"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.
"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04
The reports on torture in the gulag couldn't be kept under wraps forever. Lately, there has been an increasing stream of reports relating to the subject appearing in the mainstream press. Even the Scalia Five on the Supreme Court weren't willing to go along with the Bush administration's dictatorial proposal that they could just arrest anyone, American citizen or not, and hold them indefinitely without any access to judicial due process.
Detainee Hearings Bring New Details and Disputes by Carol D. Leonnig and Julie Tate Washington Post 12/11/04. Because of the Supreme Court's ruling, the administration is holding military hearings to determine whether prisoners held at Guantanamo should be considered prisoners of war. This still does not meet the minimal Geneva Convention requirements that an independent tribunal review the status of such captives.
So, after three years of gruesome torture in captives in Guantanamo, the Pentagon is producing claims of the involvement of various ones of them in terrorist activities. The article provides, among other things, a reminder that not all of them people being held and tortured at Guantanamo were seized on the battleground in Afghanistan:
"I can't believe these things can happen, that they can come and take your husband away at night and, without reason or evidence, destroy your family, ruin your dreams," Nadja Dizdarevic, the wife of a Bosnian Muslim seized by U.S. authorities in January 2002, wrote to the federal court. Her husband, Boudella al Hajj, was taken into custody on the steps of a Sarajevo court that had found him not guilty of terrorism charges.
"Why? Why are they doing this to us?" Dizdarevic asked. ...
Al Hajj, a Bosnian Muslim clergyman originally from Algeria, was arrested in October 2001 based on an FBI tip that he and others were plotting to bomb the U.S. Embassy in Sarajevo. The Bosnian Supreme Court ruled in January 2002 that there was no credible evidence that he and five others had hatched such a plot. The day they were released, they were immediately taken into custody by U.S. authorities. ...
Dizdarevic wonders when her husband will meet the U.S. standard for release. The members of al Hajj's panel, citing classified evidence to continue holding him, said, however, that another review board should consider his exoneration before a Bosnian court the next time his case is reviewed, next year.
"After three years of fight, without any reason, they declare that my husband is an enemy combatant, a man that was so good that he would never in his life wish anyone any harm," she wrote. "What am I supposed to tell my children, who at every phone ring, every door bell, ask 'Is this our father?' "
Phil Carter has posted some additional thoughts and recent links on the legal issues surrounding torture:
Tainted by Torture II, Intel Dump blog, 12/03/04
I earlier discussed his Slate article, on which he expands in that post. He talks more here about his idea that if illegal torture is going to be used in the military, it should have to be explicitly authorized by the president and the secretary of defense. His idea is explicitly dependent on recognizing that such action is illegal. He calls for such a procedurein the case where "the need was so great that U.S. officials were willing to break the law — an act of civil disobedience premised on the legal doctrine of 'public necessity'."
I'm not convinced it's workable in practice. It might well make a difference in practice if George Bush and Donald Rumsfeld had to sign a paper saying explicitly, for instance, that they authorized taking prisoner so-and-so, stripping him naked and allowing dogs to rip chunks out of his flesh. This would be a higher level of accountability than vague directions from that level that can be disavowed as the excesses of lower-level soldiers and officers if they are discovered.
And, of course, having the president authorize it specially could not make it a legal act for anyone if the specific act violated American and/or international law. Everyone involved would have to be willing to make the same act of "civil disobedience" and be willing to be held to account legally for it.
Carter spells out the problematic nature of the current practice of torture in the gulag very well. What's being done now is not the action-movie case where the nuclear bomb is about to go off in 30 minutes in the middle of Manhatten and the hero has to beat the information out of the bad guy to save everyone. Instead, suspects are being held, in at least some documented cases on the very thinnest of evidence, and tortured into confessing that their interrogators want them to confess. As Carter says:
[T]he Pentagon has devised two systems of rules for tribunals that allow the use of evidence procured via torture to be used. One of the great safeguards of the modern American criminal system has been the exclusionary rule. If you assume that cops want convictions, it works very well, because it penalizes them in court for any misconduct in the field. Both the Combatant Status Review Tribunals and the military commissions allow the use of evidence gotten through torture and other nefarious means. The evidentiary standard is far looser than that found in federal court, in order to get around significant problems such as hearsay and authentication that might pose a problem in combat. The Pentagon's procedural rules for the commissions allow evidence to be admitted if it "would have probative value to a reasonable person." But the result of this loose evidence standard — and lack of an exclusionary rule — is that it also allows the product of torture to be introduced as evidence.
