What Goes Around Comes Around

Our ad in the Farragut West Metro Station, Washington DC

Our ad in the Farragut West Metro Station, Washington DC

Last month I had the opportunity to meet with Tamil human rights defenders working to protect the rights of Tamil civilians displaced by the Sri Lankan government’s military campaign against the violent Armed Group known as the Tamil Tigers.

Displaced Tamils are confined to government run camps where conditions are harsh and there is no end to their detention in sight. Tamil and Sri Lankan human rights defenders are operating under great threat from the authorities and Sinhalese nationalist paramilitaries.

Journalists have been killed and activists have disappeared. An unmarked white van has been associated with several disappearances, evoking memories of the dirty wars of Latin America. The atmosphere in Colombo is increasingly one of fear and intimidation.

This is the context in which we learned earlier this month of a visit to Washington DC by the Sri Lankan Attorney General, Mohan Peiris, to meet with his American counterpart Eric Holder. SEE THE REST OF THIS POST

An Enduring Double Standard

Earlier this month a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Attorney General John Ashcroft had violated the rights of U.S. citizens in the wake of the 9/11 attacks by using material witness warrants to detain suspects without charge.

Speaking for the majority Judge Milan D. Smith Jr., a Republican appointee, fulminated:

“Some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end… merely because the government wishes to investigate them for possible wrongdoing… We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.”

The Court also found that Attorney General Ashcroft could be held personally liable for prosecutorial abuses committed under his direction. If upheld by the Supreme Court this ruling could ultimately shed much needed light on an almost forgotten chapter in America’s response to the tragedy of 9/11.

Incredibly, we still do not know how many U.S. citizens were held on material witness warrants in the aftermath of the New York and Washington attacks. Further proof, if further proof be needed, of the need for a 9/11-style Commission to lay bear the facts.

There is also another troubling issue here and that is double standard applied to American victims of the abuse of governmental power and that applied to foreign victims. The International Covenant of Civil and Political Rights, of which the United States is a signatory, guarantees equality for all before the law.

However, to date only one individual has received any compensation from the United States for being falsely imprisoned as a consequence of the ‘War on Terror’: Brandon Mayfield, an Oregon attorney erroneously connected to the 2004 Madrid train bombings by flawed fingerprint analysis.

Mayfield was arrested as a material witness and held for two weeks by the Justice Department. He was never charged and has received an official apology and a payment of $2million in compensation.

If $2m is the going price for two weeks imprisonment in the federal judicial system on the basis of flawed intelligence – what price seven years wrongful incarceration with a side order of sustained physical abuse and mental torture?

At present the Obama administration has made no provision for compensating those released without charge from Guantanamo nor made any attempt to aid their rehabilitation despite the well-documented social and mental health challenges former detainees face on release.

Furthermore, the Obama administration continues to use the State Secrets Privilege to prevent Maher Arar, the Canadian national rendered to Syria, and Khalid al Masri, the German national kidnapped in Macedonia and tortured in a CIA black site, both victims of faulty intelligence, from suing the United States government for compensation.

The Policies and Procedures Governing the Invocation of the State Secrets Privilege published by the Department of Justice on September 23 state that this privilege should be invoked only

“to protect against the risk of significant harm to national security.”

The guidelines also state that the Department will not invoke this privilege to conceal violations of the law or prevent embarrassment to a government agency.

Yet, the Obama administration, like the Bush administration before it, continues to do precisely this to evade its responsibilities to those abused in the spurious name of national security.

We have a moral and legal obligation to pay compensation to those abused in our name. We have a moral and legal obligation to extend the same remedies to foreign nationals and American citizens alike.

The time has surely come for the Obama administration to do the right thing. That is the ‘change’ the American people voted for on November 4, 2008.

U.S. Obligation to Freed Gitmo Detainees

(Originally posted on Daily Kos)

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.

Many of you reading this blog may feel that this is a side issue but it is not. International law requires the U.S. to provide remedy to those who have been wrongfully imprisoned.

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.

A Common-Sense Approach to Torture

President Obama again displayed in his speech today on national security that he is an exceptionally gifted and thoughtful politician who cares about the rule of law.  Indeed, there is much to admire in his remarks today.  So I can’t help wondering why he is being so obtuse about investigating torture. 

He says he wants to establish legal mechanisms for dealing with terrorists that will be useful for his successors.  “We can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that. . .”, the President said.  Sadly, though, this vision of his legacy apparently does not include concrete measures to ensure that torture will never be carried out again by any of his successors, merely the hope that they will follow his example.  That is where his refusal to carry out his legal obligation to investigate torture leaves us — merely hoping his successors will be wise.

The President continues to characterize those who press for an investigation as vengeful zealots uninterested in constructive problem-solving:  “Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort and our politics on the challenges of the future.”  The truth is, however, that many in the human rights movement who are calling for an investigation have worked most of their lives for justice and accountability for human rights crimes in country after country — Chile, Argentina, Guatemala, Rwanda, Bosnia, Cambodia, and so many others.  These are people whose purpose is the opposite of “finger-pointing” for petty partisan aims.

In any event, it is not up to President Obama to decide all by himself how to prevent future abuses in combatting terrorism.  We — the public, Congress, and officials in the executive branch — all share in the responsibility for this “mess”, as the President labelled it.  We must seek solutions together, and an independent, impartial, nonpartisan commission of inquiry is the logical instrument through which we can begin to make this happen.

