Or How I Learned to Stop Worrying

Khalid Sheikh Mohammed appeared before a Combatant Status Review Tribunal (CSRT) at Guantanamo Bay last Saturday. In the transcripts released by the Department of Defense, the headline was that Mohammed confessed that he was responsible for the 9/11 attacks. This of course is not surprising or new since he had already taken responsibility in a June (or April depending on which version of the story you like to believe) 2002 interview with an Al Jazeera reporter.

The Washington Post reports about Mohammed’s 9/11 involvement from "A to Z":

Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11, 2001, attacks, confessed to his Guantanamo Bay captors that he planned and funded that al-Qaeda operation and said he was involved in more than two dozen other terrorist acts around the world, according to documents released by the Pentagon yesterday.

In his first public statement since his capture in 2003, Mohammed declared himself an enemy of the United States and claimed some responsibility for many of the major terrorist attacks on U.S. and allied targets for more than a decade. He told a Combatant Status Review Tribunal at the U.S. detention facility at Guantanamo Bay, Cuba, that he is at war with America and that the deaths of innocent people are an unfortunate reality of that conflict.

"I was responsible for the 9/11 operation, from A to Z," Mohammed told a panel of military officers through a personal representative, who read off a list of 31 terrorist acts that were either carried out or planned but not executed. According to transcripts Defense Department officials released last night, Mohammed later spoke in broken English and Arabic, saying: "For sure, I’m American enemies."

This news of Mohammed’s confession in front of the CSRT will land with a thud. It is not new news. His claims to being involved in a large number of other real and would-be attacks have a tinge of hyperbole to them. However, what he said in a long and rambling statement during the CSRT will likely be the real story from this sorry episode. According to the transcript, Mohammad declared in halting and fragmented English [I’ve included the bulk of the statement below. It is long but is worth reading]:

What I wrote here, is not I’m making myself hero, when I said I was responsible for this or that. But your are military man. You know very well there are language for any war. So, there are, we are when I admitting these things I’m not saying I’m not did it. I did it but this the language of any war. If America they want to invade Iraq they will not send for Saddam roses or kisses they send for a bombardment. This is the best way if I want. If I’m fighting for anybody admin to them I’m American enemies. For sure, I’m American enemies.

…

I consider myself, for what you are doing, a religious thing as you consider us fundamentalist. So, we derive from religious leading that we consider we and George Washington doing same thing. As consider George Washington as hero. Muslims many of them are considering Usama bin Laden. He is doing same thing. He is just fighting. He needs his independence. Even we think that, or not me only. Many Muslims, that al Qaeda or Taliban they are doing. They have been oppressed by America. This is the feeling of the prophet. So when we say we are enemy combatant, that right. We are.

…

But I’m asking you again to be fair with many Detainees which are not enemy combatant. Because many of them have been unjustly arrested. Many, not one or two or three. Cause the definition you which wrote even from my view it is not fair. Because if I was in the first Jihad times Russia. So I have to be Russian enemy. But America supported me in this because I’m their alliances when I was fighting Russia. Same job I’m doing. I’m fighting. I was fighting there Russia now I’m fighting America. So, many people who been in Afghanistan never live [leave]. Afghanistan stay in but they not share Taliban or al Qaeda. They been Russian time and they cannot go back to their home with their corrupted government. They stayed there and when America invaded Afghanistan parliament. They had been arrest. They never have been with Taliban or the others. So many people consider them as enemy but they are not. Because definitions are very wide definition so people they came after October 2002, 2001. When America invaded Afghanistan, they just arrive in Afghanistan cause the [they]  hear there enemy. They don’t know what it means al Qaeda or Usama bin Laden or Taliban. They don’t care about these things. They heard they were enemy in Afghanistan they just arrived. As they heard first time Russian invade Afghanistan. They arrive they fought when back than they came. They don’t know what’s going on and Taliban they been head of government. You consider me even Taliban even the president of whole government. Many people they join Taliban because they are the government. When Karzai they came they join Karzai when come they join whatever public they don’t know what is going on. So, many Taliban fight even the be fighters because they just because public. The government is Taliban then until now CIA don’t have exactly definition well who is Taliban, who is al Qaeda. Your Tribunal now are discussing he is enemy or not and that is one of your jobs. So this is why you find many Afghanis people, Pakistanis people even, they don’t know what going on they just hear they are fighting and they help Muslim in Afghanistan. Then what. There are some infidels which they came here and they have to help them. Bu then there weren’t any intend to do anything against America. Taliban themselves between Taliban they said Afghanistan which they never again against 9/11 operation. The rejection between senior of Taliban of what al Qaeda are doing. Many of Taliban rejected what they are doing. Even many Taliban, they not agree about why we are in Afghanistan. Some of them they have been with us. Taliban never in their life at all before America invade them the intend to do anything against America. They never been with al Qaeda.

…

They way of the war, you know, very well, any country waging war against their enemy the language of the war are killing. If man and woman they be together as a marriage that is up to the kids, children. But if you and me, two nations, will be together in war the others are victims. This is the way of the language. You know 40 million people were killed in World War One. Ten million kill in World War. You know that two million four hundred thousand be killed in the Korean War. So this language of the war. Any people who, when Usama bin Laden say I’m waging war because such such reason, now he declared it. But when you said I’m terrorist, I think it is deceiving peoples.

