In the last month, a spotlight has fallen on two sharply different terrorism cases that illuminate thebest and worse of America’s efforts to defeat Al Qaeda:
The case of Mohammed Jawad, conducted with the gloves off, is a disaster.
The case of Bryant Vinas, conducted within the law, appears to be triumph.
Mohammed Jawad was detained in Kabul in December 2002 after a grenade was thrown at US soldiers, injuring three members of a patrol. Jawad’s age has not been established with any degree of certainty but it is not disputed that he was a minor at the time of the attack. According to Afghan government, he may have been as young as twelve.
Jawad was subjected to a range of so-called enhanced interrogation techniques including forced sleep deprivation and physical abuse. Judge Huvelle, who eventually heard Jawad’s habeas corpus petition, threw out every statement he made in US custody as “a product of torture”. On July 30, she ordered that Jawad be released by August 21.
Jawad has been illegally detained for more than six and a half years. Worse still – the United States tortured a child. And for what? Jawad could offer no actionable intelligence. The government can’t even prove he committed a crime. His detention has cost the American taxpayer hundreds of thousands of dollars. It is a lose-lose scenario emblematic of the dark side approach promoted by Dick Cheney.
Bryant Neal Vinas, alias Bashir al-Ameriki, a twenty-six year old Hispanic man from Long Island, converted to Islam in 2004 and travelled to Pakistan to make contact with Al Qaeda in late 2007 or early 2008.
Vinas received weapons training from Al Qaeda with a particular concentration on explosives. In September 2008, he took part in a rocket attack on a US military base in Afghanistan.
Vinas even agreed to undertake a suicide bombing, although his handlers let him off the hook. He was, in short, a terroristwho engaged in hostile acts against the United States.
In November 2008, he was arrested in Peshwar by the Pakistani authorities. Because Vinas was an American citizen he was not shipped to Guantanamo or Bagram but instead treated like an ordinary criminal and transferred to the custody of the FBI.
Vinas’ case was handled entirely within the American criminal justice system. He was interviewed by FBI investigators within the constraints of domestic US law and with all the protections that the US constitution affords US citizens.
Operating within these constraints experienced FBI agents were able to persuade Vinas to cooperate with the US authorities and provide valuable and timely intelligence regarding potential terrorist plot.
Federal prosecutors were able to build a strong case against Vinas successfully charging him with conspiracy to murder U.S. citizens, providing information to a terrorist organization, and receiving “military-type training” from a Al-Qaeda.
Vinas eventually pled guilty to these charges. He has agreed to appear as a key witness in a number of other terrorist trials and is currently a protected witness in the federal witness protection program living inside the United States.
What a contrast exists between these two cases – one effectively and efficiently handled within the law and the other, a Kafkaesque nightmare in which a minor has been abused and incarcerated for more than six years to no purpose whatsoever.
These two cases could not make it any plainer. Our criminal justice system not only can handle complex terrorism cases, it actually does a substantially better job of it than the cack-handed shadow warriors unleashed by the Bush administration.
The real tragedy is that this lesson seems to be lost on the Obama White House. Jeh Johnson’s admission before Congress that the administration may consider detaining individuals acquitted by the Military Commissions seems to set the stage for further miscarriages of justice and for yet further damage to America’s battered international reputation.
We don’t need to keep going down this path. There is a better way. We know how to do this smarter and we know how do this right. Just ask Bryant Vinas.
Last week’s revelations about war crimes committed in Afghanistan in 2001 and the US supported cover up have caused quite a stir. Even General Abdul Dostum, the alleged perpetrator of the mass killings of Taliban prisoners of war, made a public comment, stating that “it is impossible prisoners were abused”. Right. My colleague Sam Zarifi wrote up an excellent response. He brings in his first hand experience in Afghanistan. Here are some excerpts:
If, as Dostum asserts, there were investigations by the Afghan and U.S. governments, they should be made public. If their findings were accurate, Dostum should have nothing to fear from a reexamination of the facts. But the facts currently available indicate very strongly that many detainees – possibly hundreds – died while in the custody of Dostum’s forces in November 2001 and their bodies were dumped in the nearby desert of Dasht-e Leili (adding to the numerous bodies unceremoniously deposited there by various warring factions over the past three decades).
