Monday, September 14, 2009

Obama Admin Fights Bagram Detainee Court Access




September 14, 2009

Obama Admin Fights Bagram Detainee Court Access

By THE ASSOCIATED PRESS www.nytimes.com/aponline/2009/09/14/us/politics/AP-US-Terror-Detainees.html

Filed at 9:16 p.m. ET

WASHINGTON (AP) -- The Obama administration argued late Monday that allowing terrorism detainees in Afghanistan to file lawsuits in U.S. courts challenging their detention would endanger the military mission in that country.

Although the Pentagon is giving the roughly 600 detainees at Bagram Airfield a new chance to challenge their detentions, the Obama administration stuck with Bush administration policy in a court filing Monday night that said the Bagram detainees' rights shouldn't extend as far as U.S. courtrooms.

In a filing with the U.S. Court of Appeals in Washington, the Justice Department said Bagram detainees should not be given equal rights to sue in the United States that the Supreme Court granted last year to detainees being held at the Guantanamo Bay facility in Cuba.

The administration argued in its brief that Bagram is in an active war zone and the sovereign nation of Afghanistan, and there are sensitive diplomatic considerations involving detainees held there. That's in contrast to Cuba, which has no diplomatic relations with the United States and does not have the security implications of a war zone, the administration said.

The filing was made in response to a ruling in April by U.S. District Judge John Bates, who said foreign detainees at Bagram should be allowed to sue in U.S. civilian courts to challenge their confinement. Bates said the cases of the Guantanamo and Bagram detainees were essentially the same -- the first time a federal judge applied the Supreme Court's ruling on Guantanamo detainees to those held elsewhere in the world.

Bates' ruling was applauded by human rights organizations and drew a rebuke from congressional Republicans who said the judge, an Army veteran nominated by then-President George W. Bush, was endangering national security.

Obama's Justice Department has sided with the congressional Republicans and put forward the same argument as the Bush administration. It said in Monday's 85-page filing that allowing Bagram detainees access to U.S. courts would divert military personnel at Bagram and ''have serious adverse consequences for the military mission in Afghanistan.''
Bates' ruling ''reverses long-standing law, imposes great practical problems, conflicts with the considered judgment of both political branches, and risks opening the federal courts to habeas claims brought by detainees held in other theaters of war during future military actions,'' the filing said.

The filing comes on the heels of media reports over the weekend that the Pentagon has a new policy for Bagram detainees to challenge their detentions before military review boards. The prisoners will be given a U.S. military official to serve as their personal representative to help argue their case and for the first time they will be able to call witnesses and submit evidence in their defense.

Bates had cited the Bagram detainees' lack of representation or access to evidence in his April ruling.

Friday, September 11, 2009

Fear Was No Excuse - Miami Herald 9/11/09

Fear was no excuse to condone torture BY CHARLES C. KRULAK and JOSEPH P. HOAR


Posted on Fri, Sep. 11, 2009 www.miamiherald.com/opinion/other-views/story/1227832.html

In the fear that followed the Sept. 11, 2001, attacks, Americans were told that defeating Al Qaeda would require us to ``take off the gloves.'' As a former commandant of the U.S. Marine Corps and a retired commander-in-chief of U.S. Central Command, we knew that was a recipe for disaster.

But we never imagined that we would feel duty-bound to publicly denounce a vice president of the United States, a man who has served our country for many years. In light of the irresponsible statements recently made by former Vice President Dick Cheney, however, we feel we must repudiate his dangerous ideas -- and his scare tactics.

We have seen how ill-conceived policies that ignored military law on the treatment of enemy prisoners hindered our ability to defeat al Qaeda. We have seen American troops die at the hands of foreign fighters recruited with stories about tortured Muslim detainees at Guantánamo and Abu Ghraib. And yet Cheney and others who orchestrated America's disastrous trip to ``the dark side'' continue to assert -- against all evidence -- that torture ``worked'' and that our country is better off for having gone there.

In an interview with Fox News Sunday, Cheney applauded the ``enhanced interrogation techniques'' -- what we used to call ``war crimes'' because they violated the Geneva Conventions, which the United States instigated and has followed for 60 years. Cheney insisted the abusive techniques were ``absolutely essential in saving thousands of American lives and preventing further attacks against the United States.'' He claimed they were ``directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. It was good policy . . . It worked very, very well.''

