(As originally posted on Daily Kos)

100 days have come and gone with all the accompanying media hoopla but it increasingly seems like President Obama’s first 24 hours represented the high water mark of his commitment to rolling back the human rights abuses committed by the Bush administration.

The past week has seen still further blows to campaigners’ hopes that the Obama administration would place traditional American values of accountability and the rule of law at the heart of their response to the ongoing terrorist threat.

Leaks from the Department of Justice suggest that former Bush administration lawyers Jay Bybee, John Yoo and Steven Bradbury are unlikely to face significant disciplinary action – let alone criminal charges – for their role in designing the coercive interrogation practices introduced to military and CIA detention facilities around the world in the wake of the September 11th attacks.

These latter day Tom Hagen’s were asked by the White House to cloak the Bush administration’s illegal innovation in a mantle of legitimacy. In doing so, they were not acting in good faith. Rather, like Michael Corleone’s tame lawyer, they were actively engaged in a criminal conspiracy to circumvent U.S. law.

I have been baffled by the argument that criminal charges would produce a chilling effect on lawyers asked to provide legal advice to the executive. Is this really such a bad thing? The whole point of having in-house legal counsels is to make sure the government stays within the boundaries of the law. Government lawyers should be cautious.

Also worrying are fresh leaks from inside the administration that suggest the President is seriously considering reactivating the Military Commissions put on hold when he came into office. These are the same Commissions that the President denounced on the campaign trail as “an enormous failure.”

Should the President decide to abandon a campaign pledge to “reject” the Military Commissions Act, he will be breathing life into a court system with the fewest rights for suspects of any court in the western world. His first instinct was right – we should not bastardize our judicial system to accommodate illegal practices that should have never been countenanced in the first place.

This morning John McCain and Lindsay Graham published an op-ed piece in the Wall Street Journal in which they note that 1 in 10 of the individuals released from Guantanamo have returned to the battlefield. This also means that 9 out of 10 have not.

The detainees in Guantanamo were supposed to be the worst of the worst but it turns out that 9 times out of 10 our intelligence professionals got the wrong man. The Military Commissions will take the assertions of these same professionals at face value and accord them the weight of evidence.

If the Military Commissions are reinstated we can look forward to many more miscarriages of justice. If you think this is a price worth paying for greater security, consider the damage that the cases of the Guilford Four and Birmingham Six did to the reputation of British justice.

The Obama administration is posed to go down a path that will repeat many of the mistakes of the past eight years. This is a time for moral courage not moral compromise. We can do better and we need to make sure that this White House hears that message.

(As originally posted on Daily Kos)

Let’s be clear, calls to allow the Senate Select Committee on Intelligence to conduct its own investigation into the abuses committed in secret CIA detention centers are little more than an attempt to play out the clock by freezing judicial investigations in until the 8 year statute of limitations on Anti-Torture Act crimes starts to render them moot from the spring of 2010 onwards.

The Select Committee has had plenty of time to complete its own investigations. Indeed, senior members of the committee, including House Speaker Nancy Pelosi, were briefed on the adoption of new harsh interrogations as early as September 2002. Unlike their colleagues on the Senate Armed Services Committee they chose to look the other way. They have missed their chance, and in this arena it’s play or pass.

So where does that leave those who care about accountability? The White House continues to fail to show leadership on this issue. After equivocating all week the President seems to have returned to his earlier line that we need to turn the page on the past.

Even without the President’s leadership, pressure for accountability is growing day by day. The first step is to develop enabling legislation for a genuinely independent inquiry along the lines of the 9-11 Commission. This commission must possess three fundamental qualities: it must be bi-partisan and comprised of eminent Americans of unimpeachable integrity; it must be well funded and well staffed; and it must be possessed of the necessary legal powers to effectively discharge its functions. However, it should not grant immunity from prosecution in return for testimony.

