Tag Archives: torture

MIA: the rule of law

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What is happening in this country?  Do you think that, in a nation that purports apply the law to all citizens equally, that a citizen seized by the government within the United States should have a right to have he claims of torture by US personnel at least heard in court? I certainly do.

But Jose Padilla apparently is not entitled to such a hearing. A Federal judge yesterday refused to allow his claims to be heard.

A federal judge on Thursday threw out a lawsuit brought by a man convicted of plotting terrorism and who alleged he was tortured at a Navy brig in South Carolina, saying a trial would create “an international spectacle.”

U.S. District Judge Richard Gergel ruled Jose Padilla, arrested as an enemy combatant, had no right to sue for constitutional violations and that the defendants in the case enjoyed qualified immunity.

Padilla claimed he was illegally detained as an enemy combatant and then held in a brig near Charleston where he was tortured. His lawsuit named government and brig officials, including Defense Secretary Robert Gates and former Defense Secretary Donald Rumsfeld.

So, because a trial could cause a “spectacle,” government officials and former government officials are granted immunity? What protection does any citizen have when governmental abuse cannot be taken to court?

Glenn Greenwald is on the case. Here is an excerpt, but his entire essay is a must read.

… our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law.  It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution.  That’s the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals — from Obama’s refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks.  With very few exceptions — yesterday’s ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla’s lawsuit against John Yoo for having authorized his torture (that decision is on appeal) – Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

There are legalistic questions involved in cases such as the one brought by Padilla — i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a “Bivens” claim) and whether such officials should enjoy “qualified immunity” for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) – but one key fact is not complex.  Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard.   If an American citizen can’t even sue political officials who lawlessly imprison and torture him in his own country — if political leaders are vested with immunity from a claim of this type — what rational person can argue that the rule of law or the Constitution binds our government officials?

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Egypt’s Vice President

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Egyptian Intelligence Director Omar Suleiman a...

Omar Suleiman via Wikipedia

Omar Suleiman is the recently appointed Vice President of Egypt. And there is some support from the United States to have him assume the Presidency on an interim basis should Mubarak eventually resign.

But how big an improvement for the people of Egypt is Suleiman? Since 1993 he has been the head of Egypt’s powerful and feared intelligence agency. And in that role he worked with our CIA in sending suspected terrorists to Egypt for torture.

Suleiman graduated from Egypt’s prestigious Military Academy but also received training in the Soviet Union. Under his guidance, Egyptian intelligence has worked hand-in-glove with the CIA’s counterterrorism programs, most notably in the 2003 rendition of an al-Qaeda suspect known as Abu Omar from Italy.

And here is another outline of his actions.

In some instances, Suleiman has personally overseen the torture of detainees. A memoir by Australian citizen Mamdouh Habib told how he came face to face with Suleiman after he was captured by Pakistani security forces and later rendered to Egypt by the CIA. Habib claims to have been zapped with high-voltage electricity, immersed in water up to his nostrils, beaten, had his fingers broken and hung from metal hooks.
In another, disastrous example, Suleiman was the Egyptian point man for the CIA’s rendition of Ibn al-Shaikh al-Libi. Al-Libi told his U.S. torturers what they wanted to hear—that there was a connection between Saddam Hussein and al-Qaeda, even though there wasn’t one.
Al-Libi’s lies did not prevent him from winding up in an Egyptian prison, where he was kept in a box less than two feet square for 17 hours a day. When let out, he was subjected to beatings, causing him to tell more lies to get his captors to stop torturing him.

You can read his torture CV here.

And read this article from today’s New York Times describing what is happening right now.

Whatta guy.  Sounds like the perfect man to transition Egypt to democracy.

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How we stay “secure”

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Tom Englehardt describes the US security state:

Of course, the U.S. national security state has quite a different formula for engendering safety in America: fight the Afghan war until hell freezes over; keep the odd base or two in Iraq; dig into the Persian Gulf region; send U.S. Special Operations troops into any country where a terrorist might possibly lurk; and make sure the drones aren’t far behind. In other words, reinforce our war state by ensuring that we’re eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that we’re in imminent danger, that shoe, underwear, and someday butt bombers will destroy our country, our lives, and our civilization. Insist that a single percent of risk is 1 percent too much when it comes to terror and American lives, and then demand that those who feel otherwise be dealt with punitively, if they won’t shut up.