…

It would be widely definite that many people are oppressed. Because war, for sure, there will be victims. When I said I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids. Never Islam are, give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exception of rule when you are killing people in Iraq. You said we have to do it. We don’t like Saddam. But this is the way to deal with Saddam. Same thing you are saying. Same language you use, I use. When you are invading two-thirds of Mexican, you call your war manifest destiny. It up to you to call it what you want. But other side are calling you oppressors. If now George Washington. If now we were living in the Revolutionary War and George Washington he being arrested through Britain. For sure he, they would consider him enemy combatant. But American they consider him hero. This right the any Revolutionary War will be as George Washington or Britain. So we are considered American Army bases which we have from seventies in Iraq. Also, in the Saudi Arabian, Kuwait, Qatar, and Bahrain. This is kind of invasion, but I’m not here to convince you. Is not or not but mostly speech is ask you to be fair with people. I’m don’t have anything to say that I’m not enemy. This is why the language of any war in the world is killing. I mean the language of the war is victims. I don’t like to kill people. I feel very sorry they been killed kids in 9/11. What I will do? This is the language. Sometime I want to make great awakening between American to stop foreign policy in our land. I know American people are torturing us from seventies. [REDACTED] I know they talking about human rights. And I know it is against American Constitution, against American laws. But they said every law, they have exceptions, this is your bad luck you been part of the exception of our laws. They got have something to convince me but we are doing same language.

…

Killing is prohibited in all what you call the people of the book, Jews, Judaism, Christianity, and Islam. You know the Ten Commandments very well. The Ten Commandments are shared between all of us. We all are serving one God. Then now [Thou not] kill you know it very well. But war language also we have language for the war. You have to kill. But you have to care if unintentionally or intentionally target if I have if I’m not at the Pentagon, I consider it okay. If I target now when we target in USA we choose them military target, economical, and political. So, war central victims mostly means economical target. So if now American they know UBL. He is in this house they don’t care about his kids and his. They will just bombard it. They will kill all of them and they did it. They kill wife of Dr. Ayman Zawahiri and his two daughters and his son in one bombardment. They receive a report that is his house be. He had not been there. They killed them. They arrested my kids intentionally. They are kids. They been arrested for four months they had been abused. So, for me I have patience. I know I’m not talk about what’s come to me. The American have human right. So, enemy combatant itself, it flexible word. So I think God knows that many who been arrested, they been unjustly arrested.

Mohammed’s statement demonstrates why the CSRT kangaroo courts are embarrassingly flawed. His statement demonstrates why due process is important, especially when the crimes being alleged are so heinous. Due process does not only protect the defendent’s rights, it also is a path to an objective finding of the facts. Without it we are left with dueling stories, nothing more.

Mohammed asked for witnesses, he was denied. The government called no witnesses, but instead simply read off a litany of charges. Mohammed then launched into an unchallenged and lengthy statement - one that would have benefited from cross examination.

Instead, Mohammed’s statement, unchallenged, has redefined the case against him. His statement is given further weight by the inherent unfairness of the "process" at Guantanamo Bay.

Mohammed achieved three goals. First, he declared himself a resistance soldier fighting an invader. He framed the war as one between the oppressor and the oppressed. He declared himself a revolutionary and compared bin Laden to George Washington. He pointedly did not say that he is fighting to impose Islamic law on the West. Instead, he railed against American foreign policy against his land and suggested that his goal was to cause an "awakening" about the ills of this policy. This argument does, and will have, broad appeal across the entire Muslim world and much of the Third World. Mr. Bush’s hollow argument about defending against an Islamist takeover of western civilization may rally his base here, but Mohammed knows exactly what rallies the base over there. If Mr. Bush wants to combat the spread of extremism, he needs to understand the power of the argument Mohammed put forward.

Second, Mohammed argued that he was using the "language of war". According to the "language of war", during war civilians suffer. He cited Mr. Bush’s arguments about the Iraq war as an example of civilians dying in the cause of a greater goal. He justified the attack on the World Trade Center by claiming it as an economic target, and therefore within the "language of war". He likened his alleged torture and the killing of Iraqi civilians to the terrorist attacks on 9/11 by claiming an exception to the rules of war, allowed as part of the "language of war". The argument is hauntingly similar to George W Bush’s justifications for "bending" the rules in the service of justice. It is an argument that Zbigniew Brzezinski called "Manichean delusions" in his recent testimony in front of the Senate Foreign Relations Committee.

Third, Mohammed drew a distinction between those who are fighting a defensive war to protect their land, like the Afghanis and the Taliban (and the Iraqis), and those who are taking the fight to the invader, al Qaeda. He then appealed to the Americans to spare the non-al Qaeda held at Guantanamo. By arguing that he was a real soldier and most Afghanis are merely caught up in a conflict in their backyard, he both gains sympathy from the population, and at the same time is able to portray himself as fighting for their interests. Any attack on America, viewed through this lens, is seen now as a means of fighting the invader or oppressor. This is al Qaeda’s version of the Doctrine of Pre-emption and of force projection. It has some appeal in the Muslim world just as Bush’s doctrine has some appeal in the United States.

Khalid Sheikh Mohammed, given his opportunity, made his points well. He made his points unchallenged because of the flawed CSRT process. The Bush administration, in a misguided attempt to deny Mohammed his rights, instead gave him a major platform to spread the very propaganda the Administration claims they are trying to silence by their draconian rules. That propaganda will earn Mohammed and al Qaeda more sympathizers and more followers in the Muslim world. Instead of a trial exposing Mohammed’s guilt in an atrocity that killed nearly 3000 people, we are left with charges backed by "classified" information and a statement proudly justifying his acts.

