Closing Guantanamo and reining in the CIA

Not only did Barack Obama order the closure of Guantanamo Bay, he has also ordered that secret CIA prisons be closed and that the CIA must abide by the Army Field Manual in conducting interrogations. The latter decision closes a serious loophole in the human rights policies of the previous administration.

While there are a lot of tricky decisions left to be made about exactly how the prisons will be closed, who will be tried, who will be released, and where, this is a major step towards American rehabilitation in the eyes of the world. Hopefully, this will underline the fact that the Bush policies on torture and imprisonment were an aberration from the overall American approach. Of course, their injustice could be highlighted all the more effectively through the prosecution of some of the people who illegally implemented and oversaw them to begin with.

Author: Milan

In the spring of 2005, I graduated from the University of British Columbia with a degree in International Relations and a general focus in the area of environmental politics. In the fall of 2005, I began reading for an M.Phil in IR at Wadham College, Oxford. Outside school, I am very interested in photography, writing, and the outdoors. I am writing this blog to keep in touch with friends and family around the world, provide a more personal view of graduate student life in Oxford, and pass on some lessons I've learned here.

102 thoughts on “Closing Guantanamo and reining in the CIA”

  1. Well done. President Obama. The closure of Guantanamo Bay detention centre as one of President Obama’s first executive orders helps restore the standing of the President of the Unites States among the leaders and the nations of the world. I am particularly hopeful of the bi-partisan direction that Obama suggests that he will be pursuing both domestically and internationally.

  2. Finally we are going back to the lawfull and respected America that we knew before Bushlandia. Well Done President Obama!!!!!

  3. This is certainly hopeful, but I will reserve my applause until the prisoners who cannot be convicted under any sane court system are released, and to see if the secret prisons are actually closed. They are secret after all.

  4. In one sense, this is a big gamble politically. If there is another terrorist attack, the Republicans will blame it on these changes. They could use that argument to get back into a much stronger electoral position.

  5. I doubt Obama will ever be able to emulate Michael Ignatieff’s honesty when he said that:

    “Those of us who oppose torture should also be honest enough to admit that we may have to pay a price for our own convictions. Ex ante, of course, I cannot tell how high this price might be. Ex post—following another terrorist attack that might have been prevented through the exercise of coercive interrogation—the price of my scruple might simply seem too high. This is a risk I am prepared to take, but frankly, a majority of fellow citizens is unlikely to concur.”

  6. I think not closing it would be a bigger political risk, given what Obama has already promised. It would rather deflate his ‘change’ agenda if he suddenly decided to keep running secret prisons and torturing people.

  7. “We also know that among the remaining prisoners at Guantanamo there are several who clearly come under the definition of child soldiers, including Canadian Omar Khadr, who allegedly threw a grenade at an American soldier and was first taken to Guantanamo when he was 15. Khadr, we learned this week, allegedly identified, under abusive interrogation, another Canadian, Maher Arar, as a visitor to an al-Qaida safe house in Afghanistan. The problem here is that there is no dispute that Arar was in Canada at the time. Mohammed Jawad is another prisoner at Gitmo, and like Khadr he was also a child soldier (between 15 and 17; his birth date is unknown) when he threw a grenade and injured U.S. soldiers. As Glenn Greenwald chronicles here, Jawad allegedly suffered such brutal abuse and torture, his chief prosecutor resigned and is now a witness for Jawad in his habeas corpus proceeding. As Greenwald writes, the centerpiece of the government case against Jawad is a confession he ” ‘signed’ (with his fingerprint, since he can’t write his name) … and yet, it was written in a language Jawad did not speak or read and was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old.”

    This brings us to the nearly unthinkable question of what happens to anyone, innocent or guilty, when they have been beaten, humiliated, and held in solitary confinement for almost seven years. One could argue that even Mother Theresa might be inclined to “rejoin the battlefield” upon release from such treatment. Somehow in the repatriation of those who arrived at Gitmo relative innocents, we must now contend with the fact that some will be dangerous as a consequence of our actions, not theirs.”

  8. I think most people starkly underestimate the numbers of people involved in these illegal detentions. I’ve seen estimates from Human Rights organisations that the US is holding perhaps 20,000 people in illegal foreign prisons and on prison ships, in which case re-locating everyone will be quite a task. Personally, I fervently hope that they will publish details of exactly how many people were held, where they were held and broadly who they were, but this seems unlikely (not least because it would make them clearly liable for deaths in custody etc.)

  9. Another big problem is how to prosecute people who have already been tortured. Arguably, the past violation of their rights eliminates any claim to be able to justly prosecute them now. That said, there is probably very strong non-coercive evidence against at least some of them.

    Of course, if the ex-torturers themselves were facing prosecution, the situation would look a bit different.

  10. Although I welcome any improvement in the U.S. human rights record, I seriously doubt that a situation any time soon will be reached that is anywhere near “acceptable”. Considering all the human rights violations in the U.S. army system, a serious improvement program would resemble de-Nazification. (Not that that was an unmediated success.)

  11. “I’ve seen estimates from Human Rights organisations that the US is holding perhaps 20,000 people in illegal foreign prisons and on prison ships”

    This is such a mind-boggling number! Could you provide links to these reports?

  12. Magictofu: It is very difficult to get good figures for the obvious reasons that the disappearances are secret, illegal and don’t leave a public paper trail (unlike, for example, prison and jail inmates within the US). I think it is fair to say that the withholding of this information by the Bush administration was deliberate & politically significant i.e. it’s hard to sue or protest against something you can’t prove. This difficulty in judging the scale of the problem is one of my reasons for favouring full disclosure.

    So saying, Reprieve’s website currently says “The US government now itself admits to holding 14,000 people without charge and without access to lawyers in various locations – some still undisclosed – around the world, mostly in Iraq, but with significant numbers elsewhere.”
    In an article from the Guardian in June 2008 they go further, with a Reprieve spokesman saying that “By its own admission, the US government is currently detaining at least 26,000 people without trial in secret prisons, and information suggests up to 80,000 have been ‘through the system’ since 2001.” . There are a number of reports on the subject on the Reprieve website, which refer to information provided by a range of human rights groups including Amnesty and Human Rights Watch.

  13. “these numbers are mind-boggling!” Well, the US has a prison and jail population of approaching 2.5 million people (i.e. equivalent to over half the entire population of BC), so perhaps it’s no surprise they’ll lock up a paltry 20,000 or so foreigners.

  14. It certainly makes the scale of unraveling the secret prison system a lot more daunting. Those are a lot of people to put on trial or repatriate.

  15. Sarah, without commenting on the US justice system even though there is probably a lot to talk about here, we are talking about 20,000 who are not only imprisoned by denied of their basic rights. If these numbers are correct, and I assume that they are, Guantanamo has only been a distraction from a much larger issue.

  16. Two Prisons, Similar Issues for President Obama

    Published: January 26, 2009

    WASHINGTON — For months, a national debate has raged over the fate of the 245 detainees at the United States military prison at Guantánamo Bay, Cuba.

    But what may be an equally difficult problem now confronts the Obama administration in the 600 prisoners packed into a cavernous, makeshift prison on the American air base at Bagram in Afghanistan.

  17. “The challenges confronting the Obama administration at Bagram do not extend to the much larger American detention operations in Iraq, where the United States now holds about 15,000 prisoners. Under a security agreement with the Iraqi government, the United States will begin next month to release up to 1,500 detainees a month. Fighters captured and imprisoned in Iraq are afforded legal protections under the Geneva Conventions.”

