Category Archives: torture

WikiLeaks reveals Bangladeshi ‘death squad’ trained by UK government

The British government has been training a Bangladeshi paramilitary force condemned by human rights organisations as a “government death squad”, leaked US embassy cables have revealed.

Members of the Rapid Action Battalion (RAB), which has been held responsible for hundreds of extra-judicial killings in recent years and is said to routinely use torture, have received British training in “investigative interviewing techniques” and “rules of engagement”.

Details of the training were revealed in a number of cables, released by WikiLeaks, which address the counter-terrorism objectives of the US and UK governments in Bangladesh. One cable makes clear that the US would not offer any assistance other than human rights training to the RAB – and that it would be illegal under US law to do so – because its members commit gross human rights violations with impunity.

Since the RAB was established six years ago, it is estimated by some human rights activists to have been responsible for more than 1,000 extra-judicial killings, described euphemistically as “crossfire” deaths. In September last year the director general of the RAB said his men had killed 577 people in “crossfire”. In March this year he updated the figure, saying they had killed 622 people.

CIA gave waterboarders $5M legal shield

The Associated Press reports:

The CIA agreed to cover at least $5 million in legal fees for two contractors who were the architects of the agency’s interrogation program and personally conducted dozens of waterboarding sessions on terror detainees, former U.S. officials said.

The secret agreement means taxpayers are paying to defend the men in a federal investigation over an interrogation tactic the U.S. now says is torture. The deal is even more generous than the protections the agency typically provides its own officers, giving the two men access to more money to finance their defense.

It has long been known that psychologists Jim Mitchell and Bruce Jessen created the CIA’s interrogation program. But former U.S. intelligence officials said Mitchell and Jessen also repeatedly subjected terror suspects inside CIA-run secret prisons to waterboarding, a simulated drowning tactic.

The revelation of the contractors’ involvement is the first known confirmation of any individuals who conducted waterboarding at the so-called black sites, underscoring just how much the agency relied on outside help in its most sensitive interrogations.

Obama and GOPers worked together to kill Bush torture probe

David Corn reports:

In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. A “confidential” April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.

The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain’s National Court indict six former Bush officials for, as the cable describes it, “creating a legal framework that allegedly permitted torture.” The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation’s “universal jurisdiction” law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.

Soon after the request was made, the US embassy in Madrid began tracking the matter. On April 1, embassy officials spoke with chief prosecutor Javier Zaragoza, who indicated that he was not pleased to have been handed this case, but he believed that the complaint appeared to be well-documented and he’d have to pursue it. Around that time, the acting deputy chief of the US embassy talked to the chief of staff for Spain’s foreign minister and a senior official in the Spanish Ministry of Justice to convey, as the cable says, “that this was a very serious matter for the USG.” The two Spaniards “expressed their concern at the case but stressed the independence of the Spanish judiciary.”

Obama’s national security state

Michael Ratner, president of the Center for Constitutional Rights (CCR) and adjunct professor of law at Columbia University Law School, interviewed by International Socialist Revew:

ISR: Let’s start with the Obama administration’s policies on habeas corpus and on torture. As a presidential candidate, Obama said he would close Guantánamo, said he believed in habeas corpus rights, and was critical of President Bush. What’s been his practice since he came to office?

Michael Ratner: My office, CCR, is one of the legal groups that represents many of the Guantánamo detainees and brings these writs of habeas corpus. That is a fancy way of saying, “Let’s go to court, and see if there’s any evidence to hold the person.” The expectations of the team of lawyers representing the detainees was very high that Guantánamo would actually close, that Obama would do it. There were probably a little over 300 people in Guantánamo when he took office. It’s down to maybe 200-some now. But we expected better—and now it may go on for years. We really thought that Obama wouldn’t fight us in court on the rights of the detainees, that he would get the detainees either to another country or he would charge and try them. And of course, it hasn’t worked out that way at all, and it’s a deep disappointment. In fact a lot of the habeas lawyers signed a letter supporting Obama saying his election would actually be good for our clients. Obama’s effort to close it seemingly got off to a somewhat quick start. Obama, within two days of being in office, signed an executive order, which is essentially a presidential order, which said that Guantánamo would be closed in a year. Of course, as we speak now, it’s more than a year and a half after that order, and it is not near closed. Obama’s commitment has been abandoned. And he made a number of other promises that have not been met about secret detention sites, military commissions, and the like.

Obama has put new clothes on the Bush doctrine toward “enemy combatants,” but the underlying lawlessness of the doctrine is the same. In particular, imagine this: you go to court on behalf of someone in Guantánamo, and the judge has to decide whether there is sufficient evidence to hold him. What Bush said was they can be held as “enemy combatants,” and he gave the term a vague definition, such as that the person was hostile to the United States or picked up arms against the United States or belonged to a group that was hostile to the United States. If there was “evidence” those detainees could be held in prison indefinitely, essentially a form of preventive detention. We had hoped Obama would get rid of that entire preventive detention scheme. CCR’s view is there should not be a preventive detention scheme—it’s illegal and immoral. What you must do, and what is legally necessary, is to charge someone with a crime, and hold them only if they’re convicted. The rule is simple: charge and try people with crimes, or release them. There are not any other valid legal choices.