Repeating these assertions doesn't make them true. We now see that the best intelligence, which led to the capture of Saddam Hussein and the elimination of Abu Musab al-Zarqawi, was produced by professional interrogations using noncoercive techniques. When the abuse began, prisoners told interrogators whatever they thought would make it stop.

Torture is as likely to produce lies as the truth. And it did.

What leaders say matters. So when it comes to light, as it did recently, that U.S. interrogators staged mock executions and held a whirling electric drill close to the body of a naked, hooded detainee, and the former vice president winks and nods, it matters.

The Bush administration had already degraded the rules of war by authorizing techniques that violated the Geneva Conventions and shocked the conscience of the world. Now Cheney has publicly condoned the abuse that went beyond even those weakened standards, leading us down a slippery slope of lawlessness. Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation's honor.

To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.

On Aug. 24, the United States took an important step toward moral clarity and the rule of law when a special task force recommended that in the future, the Army interrogation manual should be the single standard for all agencies of the U.S. government.

The unanimous decision represents an unusual consensus among the defense, intelligence, law enforcement and homeland security agencies. Members of the task force had access to every scrap of intelligence, yet they drew the opposite conclusion from Cheney's. They concluded that far from making us safer, cruelty betrays American values and harms U.S. national security.

On this solemn day we pause to remember those who lost their lives on 9/11. As our leaders work to prevent terrorists from again striking on our soil, they should remember the fundamental precept of counterinsurgency we've relearned in Afghanistan and Iraq: Undermine the enemy's legitimacy while building our own. These wars will not be won on the battlefield. They will be won in the hearts of young men who decide not to sign up to be fighters and young women who decline to be suicide bombers. If Americans torture and it comes to light -- as it inevitably will -- it embitters and alienates the very people we need most.

Our current commander-in-chief understands this. The task force recommendations take us a step closer to restoring the rule of law and the standards of human dignity that made us who we are as a nation. Repudiating torture and other cruelty helps keep us from being sent on fools' errands by bad intelligence. And in the end, that makes us all safer.


Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994.

Monday, September 7, 2009

US tried to soften Treaty on Detainees- Wash Post 9/09

U.S. Tried to Soften Treaty on Detainees
Bush White House Sought to Shield Those Running Secret CIA Prisons
By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, September 8, 2009

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/07/AR2009090702225.html?hpid=topnews

From 2003 to 2006, the Bush administration quietly tried to relax the draft language of a treaty meant to bar and punish "enforced disappearances" so that those overseeing the CIA's secret prison system would not be criminally prosecuted under its provisions, according to former officials and hundreds of pages of documents recently declassified by the State Department.

The aim of the global treaty, long supported by the United States, was to end official kidnappings, detentions and killings like those that plagued Latin America in the 1970s and 1980s, and that allegedly still occur in Russia, China, Iran, Colombia, Sri Lanka and elsewhere. But the documents suggest that initial U.S. support for the negotiations collided head-on with the then-undisclosed goal of seizing suspected terrorists anywhere in the world for questioning by CIA interrogators or indefinite detention by the U.S. military at foreign sites.

Instead of embracing a far-reaching ban on arrests, detentions and abductions of people without disclosing their fate or whereabouts or ensuring "the protection of the law," the United States pressed in 2004 for a more limited prohibition on intentionally placing detainees outside legal protections for "a prolonged period of time." At the time, the CIA was secretly holding about a dozen prisoners.

Foreign governments criticized the U.S.-preferred wording, calling it vague and saying that proving intent would be hard and should not be necessary.
In the end, the Bush administration declined to endorse the treaty's broadly worded ban, which at least 81 countries have now signed, including all members of the European Union and many nations with checkered human rights records, such as Algeria, Argentina, Cuba and Guatemala.

A White House official said the Obama administration is reviewing the previous U.S. stance on the treaty as part of a wider look at international human rights accords that Washington has not signed. The official did not say when a decision might be made.