(…)
I was a human rights investigator in northwestern Afghanistan in February 2002. At the time, numerous witnesses spoke of seeing several trucks dumping what appeared to be human remains in Dasht-e Leili, while others told of detainees being held for days in overcrowded shipping containers without food, water, or medical care, and, in some instances, being shot while inside the containers.
(…)
Crucially, the International Committee of the Red Cross did not have access to the Taliban detainees at Sheberghan until December 10, 2001 – and thus could not monitor their conditions during the period when the detainees died. This undermines Dostum’s claim that a massacre could not have occurred because the ICRC would have known about it.
(…)
Dostum is correct in one regard: There is a highly politicized atmosphere surrounding the timing of the increased attention to this incident, and that is linked to President Hamid Karzai’s reinstatement of Dostum as the army chief of staff after he had been removed in disgrace last year. Karzai has also nominated as his vice presidential candidate Marshal Fahim, another Northern Alliance commander facing widespread allegations of serious human rights violations and war crimes.
(…)
Many Afghans, who have repeatedly demanded truth and accountability for the three decades of atrocities they have endured, have told Amnesty International they are extremely disappointed by the presence of such figures in Karzai’s administration. The ongoing impunity of senior government officials has done much to erode public confidence in the Afghan government, something now readily acknowledged even by international militaries.
(…)
General Dostum has bemoaned the increasing operations of the Taliban and Al-Qaeda after seven years of international nation building. It is time to ask: After seven years of appeasing warlords and human rights violators, isn’t it time for the Afghan government and its international supporters to try truth and accountability?
Copyright (c) 2009. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036.
Physicians for Human Rights (PHR) demonstrated in a more than impressive way this week how science and technology can advance the cause of human rights. Using forensic analysis and satellite imagery, they did an excellent job in documenting a war crime—and the subsequent US supported cover-up—in Afghanistan, where in the wake of the US led invasion in 2001 hundreds of prisoners of war were killed by a US backed warlord and dumped in a mass grave in Dasht-e-Leili. Check out this must see video:
In 2002, PHR investigators discovered the presence of a mass grave site in Dasht-e-Leili, outside of the city of Sheberghan in northern Afghanistan. The grave site is reported to contain anywhere from hundreds to thousands of Taliban prisoners of war. Forensic analysis suggests that most of the prisoners died from suffocation. They reportedly died while inside closed metal shipping containers.
Upon returning to the site in 2008, Stefan Schmitt, Director of PHR’s International Forensic Program, noticed that the mass grave might have been tampered with. To gather additional evidence, PHR requested satellite imagery from the area, which showed two sizeable pits, compromising the original area. The satellite imagery obtained by the AAAS indicated that there was earth-moving equipment present on August 5, 2006 along with one of two new pits. Later imagery on October 24, 2007, revealed the second pit in the same location as the earth-moving equipment from August 5.
The Bush Administration discouraged any attempts to investigate the episode, as the warlord suspected of committing the crimes, Gen. Abdul Rashid Dostum, was on the C.I.A.’s payroll, while his militia worked alongside the United States Special Forces in 2001. The Department of State has urged the Obama administration to oppose Gen. Dostum’s reappointment in the Afghani government; however the president has yet to take action on this issue.
As we still wait for the President to ensure accountability for past human rights violations of the Bush administration, this is another test of Obama’s commitment to human rights. It will be interesting to see if the administration fully investigates the 2001 killings in Afghanistan, at a time when Obama is sending an additional 21,000 more troops to battle the increasing Taliban insurgency. A first response by Obama to PHR’s work seems at least promising.
US air base in Bagram, Afghanistan. (c) Digital Globe 2009. Screenshot taken from Google Earth
Detainees held in the U.S. military detention center at Bagram Air Base are in the middle of a conundrum over their legal rights. Human rights campaigners argue that the prisoners should be provided with the same rights as those being held in the U.S. naval base in Guantanamo Bay, Cuba. The United States military, however, argues that they deserve different treatment since they are held in a current war zone. In Bagram, detainees are informed about the reason for their arrest, and are offered the ability to defend themselves without outside legal counsel at six-month military review sessions.