We have fallen a long way since Nuremburg and the eloquence of Justice Jackson. By denying Khalid Sheikh Mohammed due process, Mr. Bush has denied us, the rest of the world, justice.

Mubarak Hussain is almost home. Last spring, when the U.S. government released the names of the detainees being held at Guantanamo Bay, it became apparent that at least some of the detainees were not what Mr. Bush and Mr. Cheney claimed they were. At the time, I questioned whether the information they had on the Bangladeshi detainees was accurate. It seemed to me that if the U.S. government did not even bother to check that they had the correct information on Mubarak Hussain, one of the Bangladeshi detainees, that their claims that this man was a "terrorist" who was so dangerous that he had to be locked away without charge probably amounted to a load of bullshit.

It turns out that after five years of holding Mubarak Hussain without charge, the U.S. government flew him back to Bangladesh without even a hint of an apology:

U.S. authorities repatriated a Bangladeshi man on Sunday after years of imprisonment in Guantanamo Bay, Cuba, a police official said.

"We are interrogating him," Tahera Banu, an official of the airport police station in Bangladesh’s capital Dhaka, told The Associated Press by telephone.

The 28-year old man’s name, according to the Pentagon, is "Hashem, Mubarak Hussain Bin Abul," Banu said without giving further details.

Police did not immediately allow reporters or the man’s relatives to talk to him.

According to the Pentagon, Mubarak, born on January 1, 1978, is from "Baria" Bangladesh, which is actually Brahmanbaria. The area is 80 kilometers (50 miles) east of the capital, Dhaka.

Today Mubarak Hussain is in police custody in Dhaka. The police in Bangladesh will no doubt torture the man a little to give Mr. Bush his money’s worth. He is being held on a three day remand for "questioning":

Mobarak went to Pakistan for studies in 1998 and taught in a madrasa in Karachi after completion of two-year study.

In 2001, Pakistan intelligence arrested him and suspecting his link with al-Qaeda, handed over to the US authorities who later took him to the Guantanamo Bay prison.

Mobarak need to be quizzed to learn his ‘true’ objective for going to Pakistan, if he was a member of any banned organisation in the country and if he had any criminal records, said Sub-Inspector Masud of Airport police in the remand prayer.

Police also revealed that Mobarak went to Kabul in Afghanistan to visit his friend Rafiq, whom he met while teaching at a Karachi madrasa.

Then he went to Jalalabad in Afghanistan from where Pakistan intelligence arrested him and kept detained for 32 weeks.

The Pakistan authorities later handed him over to the US authorities, who interrogated him at different camps in Pakistan and lastly sent to the Guantanamo Bay prison, Masud said in the police report placed before the court.

Mobarak’s father Abul Hashem reiterated his claim that his son is innocent. "If they [US authorities] had found the slightest clue about his militancy link, they would not have released him," he told The Daily Star. [Emphasis added by me.]

This is your "War on Terror". While Osama bin Laden is still on the loose, we are rounding up hapless people around the globe so Mr. Bush can look like he is "winning" the war. If anyone is still in doubt about the quality of justice at Guantanamo Bay, feel free to peruse the Combatant Status Review Tribunal transcripts. The tribunals make Kangaroo Courts look good.

Mubarak Hussain’s ordeal at Guantanamo Bay has finally come to an end. I am sure Mr. Hussain has learned a lot about Mr. Bush’s freedom agenda in his five wasted years. Mr. Bush is spreading democracy all over the globe one destroyed life at a time.

Detainee 546 at Guantanamo Bay is an Afghan farmer named Muhibullah. He was picked up by Afghan warlords and likely sold to the American forces in Afghanistan. Muhibullah is a Pashtu speaking farmer who is poor and illiterate. He is believed to be about 35 years old, although he is not really sure how old he is.

After being picked up by Afghan warlords he was put in prison and tortured. He was then handed over to the Americans and subsequently ended up at Guantanamo Bay. He does not allege that he was tortured in Guantanamo Bay. He was taken by the Afghan warlords because they were rounding up all Pashtu speaking people they could find to later sell to the Americans.

To give you an idea of the caliber of detainees the Bush Administration is holding at Guantanamo Bay, I will list for you the charges against him from his appearance, with the assistance of an interpreter, at the Combatant Status Review Tribunal [p. 64]:

• He is accused of being a night security guard between 1998 and 1999 for Syed Sha Aga, a Taliban commander in Kabul.
• He is accused of being a local tribal mediator for water disputes between November 2000 and February 2001, and between September 2001 and November 2001. He is not accused of being a fighter during this time.
• He is accused of attending a dinner with Kamal, a local Northern Alliance Commander under warlord Ismail Khan, the legendary Mujahideen commander.
• He is accused of acquiring an AK-47 from a man named Abdul Ghafar.
• He is accused of surrendering to the Northern Alliance in November 2001.

He was also earlier accused of being the Acting Governor of Shibarghan Province. The New York Times gives us a flavor of how his defense was handled:

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The rest of his Tribunal appearance also followed a similar script.