(via Daring Fireball)

Obama administration actively fought torture probe

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One of the items revealed in the Wikileaks document dump is that the Obama administration (and several prominent Republicans) actively intervened in Spain to block a probe of American torture policy under the Bush Administration as it was applied to several Spanish citizens. Shameful and amazing.

Diplomats routinely monitor and report on legal cases that affect national interests. These cables show that the U.S. embassy in Madrid had far exceeded this mandate, however, and was actually successfully steering the course of criminal investigations, the selection of judges, and the conduct of prosecutors. Their disclosure has created deep concern about the independence of judges in Spain and the manipulation of the entire criminal justice system by a foreign power.

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“Looking forward” on torture

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David Cole, writing in the New York Review of Books, explains why Obama’s effort to “look forward” and not backward on the torture committed by the Bush administration, will fail and that a full accounting, at a minimum, is necessary to purge the damage done by this country’s official policy of torture under Bush.

The torturers—President Bush, Vice President Cheney, Attorney General John Ashcroft, Director of Central Intelligence George Tenet, and Justice Department lawyers John Yoo and Jay Bybee, to name just a few—are not held responsible. They remain free to travel the lecture circuit and publish books bragging about their crimes. It is the families of victims of the embassy bombings who must pay the price—in foregone justice—for the crimes the Bush administration perpetrated in its “war on terror.”

It turns out that looking forward, not back, will never resolve the torture legacy. Until we own up to and provide a reckoning for the moral and criminal wrongs committed by officials at the very highest levels of the former administration, the fact that we tortured will continue to fester—and cause problems for its successor. The prevailing view in Washington seems to be that we should move on, but such wrongs cannot be forgotten.

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Political quote of the day 2

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You’ve got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram [in Afghanistan]. And although it is slightly different, Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action.

– former CIA director Michael Hayden, fairly chuckling with glee as the torture coverup continues under Obama. (via Andrew Sullivan)

Political quote of the day

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It can fairly be said that the Bush administration made torture the law of the land and the Obama administration is making impunity for torture the law of the land.

– Ben Wizner of the ACLU. He represented the plaintiffs in the recently-decided Ninth Circuit case upholding the state secrets privilege to block claims of torture.

Ninth Circuit upholds “state secrets” privilege

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Marc Ambinder, politics editor of of The Atlantic, highlights the disturbing actions of the Ninth Circuit Court of Appeals in precluding a recovery for victims of torture under the Bush Administration. Of course, it is the Obama Administration that asserted so-called “state secrets” to block a judgment.  Ambinder outlines the huge and growing number of individuals with power to classify actions as “secret” so as to block future judicial inquiry into the validity of the actions.

Today, the Ninth Circuit court of appeals essentially conceded that law and precedent do not give, and should not give, the judiciary branch an equal claim to determine whether the government correctly classified information. They did so in an en banc ruling in the case of five men, including Binyan Mohammed, who alleged that Jeppesen Dataplan, a flight logistics company, helped the CIA render them to other countries where they were tortured. The U.S. government had asserted the State Secrets Privilege. The plaintiffs insisted the government asserted the privilege to cover up its complicity in torture. The court today held that, in essence, it does not matter if the information in the case was used to cover up torture, so long as the privilege was properly asserted.

So what does the court have to say about who gets to make that judgment? By way of background, judges have routinely, in recent years, been asking to at least see the classified information that the government insists is so sensitive that even the protections afforded to classified information in other trials are not sufficient. It says very little. The majority cites previous decisions that are, essentially, fist shakers: the government must not use the privilege capriciously; courts must regularly review the underlying information; the executive branch is not the “sole” determinant of whether information is properly classified. But at the same time, the court acknowledges, or, rather, asserts, based on precedent, that only the executive branch is capable of making that determination. So the effect is that the government will almost always have a trump card.

You should also read Jane Mayer’s piece in The New Yorker about the case and the crimes covered up.

