Read this Now: 7 Years in Limbo

by matttbastard

Adam Serwer of the American Prospect has been doing yeoman’s work as of late doggedly covering US detainee issues. His recent feature on former child soldier Mohammed Jawad is truly essential reading:

The story is an old one for Jawad’s lawyers — they believe the government knows it cannot justify holding him, but it doesn’t want to let him go. More galling to Jawad’s defense counsel is the fact that the government sought to include Jawad’s confessions to Afghan authorities, obtained through torture, as evidence against his release. In July, his lawyers filed a motion to suppress the confessions, which made up about 90 percent of the evidence against him. This time, the government chose not to challenge the motion — but failed to commit to his release. Judge Ellen Segal Huvelle eviscerated the government for having little cause to continue holding him. “This guy has been there seven years — seven years,” Huvelle said. “Without his statements, I don’t understand your case. I really don’t.”

At the core of the dispute over the detention of suspects like Jawad is whether or not there are, as President Barack Obama claims, “detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people.” This is the so-called “fifth category” of detainees — exactly how many there are, the government has yet to determine. (Assistant Attorney General David Kris told Congress in July that half of the Guantánamo detainees’ cases had been reviewed, and none had yet been put into the “fifth category.”) “There will be some, who we have picked up and who are in Guantánamo ? who for a variety of reasons can’t be prosecuted,” says former CIA counsel Jeff Smith. “We have convincing intelligence information, but it is not enough to prosecute them.”

[Maj. David Frakt, one of Jawad’s lawyers] isn’t buying the administration’s assertion about the necessity of preventive detention — the practice of imprisoning suspected terrorists even in cases where the government cannot prove they have committed crimes. “When you look at the minimal amount of evidence required to convict someone of something like material support for terrorism, and they don’t even have that much, how is it that we know that these people are so dangerous?” he asks. Frakt’s concerns likely have a great deal to do with the way the government has treated his client — and not only because it tried to get his coerced confession admitted as evidence.
Montalvo says government officials “believe they have a guilty guy who tried to hurt Americans.”

But after seven years of failing to justify his detention, the government agreed on July 29 to release Jawad to return home to Afghanistan — though it implied he might still be subject to criminal prosecution.

Standard read-the-whole-damn-thing rules apply.

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‘These people belong in a prison cell.’

by matttbastard

Re: revelations in the newly released Senate Armed Services Committee report on US torture that the Bush admin began planning the program in 2001 and that torture was utilized to gin up a link between Iraq and al-Qaida, what Radley Balko said:

So they tortured Gitmo detainees to get information, which turned out to be false, to build support for a war they had already made up their mind they would wage.

And keep in mind, these decisions were made by political appointees. Not JAGs, not military generals, not even veteran CIA agents (most people in all three positions actually opposed these policies). They were made by neocon warmongers with little to no actual military or interrogation experience who hadn’t the slightest idea what they were doing.

These people belong in a prison cell. To excuse them is to say that no abuse of power should be punishable so long as you can come up with some tortured justification about how you were only trying to protect the country.

The headline to a recent op-ed by Simon Jenkins (h/t Sarah) bottom-lines things perfectly:

‘Cheney and the apologists of torture distrust democracy.’

Special prosecutor NAO.

Related: Hilzoy on the ‘”perfect storm of ignorance and enthusiasm” that helped put the CIA torture program into action (although ‘ignorance’ seems to be a bullshit excuse):

This is what happens when we stop demanding minimal competence in our Presidents; when we start caring more about who we would rather have a beer with than, oh, who would be most likely to seek out the best advice and listen to all sides of an argument before making an important decision, or whose judgment we can trust. We end up with people who toss aside our most fundamental values because someone who has never conducted an interrogation before thinks it might be a good idea, and no one bothers to do the basic background research on what he proposes.

Of course, keep in mind what Nell points out (and Balko implicitly recognizes) in this must-read post:

One of the most persistent and discouraging themes that crops up in discussions of torture is the question of whether it “works” or not. The people engaging this question make a fatally wrong assumption: that the goal of torturers is the same as that of legitimate interrogators — to get reliable information useful for active, circumscribed military operations or police investigations.