I should note that Carter uses what I would see as a fairly narrow definition of "torture." He doesn't consider the treatment of prisoners documented so far at Guantanamo as torture, though he does consider them illegal acts of coercion. So at least for most non-specialists, it would be a semantic difference.
He also points out the very practical problem with torture is that it produces bad information and therefore causes problems with holding even real criminals accountable. Defendents like Jose Padillo, who seems to be strictly small-time, and the senior Al Qaeda operative Khalid Sheikh Mohammed, both may be impossible to convict in US courts because of their conditions of detention and the interrogation methods used on them.
Guantanamo Abuse Detailed in FBI Letter by Richard Serrano Los Angeles Times 12/07/04
FBI agents observed U.S. soldiers mistreating terrorism suspects at Guantanamo Bay, Cuba, as early as 2002, but the Pentagon has done little to investigate, a letter from a senior agency counter-terrorism official said.
Agents visiting the U.S. naval base prison said they saw military and civilian interrogators using "highly aggressive" techniques to exact information from detainees captured on battlefields in Afghanistan.
In one incident, a soldier reportedly bent a prisoner's thumbs back and "grabbed his genitals." In another, an FBI agent saw a detainee "gagged with duct tape" for refusing to stop chanting from the Koran.
All three reported incidents were described in a letter this summer from Thomas Harrington, deputy assistant director of the FBI's counter-terrorism division, to Maj. Gen. Donald J. Ryder, head of the Army's Criminal Investigation Command. Harrington said that the FBI had detailed its concerns with Pentagon officials after its agents witnessed the questionable treatment.
Harrington also told Ryder in the July 14 letter that an FBI agent reported one interrogator had treated detainees so harshly that they often ended up "curling into a fetal position on the floor and crying in pain." ...
However, the Pentagon said Monday that the incidents were under investigation as part of a larger internal inquiry into allegations of prisoner abuse at Guantanamo Bay. The overall investigation has substantiated at least 10 incidents of minor misconduct since 2003. They include a female interrogator climbing on top of a detainee's lap and a guard striking a detainee. ...
The FBI complaints to the Pentagon represent some of the earliest allegations of prisoner abuse, coming a year before revelations of detainee mistreatment at the U.S.-run Abu Ghraib prison in Iraq. The FBI's charges have surfaced as criminal trials and investigations center on misconduct at military-run holding facilities. [my emphasis]
The bad publicity about torture and the increasing reports of atrocities in Iraq have evidently led the Pentagon to publicize the actions that it is taking against some violators. But it's not a good sign in the article quoted above that the Pentagon's response to the specific allegations of abuse by ponting out prosecutions of what seem in the context to be trivial offenses: an interrogator sitting in a prisoner's lap and one striking a prisoner. This was evidently meant to dismiss the more serious allegations by claiming than even much more minor offenses are scrupulously prosecuted. For anyone who has followed the news of torture in the gulag, this is a pretty thin pretense. This kind of obvoius dissembling is the single biggest thing that wrecked the public credibility of military leaders in Vietnam. And it has already gone very far in doing so in the Iraq War.
Troops' Murder Case in Iraq Detailed by Edmund Sanders Los Angeles Times 12/07/04. This article gives a sobering discription of the action alleged by the prosecutors in one case. What I found especially disturbing about this were indications that unit discipline was becoming loose enough that offenses like the ones alleged were becoming common. As always in these cases, the individual soldiers being accused are legally innocent until proven guilty.
So far at least, there have been no allegations that American soldiers are being tortured to confess in cases like this. But no one should kid themselves. If the practice of torture in the gulag isn't stopped, it will spread far beyond those confines. And US soldiers and civilians will eventually fall victim to it, which may well have happened already in a case like Pedillo's.
Un ex marine estadounidense testifica que su unidad mató a más de 30 civiles desarmados en Irak El Mundo (Spain) 08.12.2004
Killed Unarmed Iraqis, Ex-Marine Tells Hearing by Marina Jiménez Globe and Mail (Toronto) 12/08/04
A former U.S. marine testified yesterday that the U.S. military "murdered" civilians in Iraq and that he pumped 500 rounds of bullets into vehicles that failed to stop at military checkpoints.
Jimmy Massey, a former marine staff sergeant, told an immigration and refugee board hearing in Toronto that he and his fellow marines shot and killed more than 30 unarmed men, women and children and even shot a young Iraqi who got out of his car with his arms in the air.