I considered this preventive detention scheme to be one of the worst hallmarks of the Bush administration. Sadly, this intolerable preventive detention scheme has continued, and you could say continued with a vengeance, under Obama.

West Bank turning into a police state where torture is frequently used

American officials and journalists visiting the West Bank, if they are eager to boost the credibility of its unelected political leaders, like to speak about the professionalism of the Palestinian Authority’s security services. For instance, an aide to Hillary Clinton was recently quoted by Roger Cohen, saying:

[A]s we approached Ramallah there were these troops in berets. They were so professional, we thought at first they were Israel Defense Forces. But, no, they were Palestinians, this completely professional outfit, and it was clear this was something new.

What could be more inspiring — to a visitor from Washington — than Palestinians who looked like Israelis?

The Financial Times presents a much grimmer picture in which local human rights groups warn that a brutal regime is emerging with the authoritarianism of a police state. (As a report by David Rose almost two years ago makes clear, the trend is not new — but it is getting worse.)

Naiema Abu Ayyash’s worst fears were confirmed this month when she finally managed to visit her husband in Jericho prison.

Badr Abu Ayyash, 42, a farmer and local politician in the west Bank, was arrested by the Palestinian Authority’s Preventive Security unit on September 14. Aside from two brief and apparently supervised phone calls, his family was denied all contact with him.

“He looked very different,” said Ms Abu Ayyash, a mother of four. “He could hardly walk. He had difficulty breathing and was very thin. When he shook my hand, I noticed that he had no strength at all.”

She has no doubt her husband was tortured. “I started screaming at the officer: ‘What are you doing to him?”’ Her pleas fell on deaf ears. After a few cursory exchanges, her husband was led back to his cell.

According to former inmates and activists familiar with Palestinian prisons, Ms Abu Ayyash has every reason to be worried. They say prisoners affiliated with the Islamist Hamas movement, which runs the Gaza Strip, are beaten regularly and deprived of medicine and basic comforts such as blankets and mattresses.

There is evidence that a significant number of detainees are tortured during interrogation. The most common form of abuse is known as Shabeh, in which detainees are handcuffed and bound in stress positions for long periods.

Claims of torture and abuse by members of the Palestinian security forces are not new. There has, however, been a sharp rise in reported cases, leading Human Rights Watch to remark last month that “reports of torture by Palestinian security forces keep rolling in”. The New York-based organisation also bemoaned the “rampant impunity” of officers allegedly involved in the abuses.

Many analysts and observers fear that life in the west Bank is taking on an increasingly authoritarian hue. “I feel real concern that we are reaching the level of a police state,” says Shawan Jabarin, the director of al-Haq, a Ramallah-based human rights group.

It is a concern shared by Randa Siniora, the director of the Palestinian Independent Commission for Human Rights, the ombudsman responsible for processing complaints against Palestinian officials. Her commission received more complaints about torture in the west Bank in October than in any month since mid- 2009. “We are looking at a very gloomy situation,” she said. “I am afraid that this [problem of torture and abuse] will become systematic.”

George Bush gets some advice from the Conservative Mayor of London

Borris Johnson writes:

It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

One moment he might be holding forth to a great perspiring tent at Hay-on-Wye. The next moment, click, some embarrassed member of the Welsh constabulary could walk on stage, place some handcuffs on the former leader of the Free World, and take him away to be charged. Of course, we are told this scenario is unlikely. Dubya is the former leader of a friendly power, with whom this country is determined to have good relations. But that is what torture-authorising Augusto Pinochet thought. And unlike Pinochet, Mr Bush is making no bones about what he has done.

Unless the 43rd president of the United States has been grievously misrepresented, he has admitted to authorising and sponsoring the use of torture. Asked whether he approved of “waterboarding” in three specific cases, he told his interviewer that “damn right” he did, and that this practice had saved lives in America and Britain. It is hard to overstate the enormity of this admission.

Guantánamo Bay detainees to be paid compensation by UK government

The Guardian reports:

The [British] government will announce today that it will pay millions of pounds in compensation to former Guantánamo Bay detainees following weeks of negotiations between lawyers for the government and the former prisoners.

Ministers appear to have decided on the advice of the security services that they could not afford to risk the exposure of thousands of documents in open court on how Britain co-operated with the US on the so-called extraordinary rendition of terrorist suspects.

Some of the suspects, who were taken for interrogation in secret locations around the world before ending up in Guantánamo, were alleged to have links with the Afghan Taliban.

According to ITN, the high court has been notified that a settlement had been reached between the lawyers. The exact amounts may never be known, but at least one detainee is understood to be in line for a payout of more than £1m.

British deny George Bush’s claims that torture helped foil terror plots

The Guardian reports:

British officials said today there was no evidence to support claims by George Bush, the former US president, that information extracted by “waterboarding” saved British lives by foiling attacks on Heathrow airport and Canary Wharf. In his memoirs, Bush said the practice – condemned by Downing Street as torture – was used in CIA interrogations of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks on the US.

He said Mohammed, below, was one of three al-Qaida suspects subjected to waterboarding. “Their interrogations helped break up plots to attack American diplomatic facilities abroad, Heathrow airport, and Canary Wharf in London, and multiple targets in the United States,” he wrote.

