Also See "Abu Ghraib--Torture I"
"Torture/Abuse II: 2005-2006"
for War Crimes of US Troops see "Troops/Moral" FAQ
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Leon Panetta will be the new head of the CIA, Obama announced in January, 2009 With limited intelligence experience, the pick was quickly controversial. Outside directors have not been welcomed in the past. Panetta had been a member of the House, White House chief of staff, and a member of the Bush-appointed Iraq Study Group. |
Panetta wrote recently, "Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise We cannot and we must no use torture under any circumstances. We are better than that." John McCain would likely agree but Democratic Senator Feinstein expressed concern. One professor who writes on intelligence was quoted as saying, "It's a puzzling choice and a high-risk choice." Clearly, Obama wants a clear break from the past.
In his first 24 hours in office, new President Obama announced that Gitmo would close within a year. Despite his executive order, questions remained: would some suspect be released, put on trial, or held in the US? If held in the US, who would take them? Where will they go? Obama admits that all the options have problems. About half of the nearly 250 detainees are from Yemen. Some Republicans who oppose the plan worry that detainees will get off on technicalities. Federal courts have convicted 145 people of terorism-related charges since 2001.
Would Alberto Gonzales likely be persecuted? The 1/28/09 Times editorial thinks he should be. The former Attorney General should feel lucky that he resigned in August of 2007 "without being hauled into Congress on perjury or contempt charges. He was in the thick of [Bush's] damaging attacks on the rule of law. As White House counsel [before being made A.G] he helped to justify torture and illegal wiretapping." Gonzalez attacked Obama's choice for Attorney General, Eric Holder, for saying that waterboarding is torture. Holder was wrong, "not the lawyers like Mr. Gonzales who tortured the law to justify torture." Gonzales adds that making "blanket statements like that" might affect "the moral and dedication" of intelligence officials.
Films including Taxi to the Dark Side give vivid descriptions of torture at Gitmo and Abu Ghraib and Bagram. What will Obama do with Bagram? This was the question for a Times front page article in late January. 600 prisoners remain there, tougher and "more Spartan" than Gitmo, with fewer privileges and often being held in communal cages. Journalists and human rights activists have never been allowed there. They are being held indefinitely and without charge. Two Afghan detainees died in US custody in December of 2002. A new detention center at Bagram is scheduled to open in 2009.
The case of Maher Arar of Canada remained an issue for the new US President. A Times editorial suggests that Obama bring up the US-led rendition, and Syrian torture, apologize as the Canadian government has, and offer Arar monetary compensation. "The Unfinished Case" (2/18/09) reminds us that the Syrian-born Canadian is "the most well known victim of the Bush administration's notorious policy of extraordinary rendition." For details on the case on its development, see "Torture III" and click on "Rendition". Bush refuses to admit "the grave injustice" and Obama "must do better," the paper urges. After the US sent him to Syria, he was tortured and imprisoned for nearly a year "in an underground cell the size of a grave..." Arar sued the US for denying him his civil rights rights "the Bush administration--predictably--argued that for reasons of national security the case should never be allowed to come to trial." A court of Appeals will decide further. A report from the Obama administration, apology, and compensations are "all long overdue," the paper concludes. Arar was picked up at Kennedy airport in 2002, held in New York for 13 days, interrogated, and then sent to Syria where he says he was tortured.
A US Federal Appeals Court rejected Arar's suit, concluding 7-4 that he cannot sue for damages because Congress has not authorized such suits. The suit was filed against former Attorney General John Ashcroft and others. One judge wrote in dissent, "I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay.
Biden feels that Bush gave al Qaeda a recuiting tool on a visit to the CIA in February. The detention and interrogation policies were controversial.
Will Obama also close Bagram in Afghanistan? Early signs strongly suggest that he will not. In late February the Obama administration told a federal judge that military detainees in Afghanistan have no legal right to challenge their detention in US courts, the argument given by President Bush. Several prisoners filed a habeas corpus lawsuit, as they have been detained indefinitely for years without trial. The detainees argue that they are not enemy combatants and, according to the Times article, want "a judge to review the evidence...and order the military to release them." Bagram has out 600 detainees compared to several thousand in Iraq.
For much more on Afghanistan, see "Next" FAQ section.
The new and improved Abu Ghraib was re-opened in February. The Iraqi Ministry of Justice led reporters on a tour of the new Baghdad Central Prison, redone cost effectively by the Iraqis. No prisoners were seen. Amenities included a large flat-screen TV, a barbershop, a library, a computer lab, a sewing workshop, a gym and a playground for inmates and their families during visits. One jailor spoke anonymously, 'It reminds me of the past. I hate this place. It is depressing. One poster read, "No to torture" with a close up photo of bodies with bruises and cuts on the wall.The Times article was entitled, "Fresh Pain and Flowers At Iraqi House of Horrors."
