/Cheney escapade exposed that.
But to stop it they must get the facts and see that Obama's ban does not stop it, and indeed could even accord with an increase in US-sponsored torture crime.
In lieu of action, the system will grind on tonight. More shocks, suffocations, deep burns. And the convergence of thousands of complex minds on one simple thought: 'Please, let me die.'
Allan Nairn writes the blog News and Comment at www.newsc.blogspot.com.
01-28-2009, 02:09 AM
Why the Gitmo policies may not change
By JOSH GERSTEIN | 1/23/09 4:28 AM EST
There may be less than meets the eye to the executive orders President Obama issued yesterday to close the prison at Guantanamo Bay and prohibit the torture of prisoners in American custody. Those pronouncements may sound dramatic and unequivocal, but experts predict that American policy towards detainees could remain for months or even years pretty close to what it was as President Bush left office.
“I think the administration’s commitment to close Guantanamo is heartening; the fact they want to give themselves a year to do it, not so much,”, said Ramzi Kassem, a Yale Law School lecturer who represents prisoners like inmate Ahmed Zuhair, who was captured in Pakistan in 2001. “That would bring men like my client to eight years imprisonment for no apparent reason.”
Here are a few of the delays, caveats and loopholes that could limit the impact of Obama’s orders:
1. Everyone has to follow the Army Field Manual—for now…
Obama’s executive order on interrogations says all agencies of the government have to follow the Army Field Manual when interrogating detainees, meaning the CIA can no longer used so-called enhanced interrogation techniques, which have included waterboarding, the use of dogs in questioning, and stripping prisoners.
However, the order also created an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. One group that represents detainees, the Center for Constitutional Rights, deemed that an “escape hatch” to potentially allow enhanced interrogations in the future.
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White House counsel Greg Craig told reporters such fears are misplaced. “This is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community,” he said.
The distinction Craig made between “protocols” and “techniques,” though, seems less than clear.
“For now, they’re punting, saying they’ll comply with what’s in the Army manual…but at some point in the future this commission may revert to the executive” to recommend harsher techniques, said Kassem, adding that he was concerned about how transparent the commission’s recommendations would be.
“I’m happy to postpone that discussion [on “enhanced interrogation”]… on the condition that [it] happens transparently,” he said.
A Columbia law professor who worked on detention issues at the State Department under President Bush, Matthew Waxman, said Obama is wise to leave open the possibility of different guidance for the CIA’s experienced interrogators. “I’ve worked on drafts of the Army Field Manual,” Waxman said. “It’s designed to be in the hands of tens of thousands of people who may not have a lot of training or supervision.”
2. Obama ordered a 30-day review of Guantanamo conditions—by the man currently responsible for Guantanamo.
A section of Obama’s order on Guantanamo entitled “Humane Standards of Confinement” orders Secretary of Defense Robert Gates to spend the next thirty days reviewing the current conditions at the Caribbean prison to make sure they’re legal and follow the Geneva Convention. It seems doubtful that Gates, who has been atop the chain of command for Guantanamo for more than two years, will suddenly find conditions that were just fine on Monday of this week are now flagrant violations of the Geneva Convention.
“He’s not exactly impartial,” Kassem said.
Waxman pointed out that adhering to the Geneva Condition is “already the law,” and deemed that section of the order “bizarre.”
3. Obama vowed no torture on his watch, but force-feeding and solitary confinement apparently continue at Guantanamo for now.
It’s possible that the 30-day referral to Gates is simply an effort to buy the Obama team time to deal with two Guantanamo practices that some consider torture, or at least inhumane: force feeding and isolation of prisoners. According to detainee lawyers, about two dozen inmates who refuse to eat as a form of protest are currently being force fed, and about 140 are in some form of solitary confinement.
The Bush administration has argued that the feeding is humane and that the solitary, at least as practiced now, is not the kind of total isolation that amounts to torture. “There’s an important distinction to be made between isolation and separation” from other prisoners,” Waxman said.
As far as we know, the force feeding and solitary practices continued onto Obama’s watch. Craig dodged a question about the new president’s views on those issues. “I'm not going to get into the details,” Craig said.
4. The vast majority of detainees in American custody may see no benefit from Obama’s orders
While Obama ordered a case-by-case review of the 245 prisoners held at Guantanamo, the 600 prisoners held in indefinite American custody in Afghanistan and roughly 20,000 in Iraq won’t get such attention. The general policy review might aid them, eventually, but unless someone was about to torture them it’s unclear how they are better off.