To protest their lack of legal representation, the detainees themselves have begun protesting, refusing privileges such as recreation time and family visits in order to obtain access to lawyers or independent reviews. The prisoners further refuse to leave their cells to shower or exercise. The prison wide protest started on July 1 and only became public recently through the International Committee of the Red Cross.
The U.S. detention facility in Bagram is even more closed off to the public than Guantanmo Bay. The Washington Post has more background information on the expanding detention facility.
Last month, Ahmed Khalfan Ghailani became the first Guantanamo Bay detainee to be brought to the United States for trial outside of the military commission system. His trial is set to begin in September 2010 in a regular federal court. While this is hopeful news for other Guantanamo detainees awaiting their day in court, if not their release, it also means that there is a possibility that the US government will pursue the death penalty should Ghailani be convicted.
Ahmed Ghailani, born in Zanzibar, Tanzania, was arrested in Pakistan in 2004 and brought to Guantanamo in 2006 for his alleged involvement with the 1998 bombings of the US Embassies in Tanzania and Kenya. For two years he was held in secret detention by the Central Intelligence Agency, after which he was transferred to solitary confinement at Guantanamo and ultimately charged by a military commission in 2008. Those charges have been dropped and he will now being tried in federal court on counts which include conspiring with Osama Bin Laden and other members of al-Qaeda to kill Americans, and charges of murder for each of the victims of the US Embassy attacks. Mr. Ghailani has pled not-guilty to all charges, saying that he was not a member of al-Qaeda and did not know about the attacks ahead of time.
Mr. Ghailani’s case may be a test of President Obama’s promise to shut down Guantanamo Bay, and may set a precedent for how similar cases might proceed. As a result, there will be a great deal of international attention given to his trial. It is especially important for the United States to demonstrate a commitment to human rights at this critical juncture by not seeking the death penalty for Ahmed Ghailani.
Additionally, the United States must investigate the conditions surrounding Mr. Ghailani’s enforced disappearance. Such an investigation is required by Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to which the US is a party. Any information obtained under conditions that violate international standards must be declared inadmissible in court, and a thorough investigation of Mr. Ghailani’s treatment in secret detention and at Guantanamo will be essential to ensuring he is given a fair trial.
Their operations are vast and war zone contractors are likely here to stay, as Suzanne Simons writes in her CNN International article. Her article is a comprehensive piece that places emphasis on one of the more salient issues regarding private military and security companies (PMSCs) or contractors: lack of regulation, oversight, and accountability. The PMSC industry has grown rapidly since the war on terror and continues to play an integral role in the conflict in Afghanistan under the Obama administration, but the US government, as reported by the CWC in its Interim Report, lacks resources to manage the industry that it has come to depend on like a crutch.
Since 2001, Congress has appropriated about $830 billion to fund U.S. operations in Iraq and Afghanistan. Over that period, America’s reliance on contractors has grown to unprecedented proportions to support logistics, security, and reconstruction efforts related to those operations. More than 240,000 contractor employees—about 80 percent of them foreign nationals—now work in Iraq and Afghanistan, supporting the Department of Defense. Additional contractor employees support the Department of State and the U.S. Agency for International Development.
The result from the combination of a growing military industry and weak government regulation and oversight is a culture of impunity and lack of accountability for the many human rights abuses committed by PMSCs. Yes, five Blackwater guards will be tried in February 2010 for opening fire and killing civilians in Nisour Square and yes, a private civil lawsuit was filed against Blackwater contractor Andrew J. Moonen for killing one of the Iraqi Vice President’s bodyguards in Baghdad’s green zone. However, let us also keep in mind not only how long it took for the Department of Justice (DOJ) to act in the first case, but also the fact that numerous cases of detainee abuse committed by PMSC personnel have gone unprosecuted. In February 2008, Amnesty found out through Senator Durbin’s inquiry to the DOJ that 24 cases of detainee abuse were transferred to the Eastern District of Virginia; 22 of the 24 were dismissed and 2 are pending. Our efforts to find out why these cases were dismissed or unresolved were fruitless.