In late February we heard the UN report condemning actions of foreigners at Gitmo. Evidence obtained in tainted and must be thrown out at any trial. Foreign law enforcement and intelligence officials "violated their legal obligation to reject" torture and arbitrary detention. "They should have thought about [not being able to use the evidence] from the beginning, but didn't. The study was from visits in December 2007.
Court victories for those at Gitmo usually fall short of leading to their actual release. The are "caught in a strange limbo" partly because the US says it can find no place to release them to. Says one of their lawyers, "These are innocent men, held in a prison that has because a national shame...It's very hard to explain how they could be free men and still be imprisoned." 17 are Chinese Muslim Uighers who will likely be tortured if returned to China. Added one lawyer for the detainees, "Innocent people can spend the rest of their lives in prison, even though ithe US knows it's a mistake." The Bush administration had talks with 100 countries about taking some of the prisoners at Gitmo.
Al-Marri, held in US detention, came back into the picture in late February 2009. In a change from the Bush policy, the Obama Justice administration planned to bring terrorism-related charges to a US court. He is the only alleged enemy combatant held on US soil. This way, Obama need not decide whether suspect can be held indefinitely. Al-Marri was back in the news in October. In Illinois, he was given 8 years in prison, but has already serves six in North Carolina. He was only charged with any crime in 2008.
What happens when prisoners are released? One example from February was of Britain Binyam Mohammed, held for almost seven years. He was captured in Pakistan in 2002 when US officials said he was involved in a conspiracy to blow up a dirty bomb in the US. All charges have not been dropped. Mohammed said he was held for 18 months in Morocco and tortured there, then moved to Afghanistan and finally to Gitmo. His lawyer told the press that what he "endured at Gitmo 'makes waterboarding look like child's play.'" Having lived in Britain for 15 years, the British had tried to get him released during about 1 1/2 years of "intense negotiations" (UK foreign secretary). One reason the release was delayed was disagreemtn about restrictions on him upon release. He agreed to never travel to the US. Will he talk about Gitmo and torture? The "gag order" to US sought was rejected by his lawyers. A subsidiary of Boeing is being sued for allowing his rendition to Morocco.
Four were sent back to their home country of Iraq in February where they are being interrogated. The prisoners had been arrested in Afghanistan.
What is the recidivism rate? The Pentagon puts it at 1 in 7. Some at think tanks think the numbers (74/534 released or 14%) are exagerrated for two main reasons. First, the statistics include those who "are suspected" of returning to violence. Second, they count those who have returned to voilence which does not aim at the US or are closest allies.
Thomas Friedman's April 29 column was of "A Torturous Compromise." He opens, "Weighing everything, President Obama got it about as right as one could when he decided to ban the use of torure, to release the Bush torture memos for public scrutiny and to not prosecute the lawyers and interrogators who implemented the policy. But there is nothing for us to be happy about in any of this." 27 people died in US custody in Afghanistan and Iraq, most of them declared homicide. "They were allegedly kicked to death, shot, suffocated or drowned. Look, we killed detainees, and only a handful of those deaths have resulted in any punishment of US officials." Friedman wonders how we deter others from torturing. During the Cold War, "We could deter the Russians because they loved their children more than they hated us; they did not want to die. The Al Qaeda operatives hated us more than they loved their own children. They glorified martyrdom and left families behind." These Muslims feel it is proper to kill fellow Muslims, even civilians. The Times columnist and author feels that the post 9/11 environment "remains perilou...We have the luxury of having this torture debate now because there was no second 9/11, and it was not for want of trying." What if the US defeats Al Qaeda in Iraq? This would be a "dangerous moment" because Al Qaeda "remnants will try to throw a Hail Mary pass---that is, try to set off a bomb in US city--to obscure its defeat by moderate Arabs and Muslim in the heart of its world."
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Seven years at Gitmo was described by an Algerian, who by late May 2009 was in France. Lakhdar Boumediene, 43, contends that he was interrogated for 16 straight nights, from at least midnight until 5 am, and that he was force fed through a tube when he went on a hunger strike. Boumediene was captured in 2001 in Bosnia. The US Supreme Court ruled in his favor in 2008 and against Bush, giving him a right to judicial review. Later, a US district court judge orderred him released. |
Can a detainee sue the head of the Justice Department and the FBI? This is the goal of Javaid Iqbal, a Pakistani citizen who alleged unfair treatment. The US Supreme Court, revering a US Appeals court ruling, according to a Times editorial of May 20, "continued its disturbing campaign of closing the courthouse door" to such people. Iqbal was rounded up in the US after 9/11, pled guilty, and was deported. What did top officials know about the policies. "Extraordinary rendion...to overseas prisons for harsh interrogation could only have happened with top officials' approval...If Mr. Iqbal was allowed to ask the defendants questions, he could have fleshed out his claims."