“I think there’s a fairly good chance that on the whole from the perspective of my clients at Guantanamo and Bagram [the site of an American air base and prison in Afghanistan], their lives will be the same until those facilities are shut down, unfortunately,” Kassem said.
Asked why the reviews are limited to prisoners at Guantanamo, and not those at Bagram or Abu Ghraib, Craig said, “The president asked us to look at Guantanamo. That's the answer.”
5. The orders downplay the possibility that some prisoners might be set free in America.
Obama ordered that when Guantanamo closes, any remaining inmates “be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.” But Obama’s wordsmiths seem to have deliberately trimmed out any explicit mention of the explosive possibility of freeing prisoners on American soil.
While Obama’s aides seem to prefer trying prisoners in civil courts or freeing them abroad, there are no obvious charges to be filed against some of the detainees. Once Guantanamo closes, letting them loose in the U.S. may be the only option if other countries won’t take them.
Craig said he was “hopeful” that other governments will take many of the detainees, but some nations may not step up until the U.S. does. “One question a lot of countries keep asking is, ‘How many are you going to take?” Waxman said. “There may be some countries that want to earn some credit [with the] new administration…but I don’t expect this problem to go away.”
6. Military commissions are shut down…. for now
One of the attention grabbing provisions of Obama’s orders calls for military tribunals at Guantanamo to be “halted.” But the Obama administration is not ruling out returning to some sort of military forum to deal with some of the prisoners.
“This order does not eliminate or extinguish the military commissions, it just stays all proceedings in connection with the ongoing proceedings in Guantanamo,” Craig said, making clear that “improved military commissions” were still on the table.
That suggestion exasperates detainee lawyers like Kass
em. “That would be a huge mistake, “ he said. “That system [is] set up to launder statements obtained through torture… What’s the point of getting rid of our offshore, improvised, sham, military tribunals in Cuba, only to recreate it here in the United States?”
01-28-2009, 02:11 AM
Us Army Field Manual (Still) Sanctions Torture
By Jeffrey S. Kaye
January 26, 2009 "AlterNet" -- A January 17th New York Times editorial noted that Attorney General designate Eric Holder testified at his nomination hearings that when it came to overhauling the nation's interrogation rules for both the military and the CIA, the Army Field Manual represented "a good start." The editorial noted the vagueness of Holder's statement. Left unsaid was the question, if the AFM is only a "good start," what comes next?
The Times editorial writer never bothered to mention the fact that three years earlier, a different New York Times article introduced a new controversy regarding the rewrite of the Army Field Manual. The rewrite was inspired by a proposal by Senator John McCain to limit U.S. military and CIA interrogation methods to those in the Army Field Manual. (McCain would later allow an exception for the CIA.)
According to the Times, a new set of classified procedures proposed for the manual was "was pushing the limits on legal interrogation." Anonymous military sources called the procedures "a back-door effort" to undermine McCain's efforts at the time to change U.S. abusive interrogation techniques, and stop the torture.
A Forgotten Controversy
Over the next six months or so, a number of articles in the New York Times, the Washington Post, and the L.A. Times described the course of the controversy. By mid-June 2006, the Times was reporting that, under pressure from unnamed senior generals and members of Congress (including McCain, and Senators Warner and Graham), the Pentagon was rethinking its plan to have a classified annex to the AFM, which would include a different set of interrogation rules for "unlawful combatants," like the detainees at Guantanamo. Included in the discussion about these classified procedures were, reportedly, members of the State Department and various human rights organizations.
According to an article in the L.A. Times, this latest fight over the classified procedures went back at least to mid-May 2006. The manual itself had been written at the U.S. Army Intelligence Center at Ft. Huachuca, Arizona, roughly a year earlier, and then sent to the Pentagon for further evalution. Secretary of Defense Donald Rumsfeld's right-hand man, Stephen Cambone, was put in charge of its final draft. According the L.A. Times, members of Congress were "keen to avoid a public fight with the Pentagon." The announcement that the controversial and still unknown procedures might not be included in the manual was seen as a success by human rights groups.
