Just Some Folks Torturing Other Folks

Gina Haspel oversaw a secret prison in Thailand where she approved the torture of at least one detainee.  She also signed off on the destruction of evidence of these so-called enhanced interrogations. Although it seems that initial reports of her involvement in the brutal torture of Abu Zubaydah was in error, this does not undermine the view of the New York Times, which editorialized:  "when it comes to torture, no American officials have been more practiced in those heinous dark arts than the agents and employees of the Central Intelligence Agency who applied it to terrorism suspects after 9/11 [and] few American officials were so directly involved in that frenzy of abuse ... as Gina Haspel."  Neither she nor any other government official was prosecuted when President Obama determined to look forward instead of backward, and so instead of spending these last years in prison, she has moved up the ranks of the CIA and is currently the agency's deputy director.  The current president, an unabashed torture supporter, has nominated current CIA director and fellow torture supporter to be Secretary of State, and has announced that he was going to name Haspel to head the CIA.  We thus have to once again debate what should not be debatable, but it is a debate worth having.  Below is a piece I wrote in August 2014 about the need for a true reckoning.

Previewing a declassified report that concludes the prior Administration used techniques on terrorism suspects amounting to torture, President Obama conceded that "we did a whole lot of things that were right, but we tortured some folks."

Of course, Obama couldn't quite make himself confront Bush, Cheney & Co. with a point blank accusation.  First, he had to couch the statement by using the pronoun "we" as if either he or his political party or the citizens of the United States were responsible for torture.  Then, like a good Dad who praises his child before making a critical remark, he stated that a lot of things were done right, before pointing out that "we tortured some folks."  'That's OK, Junior, try harder next time.'  And, by the way, what were those "right things" to which he was referring?

To further minimize the impact of his statement, Obama relied on the colloquialism -- "folks."  We tortured "some folks."  He sounds like President Gomer Pyle.  'Well, golly.  I guess we tortured some folks.'   Those who were tortured were real flesh and blood people, human beings capable of feeling the extreme pain and humiliation of "enhanced interrogation techniques."  They were entitled to being treated as such.

It gets worse.  The President then rationalized the use of torture in the context of the stressful times we were in.  While it was certainly not cool to torture folks, it was understandable that our government would resort to such techniques because, you know, it was kinda scary back then.

I think it's important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And, you know, it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots, but having said all that, we did some things that were wrong.

So, our folks -- meaning, the leaders of our government -- were frightened and working under pressure, but, nevertheless, they were "real patriots" and so we shouldn't hold them accountable just because they tortured other folks.

As if the use of torture was simply an understandable spontaneous reaction to the tragedy of 9/11 and not a well calculated policy decision that those in the Bush Administration and their allies and apologists continue to believe was justified. As Charles Pierce puts it:  "Quite simply, nobody who engaged in torture, nobody who worked to establish a legal rationale for torture, nobody who applauded torture or encouraged it or welcomed its practice, has any right to be referred to by anyone, let alone the president, as a patriot."

I've written before that President Obama's biggest mistake when he first took office was refusing to allow his Justice Department to investigate, much less prosecute, the government officials who authorized torture.  He maintained that since his Administration wouldn't condone torture we can simply move forward.  (See, e.g., Pitfalls of Only Looking Forward, Tortured Logic.)  But we are not moving forward.  If we are to remain a nation of laws, when high government officials break the law or cynically bend the law to justify human rights violations there must be consequences.

Obama's latest comments, as mealy-mouthed as they were, elicited the predictable backlash from the right while the media noted that they "reopened debate."   The upcoming report by the Senate Intelligence Committee is significant, but without a true reckoning that confirms once and for all the immorality, illegality and inefficacy of torture, we remain stuck in a debate that should have been resolved.

American Exceptionalism: Celebrating Our Favorite War Criminal

"Don't look back. Something might be gaining on you."  -- Satchell Paige

Interesting juxtaposition.  President Obama announces plans to become the first sitting president to visit Peace Memorial Park in Hiroshima -- the very spot where an American nuclear bomb exploded, killing more than 100,000 people.  Meanwhile the Department of Defense presents Henry Kissinger the Distinguished Public Service Award. 

Needless to say, the United States has a very complicated relationship to war crimes.  We crow about our values, our freedoms and our exceptionalism, and condemn as unpatriotic and treasonous any American who has the temerity to question the darker aspects of our history.

And we celebrate Henry Kissinger, one of the most villainous U.S. political leaders of the 20th Century. 

Kissinger's role in the Viet Nam War, from undermining the Paris peace talks prior to Nixon's election to directing the massive clandestine bombing campaign in Laos and Cambodia, which indiscriminately killed and displaced millions of civilians, is not in dispute.  That should be enough to remove him from polite society much less make him a sought after foreign policy expert and Hillary Clinton's bff.  But, of course, there is plenty more, including his planning of the overthrow of  Chile's democratically elected president, his support for Indonesia's massacre in East Timor, his  encouragement of right wing military leaders in Argentina's Dirty War, and his role in other so-called proxy wars.  As put by Greg Grandin, the author of Kissinger's Shadow, Kissinger is "responsible, directly or indirectly, for the deaths of millions of people in Southeast Asia, East Timor, Bangladesh, and southern Africa, among other places."