A civil lawsuit over torture was allowed to go forward, determined a San Francisco judge (appointed by Bush) in mid June. Jose Padilla, who careful readers of this site will know well, was born in Brooklyn and was held as an "enemy combatant" in solitary confinement for three years. He was convicted of supporting terrorism and sentenced to 17 years in prison, His suit demands that John Yoo, a lead attorney of the Bush administration, be held accountable for this treatment. Yoo, now a professor at UC Berkeley is being represented by the Justice Dept. Yoo has claimed immunity and wrote in the Wall Street Journal last year, "The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box. However, the judge determined that his judgments on torture may have set in motion a series of events which led to the treatment. Padilla, his lawyer said, is seeking $1 million in damages "along with a declaration by the court that his treatment was unconstitutional."
Did the US detain a 12 year old? So contends an Afghan rights group. The official report puts his age at 16 or 17.
Should more abuse photos be released? At first Obama felt that they should be released. But in mid-May, he changed his mind, agreeing with his commanders of a risk to US troops. The move was criticized by the ACLU.
Gitmo became a wedge issue for Republicans in the spring of 2009. Many Republicans and some Democrats didn't want prisoners being transferred to their home state or district. McCain had worried during the campaign, "Where are we going to send them?" Then, Obama proposed a new legal system to hold detainees without a trial for a "prolonged" period of time. Preventive detention, used commonly in cases where bail is denied, is still controversial. Should the military courts be given oversight by Congress and/or the courts? Others ask, "Is this what America does?" Civil Rights groups worry about moving Gitmo to another location and just changing its name. Sen. Fiengold adds, "Such detention is a hallmark of abusive systems that we have historically criticized around the world." If they are warped, were tortured, or now want to act violently toward Americans, can they ever be safely released? Obama seems to have changed his mind partly because he received detailed information after taking office. Can detainees not be convicted but never be released?
How much did Congressional leaders know about US torture? Speaker of the House Nancy Pelosi alleged in the spring of 2009 that she was not briefed about waterboarding back in the fall of 2002. Normally under the Bush administration, the full Intelligence Committees in the House and Senate were not briefed, just the top 4 or 8 leaders of Congress. The CIA publicly disagreed with her. The debate became heated. Pelosi claims that waterboarding and other techniques were being considered, not that they were being used. A former counsel to the CIA and the Senate Intelligence Committee explained in her op-ed that the "gang of four" were not to speak to anyone about the briefings. What if they had objected; what were their options? What other actions were kept from the public or from Congressional scrutiny? Bush wanted to limit information to limit "political pushback...But four members cannot stop financing and ban activities on their own--that takes the whole Congress." They could have demanded that the full committee hear the briefings.
Maureen Dowd's column of mid-May focuses on former VP Cheney and his views that torture gave us information kept us from being attacked. "Doomsday Dick" was "the man who never talked" but became "the man who won't shut up."
Frank Rich, also in the Times opined in late May about who would be to blame for the next attack. Rich feels that Cheney is using "lies and fear to try to gain political advantage" and to "rewrite history and escape accountability for the failed Bush presidency rather than to drum up a new war. Once again, Democrats in Congress were cowed. And once again too much of the so-called liberal news media parroted the right's scare tactics." Cheney had given a speech at the American Enterprise Institute which Rich labeled the "no middle ground" speech. It made 20 references to 9/11 and seem as if the GOP was almost hoping for another attack on Obama's watch. Democrats joined Republicans in fearing any Gitmo detainees coming to the US. Rich was upset that the press seemed to set up a Cheney-Obama debate, as if their ideas were equal.
Examining some pre-war history, Rich recalls that Cheney's errors of allegations were reported by Knight-Ridder who before the war spoke of the "lack of hard evidence" for WMD allegations. Rich added, "waterboarding hasn't and isn't going to save us from anything....We know in the month before 9/11, bin Laden and al-Zawahri met with the Pakistani nuclear scientist Mahmoud. That was the real link between 9/11 and nuclear terror that the Bush administration led metastasize while it squandered American resources on a fictional link between 9/11 and a 'nuclear' Saddam." Pakistan is now "the time bomb." The Times columnist and author concludes, "The Bush administration did not make us safer either before or after 9/11. Obama is not making us less safe."