  18. The Obama approach to interrogation

    By Vanessa Buschschluter
    BBC News

    ” US ARMY FIELD MANUAL Bans the following actions in intelligence operations:

    Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner
    Placing hoods or sacks over the head of the detainee
    Placing duct tape over the eyes
    Applying beatings, electric shock, burns or other forms of physical pain
    Using military working dogs to threaten the detainees
    Inducing injury through cold or heat
    Conducting mock executions
    Depriving the detainee of necessary food, water, or medical care
    Denigrating the detainee’s religious symbols”

  19. Cancel Water-Boarding 101
    The military should close its torture school. I know because I graduated from it.
    By David J. Morris
    Posted Thursday, Jan. 29, 2009, at 12:53 PM ET

    On his first day in office, President Obama kept his most important campaign promise and began the process of closing Guantanamo. But this eliminates only the most visible part of the U.S. torture bureaucracy. In order to ensure that the atrocities of Guantanamo aren’t visited upon the world by future administrations, Obama must also eviscerate the structures that enabled and supported torture. At the top of a long list is the U.S. military’s secretive torture school, known as SERE, which stands for Survival, Evasion, Resistance, Escape.

  20. Obama and the Treatment of Terrorist Suspects
    February 4, 2009 | 2122 GMT

    By Fred Burton and Ben West

    U.S. President Barack Obama signed an executive order Feb. 1 approving the continued use of renditions by the CIA. The order seems to go against Obama’s campaign promises to improve the image of the United States abroad, as renditions under the Bush administration had drawn criticism worldwide, especially from members of the European Union. The executive order does not necessarily mean that renditions and other tactics for dealing with terrorist suspects will proceed unchanged, however.

  21. America’s quick recovery from its torture program suggests it wasn’t a torture program in the first place
    By Dahlia Lithwick
    Posted Friday, April 17, 2009, at 11:54 AM ET

    The August 2002 Bybee memo and the three 2005 memos signed by Steven Bradbury are a blueprint for lawlessness. For all their dispassionate legalisms and the gutless language of giving “you” what “you” want, these memos are a how-to guide for secret government lawbreaking that will be copied by every lawyer with instructions to break the law in the future. In fact, the three Bradbury memos—which reinstated the torture regime Bradbury’s predecessor, Jack Goldsmith, withdrew in 2004 for being “sloppily reasoned” and “legally flawed”—illustrate exactly what happens when there are no consequences for past government lawbreaking. The temptation to keep breaking the law is irresistible.

  22. They won’t prosecute the CIA agents, but what about the justice dept. lawyers? People like John Yoo, does the immunity extend to them?

  23. Spanish Prosecutors Formalize Objections to Torture Indictments

    Published: April 17, 2009

    PARIS — Spanish prosecutors formally recommended throwing out a criminal complaint on Friday that was lodged against six former Bush administration officials, accusing them of violating international law in giving legal cover for the use of torture of detainees at Guantánamo Bay, Cuba.

    A prosecutors’ review is customary but not binding before starting a case. This one reflected the strong political pressure building to get rid of lawsuit that appeared legally cumbersome and could complicate relations with the United States, legal experts said.

    But the decision on whether to begin a criminal investigation of the six officials will be made by the investigating judge: Baltasar Garzón, who has ignored opinions of politicians and law enforcement officials before. Spain’s best-known judge, he gained international fame by effecting the arrest of the former Chilean dictator Augusto Pinochet in London in 1998.

    Mr. Obama left open the possibility that others could still face criminal penalties. He did not address whether lawyers who had authorized the interrogation methods should face any penalty.

    Besides Alberto Gonzalez, the former attorney general, the complaint named John C. Yoo, the former Justice Department lawyer who wrote secret opinions saying the president had the authority to circumvent the Geneva Conventions; Douglas J. Feith, the former under secretary of defense for policy; William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, the chief of staff and legal adviser to Vice President Dick Cheney.

  24. The CIA is a branch of government charged with undeniables. In other words, if the executive wishes to carry out some politically unpopular project, they have the CIA do it, and then say “it was the CIA”. Reigning in the CIA doesn’t need to be “done”, because the CIA “does” what the exec tells them in the first place.

  25. CIA torture exemption ‘illegal’

    US President Barack Obama’s decision not to prosecute CIA agents who used torture tactics is a violation of international law, a UN expert says.

    The UN special rapporteur on torture, Manfred Nowak, says the US is bound under the UN Convention against Torture to prosecute those who engage in it.

  26. Reigning in the CIA doesn’t need to be “done”, because the CIA “does” what the exec tells them in the first place.

    It’s true that organizations like the CIA are often called on to do things that governments cannot publicly acknowledge.

    That being said, I do think there is value in CIA operatives knowing that they may eventually be held liable for violations of domestic or international law. For someone risking their life on a daily basis, the threat of distant prosecution might not be much of a motivator, but it may have more weight for the people who are designing missions, making legal advice, etc.

  27. Obama seeks to boost CIA morale

    US President Barack Obama is to visit the CIA, in a bid to reassure staff stung by the release of memos detailing harsh interrogation techniques.

    The visit follows comments by a former CIA chief who said the memos would limit its ability to pursue terrorists.

  28. Obviously Obama’s semi-amnesty is a violation of international law.

    Would we find it acceptable if China or Saudi Arabia granted a pardon to interrogators who had committed violations of international law? Like piracy, torture is a crime that it is beyond the remit of any one state to permit or forbid. Similarly, the idea that having legal advice that said it was OK absolves the torturers ignores the legal and ethical realities of the situation.

  29. It would be quite pleasing to see religious extremists begin targeting state torturers rather than doctors who perform abortions. I wonder if there is any way to encourage this. They should really be hunted down and murdered the same as we’d hunt down and murder terrorists who engage in the same practices.

  30. The actual torturers are less important than the people who ordered them to perform interrogations in that way (or, at the very least, failed to exercise due diligence and stop them), as well as those who provided legal cover for it all.

    Putting those people on trial is enormously more justifiable than some kind of vigilante action. I can see why Obama doesn’t want to get mired in the new political sinkhole trials would create. Thankfully, he is unable to actually guarantee that there will never be prosecutions.

  31. “The actual torturers are less important than the people who ordered them to perform interrogations in that way (or, at the very least, failed to exercise due diligence and stop them), as well as those who provided legal cover for it all.”

    So, the Nuremburg principles are “less important”? This refuses to acknowledge people who follow orders as moral actors. This de-humanizes the torturers just as much as it desecrates the horror they inflicted on others. The horror of not treating another human as a human is repeated.

  32. Governments will always be able to find low-level soldiers who will do what they are told (whether they are actually in the military or not).

    Generals and top legal advisors, on the other hand, aren’t so easy to use as patsies for illegal activities. If they think there is a reasonable chance at ending up in prison or unable to travel, they are a lot more likely to balk.

    By all means, the actual torturers should be tried. That being said, it is more important to dismantle the legal, political, and military apparatus that made the torture occur.

  33. “Governments will always be able to find low-level soldiers who will do what they are told”

    Even a pure consequentialist would have to acknowledge that upholding the Nuremberg laws might produce good consequences due to it being more difficult to find these low-level soldiers. It’s both important for the generals and the low level soldiers to end up in prison – they are both culpable for what happened.

    Of course, by the Nureumburg laws, since it posits aggression as the supreme crime and includes within aggression all the things caused by it, Bush would certainly have to be hanged. Also, all other US presidents that have committed aggression. I think it’s entirely reasonable to demand the execution of any high ranking official that causes or allows acts of state aggression to occur.

  34. Torture and the U.S. Intelligence Failure

    By George Friedman

    If you know that an individual is loaded with information, torture can be a useful tool. But if you have so much intelligence that you already know enough to identify the individual is loaded with information, then you have come pretty close to winning the intelligence war. That’s not when you use torture. That’s when you simply point out to the prisoner that, “for you the war is over.” You lay out all you already know and how much you know about him. That is as demoralizing as freezing in a cell — and helps your interrogators keep their balance.

    U.S. President Barack Obama has handled this issue in the style to which we have become accustomed, and which is as practical a solution as possible. He has published the memos authorizing torture to make this entirely a Bush administration problem while refusing to prosecute anyone associated with torture, keeping the issue from becoming overly divisive. Good politics perhaps, but not something that deals with the fundamental question.

    The fundamental question remains unanswered, and may remain unanswered. When a president takes an oath to “preserve, protect and defend the Constitution of the United States,” what are the limits on his obligation? We take the oath for granted. But it should be considered carefully by anyone entering this debate, particularly for presidents.