And, as Grandin points out, even Kissinger's arguably admirable role in fostering détente with the Soviet Union and an opening to China was undermined by his own actions:

In one region after another, [he] executed policies that helped doom his own grand strategy, undermining détente and canceling out whatever steadying effect it might have provided the planet. In southern Africa, for instance, Kissinger supported civil wars that would last decades and kill millions. In the Middle East, he pointlessly provoked the Soviet Union and laid the foundation for the jihadists. The militarization of the Gulf, including the brokering of ever larger arms sales to Saudi Arabia in exchange for petrodollars, was a Kissinger initiative.

So why is Henry Fucking Kissinger being honored with the Pentagon’s highest award for private citizens?  And what does it say about a country that cannot confront its worst excesses? 

When President Ford pardoned Richard Nixon for "all offenses against the United States," he stated that it was out of concern for the "immediate future of this great country." Next came Iran-Contra. While the Republicans stacked the joint legislative committee undertaking the investigation with the conservative wing of their party (e.g., then-Representative Cheney), the Democrats relied mostly on moderates, and thus the committee members were skewed toward those who were disinclined to probe very vigorously.  By rashly granting immunity to key witnesses such as Ollie North, the committee undermined prosecutions by an independent counsel.  The Iran-Contra Affair culminated in the pardon by first President Bush of several participants who had been implicated.

More recently, President Obama refused to seek any investigation of his predecessor's "War on Terror," despite substantial evidence that wiretapping laws were broken and torture was authorized at the highest levels.  Much like President Ford, Obama claimed that “nothing will be gained by spending our time and energy laying blame for the past.” 

As we look ever forward, never backward, the presumptive nominee for president of one of this country's two major parties unequivocally calls for combatting terrorism with torture and other violations of human rights.  The other considers Kissinger a dear friend and trusted adviser.

What's next?  Given our penchant for whitewashing the past and honoring our war criminals, someone should tell Dick Cheney to get ready for his close-up. 

Looking Forward To Torture

When President Ford pardoned Richard Nixon for "all offenses against the United States," he stated that it was out of concern for the "immediate future of this great country."  He should have considered the longer term.

Inevitably, next came Iran-Contra. While the Republicans stacked the joint legislative committee undertaking the investigation with the conservative wing of their party (e.g., then-Representative Cheney), the Democrats relied mostly on moderates, and thus the committee members were skewed toward those who were disinclined to probe vigorously.  By rashly granting immunity to key witnesses such as Ollie North, the committee undermined prosecutions by an independent counsel.  The Iran-Contra Affair culminated in the pardon by first President Bush of several participants who had been implicated.  The lesson was that the president and his circle had nothing to fear from abuse of power. 

With the next Bush came more abuses, including the use of torture (and, by the way, illegal wiretapping).  But President Obama refused to seek any meaningful investigation, much less prosecution, of those who authorized or committed torture.   Much like President Ford, Obama claimed that “nothing will be gained by spending our time and energy laying blame for the past.”  And more recently, he appeared to rationalize away the use of torture against "some folks" given the stress our "folks" were under in the wake of 9/11. 

The Senate Intelligence Committee's report, which has just laid out in gory detail the CIA's many shades of torture as well as making the case that these techniques were ineffective and counterproductive in obtaining useful intelligence, is perceived as a partisan attack on patriotic Americans who were trying to keep us safe.

In response, former Vice President Dick Cheney and his co-conspirators in the Bush Administration were permitted to flood the airwaves, where they were able to lie, literally with impunity.  They applauded torture's efficacy and provide the most offensive and amoral justifications for it without the kind of meaningful rebuttal that is anathema to network television.  Cheney was not merely unrepentant; he was positively boastful, gleefully acknowledging that despite 1/4 of tortured detainees being innocent of wrongdoing, no "seed of doubt" was planted in his soulless mind.  Indeed, he said, “I’d do it again in a minute.”

And as vile and odious as Cheney is, the Republican leadership (John McCain being the notable exception that proves the rule) has essentially endorsed his repugnant world view -- that anything to keep Americans out of danger as long as it isn't worse than what the terrorists did to us on 9/11 is morally acceptable, and that despite all evidence to the contrary, torture worked.  In essence, they would all "do it again in a minute."  (Significantly, Obama's CIA Director, John Brennan, isn't far from this position.  While he acknowledged the "shortcomings" of the torture program, he insisted that it resulted in obtaining intelligence that "saved lives.")

Thanks to the torture-enablers media blitz and Obama's acquiescence, a recent Washington Post poll showed that "by a margin of almost 2 to 1 . . . those interviewed said that they support the CIA’s brutal methods, with the vast majority of supporters saying that they produced valuable intelligence." 

President Obama came into office and, giving in to his bipartisan fetish, insisted on looking forward, not backward.  But, of course, we are not moving forward.  Without a true reckoning that confirms once and for all the immorality and illegality of torture, a reckoning that holds those responsible accountable, we remain stuck in a debate framed by self-serving Bush officials and their fellow travelers in the Republican Party about its efficacy.  And the winners of the debate will be whoever happens to inhabit the White House next.

Death's Double Standard

By Tony Platt, cross-posted from his website, GoodToGo

It’s good news that the United Nations has authorized University of Arizona professor James Anaya, Special Rapporteur on the Rights of Indigenous Peoples, to carry out its first investigation into the status of Native Americans in the United States, with a particular focus on American compliance with standards embodied in the UN Declaration on the Rights of Indigenous Peoples, to which the US became a signatory in 2010.