David Brooks got into the Cheney-torture debate with his May 22 column, "Cheney Lost to Bush." Like Rich, he examines the history of the Bush administration and its torture policies and debates. After 9/11 we entered a 2-3 year period of the "Bush-Cheney policy." "The Bush people believed they were operating within the law but they did things most of us now find morally offensive and counterproductive." By 2005, Cheney had less power and the Bush-Rice-Hadley era emerged trying to "reign in" the previous "accesses." Brooks adds, "Cheney and Obama might pretend otherwise, but it wasn't the Obama administration" that halted waterboarding; it was stopped under Bush. So when Cheney "lambastes the change in security policy," he is attacking the Bush administration. Obama represents a continuation of policies such as Gitmo, habeas corpus, military commissions, rendition, interrogation. "What Obama gets, and what President Bush never got, is that other peoples' opinions matter."
The lead Times editorial on the same day as the Brooks' column was "The Real Path to Security." The paper expresses that for seven years Bush "tried to frighten the American public--and successfully cowed Congress--with bullying and disinformation." Now Obama has "told the truth. It was a moment of political courage that will make this country safer." Obama was "exactly right" when saying that Americans "do not have to choose between security and their democratic values." Cheney, however, was "fear mongering in full force." The paper does not agree "with every aspect" of Obama's solution and feels that it is a "ludicrous position that no inmate can set foot in the continental US even in irons and headed for a maximum-security prison."
Allies were reported to be helping the US more is holding suspects abroad.
In late May Obama backed the idea of detentions without trials. This was labeled "prolonged detention" and was deemed by him "the toughest issue we face." The President also intended to transfer some of the 240 detainees to the US. Where would they go? 50-100 cannot be released or tried, feels the administration. One option was maximum security prisons in the US. There was a NIMBY (Not In My Back Yard) reaction from Congress and many in the public. In fact, the Senate voted 90-6 to cut funding from the $80 million to shut the prison. They wanted more details about where the prisoners would go. This may have been the first vote in which the majority of Democrats voted against the President.
Has the Gitmo policy effected world opinion? A PEW poll in July showed that the decision to close Gitmo was a primary reason that the global view of the US has imporved under Obama. Most of those surveyed were also pleased with the troop withdrawal deadline from Iraq but displeased with the decision to send more troops to Afghnistan.
In June of 2009 another Gitmo suicide was reported. Hanashi, from Yemen, was on a long hunger strike, and had been held since 2002. He was kept in a psychiatric ward and force-fed in a restraint chair. At one point his weight had dropped to 87 pounds. Four suicide occured under President Bush, three in June 2006.
Also in June we learned more about the past interrogation debate within the Bush administration. Lawyers had agreed that the harsh tactics were legal, including waterboarding. But the 2005 debate resolved to allow the CIA to use 13 methods of treatment.
We did not learn until May of 2009 about more Bush torture controversy. Back in June of 2003, Bush gave a speech to mark the UN's day in support of victims of torture. He proclaimed that the US is "committed to the worldwide elimination of true and we are leading this fight by example." The US would prosecute torture and prevent "other cruel and unusual punishment." The CIA was alarmed and felt they would be blamed if the torture were made public and lost political support. Partly in reaction, the CIA had stopped waterboarding after March 2003 and some other harsh methods were stopped in 2005. It was not until Obama first week in office that he banned harsh treatment in overseas CIA prisons.
Gitmo was emphasized in Bob Herbert's "Who Are We?" op-ed (6/23/09). The Times columnist sees Obama making some of the same mistakes as Bush. He reminds us that more than 500 detainees at Gitmo have been released and "except for a handful, no charges were filed against them. The idea that everyone held" at Gitmo "was a terrorist--the worst of the worst--was always absurd."
President Bush rarely spoke publicly in the spring or summer of 2009. However, in a Q and A following a speech, he responded, "I will just tell you that there are people at Gitmo who will kill Americans at the drop of a hat. Persuasion isn't going to work. Therapy isn't going to change their minds...I told you I would not criticize my successor."
Can possible terrorists legally buy guns in the US? Yes, 9 out of 10 times they tried, and they tried nearly 1000 times in the past five years. Federal authorities had "no legal authority" to stop them. One person on the terror watch list even bought 50 pounds of explosives. Those on the list can be stopped from getting on a plane or getting a visa. Those barred from buying guns are known felons, illegal immigrants or drug addicts. Gun rights activists support those on the watch list to buy guys. Names on the list are secret.
In mid-June the much heralded group of four of the 17 Chinese Muslim Uighers were finally released. They were taken in by Bermuda, where the British government still has control of foreign policyThe two other detainees released were sent to their home countries, Iraq and Chad.
Among those who remain at Gitmo are 96 Yemenis, who the US is hoping Saudi Arabia will take. It is becoming difficult to convince countires to take in their non-citizens, when the US Congress is strongly against any coming here. There was talk of other prisoners going to the small Pacific nation of Palau. Six more Uighers left for Palua in November, so 215 inmates remain.