But torture does something else altogether, and is designed to do so: it extracts false confessions. These confessions, along with the agony of the torture itself, serve the goals of limitless, lawless “war”: to humiliate and break opponents, to divide them from supporters, to terrify those not actively in opposition into staying inactive, and, most importantly, to justify the operations of the dirty war within which torture takes place: commando raids, assassinations, spying, kidnaping, secret and/or indefinite (and unreviewable) detention, and further torture.

The mistaken assumption that those in the previous administration who set the torture policy were motivated solely by an urgent need for information has several other bad effects. It reinforces the absurd ticking-bomb hypothetical that allows so many people to justify torture to themselves. It provides a noble-sounding excuse for the officials who promoted torture, making it harder for citizens to muster the will to hold them legally accountable for their crimes: “They were just trying to keep the country safe.”

The euphemism of “enhanced interrogation” for torture was chosen by both the Nazis and the Bush-Cheney regime exactly because of its propaganda value in reinforcing this false picture: It’s just legitimate questioning that goes a little further. An error of enthusiasm, if you will. An understandable mistake, a policy difference that we sure don’t want to criminalize, looking backward with our 20-20 hindsight.

But, as useful as these effects are to the torturing regime, the most important role of the spurious linkage with intelligence-gathering and interrogation is as a screen: It hides the role of torture in creating and expanding the dirty war itself.

Flashback: Via Democracy Now: Mark Benjamin and Katherine Eban on Mitchell Jessen & Associates, the shrinks who transformed SERE into CIA torture (yes, torture).

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‘A Place of Jarring Juxtapositions’

by matttbastard

Toronto Star national security reporter Michelle Shephard, who, over the course of her career, has visited the detention facility at sunny Guantanamo Bay, Cuba fifteen times, gives an essential summation today of what she calls “a place of jarring juxtapositions”:

Suicides of the detainees became “asymmetric warfare” and force-feeding prisoners on hunger strikes was “assisted feeding.” Captives did not have “interrogations” but had “reservations.” And signs posted on the road to the camps listed the “Value of the Week” as “Pride” or “Respect” even as Washington debated the definition of torture.

[…]Journalists have been the public’s eyes and ears at the base for the last seven years and the ever-changing rules have at times hampered our efforts to tell the whole story.

Security regulations surrounding photos and videos were perhaps the most confounding.

Last week, censors erased a photographer’s shots of the tents at “Camp Justice” where journalists reside because there were more than three tents in the frame. A television reporter’s clip was deleted because the shot showed her talking with an orange barricade in the background. No one could explain why that was a problem.

Tight shots of razor wire were okay, except if it surrounded the courthouse, even if the courthouse wasn’t shown. I tried to point out that I didn’t think Al Qaeda would be surprised that razor wire was being used as security.

Detainees couldn’t be interviewed or identified in photographs because of the Geneva Conventions, Pentagon spokespeople and military commanders told us.

The international treaties state that prisoners of war must “at all times be protected … against insult and public curiosity.” The PoWs should be afforded “respect for their persons and their honour.”

But the Bush administration created this offshore prison in an effort to sidestep those same Geneva Conventions. U.S. President George W. Bush, who left office last week, famously stated that only the “spirit of” the Geneva Conventions would be respected at Guantanamo.

Our military escorts would correct us if we referred to captives as prisoners because these were not “prisoners of war” but “detainees.”

And if the reason for censoring photos was to protect a captive’s right to privacy and honour, then the Pentagon violated its own rules when it released Guantanamo’s most famous picture. The photo, taken in 2002, showing shackled prisoners in orange jumpsuits kneeling in the hot Cuban sun while dogs and soldiers bark at them, was actually taken by a U.S. sailor.

When international furor erupted, the Pentagon quickly labelled the photos “For Official Use Only” in an attempt to prevent further distribution. But it was too late.

The entire article is a must-read, if only to counter revisionist attempts to distort the legacy of Guantanamo, such as this unfortunately (if tellingly) titled op-ed from Sunday’s Washington Post, ‘When Gitmo Was (Relatively) Good,’ in which writer Karen J. Greenberg tries to construct a ‘One Good German’ counternarrative lauding “small initial efforts at decency” on the part of detention officials.