Muhibullah admitted to working as a night security guard in 1998 and 1999. In his defense he stated that he was not fighting anyone and most villagers had to perform these duties for the Government. He also pointed out the obvious fact that at the time Afghanistan was not at war with the United States.

He admitted to being a local dispute mediator in the village and again pointed out the obvious fact that he was not a combatant. In fact, at the time he was picked up he was not aware who was fighting whom - he did not know if the Americans were fighting the Northern Alliance or the Taliban.

He admitted to attending a dinner at Kamal’s house. He said he had gone to Kamal’s house at his relatives’ advice to seek assistance in safely getting back to his village. Instead, Kamal took all his money and belongings and threw him in jail the next morning. He was later tortured and then finally handed over to the Americans. He pointed out the obvious fact that he is accused of having dinner with his captor and having dinner with an American ally does not seem particularly sinister.

He claimed to not know anyone named Abdul Ghafar and categorically denied receiving an AK-47 from a man he does not know. Here is the exchange between Muhibullah and the Tribunal President [p. 67]:

4. The Detainee acquired a rifle from a Mujahideen fighter, Abdul Ghafar.

Muhibullah: I do not know this person. I do not know Abdul Ghafar. I do not know if he is working with the Americans or against the American Government. I did not have any rifle or any type of weapon from this person. If the Tribunal can explain this question to me in detail - who is this person, where or when - then I might know something. But with that point, I totally disagree because I cannot remember that person.

Tribunal President: That is fine. We have no further evidence.

Finally, Muhibullah explained that he had not surrendered to anyone. Surrendering suggests that he was fighting, and no one had accused him of being a fighter. He also pointed out that he, even by the American military’s version of events, had gone to Kamal’s house and had dinner with him. Kamal took him prisoner the next morning against his wishes. He explained that that does not amount to surrender.

After hearing Muhibullah’s defense, the Tribunal decided that Muhibullah should not be released from Guantanamo Bay. Ultimately the tribunal decided that there was more reason to hold him than to release him. The factors that favored continued detention, according to the Tribunal, were [p. 82]:

• His association with the Taliban:
  • He is alleged to have surrendered to the forces of Ismail Khan.
  • He was a night watchman in 1998 and 1999.
• Training:
  • He received AK-47 and RPG training from his uncle. [Not mentioned at his hearing.]
• Intent:
  • He admitted to carrying an AK-47 while on duty as a night watchman.

I doubt if any respectable legal system in the world would find grounds to hold this man. However, the Bush Administration and its kangaroo courts at Guantanamo Bay have found cause to hold this poor man.

One has to wonder, if this is the level of detainees at Guantanamo Bay, how successful the Bush Administration has been in actually apprehending real al Qaeda terrorists.

 [Cross posted at Bloggers Against Torture]

According to Human Rights Watch, the Bush Administration has operated a secret prison near Kabul, Afghanistan since 2002. The secret prison is affectionately known as "The Dark Prison". It has served as the drop off point for detainees captured in Afghanistan, Pakistan and the Middle East. Detainees are introduced to the art of torture here before being shipped off to other secret CIA torture stations or to Guantanamo Bay. The Dark Prison is the halfway house of the torture world. They practice the kinder gentler version of torture at The Dark Prison, leaving the more esoteric forms of torture to the more permanent CIA black sites.

The authorized kinder gentler torture techniques practiced by the CIA include (in increasing levels of discomfort):

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

These authorized techniques combine with creative freelance techniques to give The Dark Prison its reputation. Human Rights Watch has documented reports from detainees who have been guests there:

The detainees said U.S. interrogators slapped or punched them during interrogations. They described being held in complete darkness for weeks on end, shackled to rings bolted into the walls of their cells, with loud music or other sounds played continuously. Some detainees said they were shackled in a manner that made it impossible to lie down or sleep, with restraints that caused their hands and wrists to swell up or bruise. The detainees said they were deprived of food for days at a time, and given only filthy water to drink.  

…

It was pitch black no lights on in the rooms for most of the time…. They hung me up. I was allowed a few hours of sleep on the second day, then hung up again, this time for two days. My legs had swollen. My wrists and hands had gone numb…. There was loud music, [Eminem’s] “Slim Shady” and Dr. Dre for 20 days…. [Then] they changed the sounds to horrible ghost laughter and Halloween sounds. [At one point, I was] chained to the rails for a fortnight…. The CIA worked on people, including me, day and night…. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off.

On the upside, no detainee claimed to have been kept at the facility for longer than six weeks. The other benefit of being in The Dark Prison is that it is convenient to the airport:

Most of the detainees said they were arrested in other countries in Asia and the Middle East, and then flown to Afghanistan. Detainees who arrived by airplane said they were driven about five minutes from a landing field to the prison. Afghan guards told some of them that the facility was located near Kabul. Some detainees who were kept at the facility were transferred at various times to and from another secret facility near Kabul. The detainees said they were later transferred to the main U.S. military detention facility near Bagram, where many other Guantánamo detainees say they were initially held.  

The downside of course is that if you are unlucky to be an inmate at The Dark Prison, you are likely at the beginning of a long journey that will be punctuated by torture and more torture at other facilities around the world. You will either be "disappeared" or find yourself in Guantanamo Bay.

There is some speculation that The Dark Prison may have been closed in late 2004 in favor of the better-equipped facility in Bagram, Afghanistan. Nevertheless, this facility remains as another dark spot in the tortured legacy of George W Bush and his Administration.