It is not the first time information extracted from Mohammed has been claimed as helping to prevent al-Qaida attacks on British targets. Mohammed cited attacks on Heathrow, Big Ben and Canary Wharf in a list of 31 plots he described at Guantánamo Bay after he was subjected to waterboarding 183 times following his capture in Pakistan in March 2003. The Heathrow alert in fact happened a month before his arrest, with army tanks parked around the airport, in what was widely regarded as an overreaction.

British counter-terrorism officials distanced themselves from Bush’s claims. They said Mohammed provided “extremely valuable” information which was passed on to security and intelligence agencies, but that it mainly related to al-Qaida’s structure and was not known to have been extracted through torture. Eliza Manningham-Buller,head of MI5 at the time, said earlier this year that the government protested to the US over the torture of terror suspects, but that the Americans concealed Mohammed’s waterboarding from Britain. Officials said today the US still had not officially told the British government about the conditions in which Mohammed was held.

Torture and terrorism

One of the strange aspects relating to conspiracy theories concerning 9/11 is that they unwittingly obscure something even worse: that the US government foments terrorism not by design but by neglect; that its policies have had a direct and instrumental role in creating terrorists not simply by providing individuals and groups with an ideological pretext for engaging in terrorism but much more specifically by creating the conditions an individual’s political opposition to America’s actions would shift to unrestrained violent opposition.

The key which often unlocks the terrorist’s capacity for violence is his experience of being subject to violence through torture.

Chris Zambelis writes:

There is ample evidence that a number of prominent militants — including al-Qaeda deputy commander Dr. Ayman al-Zawahiri and the late al-Qaeda in Iraq leader Abu Musab al-Zarqawi — endured systematic torture at the hands of the Egyptian and Jordanian authorities, respectively. Many observers believe that their turn toward extreme radicalism represented as much an attempt to exact revenge against their tormentors and, by extension, the United States, as it was about fulfilling an ideology. Those who knew Zawahiri and can relate to his experience believe that his behavior today is greatly influenced by his pursuit of personal redemption to compensate for divulging information about his associates after breaking down amid brutal torture sessions during his imprisonment in the early 1980s. For radical Islamists and their sympathizers, U.S. economic, military, and diplomatic support for regimes that engage in this kind of activity against their own citizens vindicates al-Qaeda’s claims of the existence of a U.S.-led plot to attack Muslims and undermine Islam. In al-Qaeda’s view, these circumstances require that Muslims organize and take up arms in self-defense against the United States and its allies in the region.

The latest revelations provided by Wikileaks show how the war in Iraq — the centerpiece of the Bush administration’s war on terrorism — became not simply a terrorist training ground, but a cauldron in which terrorists could be forged.

FRAGO 242: PROVIDED THE INITIAL REPORT CONFIRMS U.S. FORCES WERE NOT INVOLVED IN THE DETAINEE ABUSE, NO FURTHER INVESTIGATION WILL BE CONDUCTED UNLESS DIRECTED BY HHQ. JUNE 26, 2004

The Guardian reports:

A grim picture of the US and Britain’s legacy in Iraq has been revealed in a massive leak of American military documents that detail torture, summary executions and war crimes.

Almost 400,000 secret US army field reports have been passed to the Guardian and a number of other international media organisations via the whistleblowing website WikiLeaks.

The electronic archive is believed to emanate from the same dissident US army intelligence analyst who earlier this year is alleged to have leaked a smaller tranche of 90,000 logs chronicling bloody encounters and civilian killings in the Afghan war.

The new logs detail how:

• US authorities failed to investigate hundreds of reports of abuse, torture, rape and even murder by Iraqi police and soldiers whose conduct appears to be systematic and normally unpunished.

• A US helicopter gunship involved in a notorious Baghdad incident had previously killed Iraqi insurgents after they tried to surrender.

• More than 15,000 civilians died in previously unknown incidents. US and UK officials have insisted that no official record of civilian casualties exists but the logs record 66,081 non-combatant deaths out of a total of 109,000 fatalities.

The Pentagon might hide behind claims that it neither authorized nor condoned violence used by Iraqi authorities on Iraqi detainees, but the difference between being an innocent bystander and being complicit consists in whether one has the power to intervene. The US military’s hands were not tied. As the occupying power it had both the means, the legal authority and the legal responsibility to stop torture in Iraq. It’s failure to do so was a matter of choice.

Will the latest revelations from Wikileaks be of any political consequence? I seriously doubt it, given that we now have a president dedicated not only to refusing to look back but also to perpetuating most of the policies instituted by his predecessor.

For more information on the documents released by Wikileaks, see The Guardian‘s Iraq war logs page.

What would Cheney say?

Greg Mitchell reports (parts one and two) on the suicide of Spc. Alyssa Peterson, one of the first women soldiers to die in Iraq. She took her own life exactly seven years ago after being reprimanded for showing empathy for Iraqi prisoners who were undergoing interrogation. All records of the techniques being used have been destroyed but there seems little doubt that the Iraqis were being tortured.