  35. Abolish the White House Counsel
    And the Office of Legal Counsel, too, while we’re at it.
    By Bruce Ackerman
    Posted Wednesday, April 22, 2009, at 3:47 PM ET

    President Obama is right. Whatever we do about the sordid acts of torture during the Bush years, it is more important to prevent their recurrence in the future. Unfortunately, the president has yet to take his own words seriously. He seems to think it’s enough to appoint better people to the jobs in the White House and Department of Justice formerly held by Alberto Gonzales, Jay Bybee, and John Yoo. But this is a mistake. We need to rethink the entire institutional setup that made their abuses not just possible but predictable.

    Begin with the Office of the White House Counsel, a team of high-powered lawyers selected for their loyalty to the president. Working out of the political hothouse of the West Wing, the person serving as White House counsel will require remarkable backbone to resist pressure to rubber-stamp legally problematic aspects of the president’s policies. Gregory Craig, the current choice, may well possess the requisite integrity. But if Craig succeeds in restoring the office tarnished by Alberto Gonzales and Harriet Miers, he will paradoxically create the conditions for another wave of illegality. The White House counsel appointed by the next president could use the prestige Craig has accumulated to issue opinions that will serve as get-out-of-jail-free cards for future illegal acts.

  36. A Chilling Effect on U.S. Counterterrorism

    April 29, 2009 | 1815 GMT

    By Fred Burton and Scott Stewart

    Politics and moral arguments aside, the end effect of the memos’ release is that people who have put their lives on the line in U.S. counterterrorism efforts are now uncertain of whether they should be making that sacrifice. Many of these people are now questioning whether the administration that happens to be in power at any given time will recognize the fact that they were carrying out lawful orders under a previous administration. It is hard to retain officers and attract quality recruits in this kind of environment. It has become safer to work in programs other than counterterrorism.
    The memos’ release will not have a catastrophic effect on U.S. counterterrorism efforts. Indeed, most of the information in the memos was leaked to the press years ago and has long been public knowledge. However, when the release of the memos is examined in a wider context, and combined with a few other dynamics, it appears that the U.S. counterterrorism community is quietly slipping back into an atmosphere of risk-aversion and malaise — an atmosphere not dissimilar to that described by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) as a contributing factor to the intelligence failures that led to the 9/11 attacks.

  37. Nothing but the Truth on Torture

    Published: May 3, 2009

    WASHINGTON — Alberto Mora says it’s “politically unthinkable” to criminally prosecute the top Bush administration officials who sanctioned torture. He also says it’s “legally unthinkable” not to hold them accountable.

    Few Americans better understand the precarious stakes of looking into what role torture played in the “war on terror” than Mr. Mora, a once-staunch political conservative whom President George W. Bush appointed as general counsel of the U.S. Navy in 2001. Mr. Mora was horrified at the legal justifications for the “enhanced interrogation” techniques like waterboarding. After he left, he became an outspoken critic.

    He argues passionately and persuasively that the Bush-Cheney practices broke international law, hurt the United States’ standing in the world and fundamentally violated American values.

    Mr. Mora, a Republican, has no desire to see former Vice President Dick Cheney or the authors of the secret legal opinions tried for war crimes.

    That would tear the country apart and set a dreadful precedent.

  38. It seems Nancy Pelosi may also eventually face charges of being complicit in torture:

    “ongressional leaders were briefed in detail about techniques used in the Central Intelligence Agency’s interrogation program, according to a new intelligence document.

    The document appears to conflict with recent statements from House Speaker Nancy Pelosi, who was then the top Democrat on the House intelligence committee. Ms. Pelosi has said she hadn’t been told that the CIA was using the technique known as waterboarding, or simulated drowning. According to the document, M. Pelosi was one of the first lawmakers briefed on the interrogations in 2002.”

  39. UN Convention Against Torture
    and Other Cruel, Inhuman or Degrading
    Treatment or Punishment

    “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. ”

    “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. ”

    “Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. “

  40. Escape From Guantanamo
    Shouldn’t Republicans want terrorists dumped into the abusive U.S. prison system?
    By Christopher Beam

    Posted Friday, May 8, 2009, at 7:17 PM ET

    Some members of Congress are up in arms about the Obama administration’s plan to transfer Guantanamo detainees to prisons in the United States. Objections range from legal (how do we try all 270?) to logistical (how do we move them?) to plain old NIMBY-ness: “Our constituents don’t want these terrorists in their neighborhoods,” said House Minority Leader John Boehner.

    Leave aside, for a moment, the fact that none of these detainees has been convicted of anything—unlike the inmates already in constituents’ neighborhoods. Also forget, if you can, the nonsensical nature of these objections. (Aren’t most prisons already full of dangerous people?) Instead, consider this: If Guantanamo Bay detainees land in American prisons, they may find themselves treated worse than they are now.

  41. The game of hot potato between Congress and the CIA actually highlights how much of the public debate over interrogation policy is focused on inessentials. First, the furore over waterboarding obscures the broader interrogation system that affected many more people. Waterboarding gets an inordinate amount of attention because it seems so exotic. When we hear “torture” we think of strange methods like the rack or electrocution, even though a simple beating might inflict just as much pain. Moreover, the average person can easily discern that repeatedly being made to feel as though one is drowning must be truly horrible. But other approved interrogation methods—stress positions, noise bombardment, hooding, sleep and food deprivation—look strikingly like the “Five Techniques” deployed in Northern Ireland in the 70s. The European Commission of Human Rights at the time determined that these collectively constituted “inhuman and degrading treatment,” though not torture—a conclusion that seems rather mild given the number of subjects who experienced psychotic epsiodes or attempted suicide over the course of this treatment. The obsession, to the exclusion of all else, with this one technique used on a small fraction of detainees, seems out of proportion. Waterboarding more easily provokes a visceral reaction among those of us mecifully unacquainted with “enhanced interrogation,” but the combined effect of the less exotic methods over time may be no less awful.

  42. There Are Already 355 Terrorists in American Prisons
    The preposterous arguments against allowing Gitmo detainees into the U.S.

    By Fred Kaplan
    Posted Friday, May 29, 2009, at 5:33 PM ET

    President Obama’s remark that some Guantanamo detainees might be transferred to American prisons has prompted an extraordinary, and intellectually feeble, storm of protest. Former Vice President Dick Cheney kicked off the campaign when he said, during his May 21 speech at the American Enterprise Institute, that “to bring the worst terrorists inside the United States would be a cause for great danger and regret in the years to come.” Sitting lawmakers—especially those from states such as Kansas and Colorado where federal prisons are based—raised the same specter and shouted the ancient cry of principled rebellion: “Not In My Back Yard!”

  43. Barack Obama and torture

    SIR – Your briefing about the debate on torture perpetuated an unfortunate myth: that Barack Obama has dramatically altered the detention policies of his predecessor (“The dark pursuit of the truth”, August 1st). The regrettable fact is that the policies implemented by Mr Obama are materially indistinguishable from those of George Bush at the end of his second term. Moreover, the Obama administration has adopted no measure that runs counter to the desires of the agencies ostensibly being regulated, including the CIA.

    Support for the myth rests principally on three decisions: to close the CIA’s secret “black sites”, to end the use of “enhanced interrogation techniques”, and to shut Guantánamo. As for the black sites, these were already empty and the CIA had long wanted to get out of the detention business. Nothing in the decision, therefore, reforms practice. In fact, Mr Obama has continued to allow the CIA to hold prisoners “temporarily” and conduct extraordinary renditions—transferring prisoners to third countries for interrogation.

    With respect to American interrogation practices, the Bush administration had already ended the most loathsome abuses, including waterboarding, and the so-called “high-value” detainees, who had been subjected to these methods, were no longer being interrogated at the end of Mr Bush’s second term. What’s more, Mr Obama has directed American interrogators to follow guidelines in the Army Field Manual. This was drafted by the Bush administration.