When the Bush Administration has been relegated to the dustbin of history, we will look back at facilities like The Dark Prison and Abu Ghraib with shame and disgust. We will look back at this time in history as the period when America misplaced its humanity.

[Cross posted at Bloggers Against Torture]

Two months after the United Nations Committee Against Torture released its report criticizing the Bush’s Administration’s use of torture, the United Nations Human Rights Committee followed up with its own report. The committee criticized the United States for its continued practice of torture and of using extraordinary rendition to send detainees to countries that practice torture. The Committee also criticized the Bush Administration’s holding of persons secretly and without charge.

According to the Committee report:

The Committee was concerned by credible and uncontested information that the State party had detained people secretly for months and years on end. It was also concerned that for a period of time the State party had authorized interrogation techniques such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, and 20-hour interrogations. While the Committee welcomed the assurance that those techniques were no longer authorized under the present Army Field Manual, the United States should ensure that the Manual only permitted techniques consistent with the prohibition contained in article 7 of the Covenant, and that those techniques were binding on all agencies of government and others acting for them. The Committee also noted with concern shortcomings in relation to the independence, impartiality and effectiveness of investigations conducted into allegations of torture and cruel, inhuman or degrading treatment or punishment in detention facilities in Guantanamo, Afghanistan, Iraq, and other overseas locations, and into alleged cases of suspicious death in custody in those locations.

The Committee was further concerned that the State party appeared to have adopted a policy to send, or to assist in sending, suspected terrorists to third countries for purposes of detention and interrogation, without the appropriate safeguards to prevent treatment prohibited by the Covenant.

Just as it did when confronted with the report from the UN Committee Against Torture, the Bush Administration defended itself by stating that the Human Rights Committee and the International Covenant on Civil and Political Rights, whose implementation the Committee is charged with monitoring, do not apply to the War on Terror. Specifically the Bush Administration argued that the Covenant only applied when the State Party (United States) committed torture on its own territory. In other words, if the United States tortures a detainee on foreign soil, the Committee does not have jurisdiction. The Bush Administration’s position was presented by Matthew Waxman, Principal Deputy Assistant Secretary, Department of State:

The United States believed that the law of armed conflict – international humanitarian law – provided the proper legal framework regarding some of the questions raised by the Committee, Mr. Waxman noted. The United States was aware of the views of members of the Committee regarding the extraterritorial application of the Covenant, including the Committee’s General Comment No. 31. The United States, however, had a principled and long-held view that the Covenant applied only to a State party’s territory. Article 2, paragraph 1, of the Covenant stated explicitly that States parties were required to respect and ensure the rights in the Covenant to all individuals "within its territory and subject to its jurisdiction". That plain meaning of the treaty language was also confirmed by the Covenant’s own negotiating record. It was in light of its principled and longstanding view on the scope of the application of United States obligations under the Covenant, that the United States had not included in its formal response to the Committee’s written questions information regarding activities outside of its territory or governed by the law of armed conflict.

The Committee however was not persuaded by the Bush Administration’s argument.

Having lost the moral high ground and having butchered the definition of torture, the Bush Administration is now left with making mind-bending arguments that defy common sense. Torture is torture only if it is practiced in the United States. Torture is not torture when practiced by the United States on foreign soil. This is the basis for the existence of Guantanamo Bay and an unknown number of CIA secret prisons across the globe. The Bush Administration has been getting a lot of bad legal advice. The only person who might perhaps have been impressed by these arguments is the late George Orwell.

 [Cross posted at Bloggers Against Torture]

On April 29, 2003 Waleed bin Attash was arrested by police in Karachi, Pakistan. He is suspected of planning the attack on the USS Cole. He has since been "disappeared" into the secret detention centers of the Central Intelligence Agency. Six months earlier, his 17-year-old brother, Hassan bin Attash was arrested in Pakistan and handed over to American forces. Hassan is currently being held at Guantanamo Bay.

According to his lawyer, Hassan was initially sent to a U.S. run "Dark Prison" in Kabul, Afghanistan for about a week. He was then flown to Jordan on an extraordinary rendition flight. While in Jordan he was severely tortured  by Jordan’s General Intelligence Directorate, or GID. He was interrogated about his brother, Waleed bin Attash. According to his lawyer, Mark Falkoff, one favorite torture technique of the GID was to "beat the soles of his feet and then placed them in salt water". Ultimately, he signed "whatever was asked of him."

Hassan was moved from Jordanian custody back to the "Dark Prison" in Kabul on January 8, 2004. He was moved again to a prison in Bagram before ultimately arriving in Guantanamo Bay in May 2004. He has been there ever since. To keep it all in the family his 70-year-old father was picked up and detained in Saudi Arabia under U.S. orders.

Of Hassan, his lawyer had this to say:

“I couldn’t tell you whether he was guilty or innocent,” Falkoff said. “I have no clue because we haven’t been able to talk to him about anything other than the abuse he suffered, and the judge in his case refused to require the government to justify his detention. I don’t know what evidence the government claims to have against him or even the charges.”

Regardless of the his innocence or guilt, which apparently the U.S. government does not need to prove or pretend to prove, Hassan has been subjected to the grand tour of the U.S. torture archipelago. It now appears that his 70-year-old father has been subjected to the same. All of this because, it seems, of being related to an alleged al Qaeda operative. It begs the question why Osama bin Laden’s brothers and family are not subjected to the same treatment. Instead the Bush Administration flew them out of the U.S. immediately after September 11th without even questioning them. Could it be that torture is only doled out to those who do not have money and influence?