The 27-year-old’s parents didn’t even know their daughter was in Iraq until they were informed of her death. The fact that she committed suicide was concealed by the military for several more years — the most likely reason for the cover-up being that it was Peterson’s unwillingness to participate in torture that drove her to take her own life.

Kayla Williams, a US Army sergeant who served with Peterson, described the impact of participating in interrogations which she could see clearly contravened the Geneva Conventions.

Fellow soldiers, echoing then vice-president Dick Cheney, told the young sergeant that “the old rules no longer applied because this was a different world. This was a new kind of war.” But Williams said: “it really made me feel like we were losing that crucial moral higher ground, and we weren’t behaving in the way that Americans are supposed to behave.”

“It also made me think,” Williams says, “what are we as humans, that we do this to each other? It made me question my humanity and the humanity of all Americans. It was difficult, and to this day I can no longer think I am a really good person and will do the right thing in the right situation.”

As the famous Milgram experiment demonstrated, individuals who choose to do the right thing — especially when that demands defying authority — are usually in a minority. The much more prevalent tendency is a willingness to follow orders and suspend ones own moral judgment — even when that involves participating in torture.

Should Alyssa Peterson have been turned away from the military on the grounds that she was too humane, her conscience too strong, for her to serve in the US Army? She ended up being reprimanded for showing empathy to Iraqi prisoners. As the official investigation of her death revealed: “She said that she did not know how to be two people; she… could not be one person in the cage [where prisoners were apparently tortured] and another outside the wire.”

Suppose before she took her life, Dick Cheney had had an opportunity to council her, what would he have said? Or suppose Cheney was now to speak to her father, what would he say?

Empathy is a liability in wartime? Americans need to set aside their humanity when they put on a uniform?

Peterson’s ability to empathize with Iraqi prisoners was no doubt in large part an expression of her character and her humanity, yet to an extent it must also have resulted from the humanizing effect of understanding and speaking Arabic. In spite of the dehumanizing effect of seeing men stripped of their dignity, she must also have been able to see beyond that and through their words seen not mere “terrorist” suspects, but fathers with daughters and sons with parents.

Recognition of humanity is not something we can pick up or discard whenever it seems expedient — whenever cast aside it henceforth becomes increasingly difficult to rediscover.

The choice to cross over to the “dark side” is a choice that may prove impossible to reverse. At 27 Alyssa Peterson seems to have understood that. As far as we can tell, Dick Cheney has not even attempted to find the way back.

Looking back at torture

President Obama has so far refused to look back at the previous administration’s use of torture, but David Cole says: “on this issue, we cannot move forward without looking back. Unless we acknowledge that what the United States did was not just a bad idea, but illegal, we risk treating torture as simply another policy option.”

Cole presents some of the reasons the administration is unwilling to grasp the issue and argues that Britain’s new prime minister, David Cameron, has taken a lead worth following.

The Justice Department is investigating allegations of torture at the CIA’s secret prisons — but is considering only the actions of interrogators who are reported to have exceeded the brutality authorized by the Justice Department and Bush’s Cabinet. Why are the underlings being investigated, but not those who set the illegal scheme in motion?

The answer is politics. A torture investigation that could implicate the former president and vice president would be too divisive, some say. It would consume the nation’s attention and divert us from addressing other urgent problems, such as health care, the economy, global warming and immigration.

But there is an even larger political obstacle: fear. The Democratic administration is afraid of appearing more concerned about the rights of terrorism suspects than about the security of the nation. Cheney and his supporters have already accused the administration of not being tough enough on terrorists; Democrats fear that a torture inquiry might play into critics’ hands.

There is another element at work here which is the moral relativism that underpins American views on violence.

Why would a society that widely supports the death penalty regard torture as unacceptable? From the American perspective, it’s OK to poison someone, electrocute them, hang them, shoot them (though not decapitate them), with the sole condition that a reasonably sound legal process is followed.

Torture might be illegal, but it’s not clear that it conflicts with the values that Americans live by, especially those applied to people who, in the popular imagination, deserve to suffer.

Grave injustice: Maher Arar and unaccountable America

At Middle East Report Online, Lisa Hajjar writes:

On June 14, the Supreme Court buried the prospect of justice for Maher Arar, a Canadian citizen of Syrian origin who was “extraordinarily rendered” by the United States (via Jordan) to Syria in 2002. Arar was suing the US officials who authorized his secret transfer, without charge, to a country infamous for torture. With the justices’ 22-word statement, the case of Arar v. Ashcroft exited the American legal system and entered the annals of American legal history under the category “grave injustice.” Alphabetically, Arar precedes Dred Scott v. Sanford, which upheld slavery, and Korematsu v. United States, which upheld the internment of Japanese Americans. In this case, however, the grave is literal: Arar spent ten months of his year in Syrian custody confined in what he describes as “an underground grave.”

Obama’s torture loophole

What’s the difference between a US-military-run detention facility and an intelligence gathering facility? For one thing, Red Cross officials are being prevented from seeing how prisoners are treated when held at Bagram’s intelligence gathering facility. Is that so that they can be tortured in secret?

Two days after taking office, Barack Obama signed an executive order banning torture. The era of secret detention facilities and CIA-administered waterboarding were over. Or so we thought.