The weakness of the President’s argument against an investigation is made all the more stark by its contrast with the cogency of his arguments against torture and for closing Guantanamo.  Moreover, his speech today marked yet another flip-flop in the reasons for his opposition.  Just a month ago, he expressed his preference that, if there was going to be an investigation, it be conducted by an independent panel, outside the normal Congressional hearing process.  He said that he worried about hearings becoming too partisan.  Today, however, Mr. Obama said that he was opposed to an independent commission because he believes “our existing democratic institutions are strong enough to deliver accountability.  The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. . .”

Well, which is it?  Is the President now saying that balkanized investigations by Congressional committees controlled by Democrats are actually preferable to a truly independent investigation by experts who have no political agenda?  I don’t see the logic in this view.  The President prides himself on applying rational, common-sense approaches to problem solving.  But rationality and common sense are lacking in his stubborn opposition to an impartial investigation.  We need to figure out how to ensure future presidents won’t yield to the same cowardly impulses that defined the Bush administration’s resort to torture.  Only a thorough, impartial probe of how it happened can lead to effective remedies for the future.

Arrest warrants coming for 6 Bush-era officials in Madrid?

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.

Both Illegal and Dumb

This weekend saw the publication of two powerful opinion pieces on the futility of using torture as an interrogation tool.  Writing in The (London) Times on Friday General Lord Guthrie, the former Chief of the UK Defense Staff, argued that the use of torture was “both illegal and dumb.” Drawing on Britain’s bitter experience using coercive interrogation tactics in Northern Ireland, Lord Guthrie continued:

“Western use of torture to counter terror has been a propaganda coup for al-Qaeda and a recruiting sergeant for its global jihad. Our hypocrisy has radicalised our enemies and corroded the power we base on our proclaimed values. We save more lives in the long term by rejecting torture than we do by perpetrating it.”

In addition to serving successively in two of Britain’s most senior military posts, Lord Guthrie spent almost a decade as an officer in Britain’s elite Special Air Service (SAS) during which period he served in Aden, the Gulf, Malaysia and East Africa. The SAS fulfils the same counterterrorist role as America’s Delta Force. Lord Guthrie also served in Northern Ireland with the Welsh Guards. The full article (Torture uses the body against the soul) can be accessed at www.timesonline.co.uk.

On Sunday the News in Review section of The New York Times featured an article by Ambassador Donald P. Gregg, a thirty year veteran of the Central Intelligence Agency who served as the National Security Adviser to Vice-President George H. W. Bush during the Reagan administration.

Ambassador Gregg had been responsible for intelligence operations in ten Vietnamese provinces between 1971-72 and he described how his South Vietnamese counterpart had routinely tortured prisoners, producing a great deal of information much of which proved to be false.  By contrast Ambassador Gregg’s team employed “more humane methods” and generated more accurate intelligence.  He concludes:

“The key to successful interrogation is for the interrogator — even as he controls the situation — to recognize a prisoner’s humanity, to understand his culture, background and language. Torture makes this impossible.”

Ambassador Gregg’s article (Speaking with the Enemy) can be accessed at www.nytimes.com.

It is fashionable to portray calls for a return to due process, American values and human rights as a liberal cause. In reality, as the contributions from Lord Guthrie and Ambassador Gregg demonstrate, it is a cause that attracts a great deal of support from among professional military, law enforcement and intelligence personnel because they know effective counterterrorism is perfectly compatible with democratic principles.

Macho Posturing Does Not Make Us Safer

Speaking to Politico last Tuesday, former Vice-President Richard Cheney opined:

“When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry.”

Sadly, this is a sentiment that Amnesty International volunteers hear a lot as they engage in the debate on the abuse of detainees. It is also a line of argument that can be easily rebuffed.

The bottom line is that such macho posturing does the national security of this country no favors.  Due process rights keep us honest but they also make us smarter. They hold law enforcement, military and intelligence officers to a higher standard.  A standard that holds mere assertion, hearsay and innuendo is not sufficient to deprive an individual of his or her liberty; A standard that requires official action to be based on the collection of facts – evidence – that will stand up in court; That ensures skilled interviewing by trained and experienced investigators replaces mindless bullying and produces better intelligence; That guarantees fewer miscarriages of justice.

The former Vice-President is not wrong to highlight the threat from terrorism.  The threat has not gone away and, if anything, the Bush Administration’s policies over the past seven years have ensured that the threat is greater now than it has ever been.  Terrorism is the ultimate human rights abuse and Amnesty International is as steadfast in its condemnation and opposition to such tactics as it is to the use of torture and indefinite detention by government agents.

Macho posturing is no substitute for effective counterterrorism policies.  And passion is no substitute for competence.  Human rights standards keep us smarter and make our counterterrorism efforts more effective.  No democratic state that has betrayed these basic principles has ever successively defeated a terrorist threat.  Bitter experience teaches us that the war on terror can only be fought and won from the moral high ground.

Terror vs. Terror

“‘In order for the violence to stop, Hamas must stop firing rockets into Israel and agree to respect a sustainable and durable cease-fire,’ a White House spokesman, Gordon D. Johndroe, told reporters in Texas. ‘Hamas has once again shown its true colors as a terrorist organization.'” From “Gaza Toll Passes 350 in 3rd Day of Israel Strikes” in the New York Times.

Again and again we see states try to justify murder with murder, torture with torture, barbarism with barbarism, genocide with genocide.

The words “terror,” “terrorism” and “terrorist” obscure this hypocrisy. What is it that states want to counter by “countering terrorism?” The killing, injuring and frightening of civilians. How are states going to do it? By killing, injuring and frightening civilians? Come on.

The human rights community should drop the “terror” framework. There are individuals, armed groups, unarmed groups, companies, states and groups of states. Some of these terrorize civilians. Some don’t. Let’s stop confusing “who” with “what.”

Or at least let’s insist on using the word “terrorist” to describe all who qualify.