The focus of Anaya’s scrutiny no doubt will be on today’s inequalities and injustices that deeply impact 2.7 million Native Americans throughout the country. But let’s not forget the inequities of death.

Despite popular images of tribal members getting rich from gaming pay-offs, the overwhelming majority of Native Americans remain mired in poverty, the victims of structural unemployment and racial exclusion, compounded by devastating rates of diabetes, suicide, infant mortality, and cardiovascular and alcohol-related diseases. There is a long way to go before, in the words of the Declaration, “indigenous peoples are equal to all other peoples” entitled to the right to “self-determination” and to “be free from discrimination of any kind.”

Inequality is a problem for the dead as well as the living. According to Article 12 of the U.N. Declaration, native peoples have a right to “the use and control of their ceremonial objects, and the repatriation of their human remains.” Repatriation as a central demand of Native American movements in the United States speaks to the long history of plunder of native artifacts and bodies.

Over a period of some two hundred years, from Thomas Jefferson’s exploration of a Native American barrow near his home in Virginia, to passage of the federal Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, several hundred thousand native grave sites – maybe as many as one million – were dug up in the name of science, recreation, and commerce. There was a brisk trade in native body parts and funerary artifacts, propelled by the popularity of commercial and recreational “collecting,” scientific curiosity, and the heritage industry. The artifacts removed from graves ended up in private collections and public display cases around the world, including the Smithsonian, Royal Museum of Ethnology in Berlin, the British Museum in London, and museums in Prague, Zurich, Vienna, and Moscow.

Can Corporations Violate Human Rights?

By John Knox, cross-posted from Center for Progressive Reform

On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights.

For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.  

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law.  In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms” familiar when the law was enacted.  As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy.

Foreign plaintiffs have used the ATS to accuse corporations of committing grave human rights abuses, including genocide, war crimes, and forced labor.  A few of the suits have resulted in payments, including a 2009 settlement by Shell of another claim arising from its Nigerian operations.  In 2010, however, the Second Circuit Court of Appeals rejected Esther Kiobel’s claim on the sweeping ground that corporations could never be liable for violations of customary international law, because customary international law never imposes any obligations on corporations.  In short order, the Seventh, Ninth, and D.C. Circuits rejected the Second Circuit decision, holding that plaintiffs can sue corporations under the Alien Tort Statute.

Last fall, the Supreme Court granted certiorari to review the Second Circuit decision.  Its ruling will be its first ATS decision since Sosa, and it will determine whether the many other pending ATS suits against corporations may continue.  It’s possible that the Court will decide the case on grounds that allow it to avoid addressing corporate duties under international law.  But if the Supreme Court does take on international law, as seems likely, what should it decide?  Is the Second Circuit correct that international norms do not prohibit corporate abuses of human rights?

Syria: A Human Security Approach

The key to any intervention is to combine upholding human rights inside Syria with de-escalation of the broader regional conflict. Far from being contradictory, these two goals – human rights and peace – reinforce each other. 

By Mary Kaldor, cross-posted from openDemocracy


The United Nations Human Rights Council has described the Syrian government’s repression of peaceful protests as ‘crimes against humanity’. Even the shocking number that is widely quoted of 7,000 people killed cannot convey the sheer horror of what is happening including shelling, torture, arbitrary detention, child-rape and other atrocities. Reports suggest some 50,000 people are missing, some 60,000 have been imprisoned, and a minimum of 15,000 (the number of refugees in Turkey) have been forced to leave their homes.

The scale of violence gripping Syria today has long crossed the line of a domestic issue. The international community is obliged both morally and legally to intervene to stop the violence – to protect Syrian civilians and to establish conditions for peaceful political change. The question is what form should such an intervention take?

What began as an inspiring non-violent protest is degenerating into something that has all the hallmarks of what I call a ‘new war’ ^↑ . The Assad regime is showing many of the characteristics of a weak state. The economic sanctions imposed by the west are beginning to take their toll. The regime cannot rely on the army. Reportedly it has been unable to call up more than 60% of the reserves.

When army units are sent to repress protestors there are usually many defections. Instead the regime relies on the Republican Guard, the intelligence agencies and some extremist militias known as Shabbiha, all of whom act with great savagery. The regime has been engaged in fomenting sectarian conflict, distributing weapons and sandbags to the Alawite community and spreading horrendous stories of ethnic hatred on the part of the majority Sunnis. It has also, reportedly begun to release criminals from gaol, a practice pioneered by Milosevic, Saddam Hussein and Gadhafi. Indeed Assad has talked of creating ‘another Afghanistan’.