It looks like we have learned a thing or two from The Sopranos. 

 [Cross posted at Bloggers Against Torture]

"Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. " - Justice John Paul Stevens writing the majority opinion of the United States Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et. al.

The United States Supreme Court today rejected the Bush Administration’s contention that it could ignore the United States Constitution and laws and set up kangaroo courts in which to try detainees held at Guantanamo Bay. The Court rejected the argument that the Congress had stripped its jurisdiction by enacting the Detainee Treatment Act of 2005. The Court also held that the Executive Branch must obey the law of war, the Geneva Conventions (including Common Article 3), and the UCMJ. In short, the Court held that the President is not above the law, even in a time of war.

By holding that the President must obey the laws, Justice Stevens took a giant bite out of the Unitary Executive theory that the Bush Administration loves and cherishes so much.  In rather short order, the legal arguments put forth by John Yoo justifying torture now begin to crumble. The Court’s holding that Common Article 3 of the Geneva Conventions binds the actions of the Executive nullifies the argument used by this Administration to exclude parts of Article 3 from the latest Army Field Manual on interrogation. A house of cards built on the fantasy of an unchecked ruler has crumbled today upon colliding with the United States Constitution.

The Bush Administration’s arguments for Executive overreach have never had firm legal grounding. Their grounding has been based on fear and fanaticism. The debate has always been between fanaticism and reason. Today reason won a temporary reprieve. But the fanatics are still in charge of the Ship of State. The Administration’s principal premise, whether it is to justify torture or to justify indefinite detention, has been that the people we are holding are bad, evil, horrible. Therefore, anything we do to them is justified. Every overreaching act of the Bush Administration has been predicated on that fundamental premise.

The Bush Administration tortures a prisoner because it assumes a priori that the prisoner is a terrorist. Therefore, to extract valuable intelligence that might save lives the Administration must torture the terrorist. The bush Administration detains a prisoner indefinitely because it assumes a priori that the prisoner is a terrorist. Therefore, to protect the safety of all Americans the Administration must detain the terrorist indefinitely.

This underlying premise that all we hold are terrorists has emotional appeal to supporters of the Bush Administration and many Americans who are terrified of an unseen and unpredictable enemy. The Administration knows this and never misses an opportunity to perpetuate this notion:

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”  - Vice President Dick Cheney, June 2005

The Administration’s supporters duly follow this line that everyone at Guantanamo Bay and everyone the United States tortures is a terrorist. However, there is plenty of evidence that this is not the case. Many prisoners at Guantanamo Bay were sold to the Americans by enterprising Pakistanis and Afghanis for hefty fees. A large number of these detainees were later found to be innocent and some have been released. There are others at Guantanamo, like Abdur Sayed Rahman and Muhibullah, who are being held there for reasons that defy sanity:

But there are many more, it seems, who sound like Abdur Sayed Rahman, a self-described Pakistani villager who says he was arrested at his modest home in January 2002, flown off to Afghanistan and later accused of being the deputy foreign minister of that country’s deposed Taliban regime.

"I am only a chicken farmer in Pakistan," he protested to American military officers at Guantánamo. "My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

…

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The Bush Administration not only detains people without charge who are not terrorists they have also kidnapped and tortured people who are not terrorists. By not following the laws or international Conventions, the Bush Administration has denied itself the tools to determine who is truly a terrorist and who is being unjustly held and tortured. But, based on their principal premise, the distinction between guilt and innocence need not be made.

Having lost the legal fight it remains to be seen if the Bush Administration will be able to stoke the flames of fear enough to convince the American people to look the other way as it continues to torture and detain "terrorists". The Supreme Court has spoken; will the President listen?

Three detainees at Guantanamo Bay committed suicide yesterday. I had cited a tongue-in-cheek post a few weeks ago from Jeremiah Bullfrog about "suicide torturees". Little did I know at the time that the jailers at Guantanamo Bay had also read Jeremiah’s post. However, they apparently missed the satire completely.

Responding to the suicides Rear Admiral Harry Harris of the Joint Task Force - Guantanamo said:

They are smart. They are creative. They are committed. They have no regard for human life, neither ours nor their own. I believe this was not an act of desperation, but rather an act of asymmetrical warfare waged against us.

Have we lost our minds? Let me be very clear: Suicide is not an act of war. There is a big difference between "suicide" and "suicide bomber"; the latter involves killing other people. I can only hope this is some very clever psy-ops tactic to get al Qaeda to commit spontaneous suicide. Otherwise, we are in a world of trouble in the War on Terror. If the enemy is able to attack us by committing suicide, I am afraid we have no countermeasures.

The three detainees who committed suicide were being held without charges by the United States. They were not given Prisoner of War status and thereby denied the protections of the Geneva Conventions. They were very likely tortured. They were kept outside the jurisdiction of the US courts. There is absolutely no reason to believe that these men were guilty of anything. The only "evidence" we have is the word of the Bush Administration. I am afraid "trust us" no longer is an adequate explanation for gross violations of Human Rights.

One of the reasons the Geneva Conventions exist is for the protection of the party that is holding the prisoners. In addition to protecting the prisoners from abuse, the Geneva Conventions offer the necessary transparency so that the jailers cannot be accused of torture or other human rights violations. I am afraid by denying these prisoners the Geneva protections the United States cannot escape the charge that it tortures. If it did not torture, there was no reason not to accord these prisoners Geneva protections.