The industry cannot be expected to regulate itself and a government that is increasingly outsourcing its operations needs to ensure that it has the mechanisms to regulate PMSCs’ activities and hold the companies accountable for their actions (and not reward them with more contracts). Doug Brooks of the International Peace Operations Association (IPOA) stated that PMSCs are here to stay and that it’s about time we made it work but after the recent completion of a twelfth version of IPOA’s Code of Conduct, the trade association still has not made it work. Essentially, the Code is ineffectual. For starters, there are no guidelines detailing what compliance with its standards entails; companies do not have to show that they are operationalizing the Code to IPOA or any third-party monitor; and there are no requirements for public reporting on company efforts to adhere to the Code.
This is why the U.S. government will have to move beyond the Military Extraterritorial Jurisdiction Act (MEJA) to create a new body of legislation that will hold all U.S. government contractors working overseas accountable – irrespective of which government agency employs them – if they commit human rights violations.
The Obama administration is reportedly close to finalizing the outlines of a new preventative detention regime likely to be crafted along the lines proposed by Matthew Waxman in a paper released last week by the Brookings Institute.
Waxman’s paper tries to reconcile the supposed need for some form of administrative detention without trial with the Supreme Court’s Boumediene v Bush decision affirming the habeas rights of Guantanamo detainees and he proposes introducing legislation to create a new category of administrative detention subject to periodic judicial review.
An increasingly familiar pattern is once again being repeated. The administration ‘discovers’ that the issues it is facing are tougher than it had anticipated, sees some merit in the approach adopted by the Bush administration, promises to make some minor adjustments to preexisting conditions, and finally undertakes to implement this revised policy with a sensitivity the previous administration lacked.
However, such changes amount to little more than putting lipstick on a pig. Closing Guantanamo was always going to require taking some unpopular and morally courageous decisions but the President who declared in his inaugural address that he rejected the false choice between our safety and our ideals has sadly gone AWOL.
To codify administrative detention would be to perpetuate a system that has to date incarcerated more innocent people than it has men of violence on the basis of half-truths and innuendo.
The ordered release last week of Syrian-born detainee Abd Al Rahim Abdul Rassak al Janko provided further proof of the flimsy grounds on which many of the detainees at Guantanamo have and continue to be held.
Al Janko freely admitted staying for five days at a guest house run by Al Qaeda in 2000 and for a further 18 days at an Al Qaeda-run camp as a refugee making his way towards Europe. However, Al Qaeda militants suspected Al Janko of being a US spy and he was detained for three months and tortured until he admitted to these charges.
Al Janko was then handed over to the Taliban and imprisoned for a further 18 months. Having nowhere else to go, he remained behind in the prison after it was abandoned by the Taliban and was discovered there by US forces when they occupied Kandahar in the fall of 2001.
US soldiers also found a video which showed Al Janko being tortured by members of Al Qaeda. In true Kafkaesque style the video has been used by government lawyers as proof of his association with the group.
The Al Janko case demonstrates that arguments that the Obama administration will do a better job of separating the wheat from the chaff than their predecessors hold little water. In his scathing dismissal of the case, District Court Judge Richard Leon described administration lawyers as “taking a position that defies common sense” and it should be noted that this administration has fought Al Janko’s release tenaciously through the courts despite its manifest flaws.
We should not ignore the fact that it took a real court to make an effective determination about Al Janko’s status, and that this administration flunked that same test. Creating a legal framework for indefinite detention is a profound mistake. Since 1783 there has only been one standard in the United States for incarceration and that is conviction in a court of law.
Twice before in our history this standard has been ignored in times of crisis – during the Civil War and during World War II. The suspension of habeas corpus and the internment of Japanese Americans left a lasting stain on two of America’s most successful presidencies. The detention regime created at Guantanamo by President Bush added a third to a rather less illustrious presidency.
It is not too late to prevent the Obama administration repeating this mistake. Amnesty International USA has launched an online action campaign to petition President Obama to reconsider. We need your help to prompt a change of direction before fear mongering once again overcomes the angels of our better nature. Please visit our site today and add your voice to the thousands already raised in protest.