Baltasar Garzón And The Politics Of Justice

Spanish judge Baltasar Garzón is a heroic figure who gained international notoriety in 1998, when he ordered the arrest of Chilean dictator Augusto Pinochet for the alleged deaths and torture of Spanish citizens.  Ten years later, he tried to fill a vacuum left by the Obama Administration by seeking to investigate whether six senior Bush administration officials, the Bush Six, were responsible for "an authorized and systematic plan for torture" at Guantanamo.  (See No Spain, No Gain)  The torture investigation languished when Garzon was suspended after being charged with abusing his powers to investigate Spanish Civil War atrocities, and the case was assigned to another judge.  As Pia Navazo writes below, Garzon's efforts to investigate killings of civilians during the era of General Franco’s dictatorship has made him a legal target, raising profound legal and moral issues.  -- Lovechilde

By Pia Navazo, cross-posted from openDemocracy

The well-known and high-profile Spanish judge Baltasar Garzón faces a private prosecution over his attempt to investigate crimes committed under the regime of Francisco Franco, which ruled Spain for thirty-six years following his forces’ victory in the civil war of 1936-39.

Garzón is accused on three separate charges of “malfeasance” for having exceeded his powers and contravened Spain’s amnesty law, passed in 1977 - two years after Franco’s death, and in the early stages of the country’s transition to democracy. Garzón himself and Spain’s state prosecutor appealed to Spain’s supreme court to dismiss the case against him, but on 31 January 2012 the judges on the court voted ^↑ (by a four-to-three margin) to reject requests from both. This ruling is independent of the final ruling on the merits of the charges.

A prosecution of judges for malfeasance is very rare in Spain. It is equally rare for the state prosecutor to support a defendant’s request for dismissal. Still, the supreme court dismissed the arguments put forward by Judge Garzón on the grounds that “they didn’t have sufficient weight”. As a result, the private prosecution of Garzón was allowed and the trial began immediately.

Judge Garzón told ^↑ the court that he did what he felt compelled to do in pursuing the investigations. He drew on precedents set by the Scilingo case ^↑ when the Argentine military officer Adolfo Scilingo was convicted by the Spanish supreme court for attempted genocide and other crimes committed during Argentina’s “dirty war” of 1976-83. The state prosecutor initially challenged that investigation but changed its position and supported the case on the basis that the crimes being investigated were crimes against humanity. At the time, the supreme court affirmed the judge’s obligation to investigate facts that could amount to such crimes.

Judge Garzón argued that he had received reports regarding detailed events that took place during and after the civil war, which involved alleged crimes such as extra-judicial executions, enforced disappearances and torture. He argued further that the amnesty law only applies to crimes “of a political nature”, meaning crimes with a political connection, and - on the grounds that crimes against humanity cannot be considered political acts - rejected the allegation that he had the intention to proceed in violation of the amnesty law in investigating these crimes.

Upside Down Justice: Prosecuting Whistleblowing Not Torture

The prosecution of torture whistleblower John Kiriakou criminalizes the revelation of illegality, and decriminalizes the torture. -- Daniel Ellsberg

John Kiriakou, the CIA's former director of counterterrorism operations in Pakistan, has been charged with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917.  John Rudolph at Huffington Post reports that "Kiriakou allegedly leaked information to reporters about two CIA agents directly involved in interrogations of terrorism suspects during the Bush administration that used waterboarding -- a simulated drowning technique that President Obama has himself described as torture."

Kiriakou, the New York Times explains, was "a leader of the team that captured Abu Zubaydah, and he came to public attention in late 2007 when he gave an interview to ABC News portraying the suffocation technique called waterboarding as torture, but calling it necessary."

This is the the sixth prosecution by the Obama Administration of a whistleblower.  (See Put Your Lips Together And . . . Get Indicted.)  What is particularly disturbing about each of these cases is the Justice Department's reliance on the draconian Espionage Act by characterizing the leaking of classified information to reporters as "aiding the enemy."  As Rudolph notes, the 1917 espionage law has only been used three times previously to prosecute leaks to the media.   And, as Charlie Savage in the Times states, Obama has brought “more such cases than all previous presidents combined.”

Daniel Ellsberg, Rudolph writes, called it "brazenly hypocritical" to prosecute Kiriakou for leaking information related to waterboarding while those who performed it were granted immunity:  "You're criminalizing the revelation of illegality and you're decriminalizing the illegality -- the torture."

Glenn Greenwald sums up the Administration's philosophy.  First, "if you are a high-ranking government official who commits war crimes, you will receive full-scale immunity, both civil and criminal, and will have the American President demand that all citizens Look Forward, Not Backward."  But, "if you talk publicly about any of these war crimes, you have committed the Gravest Crime — you are guilty of espionage – and will have the full weight of the American criminal justice system come crashing down upon you."

As Greenwald concludes:

It’s long past time to rip those blindfolds off of the Lady Justice statues. When the purpose of American justice is to shield those with the greatest power who commit the most egregious crimes, while severely punishing those who talk publicly about those crimes, it’s hard to imagine how it can get much more degraded or corrupted than that.

Obama And Clinton: LGBT Rights Are Human Rights

It always seems to be a case of half empty or half full with Obama.  Case in point is the inconsistency on two classic culture war issues.  As noted in a previous post, the Administration made the astounding decision to overrule an FDA recommendation to make emergency contraception available over-the-counter to women of all ages.  Is there any explanation other than fear of antagonizing religious conservatives?  But then what to make of the brave stance taken to highlight the importance of LGBT rights before the international community? 

"Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same."  Hillary Clinton, in recognition of Human Rights Day

While the Republican candidates for president pander to right-wing homophobes (or demonstrate that they are right-wing homophobes), the Obama administration announced it will weigh how countries treat their LGBT communities in making decisions about foreign aid, and directed all agencies engaged abroad to make sure U.S. diplomacy and aid programs “promote and protect” the rights of gays and lesbians.