Yet the proverbial chickens never hatched, and by early September 2006 the new Army Field Manual was finally released. The section on special interrogation procedures for "unlawful combatants" was included as a special appendix (Appendix M), and published in unclassified format. According to a L.A. Times story on September 8th, Cambone was crowing that the new Army Field Manual instructions would give interrogators "what they need to do the job." The article noted:
The new manual includes one restricted technique that will only be used on so-called unlawful combatants – such as Al Qaeda suspects -- not traditional prisoners of war.
That technique, called "separation," involves segregating a detainee from other prisoners. Military officials said separation was not the equivalent of solitary confinement and was consistent with Geneva Convention protections.
As for the proposed secrecy surrounding the new techniques, the Pentagon had decided it couldn't keep them secret forever. Senator Warner was also on record as against any classified annex to the manual.
Not long ago, I wrote about what was included in Appendix M, which purports to introduce the single technique of "separation." In fact, the Appendix M includes instructions regarding solitary confinement, sleep deprivation, sensory deprivation, and, in combination with other procedures included in the Army Field Manual, amounted to a re-introduction of the psychological torture techniques practiced at Guantanamo, and taught by Survival, Evasion, Resistance, and Escape, or SERE psychologists and other personnel at the Cuban base and elsewhere.
The rewrite of the Army Field Manual included other seemingly minor changes. It introduced dubious procedures, such as the "False Flag" technique, wherein interrogators could pretend they were from another country. It also redefined the meaning of "Fear Up," a procedure meant to exploit a prisoner's existing fears under imprisonment. Now, interrogators could create "new" fears. The AFM rewrite was a masterpiece of subterfuge and double talk, which could only have been issued from the offices of Rumsfeld and Cambone.
One would think this turnaround of the Pentagon's position regarding a removal of these controversial procedures would have been a matter of some note. But there was no protest from Congress, no mention of the past controversy in the press, and only vague comments at first and then acceptance by human rights organizations like Amnesty International and Human Rights Watch. Only Physicians for Human Rights protested the inclusion of the techniques listed in Appendix M. For the rest ... silence.
DoD Rolls Out the New Model
On September 6, 2006, a news briefing was held by the Department of Defense, as part of the unveiling of the new Army Field Manual, in conjunction with the then-new Defense Department Directive for Detainee Programs (DoD Directive 2310.01E). Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons were the DoD presenters.
Much of the belief that the AFM provides an improvement over previous policies of the Department of Defense is likely due to a confusion between the two documents introduced that summer of 2006, the new Detainee Program Directive and the new Army Field Manual.
DoD Directive 2310.10E made a number of changes in regards to detainee operations and management. It made clear that "All persons subject to this Directive shall observe the requirements of the law of war, and shall apply, without regard to a detainee's legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949..." The same type of language appears in the text of the Army Field Manual itself.
During the press briefing on September 6, and a different one the next day for the foreign press, reporters were not so easily fooled.
One unnamed reporter at the DoD briefing challenged Lt. Gen. Kimmons on the "single standard" issue:
Q: General, why was the decision made to keep these categories -- the separate categories of detainees? You have traditional prisoners of war and then the unlawful enemy combatants. Why not treat all detainees under U.S. military custody the exact same way?
Kimmons's answer quickly veered into unacceptable territory, and Stimson had to jump in to clarify, as this excerpt demonstrates (emphasis added):
Gen. Kimmons: Well, actually, the distinction is in Geneva through the Geneva Convention, which describes the criteria that prisoner -- that lawful combatants, such as enemy prisoners of war -- which attributes they possess -- wearing a uniform, fighting for a government, bearing your arms openly and so on and so forth. And it's all spelled out fairly precisely inside Geneva.
Geneva also makes clear that traditional, unlawful combatants such as in the -- 50 years ago, we would have talked about spies
and saboteurs, but also now applies to this new category of unlawful -- or new type of unlawful combatant, terrorists, al Qaeda, Taliban.
They clearly don't meet the criteria for prisoner of war status, lawful combatant status, and so they're not entitled to the -- therefore to the extra protections and privileges which Geneva affords.
But Stimson's clarification was not very helpful. In fact, if a prisoner is judged not a "lawful combatant", then he or she immediately becomes covered by Geneva IV, the "Civilian Convention," which protects anyone "who, at a given moment and in any manner whatsoever find themselves" held prisoner. According to the International Red Cross Commentary on the Geneva Conventions:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third [POW] Convention, [or] a civilian covered by the Fourth Convention.... There is no intermediate status; nobody in enemy hands can fall outside the law.