Today, June 26, is the International Day in Support of Victims of Torture. In establishing the day in 1998, then UN Secretary-General Kofi Annan wrote, “Today the United Nations appeals to all governments and members of civil society to take action to defeat torture and torturers everywhere…This is a day in which we pay our respects to those who have endured the unimaginable.”
Murat Kurnaz is one such person who “endured the unimaginable.” The 19-year-old German resident was held for five years, without charge or trial, and tortured and abused. In his book “Five Years of My Life,” Kurnaz wrote:
“They prepared me for interrogations by putting electric shocks through my feet. For hours on end they would hang me up by my hands, which were bound behind my back in different positions and then a break, and then you would be hung up again. “
Who did this to him? Egypt? China? Iran? Myanmar? No, the United States of America. The quote describes Kurnaz’s treatment by US personnel in Kandahar, Afghanistan.
Under the UN Convention Against Torture, the US government is obligated by law to investigate and prosecute torture, and to provide remedy to torture victims.
Yet Murat Kurnaz’s allegations of torture and abuse have never been properly investigated; those responsible for ordering and creating the US torture program have not been prosecuted; and the US government has claimed that victims of US torture have no right to remedy, or even an apology.
President Obama has said he wants to look forward, not back. President Obama has rejected an independent commission of inquiry into the US torture program. President Obama has left open loopholes for torture.
This is not acceptable. Not for Americans, not for foot soldiers who have taken the fall, not for the world, not for the rule of law, not for Murat Kurnaz or the hundreds or thousands of others who have been tortured by the US.
“Our national honor is stained by the indignity and inhumane treatment these men received from their captors…The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
There is still hope that President Obama will change course: he will do what it takes to get re-elected, so if the American public stands up for accountability for torture, then he will too.
Stand up with us: join Amnesty International members across America in marking International Day in Support of Victims of Torture by calling the White House comment line right now and urging President Obama to investigate and prosecute torture, and provide remedy to victims. Click here for the number and script.
Four Uighur former Guantanamo inmates are now in Bermuda, other detainees have been released to France, Chad, Iraq and Saudi Arabia. Hungary, Italy and Palau appear to have joined the ranks of countries prepared to accept detainees cleared for release. The pace of releases finally seems to be picking up and that is a cause for optimism.
But, while groups like Amnesty are pleased to see these individuals finally released from wrongful detention, we are disturbed that there has been no public announcement that any of these individuals will receive compensation for their ill-treatment or any assistance from the United States in rebuilding their lives or coming to terms with their experiences.
Consider for a moment what the men recently released have lost. They have lost seven years of their lives. Quite apart from the personal deprivation of liberty that is also seven years of lost earning potential – one fifth of a working life. Their families too have been without their primary breadwinner all this time.
Furthermore, what kind of future do they have to look forward to? They certainly haven’t had the opportunity to learn or develop a trade while in detention, nor are many of them returning to a society they know well. Some may not even speak the local language. However idyllic Bermuda may appear in press photographs, it is a world away from the Central Asian steppe the Uighurs are used to.
Some released inmates may be grappling with medical or mental health problems. Defense attorney, Jeffrey Colman, a thirty-five year veteran of the criminal justice system who has represented four GITMO inmates this week described the facility as:
“Unlike any other institution… there is a level of hopelessness unlike anything I have ever seen.”
We know 5 inmates have committed suicide since the camp opened and in March this year the Department of Defense reported that 34 inmates were on hunger strike. Such figures give some insight into the harrowing nature of the detainees’ experiences – yet no provision has been made to support their rehabilitation.
Closing Guantanamo is not in and of itself enough. We have a moral and legal obligation to aid the reintegration of former inmates back into society. These men have been convicted of no crime. In our system that means they are innocent. No ifs or buts.
Innocent men wrongly held for seven years have a right to compensation. The Obama administration can’t simply shove them out the gates of Camp Delta and forget about them. The United States must take responsibility for rebuilding lives it has ruined.