    Finally, there is the much-heralded decision to close Guantánamo. Granting the symbolic significance of the prison, reasonable minds would agree that what matters most is not where a prisoner is held but how. And in that regard, Mr Obama’s decision to close Guantánamo is qualified in two respects. First, he has endorsed preventive detention, a wretched and morally bankrupt practice familiar to most British (and Irish) readers. Second, he has continued with the Bush-era approach that prisoners at Bagram air base in Afghanistan may be held without judicial review and he defends this with many of the same arguments that Mr Bush made about Guantánamo.

    In the life of a nation, symbolic change is not meaningless. In fact, in the modern political climate, it may be all one can reasonably expect. But it should never be confused with genuine reform.

    Joseph Margulies
    Northwestern University School of Law

  44. Obama approves new unit for interrogating terror suspects

    Its creation is seen as a way for the Obama administration to distance itself from coercive methods used during the Bush era. It will be housed at FBI headquarters and report to the White House.

    By Josh Meyer
    August 24, 2009

    Reporting from Washington – President Obama has approved the creation of a new multi-agency interrogation unit for suspected terrorists that will be based at the FBI but overseen by policy-makers at the White House and its National Security Council, senior administration officials said today.

    The new unit, called the HIG, or High-value detainee Interrogation Group, was seen as one of the administration’s most forceful efforts to date to distance itself from the Bush administration and the coercive interrogation methods used by the CIA with approval by political appointees at the Bush Justice Department.

  45. US launches probe into CIA abuses

    A special US prosecutor has been appointed to investigate allegations of abuse of terror suspects.

    The announcement of John Durham’s selection came as a report was published detailing allegations of abuse by CIA agents.

    Agents threatened to kill a key terror suspect’s children and sexually assault another’s mother, it is claimed.

    The report was made in 2004 but only a heavily censored version appeared and a judge ordered fuller disclosure.

    The justice department is reported to be reopening about a dozen prisoner abuse cases.

    Also on Monday, President Barack Obama approved a new elite team to question terror suspects.

  46. C.I.A. Chiefs Ask Obama to Stop Abuse Inquiry

    Published: September 18, 2009

    WASHINGTON — Seven former directors of the Central Intelligence Agency asked President Obama on Friday to shut down the new Justice Department inquiry into past abuses during interrogations of terrorism suspects, arguing that it “will seriously damage” the nation’s ability to protect itself.

    In a letter to Mr. Obama, the former C.I.A. chiefs said the cases under study had already been examined by career prosecutors who found that no criminal charges were warranted. To reopen cases based on a change in which political party controls the government, they wrote, will make it harder for intelligence officers to take risks without worrying that some future attorney general might investigate them.

    “Those men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is permanence in the legal rules that govern their actions,” the men said in their letter.

    They argued that the new inquiry would result in the disclosure of information about past operations that “can only help Al Qaeda” elude capture, and would convince foreign intelligence agencies that they could not trust the United States to protect secrets.

    Attorney General Eric H. Holder Jr. assigned a career prosecutor, John H. Durham, to look into the cases last month after concluding that intelligence agents might have gone beyond the legal guidance they were given during the Bush administration. Although Mr. Obama had expressed a desire to move on and not dwell on the past, he left the decision to Mr. Holder.

  47. Italian judge convicts 23 Americans in CIA renditions

    Milan — Associated Press Published on Wednesday, Nov. 04, 2009 9:23AM EST Last updated on Wednesday, Nov. 04, 2009 2:06PM EST

    An Italian judge on Wednesday convicted 23 Americans in absentia of the 2003 kidnapping of an Egyptian cleric from a Milan street, in a landmark case involving the CIA’s extraordinary rendition program in the war on terrorism.

    Citing diplomatic immunity, Judge Oscar Magi told the Milan courtroom Wednesday that he was acquitting three other Americans.

    Former Milan CIA station chief, Robert Seldon Lady, received eight years in prison. The other 22 convicted American defendants each received a five-year sentence.

    The Americans, all but one identified by prosecutors as CIA agents, were tried in absentia as subsequent Italian governments refused or ignored prosecutors’ extradition request.

  48. Key 9/11 Suspect to Be Tried in New York

    Published: November 13, 2009

    WASHINGTON — Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four other men accused in the plot will be prosecuted in federal court in New York City, a federal law enforcement official said early on Friday.

    But Obama the administration will prosecute Abd al-Rahim al-Nashiri — the detainee accused of planning the 2000 bombing of the U.S.S. Cole in Yemen — and several other detainees before a military commission, the official said.

    The decisions to give civilian prosecutors detainees accused of the 2001 terrorist attacks and keep the case of the Cole attack within the military system are expected to be announced at the Department of Justice later on Friday by Attorney General Eric H. Holder Jr. The official spoke on condition of anonymity because that news conference has not yet taken place.

  49. The Real Price of Trying KSM
    Defense lawyers will inevitably create bad law.
    By David Feige
    Posted Thursday, Nov. 19, 2009, at 12:51 PM ET

    Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM. Their work will not be easy, obviously. No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. So what’s a team of hardworking criminal defense attorneys to do?

    Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team’s valiant service not merely unsuccessful but actually hostile to the interests of all their other clients.

    The defense in KSM’s case has two major weapons: persuasive evidence of torture that should result in the suppression of a great deal of evidence and use of the discovery process to uncover facts that embarrass or discomfit the government. These tactics work—if the government will come to the table to work out a deal. Take, for example, the prosecution of the “American Taliban” John Walker Lindh, currently serving the eighth year of his 20-year sentence. Lindh was captured by the Northern Alliance in Afghanistan in 2001 and charged in the eastern district of Virginia in 2002 with conspiracy to provide material support to a terrorist organization. At the center of his case was a confession he made to interrogators from the FBI and U.S. Marines. Lindh’s defense team turned up evidence to support the claim that Lindh was duct-taped to a stretcher, placed in a metal shipping container, and, with a bullet still inside him, interrogated without a lawyer, despite a warning from a Justice Department ethics adviser that such a move was unethical. The defense lawyers obtained graphic photos of an emaciated Lindh as well as confidential and internal Justice Department e-mails that seriously undermined Attorney General John Ashcroft’s public statements about the legitimacy of the interrogation. All of which led the government to make an offer: Instead of the three life sentences he was facing, Mr. Lindh could have 20 years, as long as he abided by a gag order and dropped all claims of torture and mistreatment against the government.

  50. Too Terrible To Be True?
    Why aren’t we talking about the new accusations of murder at Gitmo?
    By Dahlia Lithwick
    Posted Wednesday, Jan. 20, 2010, at 7:02 PM ET

    Some torture stories are just too horrible to contemplate, while others are too complicated to understand. But Scott Horton’s devastating new exposé of the possible murders of three prisoners at Guantanamo in 2006 is neither: It’s simply too terrible to allow to be true. Which is why it has been mostly ignored this week in the mainstream American media and paid little attention by the usual crew of torture apologists on the right. The fact that three Guantanamo prisoners—none of whom had any links to terrorism and two of whom had already been cleared for release—may have been killed there and the deaths covered up, should be front-page news. That brand-new evidence of this possible atrocity from military guards was given only the most cursory investigation by the Obama administration should warrant some kind of blowback. But changing what we allow ourselves to believe about torture would change the way we have reconciled ourselves to torture. Nobody in this country is prepared to do that. So we have opted to ignore it.

    If you haven’t read Horton’s piece, you should. Here is Andy Worthington’s summary. Following up on a study released in December by Mark Denbeaux at Seton Hall, Horton chases down yet more evidence—much of it from four camp guards—that three “suicides” alleged to have happened in a single night at Gitmo in June 2006 were not actually suicides at all. As the Seton Hall study concluded, the U.S. Naval Criminal Investigative Service report on the incident that was issued in 2008 was quite literally beyond belief. Horton writes:

    “According to the NCIS, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”

  51. Guantanamo group of 47 ‘should be held indefinitely’

    A task force on the US prison camp at Guantanamo Bay has advised that 47 inmates should be held indefinitely without trial, officials say.

    It is thought to be the first time that officials have given a figure for those who might be held without charge.