Furthermore, as the majority staff of the House Committee on the Judiciary recommended in January, Congress should consider extending the statute of limitations for offenses under the torture statute and war crimes statute. This would give the Commission the time to complete its work without prejudicing the prosecution of those found responsible for commissioning and perpetrating acts of torture.

What are the other key takeaways from the past week’s revelations? First, the 2002 Bybee memo represents the very best case scenario for the regime of abuse inflicted on detainees in U.S. custody. Amnesty International knows well that abuse escalates in a permissive environment and, within days of the memo’s release, confirmation emerged that waterboarding had been used greatly in excess of even what the DoJ’s Office of Legal Counsel considered permissible limits.

Second, the Bush administration did not seek advice from the best-qualified experts on how to effectively gain intelligence from captured members of Al Qaeda, it chose to get tough rather than smart. To this end, the General Counsel’s Office in the DoD sought advice not from experienced criminal investigators or military intelligence officers but from the Joint Personnel Recovery Agency (JPRA), which runs the military’s Survival, Evasion, Resistance, Escape (SERE) program.

Even the JPRA’s Commander noted, in newly declassified memos published this week by the Senate Armed Services Committee, that his organization was “not in the business of strategic debriefing (interrogation).” Inevitably, it wasn’t long before SERE instructors were warning their superiors: “this is getting out of control.”

Finally, claims that vital intelligence was gained using such techniques have been roundly discredited. Former FBI Special Agent Ali Soufan who led the law enforcement interrogation of Abu Zubayda broke seven years of silence to go on the record in The New York Times to refute the “false claims magnifying the effectiveness of the so-called enhanced interrogation techniques.”

His words were echoed by CIA Director Admiral Dennis Blair who said publicly:

“The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.”

A CIA officer who spoke to President Obama’s transition team on intelligence matters also admitted that some foreign intelligence agencies were now refusing to share intelligence about the location of terrorism suspects for concern at being implicated any resulting abuses or other internationally wrongful acts. Surely, the canard that these techniques were a vital tool in our counterterrorism arsenal can now be laid to rest.

It has been a momentous week for human rights campaigners. After long years in the wilderness, there is now a sense that the balance is reasserting itself. Human rights and the rule of law are finally edging back to where they belong – at the very heart of American democracy.

As originally posted on the Daily Kos

The former Head of the CIA, General Michael Hayden, has publicly stated his concern that America’s allies will be reluctant to work with American intelligence agencies following the release of the OLC memos by the Obama administration. One wonders where he has been for the past five years.

America’s allies began to express concern about working closely with US intelligence agencies almost from the moment that details of America’s treatment of war on terror detainees began leaking out.

In 2005 the Italian authorities initiated a criminal investigation into the CIA-led extraordinary rendition of Osama Mustafa Hassan Nasr to Egypt. The Italians issued twenty-two arrest warrants for members of the CIA team, including one for the Head of the CIA Station in Rome.

In 2006 Germany opened an investigation into the extraordinary rendition of Khaled El-Masri, a victim of mistaken identity who was tortured for five months at a CIA black site in Afghanistan. German prosecutors issued thirteen arrest warrants for US personnel involved in the case.

The former Director General of the British Security Service (MI5), Dame Eliza Manningham-Buller, told a British Parliamentary Intelligence and Security Committee (ISC) in 2007 that her organization had reevaluated the way that it worked with its US counterparts: “We certainly now have inhibitions… greater inhibitions than we once did.”

The Head of the British Secret Intelligence Service (MI6), Sir John Scarlett, similarly told the ISC that his officers sought “credible assurances” from the US that any action taken on the basis of intelligence provided by UK agencies would be “humane and lawful” and that when such assurances were lacking “we cannot provide the information.”

The Canadian government has paid compensation of CDN$10.5m to another innocent victim of the CIA’s extraordinary rendition program, Maher Arar, who was wrongly identified as a terrorist suspect and shipped to Syria. Just last month Spain opened an investigation into the alleged torture of five Spanish nationals in US custody, naming six senior members of the Bush administration as suspects.