As stated in a Presidential Memorandum: “The struggle to end discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons is a global challenge, and one that is central to the United States commitment to promoting human rights.”

This statement was followed up with a powerful and eloquent speech to the Human Rights Council in Geneva by Secretary of State Hillary Clinton, who called for "a global consensus that recognizes the human rights of LGBT citizens everywhere."  


Here's a link to the full transcript of this remarkable speech.

Crackdown On Occupy Draws Attention Of UN Special Rapporteur On Freedom Of Expression

"Citizens have the right to dissent with the authorities, and there's no need to use public force to silence that dissension."  UN Special Rapporteur Frank La Rue

Originally established in 1993, by the United Nations Commission on Human Rights (now the Human Rights Council), the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has a mandate to investigate "violations of the right to freedom of opinion and expression, discrimination against, threats or use of violence, harassment, persecution or intimidation directed at persons seeking to exercise or to promote the exercise of the right to freedom of opinion and expression . . . "

While we like to think of the United States as a beacon of democracy and bastion of free expression, the use of tear gas, pepper spray and military-style tactics to disperse, remove and arrest Occupy protesters has caught the attention of the current Special Rapporteur, Frank La Rue.  As reported by Dan Froomkin at Huffington Post, La Rue, a long-time Guatemalan human rights lawyer, is "drafting an official communication to the U.S. government demanding to know why federal officials are not protecting the rights of Occupy demonstrators whose protests are being disbanded -- sometimes violently -- by local authorities."

La Rue, in a HuffPost interview asserted that the protesters have a right to occupy public spaces "as long as that doesn't severely affect the rights of others."  But, as we all know by now, Occupy encampments across the country have been disbanded, often with excessive force by police in riot gear.  La Rue acknowledged that while "the use of police force is legitimate to maintain public order," there must be a clear and present danger of real harm."  In addition, he stated, "there has to be a proportionality of the force employed to prevent a real danger."

It is clear to La Rue that the Occupy protesters are raising and addressing a fundamental issue. "There is legitimate reason to be indignant and angry about a crisis that was originated by greed and the personal interests of certain sectors," especially when the bankers "still earn very hefty salaries and common folks are losing their homes."  Thus, "in this case, the demonstrations are going to the center of the issue."

La Rue's "official communication" to the U.S. government will "ask what exactly is the position of the federal government in regards to understanding the human rights and constitutional rights vis-a-vis the use of local police and local authorities to disband peaceful demonstrations."

That is a very good question.

Torture, Indefinite Detention & The American Way

When the Senate took up the defense spending bill this week it included truly dreadful provisions allowing for indefinite military detention.  An amendment offered by Sen. Mark Udall (D-Colo.) that would have removed these provisions was defeated.  The amendment garnered only 38 votes, with 17 Democrats voting to reject it.   

The New York Times explains what the bill now includes:

[It] would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.
A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens.

The National Defense Authorization Act goes to a conference committee next week, and if the provisions are not stripped there, it will be up to President Obama to follow through with his veto threat.  He would be the first president in fifty years to veto a defense spending bill. 

Meanwhile, another amendment to the defense bill by Sen. Kelly Ayotte (R-NH) hoped to authorize "enhanced interrogations," i.e., torture.  Her proposal would "roll back the 2009 Obama executive order against torture by re-establishing a secret 'classified' set of interrogation techniques and then attaching them to the current 'Army Field Manual' on human intelligence collection."  Apparently, the amendment was not voted upon this time, but there is concern that Ayotte will find another opportunity to offer it.

And we know from the most recent GOP presidential debate, that most of the Republican candidates for president proudly claimed they would reinstate waterboarding and other enhanced interrogation techniques.

It is in this context that Amy Davidson of The New Yorker writes about the chilling new United Nations report on Syria's use of torture and killing of children.  She points out that while Syria is not our ally, we have made use of Syria's prisons and its methods in our war on terror. As Davidson says, while we may not have committed torture ourselves of the prisoners we transferred to Syria via extraordinary rendition and we may not torture children, "we have used torture, and as we have learned in the Republican debates and on the floor of Congress, there is in no way a consensus that this is even a source of mild embarrassment. Some of our politicians seem proud of it."

The issuance of the UN's report, Davidson points out, unavoidably brings up the "the cost of torture generally, including, in this instance, to our own moral standing."  Indeed.  When "one would wish for a unified international chorus against the use of torture," and "when the world needs to let Syria know how unacceptable its behavior is," we are left with the Senate passing a provision allowing indefinite military detention, some Senators seeking to pass amendments to rescind the ban against using torture, and virtually all the Republicans seeking the presidency declaring to enthusiastic applause that they would authorize enhanced interrogation techniques and that waterbording isn't torture.

As Davidson remarks, "the idea that, as a nation, we ought to live in such a way as to always be able to make torturers feel ashamed is not such a radical thought."  At least it shouldn't be.

Just Say No To Indefinite Military Detentions

This week, and as early as tonight, the Senate will vote on the 2012 Defense Authorization Bill, which includes a truly awful provision that would permit indefinite detention.  If the bill becomes law, Congress will have given the President the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world.