Purported good intentions aside, Guantanamo was an immediately tainted effort once the decision was made to, according to Greenberg, “act in a manner “consistent with” the conventions (as the mantra went) but not to feel bound by them [emphasis added].”  As soon as the US untied itself from binding international law, specifically and deliberately design a detention facility in order to sidestep regulation and oversight,  the entire enterprise was doomed to debasement, no mater how hard officials initially tried to voluntarily (key word) “go with the Geneva Conventions,” as Staff Sgt. Anthony Gallegos, quoted by Greenberg, put it.

Keep that statement–“not to feel bound by them“–in mind as the new administration ties itself in knots trying to untangle the legal and moral mess left behind by the previous–and, as GOP leaders like John Boehner continue to peddle the Club Gitmo myth,  also remember Shephard’s stark recounting of Guantanamo’s true legacy.

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The Damage Done

by matttbastard

Apparently The Dark Side was only the iceberg’s tip:

“President Obama’s plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.

Let’s pause for a moment to let that sink in: “there were no comprehensive case files on many of them.”

Ok, moving on:

Instead, they found that information on individual prisoners is “scattered throughout the executive branch,” a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration’s focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

Rewind my selekta: “[T]he Bush administration’s focus on detention and interrogation made preparation of viable prosectutions a far lower priorty

A far lower priorty.

Of course, DeYoung and Finn wouldn’t be “objective” if they didn’t (falsely) balance things out with the requisite mealy-mouthed partisan broadsides from–wait for it, kiddies–some unnamed former Bush administration assbaskets who nostalgically break out their by-now-rusty bullshit shovels:

But other former officials took issue with the criticism and suggested that the new team has begun to appreciate the complexity and dangers of the issue and is looking for excuses.

After promising quick solutions, one former senior official said, the Obama administration is now “backpedaling and trying to buy time” by blaming its predecessor. Unless political appointees decide to overrule the recommendations of the career bureaucrats handling the issue under both administrations, he predicted, the new review will reach the same conclusion as the last: that most of the detainees can be neither released nor easily tried in this country.

“All but about 60 who have been approved for release,” assuming countries can be found to accept them, “are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people,” said the former official who, like others, insisted on anonymity because they were not authorized to talk to reporters about such matters. He acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.”

Well, isn’t that cute!  He never read the (um, non-existent files) that the Pentagon claimed are comprehensive (and are, um, non-existent),  yet somehow still remains completely confident that all Gitmo detainees (apart from the 60 designated for release–oopsie!) are lawfully detained and cannot ever be released, because, um, well, because — hey, look! A Wookie from the planet Kashyyyk!

It does not. make. sense.

Ok, say what you want about the Nazis, but at least they had the *ahem* decency to keep oh-so-impeccable records on their detainees; would that the former administration have shown similar consideration.

Hilzoy (h/t) lays it out on the table:

It takes, well, a special kind of administration to detain people for years on end without bothering to assemble case files on them. I’m just glad they’re finally gone.

Yes, gone, but their tainted legacy, unfortunately, festers, like black mold spreading contamination throughout the structure of US and international law.

Steve Benen puts these latest revelations in context:

The previous administration a) tortured detainees, making it harder to prosecute dangerous terrorists; b) released bad guys while detaining good guys; and c) neglected to keep comprehensive files on possible terrorists who’ve been in U.S. custody for several years. As if the fiasco at Gitmo weren’t hard enough to clean up.

And in order to completely mitigate the rot that, over the past 8 years, has almost completely eaten away at the rule of law in the US, Sylvia/M believes that the Obama administration must subcontract the restoration of  justice to the Hague:

If Obama really wants to restore our standing in the international community and to reinstate the rule of law here in the United States, now is the time to bind ourselves to the Rome Statute, submit to international justice, and start cleaning up the deeply entrenched messes our previous partisan warhawk regime has wrought.  The damage is growing too deep and too great for our national court systems to fix alone.

At the very least, this latest postscript from The Dark Side further underscores how vital it is for the Obama administration to hold accountable those who, whether deliberately or by virture of willful indifference, chose–chose–to napalm all progress Western Civilization has made since the Magna Carta was signed.

Torching our value system, in order to save it.

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Woodward Speak, Village Listen

by matttbastard

TIME’s Michael Scherer illustrates the wide gap between what the Bush administration said it did with so-called “unlawful combatants” and what it did:

“We do not torture,” President Bush said, in November of 2005.

“This government does not torture people,” the president repeated, in October of 2007.

“On the question of so-called torture, we don’t do torture. We never have. It’s not something that this administration subscribes to,” added Vice President Dick Cheney, just last month.