Separation and Sensory Deprivation
One questioner took on the topic of the "Separation" technique. Wasn't it the same as solitary confinement, and wasn't solitary confinement "banned by Common Article 3 in the affront to human dignity, other provisions? "Are you confident," a reporter asked, "that separation is permitted under Common Article 3?"
The Deputy Assistant Secretary of Defense for Detainee Affairs responded by denying that separation amounted to solitary confinement, even though the AFM describes the technique as, among other things "physical separation" "limited to 30 days of initial duration." Extensions for such physical separation must be reviewed and approved the General Officer or Flag Officer who initially approved the original "separation."
Kimmons' reply was even more disingenuous:
We have always segregated enemy combatants on the battlefield at the point of capture and beyond, to keep them silent, segregate the officers from the enlisted, the men from the women, and so forth. That's traditional; it goes back to World War II and beyond.
So, is "separation" a matter of segregating prisoners, or what? In the Army Field Manual itself, one gets that same kind of double talk. At first it is presented thus:
The purpose of separation is to deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or gathering new information to support a cover story; decreasing the detainee's resistance to interrogation.
This description sounds a lot like segregation for security purposes, although there is that phrase "decreasing the detainee's resistance." A page or so later, however, we find the following (emphasis added):
The use of separation should not be confused with the detainee-handling techniques approved in Appendix D [Guide for Handling Detainees]. Specifically, the use of segregation during prisoner handling (Search, Silence, Segregate, Speed, Safeguard, and Tag [5 S's and a T]) should not be confused with the use of separation as a restricted interrogation technique.
Furthermore, we learn that "separation" requires an interrogation plan, and medical and legal review, as well, of course, as "physical separation." If this is not solitary confinement for the purposes of breaking a prisoner down for interrogation, then the English language has lost all purpose in explaining things.
Another line of questioning took on the AFM's contention that it banned sensory deprivation. The entire exchange at the September 6 hearing is worth reproducing here. It represents, among other things, the most thorough line of inquiry I have seen by any reporter in quite some time. The following quote contains added emphases.
Q: General, as an expert in interrogations, do you believe that sensory deprivation was abusive, or did it ever prove to be helpful in interrogation?
Gen. Kimmons: Sensory deprivation is abusive and it's prohibited in this Field Manual, and it's absolutely counterproductive, in my understanding of what we have used productively. Sensory deprivation, just to be clear -- and we define it in the Field Manual, but basically, it comes down to the almost complete deprivation of all sensory stimuli, light, noise, and so forth, and to the point where it can have an adverse mental, psychological effect on a -- disorienting effect on a detainee.
Q: So could there be deprivation of light alone for extended periods of time, as opposed to complete sensory deprivation?
Gen. Kimmons: I think the total loss of an external stimulus, such as deprivation of light, would not fit what we have described here as -- for example, if you're hinting about separation, separation does not involve the darkness or lack of that type of sensory stimulation.
Q: That wasn't the question, though. Would sensory -- would the deprivation of light alone be permitted under the current manual, as opposed -- because you described sensory deprivation as total deprivation --
Gen. Kimmons: That's correction.
Q: -- of all senses. So deprivation of light alone for extended periods would be permitted?
Gen. Kimmons: I don't think the Field Manual explicitly addresses it.
It does not make it prohibited. And it would have to be weighed in the context of the overall environment. If it was at nighttime during sleep hours, then it would make personal sense to turn the lights off.
Q: You know what I'm talking about. I'm trying to get at -- because you said specifically total sensory deprivation -- so deprivation of any one sense might be permitted. Like light, for example. They could be kept in the dark for extended periods of time beyond the usual nighttime hours.
This is really too specific and challenging for the DoD briefers, and they turn on their double-talk machine:
Mr. Stimson: Jim, questions like this are good questions to ask. And what's important to remember is that interrogation plans are put together for a reason so that not just one person can decide what he or she wants to do and then run off and do it. They're vetted. It's laid out how they're vetted. General Kimmons could go into that in exhaustive detail. Typically, there would be a JAG, as I understand it, General Kimmons --
Gen. Kimmons: That's correct.
Mr. Stimson: -- that would have to review that. It goes up through various chains of command. And so, you know, types of questions like this would have to be asked and then vetted through that process.
Burying the Story
With all the hard questioning by the press, you'd think the issues would have been aired in the media in the days and weeks following the introduction of the Army Field Manual. As should be evident by now, that's not what happened.