Chris Anders of the ACLU explains:

The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.  The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.

While the Obama Administration may ultimately veto the legislation, the only way to ensure the bill doesn't pass is for the Senate to approve the Udall amendment, which would strip the detention provisions and require Congress to use an orderly process to consider whether any detention legislation is needed at all.

It is not too late to contact your senators and urge them to vote YES on the Udall Amendment to the National Defense Authorization Act.

Neocon Nightmare At The GOP Debate

David Addington

First the GOP audience cheered for executions, then for letting the uninsured die, and then for waterboarding.  At the most recent debate, they applauded panel member David Addington -- the alleged mastermind behind the Bush Administration's most extreme positions on executive power and the use of torture and other human rights violations.  Have they no shame?  And what about CNN?  Have they given up all pretense of being a mainstream media operation?  CNN refused to raise critical questions when these guys were running amok in the Bush Administration, and now they treat this sorry collection of discredited neo-conservatives, including Addington, Paul Wolfowitz, and, for old times sake, Ed Meese, as "experts," perfectly qualified to ask potential presidential candidates questions on national security.  Never mind that it is they who should be asked questions -- but in the dock, not on CNN.  RJ Eskow has the gory details below.  -- Lovechilde

Rogue's Gallery: CNN's Ideologically Rigid, Scandal Tainted, Ethics-Investigation-Haunted GOP Debate "Panel"

By Richard (RJ) Eskow, cross-posted from Campaign for America's Future

The story just won't die. People keep commenting on the near-Stalinist level of ideological purity displayed by CNN"s choice of "expert" questioners at last week's Republican national security debate. The network's Neocon Politburo then dutifully proceeded to interrogate the GOP candidates about their devotion to the Cause.

It was an emotional moment, a kind of Big Chill for the Project for a New American Century gang. After all, these characters hadn't been seen in public together since the Bush Days. It wouldn't have been surprising to see Ahmed Chalabi carrying a tray of hors d'ouevres.

Time and time again the neocons were proven spectacularly and tragically wrong. Remember "We'll be welcomed as liberators"? Or the claim that Iraq will be a "cakewalk"? Nobody has believed a word they've said since 2005. Nowhere on Earth are their words given an ounce of credence.
Nowhere, that is, except CNN. We haven't seen national security commentary with so little credibility since Judith Miller interviewed "Curveball."

People are understandably outraged by CNN's ideological extremism, and by its willingness to discard even the thinnest veneer of journalistic objectivity. But there's another cloud over this panel: a cloud of scandals, criminal investigations, and ethical lapses.

David Addington. Paul Wolfowitz. Ed Meese. It's a Rogue's Gallery of government officials gone wild, a motley crew of the short-sighted, the benighted, and the nearly-indicted.

Or, as CNN calls them, "experts."

More Tortured Debate

This is what happens when acts of torture by the prior administration are not investigated and prosecuted because the current President believes that “nothing will be gained by spending our time and energy laying blame for the past.”  This is what happens when the present government fails to establish that torture is not only immoral, but illegal, and not only ineffective, but counterproductive.  This is what happens when we fail to punish the perpetrators of torture and other human rights violations. 

In Saturday's debate, the Republican candidates for president proudly claimed -- to applause, I might add -- that they would reinstate waterboarding and other enhanced interrogation techniques.  Herman Cain would use waterboarding  ("Pampering terrorists isn't something that we ought to do").  Michele Bachman said "“If I were president I would be willing to use waterboarding. I think it was very effective.”  Rick Santorum stammered that "we have to use . . . all enhanced interrogation techniques."  And Rick Perry, with his usual swagger said it would be a travesty to fail to "use any technique" to "extract information" that could "save our young people's lives."  And after the debate, Mitt Romney aides told CNN that he does not believe waterboarding is torture, but that he "is not going to spell out what he would employ."  Only Ron Paul and Jon Huntsman objected.

This issue should not be debatable.  But when President Obama took office he refused to allow his Justice Department to investigate, much less prosecute, those in the Bush Administration who authorized torture.  He maintained that since his Administration wouldn't condone torture we can simply move forward.  But we are not moveing forward.  The lack of a true reckoning that confirms once and for all the immorality and illegality of torture makes it far more likely that torture could again become American policy.  As the Republican Party continues to veer further rightward, it is more clear than ever that even if the Obama Administration won't sanction torture and violate human rights, there is nothing to stop the next Administration.

Condi's World: Fantasies and Post Hoc Fallacies

Condoleeza Rice, George W. Bush's former National Security Adviser and Secretary of State, has a disturbing habit of engaging in fantasy.  For example, her unsubstantiated assertion of Iraq's nuclear capability, culminating in her famous remark that "we don't want the smoking gun to be a mushroom cloud."  Of course, there was neither a smoking gun nor a mushroom cloud.

Then there was her embarrassing Freudian slip in which she appeared to refer to Bush as her husband.  Uh, no comment.

And now, in touting her memoir, Rice has the temerity to take credit for the Arab Spring, writing that it vindicates the Bush Administration's policies, including the invasion of Iraq.  More fantasy and a classic example of the Post Hoc Fallacy.

Post hoc ergo propter hoc or "after this, therefore because of this" is a logical fallacy in which one erroneously attributes cause and effect simply because one event occurs before the other.  Put differently, it is a fallacy to conclude that A causes B merely because A occurs before B.