As Spattackerman wryly quips, “One of the things I’ll miss the least about the Bush administration is being told not to believe my lying eyes and my common sense.” Indeed. Scherer contrasts these laughable statements with an excerpt from an article in today’s WaPo by longtime Village thought leader Bob Woodward:

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

Gee, what a surprise. Welcome to the Reality-Based Community, circa 2005, kiddies. Back in 2006, Scherer, along with Mark Benjamin, first wrote about al-Qahtani at Salon.com, noting that

then-Secretary of Defense Donald Rumsfeld was closely monitoring the interrogation, according to Army investigator Lt. Gen. Randall Schmidt. Rumsfeld was “talking weekly” with Maj. Gen. Geoffrey Miller, who was in charge at Guantanamo. “The secretary of defense is personally involved in the interrogation of one person [Qahtani], and the entire General Counsel system of all the departments of the military,” Schmidt said, in a statement that Benjamin and I obtained. Of Miller’s claim that he did not know all the grisly details of the Qahtani interrogation, Schmidt added, “There is just not a too-busy alibi there for that.”

Perhaps more of these twilight admissions and accusations of top-level culpability on the part of the Bush administration will counteract calls coming from within certain Serious circles for a mulligan on torture (scuttlebutt that may be having an impact on the President-elect). It’s up to us DFHs to stay shrill, because there’s already a concerted PR effort underway to scrub the Bush record and seize the narrative.

Digby, responding to the recent goalpost-shifting attempt by Stuart Taylor and Evan Thomas to frame conventional wisdom on “intense interrogation”, outlines what we–and the President-elect–are facing:

We are now engaged in a battle to persuade Obama that he must unequivocally and publicly disavow what those two jaded, decadent sadists just suggested was necessary lest he risk Americans being killed. Good luck to us on that. Considering Obama’s propensity for consensus, I would guess that he will find some way to appease them. (Maybe he’ll vow to make sure that the torturers don’t enjoy it, as a sop to the liberal freaks.)

But I would suggest that Obama contemplate one little thing before he decides to try to find “middle ground” on torture. It is a trap. If he continues to torture in any way or even tacitly agrees to allow it in certain circumstances, the intelligence community will make sure it is leaked. They want protection from both parties and there is no better way to do it than to implicate Obama. And the result of that will be to destroy his foreign policy.

Bottom line: closing Guantanamo, while a welcome and very necessary gesture on the part of the incoming administration, is not enough. The rule of law, bent to the point of unrecognizability during the Bush era, can only be reaffirmed if those responsible for deliberately undermining and circumventing it are held fully accountable for their actions and Obama, firmly and without equivocation, denounces and rejects what the previous administration to the day claims was necessary to protect the nation.

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Andrew Sullivan: “We cannot know hope until we end torture.”

by matttbastard

Even though I’m hardly his biggest fan (*cough*), I gotta give Andrew Sullivan props for his recent scorching takedown of a blithely banal WaPo op-ed by High Contrarian torture apologist (and former WaPo editorial page editor) Benjamin Wittes.

Sez Benji:

Detainees [currently held at Guantanamo] who pose a grave national security threat might be unprosecutable for a variety of reasons: because of deficiencies in the criminal law as it stood in 2001, because evidence against them would not stand up in court, because the government might not have enough evidence to convict or because it obtained key evidence under coercive conditions.

Sully unloads:

“Under coercive conditions”. Excuse me, but what does that mean in English? Try: Because they got intelligence from torturing people. Coercion means force. It means they forced “information” out of them. Not coax, trick, lure, force. That means the victims had no choice. And the only way in which human beings can seriously have no choice at all is by subjecting them to such severe mental and physical pain and suffering that they have no option as human beings but to tell their torturers something.

This is the defining line of torture: not some arbitrary comic book technique, but a psychological and physical fact: pushing another human being to the point where choice becomes unavailable to him or her.

The conclusion is especially on-point:

[P]eople wonder why I seem so angry and concerned about this issue, about its centrality to this election, and about the unique, once-in-a-century chance to put it behind us before it infects us beyond cure. It is, in my judgment, the biggest single crisis we now face, because it does not simply affect our wealth or our safety, but because it affects who we are.

We cannot know hope until we end torture.

Emphatically seconded.

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