Earlier this week, the BBC reported:

The US airbase at Bagram in Afghanistan contains a facility for detainees that is distinct from its main prison, the Red Cross has confirmed to the BBC.

Nine former prisoners have told the BBC that they were held in a separate building, and subjected to abuse.

The US military says the main prison, now called the Detention Facility in Parwan, is the only detention facility on the base.

However, it has said it will look into the abuse allegations made to the BBC.

The International Committee of the Red Cross (ICRC) said that since August 2009 US authorities have been notifying it of names of detained people in a separate structure at Bagram.

“The ICRC is being notified by the US authorities of detained people within 14 days of their arrest,” a Red Cross spokesman said.

“This has been routine practice since August 2009 and is a development welcomed by the ICRC.”

The spokesman was responding to a question from the BBC about the existence of the facility, referred to by many former prisoners as the Tor Jail, which translates as “black jail”.

Prisoners say they have been kept in isolation in cold cells and subjected to sleep deprivation, but it turns out the CIA’s hands are clean — this time it’s the Defense Intelligence Agency at work. And as for the fact that the Red Cross has been barred from entering this facility, that’s because it isn’t being called a detention facility.

Marc Ambinder reports:

Defense officials said that the White House is kept appraised of the methods used by interrogators at the site. The reason why the Red Cross hasn’t been invited to tour it, officials said, was because the U.S. does not believe it to be a detention facility, classifying it instead as an intelligence gathering facility.

A Defense official said that the agency’s inspector general had launched an internal investigation into reports in the Washington Post that several teenagers were beaten by the interrogators, but [Pentagon spokesman, Bryan] Whitman disputes this.

When the Obama Administration took over, it forbade the DIA from keeping prisoners in the facility longer than 30 days, although it is not clear how that dictum is enforced. It is also not clear how much Congress knows about the DIA’s interrogation procedures, which have largely escaped public scrutiny.

Iraq prime minister lashes out at rival

The Los Angeles Times reports:

Iraq’s prime minister dismissed his rival’s call for international help to resolve the country’s postelection political crisis as the dispute threatens to inflame rifts and undermine American plans for withdrawal.

In a televised speech Friday, Prime Minister Nouri Maliki, whose political bloc finished a close second behind former premier Iyad Allawi’s slate in the March 7 elections, alleged that “regional, international” players were attempting a coup d’etat against his government.

“We have accomplished very much in Iraq,” he said from the southern shrine city of Karbala, the symbolic heartland of Iraq’s Shiite Muslims, who were long oppressed under the Sunni-dominated Baath Party government of Saddam Hussein.

“We will not allow any foreign interference in our internal affairs that will breach our sovereignty,” Maliki said.

Meanwhile, earlier this week, the New York Times reported:

The torture of Iraqi detainees at a secret prison in Baghdad was far more systematic and brutal than initially reported, Human Rights Watch reported on Tuesday.

The existence of the prison, which housed mostly Sunni Arab prisoners, has created a political furor in Iraq, prompted government denials and fanned sectarian tensions.

“Abu Ghraib was a picnic” compared with the secret prison, said Sheik Abdullah Humedi Ajeel al-Yawar, one of the most influential Sunni Arab tribal leaders in the northern province of Nineveh, where the detainees were rounded up by Iraqi soldiers based on suspicions that they had links to the insurgency and brought to Baghdad with little due process. Abu Ghraib is the prison at which American guards tortured Iraqi prisoners, severely damaging Iraqis’ trust in the United States.

Human Rights Watch gained access on Monday to about 300 male detainees transferred from the once secret prison at the Old Muthanna military airfield to the Rusafa prison in Baghdad and documented its findings, which it described as “credible and consistent,” in a draft report provided to The New York Times on Tuesday by the rights group.

The group said it had interviewed 42 detainees who displayed fresh scars and wounds. Many said they were raped, sodomized with broomsticks and pistol barrels, or forced to engage in sexual acts with one another and their jailers.

The Israel lobby’s curious defense of an alleged Somali war criminal

Yousuf v. Samantar is the first human rights suit arising from abuses committed in Somalia under the brutal regime of Siad Barre. It is currently pending before the Supreme Court, where an odd coalition of defenders has filed briefs on behalf of the defendant, Mohammed Samantar, a prime minister under Barre and an alleged war criminal.

Among his defenders are five pro-Israel organizations — the American Jewish Congress, the Zionist Organization of America, the American Association of Jewish Lawyers And Jurists, Agudath Israel of America, and the Union of Orthodox Jewish Congregations of America in Support of Petitioner — each with a professed interest in keeping Samantar out of court. Allowing the case to proceed, they warn, would set an inviting precedent for Israel’s detractors in the human rights community, exposing current and former Israeli officials to an avalanche of litigation.

This suit was brought by the Center for Justice and Accountability and pro bono co-counsel Cooley Godward Kronish LLP in 2004 on behalf of five torture survivors: Bashe Abdi Yousuf, a young business man detained, tortured, and kept in solitary confinement for over six years; Aziz Mohamed Deria, whose father and brother were abducted by officials and never seen again; John Doe I, whose two brothers were summarily executed by soldiers; Jane Doe, a university student detained by officials, raped 15 times, and put in solitary confinement for over three years; and John Doe II, who was imprisoned for his clan affiliation and was shot by a firing squad, but miraculously survived by hiding under other dead bodies.