Ireland agreed in July to accept two prisoners. Previously France agreed to take one and Italy three. Then, in Febraury, Switzerland accept two Uighurs brothers, held since 2001 and 2002. The Chinese objected.
Could detainees plead guilty without a trial? This idea was floated by the Obama adminstration in early June. This way details of brutal interrogations could be avoided, and these five detainees could achieve their stated goal of martydrom. Evidence gained through abuse or torture is not admissable in court.
The destruction of CIA "torture tapes" under Bush came up again in July. A federal grand jury has begun a formal investigation. 92 tapes were destroyed.
A British resident allegedly had evidence of his torture suppressed with the personal intervention of Hillary Clinton. As reporter in The Guardian in late July, Lawyers for Binyam Mohammed contend that he was abused in Pakistan, Afghanistan, Morocco, and Guantanamo Bay. A British court was asked to offer the material disclosed.
Who has more power, the President or the courts? The fate of one of the youngest detainees brought up this balance of power issue. A judge ordered that Mohammed Jawad be released, pleading "enough is enough." It seems that the adminstration is changing the reasons they are holding him.
Obama visited Michigan in mid-August, where one prison in the north might take some former Gitmo detainees.
Attorney General Holder was to decide in late August to investigate further possible torture abuses. The public (and the CIA) awaited his decision. Obama seemed ready to "move on." Would Holder hold those accountable for dozens of deaths of detainees in Iraq and Afghanistan?
New details on CIA prison abuse came out the same week. The CIA's inspector general report details mock executions and how the CIA threatened at least one prisoner with a gun and a power drill. One high level suspect was Abd al-Rahim al-Nashiri, a Saudi, implicated in the bombing of the USS Cole in 2000. In retrospect, this was a wake up call for 9/11. Nahiri was one of at least 3 detainees subjected to waterboarding. Destroyed tapes may or may not have shown the worst. The report was completed in 2004 but forced into the public, with redactions, following an ACLU suit. It is illegal to threaten someone with imminent death.
The big headline on August 25 was Holder's decision to name a federal prosecutor to examine the CIA abuse. John Durham will determine "whether a full criminal investigation of the conduct" of employees or contractors "is warranted." The review is deemed, by the lead Times article, as "politically explosive" and a "significant blow" to the CIA. Defending his decision, Holder said, "As Attorney General, my duty is to examine the facts and to follow the law." Holder assures CIA that he will not investigate those who were, in essence, following direct orders. What influenced Holder's decision? First, it was recommended by the Justice Department's ethics office, and second, a 109 page 2004 report by the CIA's inspector general.
Former CIA chiefs want to abondon the abuse inquiry. Seven former directors of the CIA have asked the President to shut down the Justice Department investigation of abuse because it "will seriously damage" the nation's ability to protect itself. Democratic Sen. Feinstein is ambivalent of the Justice investigation. McCain does not support it becuase it might harm the agency's morale and effectiveness. While acknowldeging that the techniques violenated the Geneva Conventions on toture, he added, "I think it harmed our image in the world, but for us now to go back...would be a serious mistake."
What is described in the 2004 CIA report? In addition to guns and drills, prisoners were choked repeatedly and his children were threatened with death. Other grisly details include threatening to sexual assault family members, staging mock executions, intimidations with a handgun and power drill, and blowing cigar and cigarette smoke into prisoners' faces to make them vomit. What was legal, politically acceptable and effective? The CIA report found that interrogations obtained "critical information to identify terrorists and stop potential plots." Some imprisoned terrorists "provided more information after being exposed to brutal treatment." One wonders how much of that information was accurate.
Rendition will continue, Obama announced that busy week. Suspects will be sent abroad but will be more carefully monitored to see that they are not mistreated.
Muslims detained after 9/11 were awarded $1.2 million in a suit settled in November 2009. The federal government agreed to pay but did not admit any wrongdoing. Five Muslim immigrants were detained and treated badly in Brooklyn. They were part of the round up of hundreds of non-citizens. The lawsuit describes escort teams in the jail that "cursed them as terrorists and shoved them into walls whenever they were taken from their cells, twisted their wrists and fingers and stepped on ther leg chains so they fell, their ankles bloody." Some were held up to 250 days. One captain was criminally convicted of beatings, while other guards have been disciplined.
Bagram prison in Afghanistan will be overhauled, partly to help combat Al Qaeda influence. Commented Gen. McChrystal, "There are mose insurgents per square foot in correctio facilities than anywhere else in Afghanistan. Bagram will be closed and replaced with a new facility. The Red Cross will be notified of the identities, for the first time. More prisoners are now allowed to challenge their custody.
