Critics Consider Interrogation 'Reform' a Step Backward

Last week Congress passed the Military Commission Act thereby sanctioning some of the Bush administration’s most controversial policies for handling detainees in the “war on terror.”

by Michelle Chen / The NewStandard

Note: Michigan Senator Debbie Stabenow was one of 12 Democrats voting for the legislation.

Congress has passed legislation sanctioning some of the Bush administration’s most controversial policies for handling military captives, but the move has not quelled the political battle over detainee treatment. Although supporters tout the bill as crucial for the prosecution of war criminals, advocates for detainees say it will further shred basic rights in favor of military impunity.

The Military Commissions Act, now bound for the president’s desk after a Senate vote last week, authorizes the creation of “military commissions,” based on the White House model for special military courts to try non-citizen detainees. The Secretary of Defense would have broad control over the trial process, including the appointment of judges and the authority to allow evidence obtained through coercion.

The new legislation’s scope could extend beyond conventional portrayals of “enemies” in the so-called “war on terror.” Under the bill, the category of “unlawful enemy combatant” encompasses people engaged in combat, as well as anyone who has “purposefully and materially supported hostilities against the United States.” Such support could include financial help or other indirect aid to a terrorism suspect. The definition does not refer specifically to citizenship, raising concerns that the government would have unprecedented legal traction to sweep US citizens into arbitrary detention.

For all detainees, including those not formally charged through the commissions, the bill would bar access to US courts to challenge the legality of their imprisonment on the basis of a constitutional guarantee known as habeas corpus.

The bill also sets standards for forceful interrogation tactics based partially on the Geneva Conventions, international humanitarian protections that apply to armed conflict.

The bill explicitly bans “grave” violations like mutilation and murder. But it empowers the White House to rule on the legality of many controversial interrogation tactics, which may include simulated drowning and sleep deprivation.

The bill further diminishes the government’s accountability to the same human-rights statutes it purports to uphold. By blocking Geneva Conventions standards from being invoked in US court proceedings, the legislation renders government personnel and officials immune from legal liability for violating the Conventions.

The Military Commissions Act expands upon the Detainee Treatment Act of 2005, which established restrictions and guidelines for prisoners at the US military camp in Guantánamo Bay, Cuba. The new legislation’s curtailment of legal rights is farther reaching, and applies to detentions in the terror war anywhere in the world.

The Bush administration claims the bill will ensure the proper prosecution of terrorists, but human-rights groups see it as a step backward in their efforts to defend federal and international legal protections for detainees.

Gabor Rona, international legal director with the advocacy organization Human Rights First, told The NewStandard lawmakers had tried “to put the nail in the coffin” of the legal debate over detainees’ rights. The bill, he said, could be read to give the president “almost untrammeled discretion to determine what our obligations will be under most of the Geneva Conventions provisions.”

An irony of the bill, say critics, is that with habeas rights gutted, only a detainee who has been convicted by a commission may appeal to US civilian courts. Detainees who have never even been formally charged, by contrast, could languish in indefinite captivity without a civilian court hearing.

“Simply by the president pointing a finger at you and saying ‘You are an enemy combatant,’” Rona said, “you would then lose any and all constitutional rights that you have to challenge your detention, to bring complaints about your treatment in detention.”

Rona added, however, that the courts could read the law’s provisions to give less power to the president, reflecting more limited interpretations expressed by lawmakers who negotiated the bill, including so-called “dissident” Republican senators John McCain (Arizona), Lindsey Graham (South Carolina) and John Warner (Virginia).

The senators crafted a compromise with the White House as a response to a June Supreme Court decision in Hamdan v. Rumsfeld, which ruled that existing federal law did not sanction the commissions that President Bush sought to implement.

In a statement following the Senate vote, Majority Leader Bill Frist (R–Tennessee) declared that the bill would protect Americans by upholding the administration’s power to continue gathering intelligence and “bringing these terrorists to justice.”

But Mark Agrast, a senior fellow with the liberal think tank Center for American Progress, said the sweeping legislation is “likelier to deny justice to the innocent than to assure justice for the guilty.”