A strange alliance at the Supreme Court

By Sam Singer, War in Context, April 4, 2010

Mohammed Ali Samantar is the only living vestige of the Barre regime, the last government in two decades to exercise central control over Somalia and, not coincidentally, the last that was impudent enough to try. When Siad Barre was finally overthrown in 1991, Samantar, who had served as defense minister and prime minister, fled, in a storm of bullets, to Italy. He eventually made his way to Fairfax, Virginia, where he lived in suburban obscurity until a group of Somali nationals discovered him, hired a lawyer, and sued for damages. According to his accusers, the Barre regime committed unforgivable acts of violence against them and their families, offenses spanning a range of brutality from arbitrary detention, to torture, rape and extrajudicial killing. Samantar was allegedly aware of the crimes being perpetrated against civilians and yet failed to stop them. The suit was dismissed by a federal district court and then reinstated by the US Court of Appeals for the Fourth Circuit. It is now pending before the Supreme Court, where a peculiar coalition of defenders is urging reversal. Among them, to the confusion of some observers, are five prominent pro-Israel organizations, each with a professed interest in keeping Samantar out of court. In joint amicus briefs, the groups insist that as a former government official, Samantar should be immune from suit. To hold otherwise, they warn, would violate international law and set an inviting precedent for Israel’s enemies and their supporters in the human rights community.

The arrival of the Israel lobby adds geopolitical intrigue to a case that already read like a Ludlum thriller. And because it speaks to real and immediate consequences, it lends concreteness to a discussion that would have otherwise carried on in the abstract. It is one thing for a lawyer to appeal to legal authority for the proposition that the courts of one nation ought not sit in judgment of the acts of another; it is quite another for five groups purporting to represent the interests of the Israeli government to advise that doing so in this case would be to declare open season on Israeli officials in US courts.

It is not without some irony that organizations claiming to represent Israel, a state conceived in the wake of unprecedented state-sponsored violence, find their wagon hitched to the cause of an alleged war criminal. Nor does the position square, at least not at first glance, with less expansive interpretations of sovereign immunity advanced by the lobby’s constituents in the past. Just this year, Israeli victims of rocket fire on the Lebanese border sued the Iranian government, by way of its central banks, on the theory that it provided material support to Hezbollah, the source of the rockets. Last December, a pro-Israel group in Europe sued leaders of Hamas in a Belgium court, invoking what it described as the court’s “universal” jurisdiction over cases arising from war crimes. In both cases, sovereign immunity was an obstacle standing between Israeli interests and a favorable judgment; here, in Samantar’s case, supporters of Israel invoke it as a shield.

In fact, Israel is far more likely to find itself on the receiving end of a human rights suit. According to one report, nearly 1,000 suits have been filed globally against Israeli officials and military personnel alleging war crimes and other abuses. The defense ministry expects some 1,500 more will follow, many stemming from military operations in the coastal territories, but also some taking aim at the less violent aspects of Israeli anti-terror strategy, including one suit describing the security fence as a “crime against humanity.” An Israeli newspaper published a “wanted” list of current and former officials who are among the common named defendants. The list, which was republished in briefs to the Court, reads like a who’s who in Israeli political and military history. The forums for these suits vary, but they commonly feature developed Western countries that have lowered the drawbridge for human rights litigants. Steering many of the cases are nongovernmental organizations (NGOs), some based in the Middle East with ties to the Palestinian government, others based in the West and backed by the likes of the Center for Constitutional Rights and George Soros’s Open Society Institute.

In these suits supporters of Israel see pretext. They describe a more sinister objective, a coordinated effort to bring Israeli officials into federal courtrooms. The idea is to delegitimize Israel, but not before dragging officials through an invasive and costly discovery process. Do it enough and Israeli officials will start thinking twice before traveling to the United States, or, worse yet, before assuming roles that could expose them to suit. Defense experts believe the strategy fits the definition of “lawfare,” think-tank speak for the use of legal methods to achieve military goals.

In the immediate term, the briefs warn, relations between the US and Israel will suffer. Like any partnership, the US/Israeli alliance benefits from a rich and ongoing exchange of people and ideas. For the exchange to thrive, current and former Israeli officials must be able to travel to and within the United States without fear of being served with a lawsuit. By way of illustration, the American Jewish Congress recounts the story of Moshe Ya’alon, a retired Israeli general who was recently summoned to court upon arriving in Washington, D.C. for a think tank forum. The complaint, which sought damages for civilian deaths resulting from a battle on the Lebanese border between Israel and Hezbollah, was perfunctory. With respect to Ya’alon, it alleged only that he served in the army chain-of-command during the relevant period. The district court dismissed the case on jurisdictional grounds and the D.C. Circuit affirmed, concluding that the immunity of a foreign state extends to its former officials. Ya’alon never had to step foot in a courtroom. Now suppose that instead of Washington, he had been served with the suit 15 minutes away, in Arlington, Virginia. In that event the dismissal of his suit would have been appealed to the Fourth Circuit, which, as we learned in Samantar’s case, does not share the D.C. Circuit’s view on official immunity. In other words, had Ya’alon booked a hotel across the river, he might well still be there today.