    Some 35 prisoners have been recommended for prosecution through trials or military commissions.

    The news came as the deadline US President Barack Obama had set himself for closing the prison camp passed.

    The task force, led by the US justice department, recommended that while 35 people could be prosecuted, 110 could be released either now or at a later date, unnamed officials said.

    The other nearly 50 detainees are considered too dangerous to release, but cannot be tried because the evidence against them is too flimsy or was extracted from them by coercion, so would not hold up in court.

  52. Indefinite Guantanamo detention plans condemned

    The American Civil Liberties Union has criticised a recommendation that 47 Guantanamo Bay inmates should be held indefinitely without trial.

    Justice department officials said the men were too dangerous to release, but could not be tried as evidence against them would not stand up in a US court.

    ACLU executive director Anthony Romero said their detention would reduce the camp’s closure to a “symbolic gesture”.

    The White House said the president did not have to accept the recommendation.

    It came as the deadline President Barack Obama had set himself on his second day in office for closing the prison camp at Guantanamo Bay passed.

  53. The Guantánamo file
    Getting to closure
    If not this year, if not next year…

    Jan 28th 2010 | From The Economist print edition

    THE experts have now combed through all the case files of those still held at the Guantánamo Bay prison camp in Cuba and decided who should be released, who tried and who kept behind bars no matter what. Yet Barack Obama is no closer to being able to shut the place that has caused America such soul-searching at home and brought it such shame abroad.

    Guantánamo was supposed to have been history by now. Mr Obama’s deadline of a year to close it has passed unmet. The prison may still be open a year or more from now. The president has long argued that the cost to America’s reputation and security of keeping Guantánamo open outweighs all the difficulties of closing it down. But it is still proving hard to do.

    A painstaking review by a 60-strong task-force of lawyers and other experts from six different government agencies, including the State Department, the Pentagon, the Department of Justice and the Department for Homeland Security, came to a unanimous verdict this month on each of the 192 inmates who remain. Some 106 have been cleared for eventual release. Around 35 others will stand trial in either civilian or military courts.

    But that still leaves 50 or so deemed too dangerous to release and, for one reason or another, unable to be put on trial. In the absence of compelling new evidence to put them in one of the other two categories, they are to remain in detention under the Authorisation for Use of Military Force Act, passed by Congress in 2001 soon after the September 11th terrorist attacks on New York and Washington, DC. But where and under what rules is still unclear.

  54. Torture Bored
    How we’ve erased the legal lines around torture and replaced them with nothing.
    By Dahlia Lithwick
    Posted Monday, Feb. 22, 2010, at 11:49 AM ET

    The rule of law requires that there be a floor. For decades most of us believed that Common Article 3 of the Geneva Conventions was such a floor. Its bar against “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment,” was clearly meant to apply not just to POWs or battlefield soldiers in uniform but to all captives. Common Article 3 was intended to be the lowest we went, as Aziz Huq has written: “the point beyond which no nation can go without losing its claim to dignity and honor.” But then along came the Bush lawyers, and they managed to saw into the floorboards. A sub-basement for prisoners at Abu Ghraib and Guantanamo opened beneath us, and our dignity and honor disappeared into it.

    We in this country have known for decades that water-boarding is torture. The United States has long treated water-boarding as a war crime and prosecuted Japanese soldiers for water-boarding U.S. soldiers during World War II. The torture tactic violates the U.N. Convention Against Torture, the U.S. Constitution, and domestic law. As Scott Horton has explained, “Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques.” Eric Holder testified at his confirmation hearing that water-boarding is torture. John McCain agrees. So do members of the military. But among Bush lawyers such as John Yoo and Jay Bybee and David Addington, the legality of both torture and water-boarding were parsed and redefined so that where once there was a floor now there is none.

    So murky is the line between torture and tough talk that Dick Cheney can now admit to having endorsed water-boarding on national television. Mark Thiessen, the Bush speechwriter turned Washington Post columnist, can appear on a Catholic television program, not merely to defend torture but to find it consistent with Catholic teachings. Thiessen excoriated CNN’s Christiane Amanpour for even calling what we did to prisoners “water-boarding” since we don’t, after all, use a big box. And when Bob Barr, former U.S. attorney for the northern district of Georgia and a member of the House of Representatives, suggested at CPAC this past weekend that water-boarding is plainly torture, he was booed. Because it’s become an article of faith that whatever Americans do cannot be torture. That’s not a legal definition. It’s magical thinking. Today there is plenty of room for water-boarding in our sub-basement, and we’ve thrown in a pinball machine and a jukebox so CPAC can party down there.

  55. “Few issues highlight Barack Obama’s extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world — far away from any battlefield — and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court. ”

    “Apparently, what Obama called “a legal black hole at Guantanamo” is a heinous injustice, but “a legal black hole at Bagram” is the Embodiment of Hope. ”

    “Independently, what happened to Obama’s eloquent insistence that “restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe”? How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States? If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?”

  56. You have to wonder to what degree Obama’s backtracking on this issue is the product of new information he got as president, and to what extent it simply reflects the different perspectives of someone aspiring to power, compared to someone who has acquired it.

  57. You can wonder that if you want. I’m not interested in apologetics for war criminals.

  58. It is quite possible that all great power leaders in recent years have been war criminals – sometimes by virtue of involvement in illegal wars, sometimes because of illegal conduct in the course of wars that might be legal in themselves, and sometimes on account of violating international statutes like the Geneva Conventions.

    No matter how personally incensed you are about that, it seems important to ask questions about why this is the case. Just taking umbrage and leaving it at that doesn’t help us. In particular, the case of Obama is interesting, given his pre-election rhetoric and legal career.

  59. I think it’s more important to ask – what do we do now? What do we do with the end of “hope”? The tea-party supporters likely know what to do with it – they’re likely mobilizing to elect a candidate who would make recent Republican presidents look like communists. On the other hand, when it becomes apparent that the problem with the system is not the person at the helm (Obama does genuinely seem like a ‘good guy’), but the system itself (i.e. the forces which transformed Obama from saviour into Bush 3), it might become possible to support more radical system reform. Obama’s rhetoric of being critical of lobbyists gives people a strong weapon with which to oppose what is called “American Politics”.

    As for all leaders being war criminals – yes, I think that is likely. The serious response to such a realization is to ask how might one work towards changing the conditions in which it appears normal and acceptable for a world leader to be a war criminal. Especially in democracies, public acceptance of crimes against humanity is crucial for the maintenance of existing power structures.

  60. Alternatively, maybe the appropriate view is that international law is hopelessly aspirational, and has never really been important when it comes to the exercise of power.

    That view does make us hypocrites when we prosecute the leaders of defeated states for war crimes, but perhaps it is a more honest way of interpreting the nature of world politics.

  61. Perhaps, if you don’t mind living in a world in which genocide, collective punishment, torture continue to be committed by regimes which you directly politically support by voting for parties and paying taxes.

    If you can live with that, then go ahead.

  62. Because adopting a self-righteous position will magically fix those things?

    Good analysis on why things are as they are is a necessary prelude to changing things in a manner that is likely to be beneficial.

  63. How is it self-righteous to denounce war crimes wherever you see them?

    How is an analysis which exposes the hypocrisy of actors which apply different standards when it sees fit not a “good analysis”. Of course it is also good to explain why this hypocrisy emerges.

    There is a world of difference between being realistic about how the world operates, and thinking that how the world operates is somehow acceptable.

    Who said that anything would magically fix anything? Denouncing western leaders as war criminals can be – and precisely because it is defensible in argument – a ground for real political change.

    You are engaging in the definition of apologetics when you equivocate between “being realistic” and “good analysis”, and condemn the “hopelessly aspirational” standards of IL as “a self-righteous position will magically fix those things”.