The Red Cross was granted greater access in late August. The new US policy allows the Red Cross to get detainees names more promptly, even from "secret" camps. "The change begins to lift the veil," reports the Times in their lead story of Aug. 23. The military had argued in the past that giving names to the Red Cross "could tip off other militants and jeopardize counterterrorism missions." About 30-40 are held at temporary camps in Iraq. The Times had reported in 2006 that at a temporary site in Baghdad airport prisoners were beaten with rifle butts, "yelled and spit in their faces" and detainees were used "for target practice in a game of jailer paintball." The new policy makes Red Cross notification required in two weeks, rather than when the prisoner leaves the temporary site. The Red Cross has tried for years to have access to Special Operations camps.
Khalid Shaikh Mohammed will be interrogated by another detainee, under strict guidelines. A federal judge has granted that Rabbani, a Pakistani, can question Mohammed to determine if he was only doing menial work for the alleged 9/11 mastermind.
"Illegal or effective?" asked On the Media that weekend. Cheney alleges that good intelligence came from abuse, but there is little evidence to support this idea. Torture works, says Cheney. Which methods are torture?
What does Congress desire with the detainees? In October 2009, Congress allowed detainees from Gitmo to be brought to the US for trial, but they cannot be released in the US. Any detainee sent to another country would require Congressional notification.
Gitmo will not close in January, it was announced in mid-November. For the past few months, it has become increasingly obvious that Obama could not meet this promise/goal from the beginning of his term.
Does torture "work"? Dick Cheney alleges that is does. Waterboarding is "legal and crucial" and kept Americans safe. Holder's investigation were demoralize the CIA. Threats to use drills or shoot someone are OK, the VP claimed, because they had not actually bene used.. However, a study out in September in Newsweek on "The Tortured Brain" refutes these allegations. "It's become conventional wisdom that the tortured will say anything to make the torture stop, and that 'anything' need not be truthful as long as it is what the torturers want to hear. But years worth of studies in neuroscience, as well as new research, suggest that there are, in addition, fundamental aspect of neurochemistry that increase the chance that information obtained under torture will not be truthful." The captor also learns that "while I'm talking, I'm not being water-boarded" so one is inclined to speak at all costs. The piece concludes, "Maybe the brain of Abu Zubaydah, who was water boarded 83 times, and of 9/11 mastermind Khalid Sheikh Mohammed, who was waterboarded 183 times, are different, and their torture elicited truthful information. Neuroscientists would very much like to see the evidence of that."
Khalid Sheik Mohammed (KSM)will be tried in the US, it was announced on Friday the 13th of November, as Obama was on a trip to Japan. A deadline had loomed for the Justice Department. Four others will join the trial, one accused of the USS Cole bombing in Yemen. Will any admission of guilt after or during torture be admissable in court? Mohammed was waterboarded 183 times, but the US claims he still admits to being the mastermind after waterboarding has now ceased for a few years. Will any secrets be released at the "trial of the century"? Will KSM be allowed to rant against the US?
Should the location be moved, so as not to be only blocks from the former World Trade Center? Timothy McVeigh's trial was moved from Oklahomo City to Denver. Those against the decision feel that Mohammed does not deserve the protections of a US trail. The last federal execution in New York City was during the Cold War for the Rosenbergs. The court could be just a few blocks from ground zero. KSM is not expected to arrive for months and the trial likely wouldn't start for at least a year.
One mid-November op-ed suggest that we should indeed "put Jihad on trial." Fellow at the Council on Foreign Relations, Steven Simon is the author of The Age of Sacred Terror and The Next Attack. Simon says we first need to be rid of strawmen such as "treating terrorism as law enforcement" and the "intelligence bonanza" for our enemies." Federal courts do not allow TV cameras and defendants may answer questions but cannot make speeches.
Said Attorney General Holder, "failure is not an option." Republican Sen. Grassely replied that a lot of people thought OJ Simpson was guilty, too, but "we have juries in this country."
Worldview host Jerome McDonnell spoke with Doug Cassel about Gitmo, detainees and possible trials. Cassel is a professor at Notre Dame who specializes in human rights issues.
No KSM trial in Manhattan, Attorney General Holder announced in late January. Reasons given were the cost for security, disruption, concern from real estate agents, and the lack of support from Mayor Bloomberg, who had previously thought it was "fitting" to have the trial new the site of the twin towers. One cost estimate was hundreds of million a year.
The US Supreme Court ruled that Americans cannot always assert their rights in federal court. Ashcroft vs. Iqbal involed a Muslim man picked up on immigration charges after 9/11. He could not sue the high ranking US official who set the policies in place and for the abuse he suffered during detention. As the Times editorialized, the Court "discarded 50 years of legal precedent" in their 5-4 decision. Congres may act to try to overturn this decision.