A Statutory Nightmare

Naturally, US-Israeli relations didn’t figure into the Supreme Court’s questioning at oral arguments. The justices had assembled to resolve a disagreement among the federal circuit courts over whether sovereign immunity extends to officials. Accordingly, they trained their focus on Samantar and his theory of the case, which rests on the off-stated maxim that one equal has no dominion over another equal. That this saying, which encapsulates the principle of sovereign immunity, is most commonly recited in Latin suggests something about its vintage. It is as close to a truism as a proposition can come in a foggy discipline like international law, and it is an animating principle of the Foreign Sovereign Immunity Act (FSIA). That law changed the way US courts process suits against foreign governments. Before 1976, a court needed the go-ahead from the State Department before docketing such cases. When this approach proved unwieldy, Congress vested gate-keeping authority in the federal courts and then cabined it by stripping them of jurisdiction over suits against foreign states that don’t fit within a narrow set of exceptions.

Until recently it was generally accepted that these same protections applied to foreign officials. After all, a suit against a foreign official acting on behalf of a state is effectively a suit against the state. True, the caption may list the Minister of Defense rather than the Ministry of Defense, and the plaintiff may have his sights set on a personal bank account rather than the national treasury, but in either case the court is sitting in judgment of the state’s actions. It has intuitive appeal, this idea. It also has the support of the majority of the federal circuits.

But as the Fourth Circuit pointed out below, the argument is without support in the one place it needs it most–the text of the FSIA. FSIA extends sovereign immunity to “foreign states” as well as their “agencies and instrumentalities”, but it remains conspicuously silent on the matter of foreign officials. For supporters of broad immunity, this omission is proof that the identity of interests between a foreign sovereign and its officials is self-evident. Congress, they argue, had no reason to split hairs, to try to distinguish the indistinguishable. Opponents, who harbor a less attenuated view, insist that if Congress wanted to extend immunity to foreign officials, it would have said so.

The theory that foreign officials are immune from suit encounters an more mystifying problem in the Torture Victim Protection Act (TVPA), a federal law that permits victims of state-sponsored torture to bring suit in the United States against culpable foreign officials. The TVPA is one of the statutes supplying the cause of action in the suit against Samantar, but that’s not why it’s important. Rather, as Justice Kennedy pointed out during oral arguments, the text of the TVPA appears to make a mockery of the proposition that foreign officials are never amenable to suit in U.S courts. To read the law any other way would be to watch it evaporate, an entire congressional enactment rendered useless, leaving torture victims a right without a remedy. The Court, Justice Kennedy reminds, is not in the business of reading entire statutes out of existence.

Supporters of immunity for foreign officials counter that allowing the case to proceed against Samantar would be just as devastating for FSIA. As a preoccupation of Justice Breyer’s, this argument soaked up a fair amount of the Court’s time. The consensus is that opening officials to suit would allow litigants to undermine the intent of the FSIA without actually violating it. In Ya’alon’s case, instead of suing the Ministry of Defense, a lawyer with his wits about him would simply name Ya’alon, the former head of army intelligence, and the suit would survive. “What you are saying,” Breyer concluded, “is that FSIA is only good against a bad lawyer.”

Hedging, counsel for the plaintiffs reminded the Court that jurisdiction is not the only hurdle between a foreign official and liability. Once a plaintiff establishes jurisdiction, there are other age-old immunity doctrines that shield foreign officials from suit. There is the head of state doctrine, for instance, which protects current and former leaders from prosecution and civil liability, or the doctrine of diplomatic immunity, a similar, if more controversial, safeguard for diplomats and their staff. But there is no small difference between immunity from suit and immunity from liability. To have the former without the latter is to have comfort without convenience; it is, so to speak, the difference between putting up and showing up.

The Supreme Court is thus left to choose between two seemingly impossible outcomes. Extend sovereign immunity to foreign officials and the Torture Victim Protection Act is gutted, along with U.S. credibility in the human rights community. Expose them to suit and make hash of one of the core objectives of the Foreign Sovereign Immunity Act—saving key allies the expense and embarrassment of defending national security decisions in US courts. To the extent possible, courts generally try to read conflicting statutes in a way that gives effect to both. But even with so much hanging in the balance, coexistence between the TVPA and the FSIA appears impossible. Unimpressed and evidently undecided, the justices took the case under advisement.

Sam Singer is a 2009 graduate of Emory Law School and a Staff Law Clerk for the US Court of Appeals for the Seventh Circuit. His commentaries on law and politics have appeared in various publications, including The Beachwood Reporter and Culturekiosque.com. He has also reported and written articles for The Chicago Tribune and Market News International.

Are we living in the post-moral age?

Rafi Eitan, an Israeli elder statesman and former intelligence officer is perhaps best known for having led the Mossad operation that captured Adolf Eichmann, architect of the Holocaust, and brought him back to face trial and execution in Israel in 1962.

In an interview with Haaretz this week, Eitan summed up the Zeitgeist in which we live — the Israelification of the Western world which unfolded after 9/11:

… when there is a war on terror you conduct it without principles. You simply fight it.