  64. Closing down Guantánamo
    Out of court
    Lack of case law is cramping the military tribunals

    Jul 29th 2010 | Austin

    ON JULY 7th a terrorist was brought to justice. Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese man who was said to have worked in Afghanistan as Osama bin Laden’s bodyguard, driver, cook and paymaster, pleaded guilty to charges of conspiracy and supporting terrorism. Mr al-Qosi had been detained at America’s military detention centre at Guantánamo Bay, in Cuba, since 2002. He was one of the first enemy combatants to be tried in the controversial military-tribunal system first authorised by George Bush in 2001. His conviction was only the fourth that the tribunals have notched up since that time, and the first during Barack Obama’s administration.

    It was, in other words, a qualified victory. Nearly nine years into the war on terror, America is still struggling to work out how to handle those detained in the conflict in a manner consistent with both justice and security. The worst abuses of the Bush years have been repudiated, but the questions about where detainees should be held, and whether they should be tried in the military tribunals or in civilian courts, persist.

    The effort to close Guantánamo is creeping along with little enthusiasm. One of Mr Obama’s first executive orders was that it should be done by January of this year. The prison remains open, with 176 people still detained there. An earlier problem, the search for a new site within the United States that would accept the detainees, seems to have been sorted out. Several states, in fact, turned out to be happy to take them; looking after prisoners generates jobs. A former state prison in Illinois has been chosen, but that centre cannot be opened until Congress authorises funding for it.

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  67. When people start being concerned about, “You haven’t closed Guantánamo yet,” I say, listen, that’s something I wanted to get done by now, and I haven’t gotten done because of recalcitrance from the other side. Frankly, it’s an easy issue to demagogue. But what I have been able to do is to ban torture. I have been able to make sure that our intelligence agencies and our military operate under a core set of principles and rules that are true to our traditions of due process. People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state-secrets doctrine to defend against some of these previous actions.” Well, I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can’t have every operation that we’re engaged in to deal with a very real terrorist threat published in Rolling Stone.

    These things don’t happen overnight. But we’re moving in the right direction, and that’s what people have to keep in mind.”

  68. Lexington
    How to close Guantanamo
    Maybe that has become the wrong question for Barack Obama

    Feb 24th 2011 | from the print edition

    “I DON’T want to be ambiguous about this. We are going to close Guantánamo.” So said Barack Obama in January 2009, giving himself a year to do it. It is now February 2011 and the prison camp remains open. And though the White House continues to insist that it is serious, deadly serious, about closing it eventually, Leon Panetta, the director of the CIA, told the Senate this month that in the event of America capturing Osama bin Laden he would probably be taken—guess where—to Guantánamo.

    Closing Guantánamo was going to be one of the big things Mr Obama would do to set America on a new path in relations with the Muslim world. The place had become a symbol of everything that seemed so wrong with George Bush’s war on terrorism. Beyond the jarring spectacle of blindfolded men in orange suits and manacles, the whole idea of locking people up indefinitely without trial looked un-American, a perversion of the values of a nation ruled by law. The president has reduced the number of inmates to fewer than 200. Even so, the fact that it is still open counts as a black mark against him and a continuing blemish on the global reputation of the United States.

    But here’s a question. Should it still be a blemish? Not necessarily, in the politically incorrect view of Benjamin Wittes, a senior fellow at the generally liberal Brookings Institution in Washington, DC, who has started to argue (most recently in a book, “Detention and Denial”) that since Mr Obama seems unable or unwilling to close Guantánamo, he should have the courage to try something new. He should keep it open, but make it into a model of how democracies ought to handle suspected terrorists.

  69. Classified Files Offer New Insights Into Detainees

    WASHINGTON — A trove of more than 700 classified military documents provides new and detailed accounts of the men who have done time at the Guantánamo Bay prison in Cuba, and offers new insight into the evidence against the 172 men still locked up there.

    Military intelligence officials, in assessments of detainees written between February 2002 and January 2009, evaluated their histories and provided glimpses of the tensions between captors and captives. What began as a jury-rigged experiment after the 2001 terrorist attacks now seems like an enduring American institution, and the leaked files show why, by laying bare the patchwork and contradictory evidence that in many cases would never have stood up in criminal court or a military tribunal.

    The documents meticulously record the detainees’ “pocket litter” when they were captured: a bus ticket to Kabul, a fake passport and forged student ID, a restaurant receipt, even a poem. They list the prisoners’ illnesses — hepatitis, gout, tuberculosis, depression. They note their serial interrogations, enumerating — even after six or more years of relentless questioning — remaining “areas of potential exploitation.” They describe inmates’ infractions — punching guards, tearing apart shower shoes, shouting across cellblocks. And, as analysts try to bolster the case for continued incarceration, they record years of detainees’ comments about one another.

  70. The former CIA general counsel, John A. Rizzo, talks about his agency’s assassination program, which has increased dramatically under the Obama administration

    Rizzo’s disclosure was long overdue — the American public surely has a right to know that the assassination of terrorism suspects is now official government policy ­ and reflects an opportunistic approach to allegedly sensitive information that has become the norm for senior government officials. Routinely, officials insist to courts that the nation’s security will be compromised if certain facts are revealed but then supply those same facts to trusted reporters.

  71. Beyond Guantánamo, a Web of Prisons for Terrorism Inmates

    WASHINGTON — It is the other Guantánamo, an archipelago of federal prisons that stretches across the country, hidden away on back roads. Today, it houses far more men convicted in terrorism cases than the shrunken population of the prison in Cuba that has generated so much debate.

    An aggressive prosecution strategy, aimed at prevention as much as punishment, has sent away scores of people. They serve long sentences, often in restrictive, Muslim-majority units, under intensive monitoring by prison officers. Their world is spare.

    Among them is Ismail Royer, serving 20 years for helping friends go to an extremist training camp in Pakistan. In a letter from the highest-security prison in the United States, Mr. Royer describes his remarkable neighbors at twice-a-week outdoor exercise sessions, each prisoner alone in his own wire cage under the Colorado sky. “That’s really the only interaction I have with other inmates,” he wrote from the federal Supermax, 100 miles south of Denver.

  72. Guantánamo Diary
    Jérôme Tubiana,Mohammed el Gorani / London Review of Books / Dec 2011

    The youngest prisoner held at Guantánamo on his seven years in detention.

  73. Prosecuting al-Qaeda
    A tricky business
    The lessons of Nuremberg

    Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed. By William Shawcross. PublicAffairs; 256 pages

    THE trickiest part of fighting al-Qaeda in the aftermath of the New York attacks came right at the beginning. What to do with prisoners? Your reviewer was camped outside the fortress of Kala-i-Jangi in northern Afghanistan in November 2001 when captured fighters staged an uprising that left hundreds dead, killed by the very Americans who were trying to interrogate them.

  74. About four months into his presidency, as Republicans accused him of reckless naïveté on terrorism, Mr. Obama quickly pulled together a speech defending his policies. Standing before the Constitution at the National Archives in Washington, he mentioned Guantánamo 28 times, repeating his campaign pledge to close the prison.

    But it was too late, and his defensive tone suggested that Mr. Obama knew it. Though President George W. Bush and Senator John McCain, the 2008 Republican candidate, had supported closing the Guantánamo prison, Republicans in Congress had reversed course and discovered they could use the issue to portray Mr. Obama as soft on terrorism.

    Walking out of the Archives, the president turned to his national security adviser at the time, Gen. James L. Jones, and admitted that he had never devised a plan to persuade Congress to shut down the prison.

    “We’re never going to make that mistake again,” Mr. Obama told the retired Marine general.

    General Jones said the president and his aides had assumed that closing the prison was “a no-brainer — the United States will look good around the world.” The trouble was, he added, “nobody asked, ‘O.K., let’s assume it’s a good idea, how are you going to do this?’ “

    It was not only Mr. Obama’s distaste for legislative backslapping and arm-twisting, but also part of a deeper pattern, said an administration official who has watched him closely: the president seemed to have “a sense that if he sketches a vision, it will happen — without his really having thought through the mechanism by which it will happen.”