Much has been written about the denial of due process for the five plaintiffs who claim to have been victims of the extraordinary-rendition program. But equally disturbing is the message that this verdict sends to individual American citizens, like the former Jeppesen employee, who felt a call to conscience that made him speak out, even at the risk to his own future employment, because he believed that secret kidnapping and torture were crimes in a country founded on the idea that all people, not just Americans, have inalienable rights, including protection from cruel and inhumane punishment. That his allegations could receive a public hearing in the press, but not a legitimate hearing in the American system of justice—even under an Administration headed by a former professor of constitutional law—is a daunting reflection of the clout wielded by the national-security bureaucracy in Washington, in the age of the Long War.

Glenn Greenwald has more.

And today’s New York Times editorial: Torture is a Crime, Not a Secret.

All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

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Torture quote of the day

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They [George Bush and Dick Cheney] should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants. I’d like to say they should be indicted for lying but believe it or not, unless you’re under oath, lying is not a crime. At least not an indictable crime. It’s a moral crime.

– Fox News host Judge Andrew Napolitano.

Shameful quote of the day (updated)

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Yeah, we water-boarded Khalid Sheikh Mohammed. I’d do it again to save lives.

–Former President George W. Bush, speaking in Grand Rapids, Michigan, on Wednesday.

It is amazing to me that a former president of the United States can speak so openly and proudly of violating US law, US treaty obligations, and general human decency.  It is far past time for the Obama Administration to open a full review of the treatment of prisoners by the United States during the prior administration (and this administration as well).

Update: More from Jonathan Turley and Think Progress.

Obama = Bush Light

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The Obama Administration continues following the lead of the Bush Administration in regards civil liberties and pursuit of what used to be called the “war” on terror. Most recently, the Obama DOJ argued successfully that foreign nationals held by the United States in prison at Bagram Air Base in Afghanistan have no habeas corpus rights in the US courts.

In Maqaleh v. Gates, which involved two Yemenis and a Tunisian held at Bagram, the Obama Administration, echoing the Bush Administration’s position, argued that federal courts lacked jurisdiction to hear these detainees’ challenges because of the Military Commissions Act of 2006.

The government arguments in the appeal mirror those made earlier by the Bush Administration.

And, further compounding error, the Obama Administration also has failed to investigate prior claims of torture by the US. In the latter case, the model for Obama, rather than his current posture of sweeping crimes outside the view of the public, is the incoming coalition government, led by the Conservatives, in the UK.

A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the [UK] foreign secretary, said tonight.

The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide.

Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity.

Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work.

* * *

Philippe Sands QC, professor of law at University College London, said tonight: “To restore trust in government, both here and abroad, and to get to the truth, the inquiry needs to be deep and broad and as open as possible. It should address, in particular, who authorised what and when and why, what the relevant legal advice said, and how it related to any change in US practice in 2002 and 2003.”

Sunshine is the best disinfectant.

Waterboarding is torture

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If you have any doubts that waterboarding is torture, take a look at this article from Salon which summarizes the contents of internal CIA documents recently released.

The documents … lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

***

One of the more interesting revelations in the documents is the use of a saline solution in waterboarding. Why? Because the CIA forced such massive quantities of water into the mouths and noses of detainees, prisoners inevitably swallowed huge amounts of liquid – enough to conceivably kill them from hyponatremia, a rare but deadly condition in which ingesting enormous quantities of water results in a dangerously low concentration of sodium in the blood. Generally a concern only for marathon runners , who on extremely rare occasions drink that much water, hyponatremia could set in during a prolonged waterboarding session. A waterlogged, sodium-deprived prisoner might become confused and lethargic, slip into convulsions, enter a coma and die.

Therefore, “based on advice of medical personnel,” Principal Deputy Assistant Attorney General Steven Bradbury wrote in a May 10, 2005, memo authorizing continued use of waterboarding, “the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia.”

The entire range of techniques used by the CIA and explicated in the article is beyond sickening and horrifying. I cannot comprehend how this country could have allowed this to have happened, and to have planned the torture sessions in a careful and systematic manner to enhance the discomfort and terror of the victim.

How can the Obama administration continue to take the position that a criminal investigation of these activities is not essential to restore our country to the rule of law, both domestic and international?