780 detainees have been held at Gitmo, but only one that we know was a journalist at Al Jazeera. Sami al-Hajj was a cameraman picked up by Pakistanis in late 2001. He was held at Bagram AFB, Kandahar, and then Gitmo. Never formally charged, he was finally released in 2008. Hajj did a six part series on Gitmo after his release. The emotional trauma was more extensive than the physical, he maintains. Somehow, he maintained a belief in democracy and the rule of law.
Photos came back in the news in November and then December 2009. In November Sec. of Defense Gates blocks the release of new photgraphs of detainee abuse. The ACLU had sued for their release. Then, the Times in December called the decision "sad but unsurprising" when the US Supreme Court tossed out a federal appellate court ruling that "would have required the government to release photographs of soldiers abusing prisoners in Iraq and Afghanistan during the Bush administration." Obama had originally supported the released but changed his mind in May. The paper shares "concerns about inflaming hostility to American soldiers. But disclosure is the best way to demonstrate that this nation has truly broken from the Bush administration's shameful policies." . Under the October law passe by Congress, there is "perverse logic, the more outrageous the government's conduct, the greater the protection from disclosure." The editorial concludes, "For a president who rose to the White House on promises of transparency and reasonably limits on executive power, this is not a legal victory to be proud of." The ACLU, who sought the photo release, replied, "No democracy has ever been made stronger by suppressing evidence of its own misconduct."
"Guantanamo Must Be Closed", editorialized the Times on December 18. Moving makes it closer to closing. The paper is upset that Obama has not followed through on his campaign promise not maintain indefinite detention without charges. "It is impossible to credibly repair this nation's justice system while it operates a shameful symbol of illegality and inhumanity. Republican offered the usual charge that Mr. Obama is soft on terrorism" but there are more than 350 people serving terrorism charges in the US, including those who tried to blow up the World Trade Center back in 1993.
The Times added their views in a lead editorial, "Yes It was Torture, and Illegal" from 1/4/10. The paper opens, "Bush administration officials came up with all kinds of ridiculously offensive rationalizations for torturing prisoners. It's not torture if you don't mean it to be. It's not torture if you don't nearly kill the victim. It's not torture if the president says it's not torture." They are "deeply distressed" by the Court of Appeals decision which determines that Rumsfeld and others could not be held responsible because "it was not 'clearly established' that torture was illegal" back in 2004. Last month, the Supreme Court declined to review the case. In effect, this grants the government "immunity for subjecting people in its custody to terrible mistreatment. It has deprived victims of a remedy and Americans of government accountability, while further damaging the county's standing in the world." Gitmo was an chosen because it was offshore to try to avoid "claims from victims for conduct the officials knew was illegal...There are those who oppose trying to punish Bush-era lawlessness--some who argue that America should not look backward and some who excuse that lawlessness.. But the rule of law rests on scrutinizing evidence of past behavior to establish accountability, confer justice and deter bad behavior ini the future." While Obama has forsworn torture, but we should not depend on the good will of the president. After all, the party that urged the Court "not to grant the victims' appeal because the illegality of torture was not 'clearly established' was the Obama Justice Department."
The next day a federal appeals court ruled war powers take rights from detainees. Noncitizens can be legally held at Gitmo legally. A law professor feels that the appeals court has "gone out of its way to poke a stick in the eye of the Supreme Court. The majority decision came from two conservative judges appointed by President Bush.
Gitmo North in Illinois? In northwest Illinois, near the Mississippi River, lies a near empty maximum security state prison. In December came serious discussions about selling or leasing the prison to the federal government and moving about 100 of the 210 Gitmo prisoners there. 3000 jobs would come to the area. Since Obama took office, about 30 have been transferred to other countries, with hopes that another 100 more soon join them overseas. About 40 will be prosecuted in either military or civilian courts. Gov. Quinn and Sen. Durbin supported the plan. The move would require Congressional approval, which seems to be opposed by most Republicans, including Senatorial candidate Mark Kirk and minority leader Mitch McConnell: "The administration has failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping terrorists off of our shores in the secure facility in Cuba." Amnesty International was also critical of the plan: "The only thing that President Obama is doing...is changing the ZIP code of Guantanamo". Many have not been charged with a crime. Some of the detainees may be indefinitely confined without being tried. If Kirk wins the nomination on Feb. 2, he plans to make Gitmo North an issue in the general election. The Pentagon has estimated that about 20% of released detainees have returned to "extremist activity." Most of these were released during the Bush administration.