The Center for Constitutional Rights, which provides legal counsel to several hundred detainees at Guantánamo Bay, plans to challenge the bill on constitutional grounds. Wells Dixon, an attorney with the Center, told TNS the habeas-stripping provisions of the bill, which apply retroactively, may effectively kill detainee lawsuits that are now pending.

If the legislation is enacted in its current form, he predicted, “what this means is lifelong detention for our clients, essentially.”

Mentally Ill Prisoner Tortured to Death in Michigan

On Tuesday, Democracy Now reported that attorneys in Michigan are preparing to file a wrongful death lawsuit against the state’s Department of Corrections over the death of prisoner who suffered from a bipolar disorder. According to the Detroit Free Press, Timothy Joe Sounders died after spending most of his last four days with his arms and legs strapped to a steel bed in four-point restraints in a hot isolation cell. He was naked and soaked in his urine. He was 21 years old. Authorities haven’t released an autopsy yet but one expert witness called it “death by torture.” The Michigan Department of Corrections initially told his family that he had died in his sleep. Sounders is at least the third mentally ill prisoner to die under similar circumstances in Michigan in recent years. Also expected to be sued in the case is Correctional Medical Services, the private company that handles health services in Michigan’s prisons.

Ray McGovern Tells Audience they have an Obligation to Stop the War

At a talk last night at the Wealthy Street Theatre in Grand Rapids, Ray McGovern, a former CIA analyst who gained national attention recently for publicly challenging Secretary Defense Donald Rumsfeld about Rumsfeld’s lies about Iraq’s alleged WMD, described how the United States has engaged in torture and the responsibility of the government employees and ordinary people to stop the war.

Last night at the Wealthy Street Theatre, former Central Intelligence Agency (CIA) analyst and former Army officer Ray McGovern spoke to a crowd of over one-hundred people as part of the Community Media Center’s “Media and Democracy” lecture series. The lecture, which was originally intended to be a debate between McGovern and Holland Congressman Pete Hoekstra who chairs the House Permanent Select Committee on Intelligence, ended up being a lecture by McGovern when Hoekstra’s staff declined the invitation after eight weeks of contacting the office. When first approached, Hoekstra’s office did not reject the invitation, but after McGovern showed up at Hoekstra’s office in an orange jumpsuit and returned his Intelligence Commendation Award medallion, Hoekstra’s staff became increasingly suspicious. After publicly challenging Secretary Donald Rumsfeld last week about his claims that Iraq had weapons of mass destruction (WMD), Hoekstra’s staff formally rejected the invitation.

McGovern began his talk by describing the origins of the CIA, specifically talking about how people frequently tell him that he “does not look like a spy” despite the fact that he spent 27 years at the CIA. He went on to describe how the agency was formed in 1947 under the National Security Act as a way to prevent more Pearl Harbors, with the idea of a central clearinghouse for intelligence arising out of the fact that before Pearl Harbor there were various reports coming in from different intelligence services that may have been able to prepare the United States for the Japanese attack. To serve this function, the CIA was setup to be the one place in government without a policy agenda and with the CIA designed to give information to the White House without being tainted or influence by political concerns. However, in its founding, the CIA does have two contradictory roles, as it is not only supposed to deliver unbiased information but it is also required to take on tasks assigned to it by the President and the National Security Council. Throughout his talk McGovern critiqued the CIA for becoming too politicized and “corrupted,” claiming that the analytic wing of the CIA, which in his view was traditionally without an agenda, had begun to be corrupted in 1981. This corruption got to the point where in 2001 and 2002, the CIA was willing to suppress its concerns about the intelligence on Iraq’s alleged weapons of mass destruction and provided the Bush administration with the information that it needed to attempt to justify its war of aggression. McGovern went on to explain how the decision to invade Iraq and the CIA’s role in “the war on terror” has caused many CIA employees to quit and the CIA has lost 300 years of operational experience in the past couple of years.