America’s allies have been appalled by US actions in the Global War on Terror, not by the so-called lack of discretion of the Obama administration. This is no secret. Indeed, these stories have been widely reported around the world. For a former spook General Hayden is remarkably ill-informed.

It’s clear to us that the torture memos released yesterday, as gruesome and repugnant the details are within, are only the tip of the iceberg.

As far as we currently know, the interrogation regime spelled out in the Bybee memo is the best case scenario for how detainees were treated. Amnesty International has been interviewing the victims of torture for almost fifty years and our experience teaches us that abuse nearly always escalates over time. It starts with roughing people up at 3am and ends with naked people piled up in pyramids.

All that we know is based on leaked reports, on a handful of interviews, and some pictures no one wanted us to see. What about the hundreds of other detainees, civilian and military staff who worked at these torture facilities? What other files and images exist? Why would the CIA destroy mountains of tapes and who knows what else?

Because as awful as the images from Abu Ghraib, as vile as the techniques outlined in the torture memos, there is so much more that we still do not know.

That’s why we were relieved that at least President Obama made good on his promise for a more transparent government by releasing the memos. This is an important distinction from other nations who practice torture. If what Bush and Cheney did was immeasurably damage our nation’s system of values and credibility, Obama took the first, critical step to repairing that damage by releasing the memos.

But we will not know the truth of what has been done in our name until a thorough, independent investigation has been conducted. It is clear from the Attorney General’s comments that the government cannot be trusted to do this alone. We’ve done plenty of reflecting, and it’s now time to act like a true democracy, built on the rule of law. Laws mean nothing if they are not enforced.

Go to any prison or jail in the United States, and you will find countless unsympathetic criminals: rapists, murderers, even domestic terrorists. Imagine telling an American police officer to treat these criminals in the manner outlined by the torture memos. What would they do? Would they blindly follow the command to do what they knew was wrong, both morally but also legally? The vast majority would not. Our agents in Iraq, Afghanistan and the other black sites knew better too.

The CIA officers in the field knew what they wanted to do was wrong which is precisely why they sought legal cover from the Office of Legal Council. They lawyered up. Jay Bybee, John Yoo and Steven Bradbury knew they were ignoring decades of jurisprudence in drafting their memos. This is not a good faith misunderstanding, this was a coldblooded decision to torture prisoners in American custody.

Laws have been broken and fundamental human rights have been abused. We have a responsibility to ourselves, to our nation and to the international community to show that this was wrong and that such a deviation from the values on which America was built shall not go unpunished.

Tell Congress to setup an independent investigation.

Right-wing Republicans have reportedly been mobilizing to block the appointment of two prominent lawyers to advisory positions in the Obama administration: Indiana University constitutional law Professor Dawn Johnsen and the Dean of the Yale Law School Harold Koh.

Johnsen is the administration’s nominee to head for the Office of Legal Counsel in the Department of Justice and Koh is nominated to be the Legal Counsel at the State Department. Both have a strong human rights record, Johnsen was Legal Director of the National Abortion & Reproductive Rights Action League and Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton administration. Both have distinguished records of government service.

The legal commentator Scott Horton has cited anonymous sources in the GOP and DoJ who claim Senate Republicans are now threatening to filibuster the appointments unless the Obama administration agrees not to release three classified memos authored by one of John Yoo’s successors in the Office of Legal Counsel, Steven Bradbury.

The memos, which have been described by Glenn Greenwald on Salon.com as the “Rosetta stone” for documenting war crimes committed by the highest-level Bush DoJ officials, have been the subject of a determined legal effort by the ACLU to compel their disclosure. This effort has so far been opposed by the Obama administration despite its avowed commitment to transparency in government.