President Bush, with his Manichaean view of the world, wanted to paint his war on terror in quasi-moral terms. President Obama has distilled it to its unprincipled essence.

The arc that has led from twisted morality to a rarefied amorality reached its completion point this week when the Obama administration made its determination that the authors of the former administration’s torture policies had done no more than make an error of judgment.

Newsweek reports:

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said: The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

Where does Obama stand?

“I’m 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.”

Terrorism — even if this administration thinks the term is passé — remains the only reality. Obama’s cynical mastery rests in his ability to sustain the terror zeitgeist without using the word.

Principles? They’re a distraction — a preoccupation and an indulgence for those of us little folks who do not daily wrestle with the moral ambiguity of governance.

White House ‘deeply disappointed’ after British court upholds the law. Judge says MI5 operates ‘culture of suppression’

The story of Binyam Mohamed is probably one of the most under-reported stories of the war on terrorism — it has still only partially been told. If, as the former Guantanamo prisoner alleges, he had his genitals sliced with a scalpel after being captured by the US, then the defenders of so-called “harsh interrogation techniques” should finally be rendered mute and duly shamed.

The Daily Mail said:

By any measure, the treatment meted out to Binyam Mohamed was medieval in its barbarity.

Shackled in total blackness in the CIA’s ‘dark prison’ in Kabul, he was forced to listen to ear-splitting music 24 hours a day for a month.

In Morocco he was hung from walls and ceilings and repeatedly beaten, his penis and chest were sliced with a scalpel and hot, stinging liquid poured into the open wounds.

‘They cut all over my private parts,’ he wrote in his diary. ‘One of them said it would be better just to cut it off, as I would only breed terrorists.’

The Obama administration, which has consistently acted like putty in the hands of the intelligence services, regards the exposure of criminal actions by those services as a national security threat. In truth it is the US-sanctioned use of torture that poses a much more serious threat to this nation.

As The Guardian noted, the ruling by three of Britain’s most senior judges, “shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.”

This is how democracy is supposed to work. Both in Britain and the US, all too often the phrase “national security” really means protection of the power-holders. A judiciary that is truly independent cannot allow any government to protect its own interests at the expense of the nation it serves.

Afua Hirsch describes in greater legal detail how the British government disregarded 400 years of legal precedence in its effort to suppress revelations about the use of torture.

The Guardian reported:

MI5 faced an unprecedented and damaging crisis tonight after one of the country’s most senior judges found that the Security Service had failed to respect human rights, deliberately misled parliament, and had a “culture of suppression” that undermined government assurances about its conduct.

The condemnation, by Lord Neuberger, the master of the rolls, was drafted shortly before the foreign secretary, David Miliband, lost his long legal battle to suppress a seven-paragraph court document showing that MI5 officers were involved in the ill-treatment of a British resident, Binyam Mohamed.

Amid mounting calls for an independent inquiry into the affair, three of the country’s most senior judges – Lord Judge, the lord chief justice, Sir Anthony May, president of the Queen’s Bench Division, and Lord Neuberger – disclosed evidence of MI5’s complicity in Mohamed’s torture and unlawful interrogation by the US.

So severe were Neuberger’s criticisms of MI5 that the government’s leading lawyer in the case, Jonathan Sumption QC, privately wrote to the court asking him to reconsider his draft judgment before it was handed down.

The judges agreed but Sumption’s letter, which refers to Neuberger’s original comments, was made public after lawyers for Mohamed and media organisations, including the Guardian, intervened.

They argued that Neuberger had privately agreed with Sumption to remove his fierce criticisms without giving then the chance to contest the move.

At The Atlantic, Marc Ambinder said:

The White House hinted today that it may have to alter long-standing intelligence sharing arrangements with the United Kingdom after the release of information provided to the Brits about the confinement and interrogation of one of its citizens, Binyam Mohamed.

“The United States government made its strongly held views known throughout this process. We appreciate that the UK Government stood by the principle of protecting foreign government intelligence in its court filings,” said Ben LaBolt, a White House spokesperson. “We’re deeply disappointed with the court’s judgment today, because we shared this information in confidence and with certain expectations.”

LaBolt’s statement hinted that the US might reevaluate the type of information it shares with British counterterrorism and intelligence agencies.

“As we warned, the court’s judgment will complicate the confidentiality of our intelligence-sharing relationship with the UK, and it will have to factor into our decision-making going forward. This just means that we need to redouble our efforts to work through this challenge, because the UK remains a key partner in our collective efforts to suppress terrorism and other threats to our national security.”

With respect to LaBolt, I think this is a bluff. The US shares more raw data and polished intel product with Britain on a daily basis than any other country in the world, and that’s not going to change. Perhaps the US will be more careful in certain documents that might find their way into the UK court system — but it’s hard to imagine that intelligence cooperation between the two countries will really be damaged by today’s revelation.

‘When Guantanamo walked in the door, Rahm walked out’

In her New Yorker piece on Attorney General Eric Holder and the Khalid Sheikh Mohammed trial, Jane Mayer describes White House Chief of Staff, Rahm Emanuel’s role in blocking the investigation of torture by the CIA:

Emanuel viewed many of the legal problems that [Greg] Craig [Obama’s first White House counsel] and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”