With Dick Cheney and the infamous torture memos making headlines, President Obama and our nation face a choice. Should they prosecute or protect those responsible for the torture of detainees in secret CIA detention centers? If our leaders wish to steer our country back to the right side of the law, they must act immediately and unequivocally to prosecute.
The problem is that leading senators want the Senate Select Committee on Intelligence to complete its investigation into the treatment and interrogation of detainees (which could take between four and six months), before any prosecution is launched. Yet such a delay would potentially risk running out the clock on certain types of prosecution.
The federal Anti-Torture Act, for example, is subject to a statute of limitations after only eight years. For the prosecution of crimes committed in the months leading up to September 2002 – when Bush administration lawyers produced the first of the “torture memos” that purported to make torture legally permissible – that expiration date is spring 2010.
But there is no need to wait that long. There is already ample evidence that shows the previous administration concocted, approved, and implemented a torture policy. What’s more, there is no legal imperative holding the Department of Justice or federal prosecutors back from launching a criminal investigation, beginning with the task of identifying who is responsible for the crimes that have already been documented.
Although the Senate Intelligence Committee report may eventually provide some insights, it cannot be a substitute for the criminal investigations required for prosecution. But given the committee’s possible complicity in allowing torture to continue despite multiple Central Intelligence Agency briefings, we should not expect its report to break much new ground.
When Mr. Obama rescinded the torture memos upon taking office, he took an important first step toward repairing the damage wrought by the previous administration on our country’s commitment to human rights and rule of law. But his statement in April to forgo prosecution of those CIA agents who carried out torture is a breach of international law.
Some critics argue that a full investigation might lead the US public to ultimately side with torture and thus prosecution could be politically counterproductive. Others argue that prosecuting hundreds of people would waste resources during a war on terror, and that it should stay focused on going after terrorists.
However, the International Convention Against Torture, adopted by the United States in 1994, compels the US to prosecute everyone who is responsible for torture, all the way up the chain of command to top government officials who authorize it. Obama himself said in April that he’s “a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there.” At the same time he also said that “nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.” The law allows no exceptions.
Congress also has an urgent and important role to play: It must eliminate a loophole written into the 2005 Detainee Treatment Act. That piece of legislation contains provisions that were crafted to provide legal cover to torturers. This includes the defense that those who committed torture believed the acts were legal at the time, since they had been interpreted as such by the White House torture memos (none of which carried the force of law).
Legislators must also attend to the back end of the accountability process by eliminating or extending the statute of limitations beyond 2010, as Rep. John Conyers (D) of Michigan has proposed.
Efforts to hold torturers and torture enablers accountable have been launched abroad, most notably in Germany, Italy, and Spain.
Spanish magistrate Baltasar Garzón, a central figure in the prosecution of Gen. Augusto Pinochet, is an example of a quick, effective actor. He recently launched an investigation into the Bush administration last month over the alleged torture of four Spanish nationals at Guantánamo under the legal principle of universal jurisdiction.
He also has ordered an inquiry into whether or not six former Bush administration lawyers created a legal framework to permit torture.
Should the Spanish court ultimately indict anyone pursuant to these claims, it is unclear whether the Obama administration would extradite former US officials. But such a development might, at the very least, prevent those former officials from traveling anywhere in the European Union and further discredit their already tainted legacies.
The Obama administration promised a new era of international cooperation and respect. It now faces the first major test of its rhetoric. If the US fails to prosecute those responsible for torture, we can take our place alongside countries we have long criticized for privileging politics over justice and accountability by letting criminals go free.
Beyond the United States’ global standing, the former administration’s policies also made Americans less safe by providing recruiting tools for terrorists. The Obama administration must show that such abuses won’t stand.
Amnesty International works to protect human rights worldwide. We have more than 2.2 million supporters, activists and volunteers in over 150 countries, and are completely independent from government, corporate or national interests.
Learn more about us at AmnestyUSA.org »
Kathy Taylor is a member of AIUSA Group 15 in Concord, Massachusetts. She is the group liaison to the Counter Terror With Justice Campaign, and she coordinates Group 15's advocacy work on behalf of the Uyghurs at Guantanamo Bay. Kathy works as a software technical writer. See all »