It should be no surprise that already these suicides are being called into question by the Saudis and others. The Bush Administration has no defense to these charges. The War on Terror is largely about hearts and minds. Guess who is losing that battle? Admiral Harris has more to worry about than whether suicides constitute acts of war. His statements are the latest indication that the United States violates laws of war and human rights at Guantanamo. The United States apparently does not even understand what constitutes "war" or it has broadened the definition of "war". If the US definition of "war" has been broadened, in conjunction with the narrowing of the definition of "torture", it points quite definitively to the Bush Administration’s lack of respect for human rights and international norms.

It used to be that the United States enjoyed the moral authority to point out bad behavior by other countries. Those days are over. The United States now is on the receiving end of such charges. Any claim that the United States now makes about defending the human rights of people in Iraq or other places will be considered a joke. This is a tragedy for us as Americans and for the rest of the world. We are moving from the age of reason to one where might is right. Shame on the Bush Administration and shame on us for allowing it to happen.

According to several news organizations Osama bin Laden has released an audiotape on a website claiming that Zacarias Moussaoui was not part of the 9/11 plot. According to a transcript of the tape Osama bin Laden also for the first time takes direct responsibility for the September 11 terrorist attacks. I am no bin Laden analyst and I do not play one on TV but I will go out on a limb here and postulate that the alleged bin Laden tape is not authentic. Much like the alleged Zawahiri letter to Zarqawi it draws too convenient a line between characters in this terror drama that do not necessarily play in the same sandbox.

The tape begins by playing defense lawyer to Moussaoui:

I begin by talking about the honorable brother Zacarias Moussaoui. The truth is that he has no connection whatsoever with the events of September 11th, and I am certain of what I say, because I was responsible for entrusting the 19 brothers – Allah have mercy upon them – with those raids, and I did not assign brother Zacarias to be with them on that mission. [Emphasis added by me.]

This is a stunning admission by bin Laden if the tape is authentic. Not only is bin Laden claiming to have ordered the attacks, he is also claiming that he had direct operational control of the attacks in assigning who would carry out the mission.

Bin Laden the defense lawyer then wades into the weeds:

And among the things that confirm this fact is that the participants in September 11th were two groups: pilots and support teams for each pilot in order to control the aircraft. And since Zacarias Moussaoui was learning how to fly, it follows that he wasn’t component #20 from the teams which helped to control the airplanes, as your government previously claimed, and your government knows this fact with certainty. And if Moussaoui was studying aviation to become a pilot of one of the planes, then let him tell us the names of those assigned to help him control the plane. But he won’t be able to tell us their names, for a simple reason: that in fact they don’t exist. This is from one perspective, and from another perspective, the brother Moussaoui was arrested two weeks before the events, and had he known anything – however little – about the September 11th group, we would have told the brother Commander Mohamed Atta and his brothers – Allah have mercy upon them – to leave America immediately before their affair was exposed. And with this it becomes clear to even the novice investigator – not to mention the seasoned one – that there is no connection between him and the events of September 11th. [Emphasis added by me.]

Bin Laden, uncharacteristically, is making a plea for Moussaoui by trying to claim Moussaoui was ignorant. Here bin Laden makes an utterly illogical statement that after Moussaoui was arrested that he could have informed Atta. That simply makes no sense and the one making the argument appears to be quite unsophisticated.

Bin Laden then raises the other hot topic of the day, Guantanamo Bay:

And then I call to memory my brothers the prisoners in Guantanamo – may Allah free them all – and I state the fact, about which I also am certain, that all the prisoners of Guantanamo, who were captured in 2001 and the first half of 2002 and who number in the hundreds, have no connection whatsoever to the events of September 11th, and even stranger is that many of them have no connection with al-Qaida in the first place, and even more amazing is that some of them oppose al-Qaida’s methodology of calling for war with America. [Emphasis added by me.]

Up to this point al Qaeda has famously claimed responsibility for seemingly disconnected acts of terrorism. Here, by contrast, bin Laden is claiming that the Guantanamo prisoners oppose al Qaeda.

Then comes this remarkable passage:

Bush and his administration are aware of this fact, but they avoid mentioning it, for reasons not hidden to the discerning. Among these reasons is that it is necessary to create justifications for the massive spending of hundreds of billions on the Defense Department and other agencies in their war against the Mujahideen. My mentioning of these facts isn’t out of hope that Bush and his party will treat our brothers fairly in their cases, because that is something no rational person expects, but rather it is meant to expose the oppression, injustice and arbitrariness of your administration in using force and the reactions that result from that. This is from one perspective, and from another perspective, perhaps there will one day come from the Americans someone who desires justice and fairness, and that is the path to security and safety, if you are interested in it. [Emphasis added by me.]

Here bin Laden is complaining, of all things, about the American Defense budget. He then makes a plea for American’s to choose a different kind of leader.

Either bin Laden has thrown up the white flag of surrender here or this tape smells very much like the disputed Zawahiri letter to Zarqawi. If this is in fact bin Laden, it is quite clear from the tone and substance of the tape that bin Laden has lost control of al Qaeda and has been relegated to making pleas on behalf of third-rate al Qaeda wannabes. If this tape is authentic, then we have likely crippled bin Laden’s operation.