Now, there is clearly a cause and effect between Bush's Iraq invasion and thousands of military and civilian deaths, a revitalized Taliban in Afghanistan, the spreading of Al Qaeda throughout the region, the strengthening of Iran, the tanking of the U.S. economy, and our disgraceful embrace of torture, extraordinary rendition, and other human rights violations.

But the Arab Spring?  Post hoc ergo ...

Digby put it more colorfully:

the logic behind Rice's view inexorably leads you to evaluate everyone in history through the lens of human progress --- which means that none of the great villains can be held responsible for their deeds and nothing can ever be learned from bad decisions of the past. As long as the world goes on you can always make the case that things will probably turn out ok in the long run. And that's hardly any comfort ---as the old saying goes, in the long run, we'll all be dead.

In fact, in the short run a whole lot of Iraqi people are dead because of the United States' inexplicable decision to invade their country. . .  If Iraq becomes a sane and prosperous nation some time from now, it will never render that policy, based on lies and propaganda, to be a good one --- and Bush, Cheney and Rice will never get credit for any future progress because of it. They need accept that the best they can hope for is to end up among history's inept clowns instead of history's villains. It's not much, but it's all they've got.

So, despite their best efforts to rewrite history, will Bush, Cheney and Rice be viewed as villains or inept clowns?  The answer can be found in another philosophical proposition:  The Unity of Opposites.  They can be villains and clowns.

International Execution

Anwar Al-Awlaki

It is being reported this morning that an American drone attack in Yemen killed Anwar al-Awlaki, an American-born cleric tied to Al Qaeda.

I previously wrote about the legal challenge brought by his father challenging the Obama Administration's policy of targeting an American citizen for assassination.  I was particularly incensed by the criticism of the legal team that brought the lawsuit as having crossed some line by representing a suspected terrorist. 

The judge ultimately dismissed the case without reaching the merits, finding that the father did not have standing to sue.  But it is worth taking note of the New York Times Dec. 12th editorial entitled Judicial Scrutiny Before Death, which argued that despite winning in court, "the administration should remain very worried about the moral implications of its policy," which the district court judge "sharply questioned" despite dismissing the lawsuit.  The Times noted that, as the judge wrote, one of the many unanswered questions remaining is whether "the Executive [can] order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization”

The Times stressed the importance of judicial scrutiny, and suggested creating a court that operates in secrecy, "like the Foreign Intelligence Surveillance Court, which authorizes wiretaps on foreign agents inside the United States."  Thus, at minimum, "the government could present its evidence to this court behind closed doors before putting a terror suspect on its target list."

After the death of Osama bin Laden, I wrote:

Of course the world is better off without Osama bin Laden, and it is far better that "the face of the Arab world in America’s eyes," as Jon Stewart said, will no longer be bin Laden's, but instead will be "the young people in Egypt and Tunisia and all the Middle Eastern countries around the world where freedom rises up.”  But, while President Obama declared that "justice has been done," if it turns out that bin Laden could have been taken into custody alive without immediate risk to life when more than 20 Navy SEALS entered his compound, then his killing was retribution, not justice.

"Proper justice," as Daniele Archibugi explains, "is made in the tribunals, not outside them."  Perhaps there was no choice, but it would have been "much more judicially satisfactory," if less immediately gratifying, "to have arrested bin Laden," and to give responsibility to the courts, "rather than to a commando" to judge and punish.

As human rights lawyer Geoffrey Robertson states, justice "requires a fair trial before an independent court."  . . .  What should not be forgotten, as Karen Greenberg reminds us, is that the effect of bin Laden's reign of terror on the United States was to pervert our notion of justice: "Under the rubric of fighting terror, the United States rolled back its hallowed notions of civil liberties, its embrace of modernity, and even its reliance on its own courts. We delved into medieval-style torture, we reneged on our courts as a viable option for trying terrorists, and we blindly took aim at a religion, rather than its disaffected hijackers."

This Administration's "relentless program of wiping out top al-Qaida leaders around the world through unilateral covert strikes" is deeply troubling, both morally and legally.  More so for Al-Awlaki, an American citizen, who was never indicted and not afforded the due process rights to which American citizens are entitled.  As Glenn Greenwald put it:  "he was simply ordered killed by the President: his judge, jury and executioner."

Jameel Jafar,  the A.C.L.U.’s deputy legal director, argued that the government’s targeted killings violated United States and international law.

“As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.” 

Getting Away With Torture

As Human Rights Watch contends, the Obama Administration has failed to meet this country's obligations "to investigate acts of torture and other ill-treatment of detainees" by the prior administration.  It has just released a 107-page report, Getting Away With Torture, which "presents substantial information warranting criminal investigations of Bush and senior administration officials, including former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet, for ordering practices such as “waterboarding,” the use of secret CIA prisons, and the transfer of detainees to countries where they were tortured."

Executive Director Kenneth Roth states that despite "solid grounds to investigate Bush, Cheney, Rumsfeld, and Tenet for authorizing torture and war crimes . . . President Obama has treated torture as an unfortunate policy choice rather than a crime."  In the absence of a meaningful reckoning, however, "Obama's decision to end abusive interrogation practices will remain easily reversible unless the legal prohibition against torture is clearly reestablished."