Interrogators objected to tactics by Charlie Savage Boston Globe 12/08/04
The Bush administration's aggressive techniques for extracting information from detainees captured in Afghanistan and Iraq sparked sharp dissent among some experienced interrogators in the military and the FBI, according to government documents released by the American Civil Liberties Union yesterday.
The documents, obtained under the Freedom of Information Act, indicate that some prisoners in Iraq continued to be physically abused even after details of abuse at Baghdad's Abu Ghraib prison became public in the spring of this year.
Among other incidents, the documents indicate that two months after the Abu Ghraib scandal, two Defense Intelligence Agency interrogators saw members of a detention task force ''punch a prisoner in the face to the point that the individual needed medical attention" while questioning him. They told a task force supervisor, but were ''threatened," ordered not to talk about it, and had their photos of the beaten prisoner confiscated, according to an agency report. ...
I wonder if the Pentagon is prosecuting those interrogators for "striking a detainee."
The numerous documents released yesterday include several memos and e-mails from Defense Intelligence Agency interrogators in Iraq written around the time of the Abu Ghraib scandal media coverage. One interrogator disavowed responsibility for alleged abuse he had witnessed but did not take part in, even though his name appeared on a report from the interrogation session.
The interrogator recounted a raid in May in which soldiers seized the 28-year-old wife of a suspected insurgent, who was nursing a 6-month-old child, and held her for two days as ''leverage" to lure her husband into custody. There were also several incidents in which officials allegedly ''slapped around" detainees during questioning by a group of guards and interrogators called Task Force 62-6.
Speaing of the practices spreading even to American soldiers:
Whitewashing torture? by David DeBatto Salon 12/08/04
On June 15, 2003, Sgt. Frank "Greg" Ford, a counterintelligence agent in the California National Guard's 223rd Military Intelligence (M.I.) Battalion stationed in Samarra, Iraq, told his commanding officer, Capt. Victor Artiga, that he had witnessed five incidents of torture and abuse of Iraqi detainees at his base, and requested a formal investigation. Thirty-six hours later, Ford, a 49-year-old with over 30 years of military service in the Coast Guard, Army and Navy, was ordered by U.S. Army medical personnel to lie down on a gurney, was then strapped down, loaded onto a military plane and medevac'd to a military medical center outside the country.
Although no "medevac" order appears to have been written, in violation of Army policy, Ford was clearly shipped out because of a diagnosis that he was suffering from combat stress. After Ford raised the torture allegations, Artiga immediately said Ford was "delusional" and ordered a psychiatric examination, according to Ford. But that examination, carried out by an Army psychiatrist, diagnosed him as "completely normal."
A witness, Sgt. 1st Class Michael Marciello, claims that Artiga became enraged when he read the initial medical report finding nothing wrong with Ford and intimidated the psychiatrist into changing it. According to Marciello, Artiga angrily told the psychiatrist that it was a "C.I. [counterintelligence] or M.I. matter" and insisted that she had to change her report and get Ford out of Iraq.
Who knew what Abu Ghraib? by Derrick Jackson Boston Globe 12/08/04
The highest up the chain of command that Pohl has so far allowed defense attorneys to haul into court is Brigadier General Janis Karpinski, the former commander at Abu Ghraib. She will testify at the trial of one of the other accused soldiers, Javal Davis.
Ironically, Karpinski, who was suspended after the shocking photos from Abu Ghraib were seen worldwide, says she is the fall gal for her higher-ups. In an interview in August with the BBC, she said she was left out of meetings discussing interrogations at the prison and that senior officials took measures to make sure she was kept in the dark about any abuse. In a September interview with the Associated Press, Karpinski fingered Sanchez, Major General Geoffrey Miller, the former deputy commander for detention operations, and Major General Barbara Fast, the former head of military intelligence in Iraq.
"It was a conspiracy all along," Karpinski told the AP. "Sanchez and Miller and likely Fast had fallback plans and people to blame if anything came unglued." ...
With these methods now showing every sign of going back to almost Sept. 11 itself, and with such heated debate between agencies, the idea that senior officials had no clue is increasingly implausible, from Miller and Sanchez all the way up to Rumsfeld and attorney general nominee Alberto Gonzales, who said prisoners were outside the "quaint" and "obsolete" parts of the Geneva Conventions. It may or may not be a conspiracy, but there is a whole lot of conniving going on. It is becoming inconceivable that the grunts did all this abuse without a wink and a nod by the generals. [my emphasis]
"Implausible," indeed. (Note that comes in the final paragraph of the story.)
When thieves fall out ... Or, in this case, torturers.