However, given the resurgence of the Taliban in Afghanistan and the American difficulties in Iraq, the tone of this message seems hopelessly out of place. Why would bin Laden remove the ambiguity of his role in 9/11 just to defend Moussaoui? The payoff for him is not worth the loss of mystique. Most Americans have already concluded that Moussaoui is a crackpot who was a terrorist wannabe. There was no need for bin Laden to reiterate that point - doing so makes him look naive and desperate. Perhaps he is desperate, and if so, that is a good thing that all civilized people should take some satisfaction in knowing. But, more likely, this tape is a fabrication judging by its tone and its content. Our intelligence agencies have not yet confirmed its authenticity. I look forward to hearing the judgment of our intelligence analysts and I look forward to being wrong on this one.

"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. " - Article I, paragraph 1 of the Convention Against Torture ratified by the United States on April 18, 1988.

The United Nations Committee Against Torture released its State Report for the United States on May 18, 2006. In an 11-page indictment of the United States the Committee laid bare America’s loss of moral authority in the world. The report was a product of the 36th session of the Committee Against Torture. Of the 7 countries reviewed during the session only the United States provided a written defense of its torture policies to the Committee. More so than the Committee report the written response of the United States demonstrates that the United States has been engaged in a systematic campaign of torture since the attacks of September 11, 2001. The report and the American response shed light on a shameful chapter in American history.

 The American defense of torture is based on four pillars of argument:

1. The United States defines torture differently than the United Nations Convention Against Torture.
2. The Convention Against Torture does not apply during times of armed conflict.
3. The Convention Against Torture only applies to the United States when it commits torture on the territory of the United States.
4. Kidnapping and disappearance perpetrated by the United States do not constitute torture.

 The Committee report indicts the United States on the following grounds:

• The United States should ensure that psychological torture be defined according to the Convention and not according to the U.S. contention that only "prolonged mental harm" constitutes torture. The definition of torture in the Convention clearly states that torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."
• The Committee cites articles 1 and 16 of the Convention that states that the Convention Against Torture applies at all times and not only during peacetime as the United States has contended. The United States had made the absurd assertion that only the "law of armed conflict" should apply during wars and that applying the Convention Against Torture would "result in an overlap of the different treaties which would undermine the objective of eradicating torture".
• The Committee clarified to the United States that the Convention applies to all territories (including Guantanamo Bay) under the control of the United States, and not only on acts of torture committed by the United States within the borders of the United States. The United States has used this absurd geographical limitation as a basis for perpetrating torture on detainees at Guantanamo Bay and elsewhere around the world.
• The Committee chastised the United States for not registering some prisoners and hiding them from international observers. This tactic effectively removes all safeguards against torture.
• The Committee noted that secret detention facilities run by the United States without any international oversight violate the Convention Against Torture. The United States response to the Committee’s inquiry was a "no comment" and is a tacit admission of guilt by the United States.
• The Committee pointed out the obvious fact lost upon the United States that enforced disappearances of persons by the United States is a violation of the Convention Against Torture.
• The Committee informed the United States that extraordinary rendition of persons to countries known to commit torture puts the United States in violation of the Convention Against Torture. This clever sleight of hand by the United States does not absolve it of its responsibilities under the Convention.
• The Committee noted that the indefinite detention of persons at Guantanamo Bay and elsewhere is a violation of the Convention Against Torture. The Committee recommended that the Guantanamo Bay detention facility be closed to bring the United States into compliance with the Convention.
• The Committee pointed out that techniques such as "waterboarding", use of dogs and "short shackling" that have led to deaths are a violation of the Convention Against Torture. The United States had argued rather bizarrely that cruel and inhuman punishment is not necessarily torture.

The United States has come a long way from the Clinton days when our biggest moral dilemma was whether or not fallatio constituted sex. The fact that the United States finds itself in the untenable position of arguing that it does not torture on tortured definitions of the word "torture" and geographical jurisdiction of the Convention should give all citizens pause. Our Government is essentially arguing that torturing someone on foreign soil is not torture. Our Government is arguing that the word "torture" can be defined so that most torture (like beating a man until he dies) can be construed as not being "torture". Our Government is arguing that kidnapping someone so that they disappear from the face of this planet is not torture because the person is now a non-person and no one can hear his or her screams. Our Government is arguing that if a bear shits in the woods and no one is there to see it, the bear did not in fact shit in the woods. Our Government is arguing that we can only torture someone if we are at peace with him or her. If we declare war on someone we are free to stick baseball bats up their asses to our hearts’ content and be safe in the delusion that we are not torturing them.

Our Government has lost its collective mind when it comes to torture. Is it any wonder that we are losing hearts and minds in the War on Terror? By our condoning of torture, by our tortured defense of torture, by our complete lack of humanity we are now viewed in the world as a rogue state. This must end.

For centuries the United States has been a beacon of hope for people fleeing torture and persecution. For centuries the wretched of the earth have pointed to the United States and said, "there, that is where there is hope; that is where there is justice." For centuries people have come to our shores with wounds emotional and physical and we have given them shelter and given them solace. We cannot be the great country we have been, the shining example to the World of human dignity and human achievement, if we allow our Government to torture and destroy all that this country has stood for.

This must end. This must end now. We, the people of the United States of America, must say in one voice to our Government that We do not torture. You will not torture, not in Our name. This must end now.