The administration has already reversed its predecessor's decision to shun the U.N. Human Rights Council, which is monitoring the treaty's implementation. But it has also said it will retain the ability to capture and transfer suspects to third countries, a practice known as rendition, while stressing that it will not do so if detainees are at risk of torture.
The documents detailing U.S. proposals to loosen some of the treaty's key language were released last week in response to a Freedom of Information Act request made by Amnesty International, but many passages were redacted, and the remaining portions make no direct reference to specific CIA or Defense Department objections.
A senior Bush administration policymaker confirmed in an interview last week, however, that the existence of the CIA prisons and the military prison at Guantanamo Bay, Cuba, where the Defense Department has held hundreds of suspected terrorists without initially disclosing their names, was "a complicating factor" in U.S. deliberations on the treaty.
"Our negotiators were certainly aware that there was this program where people were being held, and were not in touch with people, and they had to be careful to ensure that there was room" for that program to continue, the official said, speaking on the condition of anonymity because of the sensitivity of the deliberations. He added that the treaty's proposed definition of "enforced disappearances" was only one of several problems Washington had with the draft.

"As with a number of previous human rights treaties, the language was just so broad that . . . we were not going to be able to sign," he said.
The treaty requires member countries to enact domestic criminal penalties for state-orchestrated disappearances and to compensate victims, but it has not taken legal effect because it has not been ratified by at least 20 nations, the minimum required. That leaves U.N. investigations of such cases in the hands of a five-member group chaired by a South African, which last year sent 1,203 new allegations of enforced disappearances to officials in the 28 countries said to be involved. A total of 42,393 alleged such disappearances in 79 countries remain unresolved by the group, according to its most recent annual report.

The U.N. group complained to the Bush administration last year about reports of the "enforced disappearance for a certain period of time" of Hassan Mustafa Osama Nasr, also known as Abu Omar, a radical Egyptian cleric who was abducted by the CIA from a Milan street in 2003 and sent to Egypt, where he says he was tortured. When the State Department responded that U.S. policy bars such renditions if torture is anticipated, the U.N. group highlighted the gulf between the global treaty's view of "intentionality" and the Bush administration's view.

"Intentionality is essentially irrelevant," the group said in its response to Washington, "in the sense that any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law, regardless of the pursued purposes." U.S. negotiators had argued to the contrary in 2006 -- that proving intent is "an essential ingredient of the crime."

During the negotiations, China and a few other countries joined the United States in repeatedly attempting to slow the pace of the drafting, citing the complexity of the underlying issues. But a February 2004 State Department cable described the United States as "isolated" in urging that the text include language allowing those participating in enforced disappearances to be exempt from prosecution if they thought they were following lawful orders.

The documents also spell out how the Bush administration was "virtually alone" in objecting to a treaty provision stipulating that anyone "with a legitimate interest," such as a relative, be given an explanation and accounting of an individual's detention by the government as well as information on the person's whereabouts and health. U.S. negotiators called that provision unacceptable in a 2004 document, saying it "could impair national security, law enforcement, or privacy interests."

David Kaye, a State Department lawyer from 1999 to 2002 who directs the International Human Rights Program at UCLA Law School, said after reviewing the documents that "it's clear that the 'right to know' was at the heart of the effort to draft this new instrument." In that context, he said, "the failure to come up with a creative way to solve the American problem with this language plainly looks like the Bush administration objected to the purpose of the treaty itself -- and that our allies roundly rejected the U.S. position."

He added: "I think a lot of the 'problems' in the text could be resolved and that the United States should consider joining this treaty."
Allen Weiner, another former State Department lawyer who is co-director of the Program in International Law at Stanford Law School, similarly said that many of the apparent U.S. concerns were "solvable" or could have been addressed in legal "reservations," whereby the U.S. government spelled out its plans to implement the treaty's language.
The senior Bush administration official noted, however, that Washington's ability to gain concessions from others was undermined by public revelation of the CIA prisons in 2005. "I doubt that other countries would have been pushing quite so hard on this particular convention at this time were they not trying to cause problems for the administration," he said.

The context, he said, enabled "both the Europeans and the Latins" to "join forces" in arguing against the U.S. proposals.

Staff researcher Julie Tate contributed to this report.