Delay in purchasing the prison soon seemed likely, partly because of a lack of funds in the US prison system. Could Congress ask for more money? It now looks like Gitmo may be closed in 2011 at the earlier.
Yemen came back in the news in late December 2009. Most of the those held at Gitmo are now Yemeni, and Al Qaeda forces have been growing in that middle eastern country, which borders Saudi Arabia. See more on "The Christmas Bomber" in the Al Qaeda FAQ chapter. The Christmas attack may hinder and complicate plans to close Gitmo. Obama's self-imposed deadline was originally Jan. 22. A former top Pentagon official believed that closing Gitmo anytime soon would mean either sending many detainees back to Yemen, "a terrorist haven", or bringing them to the US to stay without trial.
Of course, Obama feels that some detainees, who are innocent, are a greater risk exactly because they have been mistreated and not charged by the US for up to 8 years. The current President inherited 242 detainees from Bush, has released or transferred 44. Of the 198 remaining, 92 are from Yemen. 40 of those have been cleared for release. 6 were sent back in December, just before the US was about to lose habeas corpus hearings which would have ordered them free. Defending the need to close Gitmo, a White House spokesman said in late December, "The facility has been used as a rallying cry and recruiting tool by Al Qaeda and its affiliates, including Al Qaeda in the Arabian Peninsula." But two detainees released under Bush in 2007 are now involved in the Yemeni group, which claimed reasonability for the Christmas attack. A lawyer for the Yemeni defendants said, "I don't see what the chaos in Yemen has to do with whether to return Yemenis to their home because these men have been determined not the be dangerous the the US. It's a non sequitur."
It is easy to forget, with all the atention of closing Gitmo, that the US still holds hundreds of prisoners at Afghanistan's Bagram AFB. In mid-January, the US released the names of the 654 detainees held there. The release was prompted by a Freedom of Information lawsuit filed by the ACLU. Commented an ACLU lawyer, "It is a good first step" as they still are not allowed to see a lawyer. She also wants to know how long they have been detained and where they are from. In 2002, two detainees at the base were beaten to death. Tales of abuse and torture, especially before 2004, were common. A new prison opened in November. The majority of detainees are Afghan. For two weeks, they can be held without access to the Red Cross or to their families. Bagram was being shut down in the spring of 2010. About 800 detainees were at the new US facility, Parwan.
One question being asked is, "Does the US have the legal right to hold, indefinately without charge or trial, people caputred on the battlefield?"
Gen. Petraeus spoke out against torture in late February. "Whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside...We end up paying a price for it ultimately. Abu Ghraib and other situations like that are non-biogredable. They don't go way. The enemy continues to beat you with them like a stick."
Will Bush lawyers be held accountable for policies and for torture memos? It appears not. The Justice Department concluded in its February report that the lawyers, like John Yoo, used flawed legal reasoning but were not guilty of profession misconduct and thus would not be disbarred, be fined, or face possible prison time. Justice Department ethics lawyers urged harsher sanctions.
Lawyers who represent terror suspects had their loyalty questioned in March by a group led by Liz Cheney, the VP's daughter. Conservatives including the Federalist Society and the Brookings Institute have criticized Cheney, arguing that even unpopular defendants deserve a lawyer, just as John Adams defended British troops from the Boston Massacre. Richard Epstein, law professor at the University of Chicago, is a former teacher of Cheney and feels the situation is "truly bizarre...I don't know what moves her on this [issue]."
"Are You or Have You Ever Been a Lawyer?" was the Times lead editorial on the Cheney story. It opens, "In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within." The names of the "Gitmo 9", aided by Fox News and Sen. Grassley, are on the defensive. The editorial concludes, "If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal represenation--and consitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points."
The harsh treatment of Binyam Mohammed was revealed by the British in mid-February. The US and British government was upset that they had lost this legal fight. Details were to be released of Mohammed's "cruel, inhuman, and degrading treatment" at Gitmo. Hillary Clinton had warned the the US had shared this intel with Britain on the condition that it not be released. Lawyers urging the intel released did not take the national security warnings to heart. Mohammed had moved from Ethiopia to Britain has a teenager, left for Pakistan in 2000, and arrested there in 2002 for a $5000 bounty on suspicion of terrorist links. He went to a ghost prison in Morocco, a dark prison in Kabul and then to Gitmo in 2004. Finally, Mohammed was flown back to Britain in February 2009. Before reaching Gitmo, he had been subjected to "continuous sleep deprivation" was shackled during interrogations and was exposed "to threats and inducements that included playing on his fears of being removed from US custody and disappearing." The British had "no information" to support further claims by Mohammed that interrogators under US orders cut his chest and genitals with a razor and that he was regularly tied to a wall, naked, and exposed to scrutiny by women in compromising positions.