McGovern then moved on to a discussion of the intelligence that led up to the Iraq War, highlighting with video the words of Secretary of State Colin Powell in February of 2001 who said that Iraq had no WMD and could not project conventional power and a similar assertion from National Security Advisor Condoleeza Rice who said that the world can keep weapons from Saddam Hussein and that he is not a threat. However, as McGovern pointed out, this changed after the terrorist attacks on September 11, 2001 when Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney began saying that Iraq had WMD. While some, such as McGovern’s Veteran Intelligence Professionals for Sanity, disputed the claim, the CIA largely collaborated with the Bush administration in developing a rationale for the war after a decision made to attack Iraq was made in early 2002. As many no doubt remember, the justification for the war was built on yellowcake uranium from Niger (impossible because Niger does not control the uranium that it mines and Iraq needed only to refine what it already had), aluminum tubes that were for artillery uses but were claimed to be for nuclear use by the Bush administration, and a “reconstituted nuclear program” that President Bush and National Security Advisor Rice said would be proven to exist by a mushroom cloud if the United States did not attack in October 2002. Moreover, while many such as former Secretary of State Colin Powell have described the period as a “blot” on their career, McGovern explained that administration officials and bureaucrats had an obligation to act and that their inaction has cost the lives of 2,400 US soldiers and tens of thousands of Iraqis and that they must be held accountable for what McGovern describe as a war that qualifies as a “supreme international crime” under Nuremberg due to the wars “accumulated evils” of torture, kidnapping, indefinite attention, and other such aspects of the Iraq War and the larger “war on terror.”

Of the “accumulated evils” described by McGovern, torture was given the most attention which he said had its origins on the evening of 9/11 when Bush said that he “didn’t care what the international lawyers say, we’re going to kick some ass” and that the “gloves were off” when it came to the treatment of detainees. Interestingly, McGovern described the first victim of torture as John Walker Lindh—the so-called “American Taliban”—who was tortured and then agreed to a plea bargain for a 20-year sentence (down from three life sentences) in exchange for keeping silent about torture. The Bush administration, specifically with David Addington and Alberto Gonzalez, drew up legal documents justifying torture that the president signed, all though as they said at the time of their drafting, Bush still may be held accountable for authorizing the CIA and the military to use torture to extract information. McGovern gave five reasons why torture is unacceptable and immoral with torture giving the country a bad image, torture endangering United States soldiers, torture “brutalizing the brutalizer,” torture providing unreliable information, and torture being intrinsically wrong and in the same category as rape and slavery.

Throughout his talk, McGovern explained that people—whether CIA analysts or ordinary people angry at the war—have an obligation to not only speak out against the war but also to act against the war. He explained that currently anger against the war is suppressed because people are able to maintain a distance from the war but that people such as the Raging Grannies and Cindy Sheehan are doing all that they can to make it impossible for people to ignore the war. He went on to describe the expectations of Iraqis, citing an Iraqi woman whom he toured the United States with in March of 2006, who became upset when people repeatedly asked her “what can we do?” instead of standing up and doing something. McGovern said that it is imperative for people to use their privileges and gifts to stop the war and asked the audience “what could we not do if we didn’t stick our necks out?”

Report: Nearly 100 Detainees have Died in US “War on Terror”

According to report released yesterday by Human Rights First, a human rights advocacy organization based in the United States, nearly 100 detainees have died since August of 2002 in the United States “war on terror.” The report analyzes 98 deaths of which 34 are suspected or confirmed homicides according to the military’s own standards, 11 that are believed to have been caused by physical abuse or harsh detention conditions, and 8 that were caused due to torture. Moreover, for nearly half of the 98 deaths surveyed the cause of death remains officially undetermined or unannounced. Twenty deaths are profiled, including that of Manadel al-Jamadi whose death became known during the media attention on Abu Ghraib when pictures showing US soldiers giving a “thumbs-up” over his dead body were released.

The reports key findings include:

  • Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations.

  • Investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution.
  • Record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution.
  • Overlapping criminal and administrative investigations have compromised chances for accountability.
  • Overbroad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability.
  • Agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined;
  • Effective punishment has been too little and too late.

While the report offers a series of recommendations to prevent detain deaths and improve the manner in which the military deals with such deaths, according to Human Rights First only 12 of the detainee deaths have resulted in punishment for US officials. In the 34 homicide cases, criminal charges were recommended by investigators in only two-thirds of cases and charges were brought in less than half of the cases. Moreover, no CIA agents have faced charges despite their implication in several detainee deaths and among deaths caused by torture, only half have resulted in punishment with the longest sentence received being five months in jail.