Here's how the L.A. Times covered it, getting the story exactly backwards (emphasis added):
Bowing to critics of its tough interrogation policies, the Pentagon is issuing a new Army field manual that provides Geneva Convention protections for all detainees and eliminates a secret list of interrogation tactics.
The manual, set for release today, also reverses an earlier decision to maintain two interrogation standards – one for traditional prisoners of war and another for "unlawful combatants" captured during a conflict but not affiliated
with a nation's military force.
There is no mention of Appendix M or any controversy over techniques. Jumana Musa, an "advocacy director for Amnesty International, is quoted as noting, ""If the new field manual embraces the Geneva Convention, it is an important return to the rule of law.'"
The article in the Washington Post was, if anything, even more laudatory of the new AFM:
Pentagon officials yesterday repudiated the harsh interrogation tactics adopted since the Sept. 11, 2001, terrorist attacks, specifically forbidding U.S. troops from using forced nudity, hooding, military dogs and waterboarding to elicit information from detainees captured in ongoing wars.
The Defense Department simultaneously embraced international humane treatment standards for all detainees in U.S. military custody, the first time there has been a uniform standard for both enemy prisoners of war and the so-called unlawful combatants linked to al-Qaeda, the Taliban and other terrorist organizations.
The article falsely claims the AFM bans manipulation of sleep patterns. Regarding any controversy, the article explains:
Three expanded techniques -- good cop, bad cop; pretending to be an official from another country; and detention in a separate cell from others -- are allowed but require approval from senior officers. Officials originally considered keeping those three techniques classified but decided to make them public for the sake of full transparency.
The Post article also briefly mentioned the generally positive response of human rights groups:
"This is the Pentagon coming full circle," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "This is very strong guidance."
As for the human rights organizations, Amnesty International later essentially signed off on the AFM. In an article from the Winter 2007 issue of Amnesty International Magazine, Jumana Musa, quoted in the L.A. Times article above, had this to say about the new AFM:
AIUSA also worked with U.S. representatives and senators to introduce legislation to create a single, transparent standard for interrogations and to limit the CIA to approved interrogation techniques outlined in the Army Field Manual.
In a telephone interview for this article, Mr. Malinowski said he supported using the Army Field Manual as a replacement for the CIA "enhanced interrogation techniques," and described the question of abuse in Appendix M as not entirely clear. He maintained, however, that the current Army Field Manual was merely a start, and that a new overhaul of interrogation techniques was on the agenda.
A call made to Amnesty International's press contact regarding this issue, and an e-mail sent to Jumana Musa, were both unreturned.
The truth behind the Army Field Manual is more important than ever
Two conclusions can be drawn from the above examination of the "selling" of the Army Field Manual to the American public in the late summer of 2006 and beyond. One is that reporters on the beat were very aware of the origins and implications of the issues surrounding Geneva and the AFM, and the controversies surrounding the use of isolation and other techniques under the rubric of "Separation." The extremely muted or non-existent discussion in the mainstream press of these issues after the AFM was introduced means that a decision to suppress these issues was made at an editorial level, and were not the result of laziness or dilatory reporting on behalf of reporters.
Secondly, the role of some human rights organizations in promoting the new Army Field Manual -- in particular, the actions of Amnesty International and Human Rights Watch -- are curious, to say the least. Press reports and the interview with Malinowski show that inclusion of certain human rights organizations in the vetting of the AFM started at the very beginning. We may not be able to find out what went on in the editorial offices of the nation's top newspapers, but we should know more about the discussions within the human rights organizations on how they advised, or were fooled, by talks with Bush administration and Pentagon personnel.
Meanwhile, other human rights organizations, such as the Nobel Prize-winning Physicians for Human Rights, have criticized the language and techniques described in Appendix M of the Army Field Manual, and called for rescission of the offending text. In a letter to Secretary of Defense Robert Gates in May 2007, Leonard S. Rubenstein, Executive Director of PHR, and retired Brigadier General Stephen N. Xenakis, MD, former Commanding General of the Southeast Regional U.S. Army Medical Command, wrote:
The new Army Field Manual on human intelligence gathering... explicitly prohibits several SERE-based techniques, yet Appendix M of the manual explicitly permits what amounts to isolation, along with sleep and sensory deprivation. The manual is silent on a number of other SERE-based methods, creating ambiguity and doubt over their place in interrogation doctrine....