So, why not strike a deal? Because we still have not got to the bottom of what happened in our name. New information continues to emerge on an almost weekly basis. On Monday we saw the release of more material from the leaked International Committee of the Red Cross report on the treatment of High Value Detainees in CIA custody which revealed in detail for the first time the direct complicity of medical personnel in acts of torture in complete violation of the most basic of medical ethics.

This drip-drip of revelations is harmful in itself, undermining attempts to restore legitimacy to America’s struggle with terrorism. This will only end when there are no more revelations to emerge and that is why a full accounting for the abuses that have occurred since September 11th is so important. As is a renewed commitment to using the criminal justice system to fight terrorism rather than the ‘dark arts’ in which former Vice President Dick Cheney placed so much faith.

Holding ourselves to higher standard makes us smarter and more effective. The simple arithmetic regarding the number of releases without charge from Guantanamo makes it clear that with the ‘gloves off’ US officials were wrong about a detainee’s affiliations far many more times than they were right. We can do better than that.

Judge John Bates took a stand for human rights and common sense when he ruled yesterday that foreign prisoners held in the U.S. prison at Bagram airbase in Afghanistan who had been brought there from outside Afghanistan may challenge their continued detention in the U.S. courts.

The petition before the U.S. District Court had been brought by four inmates at Bagram seeking to extend the Supreme Court’s Boumediene decision, that recognized habeas corpus rights for detainees at Guantanamo, to detention facilities in Afghanistan.

The four inmates include Amin al-Balri, a Yemeni national, who was detained in Thailand; Redha Al-Najar, a Tunisian, who was detained in Pakistan; Fadi al Maqaleh, a Yemeni national, who was detained in an undisclosed location outside Afghan borders; and Haji Wazir, an Afghan national, who was apprehended in Dubai.

Judge Bates noted that three of the four petitioners had no connection with Afghanistan prior to their transfer to Bagram. He added that although practical obstacles existed in resolving a detainee’s right to habeas corpus in a war zone, these obstacles were of the U.S. government’s choosing since it had opted to render them to this location:

“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Applying the functional, multi-factor, detainee-by-detainee test mandated by the Supreme Court in its Boumediene decision, Judge Bates upheld the habeas rights of all but Haji Wazir. Disappointingly, the judge held that as an Afghan national, even one apprehended outside the country, Wazir could legitimately be held as an enemy combatant.

However, the process used by U.S. forces in Afghanistan for determining whether an individual can be classified as an enemy combatant was also criticized, with Judge Bates labeling it “inadequate” for the task at hand and even less thorough than the discredited Combatant Status Review Tribunals established in Guantanamo.

Although Judge Bates did not seek to expand the scope of his ruling beyond the petition before him, it can nevertheless be seen as a body blow to the global war doctrine previously espoused by the Bush administration.

If the judgment stands, individuals detained outside a military theater – for example, the fictional terrorist financier in the Philippines posited by Senator Lindsay Graham during Solicitor-General Elena Kagan’s confirmation hearing – should henceforth be destined for the criminal justice system rather than a prisoner of war camp.

Furthermore, an unsubstantiated accusation will no longer be enough to condemn such a detainee to endless years in limbo. Thursday was not just a good day for the Constitution of the United States, it was a red letter day for the Magna Carta as well!

Last week the National Court in Madrid received a complaint filed on behalf of five Spanish nationals formerly detained in Guantanamo who have charged that they were tortured in U.S. custody. The complaint was referred for investigation to one of Spain’s most high-profile law enforcement officials, Judge Baltasar Garzon.

Judge Garzon is best known for bringing similar charges against the former Chilean dictator Augusto Pinochet and seeking his arrest and extradition from the United Kingdom. In 2002, Judge Garzon also sought unsuccessfully to question Henry Kissinger concerning alleged U.S. complicity in acts of state sponsored assassination carried out by Latin American dictatorships in the 1970s and 1980s.