Free the orcas (updated)

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To me, the death of a trainer at SeaWorld by the acts of a captive killer whale highlight the problem with using animals purely for human entertainment.  It is wrong, both morally and practically, to imprison a animal meant to cruise the seas in a cement tank solely to make money on displaying that animal. When the animal is a dolphin (yes, despite the name Killer Whales are dolphins) and therefore highly intelligent it is even worse. It is torture, pure and simple. And there is no sufficient justification for such abuse.

Susan Orlean agrees:

I hate to say this, but I loved seeing Shamu perform at SeaWorld last Christmas. Seeing an orca rise up out of a pool in balletic rhythm with a trainer, feeling the seismic thuds as he hit the water, and watching him power his way through the water was stirring and astonishing. Afterward I felt awful. There is probably some valuable research that goes on at water parks, and perhaps audiences who come away as stirred and astonished as I was will be inspired to join a whale group or take up an environmental cause. But none of that balances out the bigger issue, which is that whales don’t belong in captivity, and certainly not in amusement parks.

Further, the practice of training killer whales for pure entertainment is also dangerous for the trainers. Read this chapter from The Peforming Orca: Why the Show Must Stop, part of the background material for a program on PBS called A Whale of a Business. Excerpt:

Since the first orcas were kept captive in the 1960s, there have been numerous “accidents” with trainers, most of which were covered up. Those that have come to light were mostly revealed by disenchanted trainers or members of the public who witnessed the accidents during a show. Marine park public affairs directors always played down such incidents, calling them bizarre accidents, and in some cases denied they had occurred. In recent years, with the proliferation of cheap video cameras, a number of incidents have been recorded. They range from bitings and collisions to near drownings when whales have held trainers underwater. Many of these dangerous incidents happened when the trainers were riding whales around the pool. Some former trainers such as Graeme Ellis believe that orcas, in general, do not like to be ridden. “They may tolerate it when they’re young or new to captivity,” says Ellis, “but later, it can lead to problems.” Yet most marine parks still feature trainers riding orcas during the shows. Only Sealand and the Vancouver Public Aquarium in Canada, Miami Seaquarium in the USA, Marineland in France and Taiji in Japan no longer allow trainers to ride the whales. In recent years, fewer trainer accidents are known to have occurred at these establishments compared to parks that feature in-the-water work. Yet, there have been some injuries and the most serious incident of all occurred at Sealand.

Update: Alexander Cockburn writes that using Orcas for entertainment purposes is a form of slavery.

Call him, just for now, Spartacus. He was two years when the slavers captured him in 1982 and hauled him off to the little town of Victoria, on Vancouver Island, British Columbia, in the far Canadian west. And there he met his fellow slaves, Nootka and Haida. Day after day in slave school they learned their tricks. Day after day, they did their act for the paying customers. And then, on February 20, 1991, in the tank operated by Sealand of the Pacific, the three struck back at their captors.

Okay, not Spartacus, but an orca whale – Tillikum, the one who drowned 40-year old Dawn Brancheau this week in the Shamu tank at SeaWorld, Orlando, after grabbing her by her pony-tail.

Tillikum was caught off Iceland. Nootka and Haida, both female, were seized in the Pacific. In fact Nootka was the third orca by that name to be bought by Sealand. The first two died within a year of their capture. At that time enslaved orcas had a life expectancy in captivity of anywhere from one to four years. These days they do a bit better. In wild waters, orcas live to be anywhere from 30 to 60.

Torture quote of the day

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I have always been on the record, in fact, since 2003, with the concept of living our values. And I think that whenever we’ve perhaps taken expedient measures, they’ve turned around and bitten us in the backside. We decided early on, in the 101st airborne division, we just said, we decided to obey the Geneva Conventions…

In the cases where that is not true [where torture takes place or international human rights groups aren't granted access to detention sites] we end up paying a price for it, ultimately,” he added. “Abu Ghraib and other situations like that are non biodegradable. They don’t go away. The enemy continues to beat you with them like a stick…. Beyond that, frankly, we have found that the use of interrogation methods in the army field manual that was given the force of law by Congress, that that works.

– General David Petraeus, commander of U.S. forces in the Middle East and South Asia