  75. DR: How complicit was JSOC in torture?

    MA: I would say JSOC was moderately complicit. The number of actual interrogators and tier-one operators who actually participated in torture was very small. Less than 50. But the number of people who knew about it, even in a closed culture like JSOC, had to be much larger. And one of the big questions that still hangs over the head of Gen. McChrystal, who’s otherwise widely admired for turning JSOC around and moving it away from these [torture] techniques, is that it took him seemingly a long time when he took over the command to get his arms around how the command’s interrogation practices were actually working. There’s a legitimate and still open question of how much he knew, and what did about it.

    I was able to learn that he did initiate an internal investigation that resulted in about 30 people being disciplined, with some of them kicked out of the military or transferred to other units. Because it’s a secret organization for most part the results of the investigations remain secret. JSOC prefers to keep its record of accountability in-house. But if you look at the time line, and look at what’s public — the torture report from the Senate intelligence committee blacked out all the references to JSOC. Quite clear that even on a senior level, task force commanders in Iraq knew what was going on.

  76. America is in a hole. The last response of the blowhards and cowards who have put it there is always: “So what would you do: set them free?” Our answer remains, yes. There is clearly a risk that some of them would then commit some act of violence—in Yemen, elsewhere in the Middle East or even in America itself. That risk can be lessened by surveillance. But even if another outrage were to happen, the evil of “Gitmo” has recruited far more people to terrorism than a mere 166. Mr Obama should think about America’s founding principles, take out his pen and end this stain on its history.

  77. Guantanamo Bay has the air of an imperial backwater. On a horseshoe of Cuba, the United States turns its full military might to guarding 164 aging Muslim men. The president calls Gitmo a terrorist recruiting tool. In August, the Daily Mail reported that William Lietzau, the architect of Guantanamo’s military commissions, told them that it should never have been built. And yet it remains, in the sun and razor wire, waiting for America to declare the war on terror over.

  78. THOSE who do not publish history’s mistakes are doomed to repeat them. That, in essence, is the concern that lies behind plans by the Senate Intelligence Committee, with support from the White House, to declassify and release hundreds of pages from a scathing report into CIA detention, rendition and interrogation methods used after the September 11th 2001 attacks, which accuses the agency of misleading Congress and the White House about the value of intelligence extracted from more than 100 terror suspects in a worldwide network of secret “black sites”.

    The CIA has promised to work “expeditiously” to scrub the nearly 500-page summary of information that could imperil national security. Veterans of the spy agency, backed by many Republicans, have challenged the report—prepared by Democratic staffers of the Senate Intelligence Committee and drawing on millions of internal CIA records—as a flawed and partisan bid to smear the CIA and the administration of George W. Bush.

  79. Senate Torture Report Condemns C.I.A. Interrogation Program –

    WASHINGTON — A scathing report released by the Senate Intelligence Committee on Tuesday found that the Central Intelligence Agency routinely misled the White House and Congress about the information it obtained from the detention and interrogation of terrorism suspects, and that its methods were more brutal than the C.I.A. acknowledged either to Bush administration officials or to the public.

    The long-delayed report, which took five years to produce and is based on more than six million internal agency documents, is a sweeping indictment of the C.I.A.’s operation and oversight of a program carried out by agency officials and contractors in secret prisons around the world in the years after the Sept. 11, 2001, terrorist attacks. It also provides a macabre accounting of some of the grisliest techniques that the C.I.A. used to torture and imprison terrorism suspects.

    Detainees were deprived of sleep for as long as a week, and were sometimes told that they would be killed while in American custody. With the approval of the C.I.A.’s medical staff, some C.I.A. prisoners were subjected to medically unnecessary “rectal feeding” or “rectal hydration” — a technique that the C.I.A.’s chief of interrogations described as a way to exert “total control over the detainee.” C.I.A. medical staff members described the waterboarding of Khalid Shaikh Mohammed, the chief planner of the Sept. 11 attacks, as a “series of near drownings.”

  80. The committee’s report concluded that of the 119 detainees, “at least 26 were wrongfully held.”

    “These included an ‘intellectually challenged’ man whose C.I.A. detention was used solely as leverage to get a family member to provide information, two individuals who were intelligence sources for foreign liaison services and were former C.I.A. sources, and two individuals whom the C.I.A. assessed to be connected to Al Qaeda based solely on information fabricated by a C.I.A. detainee subjected to the C.I.A.’s enhanced interrogation techniques,” the report said.

  81. Some of the programme’s most infamous abuses occurred at the Stare Kiejkuty site. An inadequately trained CIA interrogator threatened Mr al-Nashiri with a gun and with a power drill, forced him to stand in stressful positions for days on end, and told him that his mother would be brought in and sexually abused in front of him. The CIA’s own chief of interrogations sent an email to colleagues announcing he was retiring in protest over Mr al-Nashiri’s treatment. The report concluded those interrogations produced no useful information for preventing terrorist attacks.

  82. Reboot Gitmo for U.S.-Cuba research diplomacy

    Cuba has about 5000 km of coastline, including coral reefs, mangrove wetlands, seagrass beds, and tropical wet forests. Long stretches of coast remain undeveloped, with relatively high levels of fish biomass and marine biodiversity in marine parks that are unparalleled in the Caribbean. But on the eve of President Obama’s visit to Cuba, we must consider whether normalization of relations between the United States and Cuba, with anticipated expansion of coastal development and return of industrial agriculture, might reverse Cuba’s advances in ecological conservation. We propose an approach to protect Cuba’s coastal ecosystems and enhance conservation and ecological research throughout the Caribbean. The United States should deliver on President Obama’s recent plan to close the military prison at U.S. Naval Station Guantánamo Bay and repurpose the facilities into a state-of-the-art marine research institution and peace park, a conservation zone to help resolve conflicts between the two countries. This model, designed to attract both sides, could unite Cuba and the United States in joint management, rather than serve as a wedge between them, while helping meet the challenges of climate change, mass extinction, and declining coral reefs.

  83. In October 2014, the Ideas section of the Boston Globe published a piece under the headline, “Vote All You Want. The Secret Government Won’t Change.” The story, based on an interview with Tufts University professor Michael J. Glennon, quickly became a runaway hit on social media. In it, Glennon explained that President Barack Obama had failed to follow through on some of his key campaign promises—for instance, closing down Guantánamo Bay and ensuring Americans’ privacy was protected during the war on terror—because a legion of professional government bureaucrats prevented him from doing so. These individuals, Glennon said, steered policy to an extent that most Americans, with their idealistic assumptions about the power vested in elected officials, could not imagine.

    Glennon has credibility. He’s the former counsel to the Senate Foreign Relations Committee as well as a consultant to a number of congressional committees and the State Department. As the Globe pointed out, his book, National Security and Double Government, was blurbed by people who had worked in the Department of Defense, the White House, and the CIA. That’s part of why the interview—in which Glennon stated that the “American people are deluded” in their belief that “when they vote for a president … policy is going to change”—was such a hit. It seemed like proof that there really was a secret government calling the shots—at least in the realm of national security, which Glennon focused on—while the politicians whose faces we know paraded in front of us on television like so much window dressing.

  84. “Michael J. Glennon: My book is an application of a theory devised in the 1860s by Walter Bagehot in his book The English Constitution. According to the theory, there were two sets of institutions in Britain. The so-called dignified institutions—the House of Lords and the monarchy—presented a façade of authority and decisional power that enjoyed legitimacy in the eyes of the British people, and a set of concealed institutions—“efficient” institutions—that operated behind the scenes and actually formulated and implemented governmental policy.”

  85. Perhaps the biggest puzzle is why Mr Obama has failed to fulfil his promise to close the place down. Plainly he found it much harder than he had expected. At first, according to some in his inner circle, he was persuaded to keep it open temporarily as a bargaining chip with Congress in his quest to enact contentious domestic reforms, for instance in health care. Soon after he came to office, he did manage to improve the commissions, getting Congress to pass an act that gave detainees a wider scope for defence and brought in review boards that allowed prisoners every six months to argue for release. He also appointed “special envoys for Guantánamo closure”. These speeded up transfers of detainees to third countries, more than 40 of which (including such strange bedfellows as Albania, Cape Verde, Estonia, Kazakhstan, Palau and Uruguay) have agreed to receive some of those set free. Recently Oman, Saudi Arabia and the United Arab Emirates have been the most willing.