The Spanish complaint names six senior lawyers from the Bush administration: former Attorney-General Alberto Gonzales, David Addington, William Haynes, John Yoo, Jay Bybee and Douglas Feith, the former under secretary of defense for policy. Feith went on record in a Wall Street Journal op-ed piece in May 2004 in support of observing the Geneva Conventions in the context of the War on Terror and his inclusion on the list raises some intriguing questions.

The Spanish action comes at the same time as the British Attorney General, Baroness Scotland, has directed London’s Metropolitan Police Service to investigate the participation of a Security Service (MI5) officer known only as Witness B in the interrogation of former Guantanamo inmate Binyam Mohamed during his detention in Karachi in 2002.

Yet calls inside the United States for Bush administration officials to be held accountable for the abusive policies adopted as part of the global war on terror continue to fall on deaf ears in Washington. Although Judge Baltasar’s investigation is unlikely to lead to those named in the complaint appearing in a Spanish courtroom any time soon, it is nonetheless a timely reminder that crimes were committed and that those responsible have walked away from the mess they created scot free.

In the next few weeks Americans will have the opportunity to reverse this situation without looking to a foreign court to take the lead. The Senate Armed Services Committee is soon expected to re-release its damning bipartisan December 2008 report on the Treatment of Detainees in U.S. Custody reinforced by more than 200 pages of newly declassified material not previously released to the public.

The first version of this report identified those senior officials most responsible for the detainee abuses that occurred in Iraq, Afghanistan and Guantanamo. This expanded version will lay out the evidence of their complicity in compelling detail. The Committee Chairman, Senator Carl Levin (Democrat, Michigan), has already stated that he plans to refer the report to the Department of Justice. The Obama administration will then face the first great test of its campaign rhetoric. The President has said that no one in America is above the law, he will soon have the opportunity to prove it.

(Originally posted on Daily Kos)

On Wednesday, Attorney General Eric Holder gave the first public indication that at least some of the Chinese Uighurs cleared for release from Guantanamo in September 2008, but unable to return home to China for fear of persecution, will be allowed to settle in the United States. His announcement followed the visit of the European Union’s Counterterrorism Coordinator Gilles de Kerchove to US.

De Kerchove is believed to have delivered the blunt message to the Obama administration that, unless the US demonstrated its good faith by resettling the Uighurs on American soil, it was highly unlikely that any European country would be prepared to help in the dismantlement of the Guantanamo prison camp by accepting other discharged detainees.

The Uighurs were among 22 Chinese citizens of Uighur descent who were captured near Tora Bora towards the end of 2001. The circumstances of their capture is unclear although former detainee Abu Bakr Qasim has claimed they were handed over to US forces for a $5,000 a head bounty.

The men are alleged to be militant separatists affiliated with the East Turkistan Islamic Movement (ETIM) who had received weapons training at a camp in Afghanistan with the apparent objective of fighting against China for Uighur independence.

None took part in hostilities against the United States nor bore any apparent animosity towards the west. Indeed, Abu Bakr Qasim told reporters that he had expected the US to be sympathetic to his people’s cause.

In May 2006 five of the original group were released from Guantanamo and resettled in Albania although one, Adel Abdu Al-Hakim, has subsequently been allowed to relocate to Sweden.

The US government finally conceded in September 2008 that none of the remaining Uighurs in Guantanamo could be categorized as an ‘enemy combatant’ and in October the US District Court ordered the Uighurs released. They have been trapped in limbo ever since with no country prepared to offer them a home for fear of angering China.

The saga of the Uighars has only served to underline the comments made this week by Lawrence B. Wilkerson, former chief of staff to Secretary of State Colin Powell, in a guest post on The Washington Note. Wilkerson lambasted the ‘utter incompetence’ of the battlefield intelligence screening process that saw so many individuals who posed no threat to US interests transferred to Guantanamo and proclaimed to the American public as ‘the worst of the worst’.