PHR, therefore, respectfully urges you to take the following actions:
1. Fully implement the OIG's recommendation to "preclude the use of Survival, Evasion, Resistance, and Escape physical and psychological coercion techniques" in all interrogations. (Id, pp. 29-30.) This includes rescission of Appendix M of the new Army Field Manual and specific prohibition, by name, of each of the known SERE-based methods and their equivalents.
It seems likely that the Army Field Manual, whether by executive order (most likely) or by legislation, will become the new "single standard" for U.S. interrogation. Press reports hint that the Obama administration may yet allow a loophole for CIA interrogators.
In any case, the full history and controversy behind torture and U.S. interrogation policy deserves a full airing. What happened, for instance, between June and September 2006, allowing for Pentagon acceptance of the Appendix M abusive procedures? When it comes to the implementation of a host of torture and cruel, inhumane interrogation techniques by the U.S. government, both an investigation and prosecutions are needed.
It will be a challenge for our society to bring out the full story, while also bringing to justice those individuals who broke both domestic law and international treaty. We will need both investigations and prosecutions in order settle scores with the past, to understand where we stand now, and what we need to change to move forward.
01-28-2009, 02:21 AM
Department of Defense announces Gitmo detainee transfers
Published: Sunday January 18, 2009
President-elect Barack Obama's inauguration is set for just over 48 hours from now, with one of his first acts as President expected to be ordering the closure of the U.S. Guantanamo Bay military prison. After he figures out what to do with the detainees, of course. That is, if there are any detainees remaining in the facility come Tuesday, Jan. 20, 2009.
The Department of Defense announced late Saturday the 'transfer' of six detainees, with four going to Iraq, one to Algeria and one to Afghanistan.
The Pentagon release claims that the "detainees were determined to be eligible for departure following a comprehensive series of review processes," and that the "transfer is a demonstration of the United States' desire not to hold detainees any longer than necessary."
It is not stated whether or not the released detainees have been freed, or transferred to other detention facilities.
Another 60 detainees are said to have been cleared through the review processes for transfer or release pending discussions between the U.S. and other yet unnamed nations.
The indefinite detentions of the 'Gitmo' detainees has been a source of great angst for human rights activists both in the U.S. and abroad, along with reports of harsh interrogation methods.
Outgoing Vice-President Dick Cheney in a recent televised interview candidly admitted sanctioning torture in the form of waterboarding.
"I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn't do," Cheney said. "And they talked to me, as well as others, to explain what they wanted to do. And I supported it."
Even President George W. Bush discussed what he says is the necessity for torture, although he rejects the use of the word torture in favor of 'enhanced interrogation tactics.'
Obama has said that prosecuting torture committed by the Bush administration would not be a priority for him once he takes office. If there are to be any torture-related prosecutions, however, it remains to be seen if the release of detainees to other nations will complicate that legal process.
01-31-2009, 11:25 AM
Obama lets CIA keep controversial renditions tool
By Greg Miller | Washington Bureau
January 31, 2009
WASHINGTON — The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.
But even while dismantling these discredited programs, President Barack Obama left an equally controversial counterterrorism tool intact.
Under executive orders issued by Obama last week, the CIA still has authority to carry out what are known as renditions, or the secret abductions and transfers of prisoners to countries that cooperate with the U.S.
Current and former U.S. intelligence officials said the rendition program is poised to play an expanded role because it is the main remaining mechanism—aside from Predator missile strikes—for taking suspected terrorists off the street.
The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.
The European Parliament condemned renditions as an "illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a subsidiary of Boeing Corp., which is accused of working with the agency on dozens of rendition flights.
But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.
The decision underscores the fact that the battle with Al Qaeda and other terrorist groups is far from over and that even if the U.S. is shutting down the prisons, it is not done taking prisoners.
"Obviously you need to preserve some tools, you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing legal reasoning behind the decision. "The legal advisers working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."
One provision in one of Obama's orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."
Obama's decision to preserve the program did not draw major protests, even among human-rights groups. Leaders of such organizations said that reflects a sense, even among advocates, that the United States and other nations need certain tools to combat terrorism.
"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured."
In his executive order on lawful interrogations, Obama created a task force to re-examine renditions to make sure that they "do not result in the transfer of individuals to other nations to face torture" or otherwise circumvent human-rights laws and treaties.
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