Roth asserts that if the United States government refuses to pursue credible criminal investigations, other countries should prosecute US officials involved in crimes against detainees in accordance with international law:  "The US has a legal obligation to investigate these crimes," Roth said. "If the US doesn't act on them, other countries should."

[Related posts:  No Accounting For Torture; Pitfalls of Only Looking Forward, Tortured Logic; No Spain, No Gain.]

If It's Good Enough For Cheney and Rumsfeld . . .

Pfc. Bradley Manning was arrested in Iraq in May 2010, for allegedly leaking classified documents to WikiLeaks, including the U.S. diplomatic cables that were subsequently published by WikiLeaks and in newspapers around the country.  As widely reported, Manning has been subject to inhumane conditions during his confinement, raising serious concerns of human rights groups as well as the spokesperson for the State Department, who resigned after publicly condemning Manning's treatment as "ridiculous, counterproductive and stupid."

Chase Madar, an attorney who is writing a book about Manning, contends in a piece originally published at TomDispatch, that not only should Manning not be punished so harshly, he deserves a medal. 

Bradley Manning, American Hero
Four Reasons Why Pfc. Bradley Manning Deserves the Presidential Medal of Freedom, Not a Prison Cell

By Chase Madar, originally published on TomDispatch on July 7, 2011.

We still don’t know if he did it or not, but if Bradley Manning, the 24-year-old Army private from Oklahoma, actually supplied WikiLeaks with its choicest material -- the Iraq War logs, the Afghan War logs, and the State Department cables -- which startled and riveted the world, then he deserves the Presidential Medal of Freedom instead of a jail cell at Fort Leavenworth.

President Obama recently gave one of those medals to retiring Secretary of Defense Robert Gates, who managed the two bloody, disastrous wars about which the WikiLeaks-released documents revealed so much.  Is he really more deserving than the young private who, after almost ten years of mayhem and catastrophe, gave Americans -- and the world -- a far fuller sense of what our government is actually doing abroad?

Bradley Manning, awaiting a court martial in December, faces the prospect of long years in prison.  He is charged with violating the Espionage Act of 1917.  He has put his sanity and his freedom on the line so that Americans might know what our government has done -- and is still doing -- globally.  He has blown the whistle on criminal violations of American military law.  He has exposed our secretive government’s pathological over-classification of important public documents

No Accounting For Torture

The headline in the New York Times exclaimed Justice Dept. to Widen 2 C.I.A. Inquiries, referring to the continuing investigation of two suspected terrorists who died in C.I.A. custody, one at Abu Ghraib in 2003 and one in 2002 in an Afghan prison.  That's it.  Two token investigations, albeit for two grotesque cases, are subject to inquiry.  Meanwhile, investigation into the deaths of over 100 other detainees are unceremoniously dropped.

As Glenn Greenwald put it, this means there will be no accountability for a Bush regime that "extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons -- "black sites" -- purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross" and no accountability for the 100 detainees who died during U.S. interrogations.

“With the approval of the Bush administration’s most senior officials, the C.I.A. operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law,” said Jameel Jaffer, deputy legal director for the ACLU. “The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing.

And that, of course, is the problem.  The narrow scope of the investigation focused on low level operatives and not the officials who approved the program.  In addition, as Adam Serwer observes, Obama further undermined the investigation's independence when he "argued that the country needed to 'look forward,' . . . suggesting that criminal investigations should be subordinate to the president’s whim rather than the facts and the law."

And not only have the Bush officials who "sanctioned torture escaped civil and professional consequences," but the Obama Administration, as Greenwald points out, shielded "those responsible for some of the most shameful and inexcusable crimes in the nation's history . . . from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party's control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens' torture at American hands."

What is so wrong about this is not only that those responsible for torture are being let off the hook.  As Serwer writes, "the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability," make if far more likely that torture could again become American policy.  Thus, even assuming the Obama Administration won't sanction torture and violate human rights, what is to stop the next Administration when there has been no true reckoning?

Drone Warfare: Cost And Challenge

By Paul Rogers, originally posted at openDemocracy, June 23, 2011.

The repositioning of the United States’s military strategy includes a great expansion in the use of armed-drones to attack targets in Pakistan and Yemen. But this development raises profound legal and ethical questions that are now entering the public arena. 

The announcement by President Obama on June 22 of substantial withdrawals of United States troops from Afghanistan by September 2012 marks an important moment in the almost decade-long war in the country. The impact of the decision will be on the current diplomatic calculations over the nature of a settlement that will bring the war to an end. It may also impinge on the presidential-election campaign in the US that reaches a climax in November 2012. But whatever the diplomatic or political consequences of the drawdown will be, the Afghanistan war is still far from over - and indeed, in one significant way it has in its tenth year been intensifying rather than winding down (see “Afghanistan: mapping the endgame”).

This is the use of pilotless armed drones. These are employed under CIA command - a procedure chosen because the CIA's rules of engagement are less restrictive then those of the military. The continuous drone-attacks across the border in Pakistan have very destructive human effects that often reach beyond the presumed insurgent targets; the agency claims to have killed around 1,400 suspected al-Qaida and Taliban paramilitaries, but Pakistan sources also (amid a scarcity of precise details) estimate that hundreds of civilians have also died in these operations.