In Wilkinson’s words:

Several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released… But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror.

Hundreds of detainees have been held in Guantanamo for an unconscionable length of time in defiance of international law and notions of due process. Wilkinson estimates that only two dozen or so could actually be considered terrorists. The rest have suffered long enough. The Obama administration must set an example and put right a wrong that has cast a long shadow over America’s global reputation. It can start by offering the Uighurs of Guantanamo a new home on American soil.

Late on Friday afternoon, in a move apparently designed to give the media as little time to respond as possible, the Obama administration filed a new motion in the US District Court for the District of Columbia clarifying that the administration still asserted the authority to detain suspected terrorists indefinitely at the US Naval base in Guantanamo Bay.

The filing marked three departures from the policies of the Bush administration. First, the administration no longer asserted that this power derived from the executive office of the presidency but from the Authorization for Use of Military Force passed by Congress in the immediate aftermath of the September 11th attacks.

Second, in a deliberately symbolic gesture the filing dispensed with the term “enemy combatant.” Third, the threshold for detention has been elevated to just those who are part of or “substantially support” the Taliban, Al Qaeda or associated forces, and excludes the category of “unwitting supporter”. 

How significant are these new positions? In short, beyond the symbolism of retiring a much overused term associated with the Bush administration, little has changed. The power to detain suspected members of Al Qaeda and its affiliates indefinitely and without charge remains entirely intact.

The Attorney General, Eric Holder, held out the possibility that there may be “further refinements” of the government’s position once the interagency review of detention policy is completed but this hardly hints at sweeping change.

The publication over the weekend of comprehensive excerpts from a 2007 report submitted to the United States government by the International Committee of the Red Cross (ICRC) concerning the treatment of fourteen “High Value detainees” held in CIA custody highlighted all too clearly why ‘staying the course’ is an unacceptable position for the Obama administration to adopt.

The report was leaked to the author of Torture and Truth, Mark Danner, and it leaves little doubt as to the dark and sordid waters to which this course leads. In the words of the report’s authors:

“The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

This finding is about as definitive as it is possible to get. It was compiled from interviews of individuals in US custody who had had no opportunity to collaborate on fabricating a shared story concerning their experiences. The assessment was conducted by an organization famous for both its discretion and neutrality that is charged with upholding the Geneva Conventions.  It is a damning indictment of acts that amount to war crimes.

And where did it get us? Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks, told the Red Cross:

“I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop…. I’m sure that the false information I was forced to invent…wasted a lot of their time and led to several false red-alerts being placed in the US.”

The Obama administration seems to be finding it very difficult to turn the page on one of the darkest chapters in recent American history. It is vitally important that we continue to keep up the pressure on them to reject the discredited policies of the Bush administration. The only change we can truly believe in, is the change we bring about for ourselves.

The appointment of Daniel Fried, a career diplomat who has formerly been both Ambassador to Poland and Assistant Secretary of State for European Affairs, as the new Special Envoy on the Guantanamo Bay detention facility suggests that the Obama administration is stepping up its efforts to persuade European states to accept detainees who have been cleared for release.

As things stand, there are approximately 40 detainees still held in Guantanamo who could leave tomorrow if a suitable home for them could be found. These individuals cannot return to their country of origin because they would face persecution, torture or worse at the hands of the local authorities. Several European states, most notably Switzerland and Portugal, have indicated willingness to accept a limited number of former detainees and a number of other European states such as Ireland, France and Hungary may yet be persuaded to the same.

Unfortunately, US efforts to gain European support for resettlement are being undermined by political grandstanding in Congress as representatives try to outdo themselves in synthetic outrage playing the not-in-my-back-yard card regarding the possibility of transferring GITMO detainees to US soil. This alarmist narrative makes it all the more harder to build bridges to potentially sympathetic European states.  Having created the problem, it now seems that some Congressional Republicans are also hell bent on torpedoing the solution.