    But as relations with Congress worsened and he lost control to the Republicans after 2010, Mr Obama found himself blocked on virtually every front. Even though a number of leading Republicans, such as Senator John McCain, had called for Guantánamo to be closed, it became an article of faith for most of Mr Obama’s opponents and many Democrats that it should stay open. Hillary Clinton, among others, began to wobble, though she had previously declared that Guantánamo recruited more terrorists than it kept off the battlefield and had suggested holding trials, perhaps including military commissions, in mainland America.

    Mr Obama, too, had at first hoped to bring the alleged planners of September 11th to trial before a federal court in New York. But when a wave of emotion was stirred up by the president’s foes against the idea that the mass-murderers could ever set foot on American soil, he quailed. And when he campaigned for re-election in 2012, some of his most influential advisers were adamant that if detainees were brought to the mainland and tried in federal courts or even before the new military commissions, he would lose his job.

    The Department of Justice and the Pentagon encouraged Congress to be obstructive, citing, among other things, an analysis of the freed detainees. A report from the director of National Intelligence concluded that of 647 former detainees under scrutiny, 18% have definitely reverted to jihad and 11% are suspected of doing so. But of those released since Mr Obama came to office, the recidivism rate has dropped sharply; only nine, according to the National Security Council, have definitely “re-engaged” with jihad. Yet, says Brigadier-General Martins, “By letting them go you could be sentencing someone else to death.” Among Mr Trump’s picks, General James Mattis as secretary for defence and General John Kelly at homeland security are said strongly to support keeping Guantánamo open. Mr Trump, by the by, has said torture is sometimes necessary.

  86. A space for authoritarianism

    At the expense of Congress, recent presidents have also assumed additional powers over foreign policy and civil liberties. In doing so they risk being checked by judges. But they have mitigated that possibility by assembling, in the office of the White House counsel, a battery of ingenious, Supreme Court-quality lawyers; Mr Obama employed almost 50. The result has been a proliferation of contentious legal precedents, extending the authority of the president, which in unscrupulous hands could amount to a toolkit for tyranny. Following Mr Bush’s and Mr Obama’s example, the president can order American citizens to be killed secretly overseas, detain foreign prisoners indefinitely without charge and try them on the basis of evidence that the state will not divulge.

  87. In 2010, Laurence was contacted by a US government agency that was commissioning research into interrogation. The High-Value Detainee Interrogation Group, or HIG, was set up in 2009 by President Obama, keen to signal a clean break from the Bush administration, which had sanctioned abusive interrogations in Iraq and Afghanistan. Housed within the FBI, the HIG’s purpose is to ground interrogation in science.

    “The last time the US government invested in studying interrogation was 1956,” Steven Kleinman, who works with the HIG, told me. “Great leaps forward in behaviour science have just passed us by,” he said. “Imagine using 1956 technology for signals intelligence!” One consequence has been the triumph of bad science. In Afghanistan, after the 9/11 attacks, military psychologists Dr James Mitchell and Dr John Jessen devised and ran a programme of brutal interrogation techniques for the CIA, based on their own poorly evidenced theories of what works.

    The HIG’s chief researchers were particularly interested in Britain, whose counter-terrorist police have earned a reputation for being sophisticated interviewers, partly because the opposite was once true. In 1992, after public enquiries into two miscarriages of justice involving IRA attacks had revealed abusive interrogation practices, parliament passed laws stipulating all interviews be recorded, and making it an automatic right to have a solicitor present. With the option of coercion effectively removed, the British police were forced to think harder about the best way to obtain information from prisoners resistant to giving it. In a minor but significant change they stopped using the word “interrogation”, with its confrontational overtone, and replaced it with “interview”.

  88. Situation vacant
    Gina Haspel must give answers before becoming the CIA boss
    Would she torture again?

    Gina Haspel, Mr Pompeo’s successor at the CIA, who is due to appear in Senate hearings on May 9th, is a harder case. Ms Haspel is a highly regarded career officer, who can be expected to insulate the CIA from political interference by a president who does not recognise boundaries. But she ran a black site in Thailand where a prisoner was waterboarded. (She also transmitted her boss’s orders to destroy video evidence of interrogations, though an investigation found she was not at fault.)

    First, the UN Convention against Torture, which America signed, bans punishment that causes physical or mental pain or suffering. The CIA was responsible for both at its black sites. “I couldn’t get away from the mental pictures of naked men chained to the ceiling in a cold, blazingly lit cell for endless days, defecating in their diapers, unchained only to be further abused,” writes James Comey, deputy attorney-general in the Bush administration, in his memoirs which came out earlier this month. Senator John McCain wrote of the harm the CIA did America, saying that it “compromised our values, stained our national honour, and threatened our historical reputation.” Torture, even when it is carried out in defence of America, is un-American. Ms Haspel should have seen that.

  89. In his last days as president, in 1992, he pardoned the convicted chief of the CIA’s clandestine service, protecting him from five years in prison in the aftermath of the Reagan administration’s greatest scandal, the Iran-contra imbroglio. He swept away three more guilty pleas and two pending trials in the investigation — among the defendants were two other senior CIA officials — including a case in which he would have been a material witness.

    With that, Lawrence E. Walsh, the independent prosecutor investigating the scandal, declared that “the Iran-contra cover-up … has now been completed.” Walsh went on to say that Bush’s decision “undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.”

    In January 1976, when Bush first arrived at the CIA headquarters in Langley, Va., that now bears his name, the CIA was being sacked like a conquered city. A quarter-century’s worth of dirty secrets were starting to spill as Congress combed through its files following Watergate and the revelation that the CIA had spied on Americans in violation of its charter. President Gerald Ford appointed Bush as part of a shake-up in his administration at the end of 1975, in which Donald H. Rumsfeld became defense secretary and Richard B. Cheney took Rumsfeld’s place as White House chief of staff.

  90. When the bad guys come home
    Governments are struggling to deal with returning jihadists
    There is no easy way to repatriate dangerous radicals

    The simplest is to make the detainees someone else’s problem. A law passed in 2015 lets Australia strip citizenship from people who join terrorist groups. It was first used in 2017 against Khaled Sharrouf, a Lebanese-Australian man who photographed his young son holding a Syrian soldier’s severed head. International law frowns on making people stateless; Australia’s law applies only to dual-nationals.

    Yet putting them on trial is complicated. America has a decent record. One man was sentenced to 20 years in prison and a second was indicted in June. But it was unable to try a third suspect for lack of evidence. He was released after more than a year in custody. Heiko Maas, the German foreign minister, says his country faces a similar problem. Testimony from battlefield interrogations is inadmissible in court. Documents recovered by Kurdish fighters have no chain of custody.

    Faced with such problems, politicians understandably throw up their hands. If their citizens committed crimes abroad, should they not be tried there? But eastern Syria’s Kurdish-led administration is not a state. Its rudimentary courts lack due process and may not exist much longer. With their American protectors gone, the Kurds will face attacks by both Bashar al-Assad’s regime and the Turkish army. They will probably cut a deal with Mr Assad. If their detainees wind up in Syrian jails, history suggests what may happen next. Mr Assad’s dungeons have produced generations of radicals, who are occasionally set free when politically expedient.

    That leaves one last option. “The Pentagon was very clear with us that there’s a good chance they get sent to Guantánamo,” says a congressional staffer. America has not added prisoners to the camp since 2008. President Barack Obama spent eight years trying to close it, and its population has shrunk from 242 detainees in 2009 to just 40 today. Democrats will probably oppose any attempt to reverse the trend.

  91. Nineteen years after 9/11, the state of emergency declared after the attacks remains in place. The enormous powers that Americans handed their government in the name of national security are still being abused. Some of the worst excesses of the war on terror were reined in under U.S. President Barack Obama, but no one was ever held accountable. Today, Guantánamo Bay prison remains open, and the former head of a CIA torture prison heads the CIA.

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