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‘Terror’ and Everybody’s Rights

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In the NY Review of Books Jed Rakoff reviews an important book by Owen Fiss:

A War Like No Other: The Constitution in a Time of Terror
by Owen Fiss, edited and with a foreword by Trevor Sutton<
New Press, 330 pp., $27.95

Say the word “war” and the rule of law often implodes, with courts frequently employing sophistry to avoid any interference with governmental conduct. To take an obvious example, during World War II the Roosevelt administration interned thousands of American citizens of Japanese descent solely on the basis of their ancestry, and the Supreme Court, in an opinion by Justice Hugo Black, upheld this patently unconstitutional confinement by simply repeating the mantra that, in time of war, total deference (unchecked and unbalanced) is due the military.

During the same war, the US troops fighting Nazi racism were, without judicial interference, segregated by color. Even the 1940 draft law, which stated that “in the selection and training of men under this Act,…there shall be no discrimination against any person on account of race or color,” was held by the Second Circuit Court of Appeals not to prohibit separate draft quotas for whites and blacks, since “the Army executives are to decide the Army’s needs.”

The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.

One of the voices decrying this judicial failure is that of Owen Fiss, a very distinguished Yale law professor, who over the past dozen years has written one essay after another analyzing, or one might say exposing, the shallowness of the judicial response to executive excesses committed in the name of national security. That Fiss would undertake this task was by no means inevitable. Now in his late seventies, he had focused much of his academic career (which had made him one of the most-cited legal scholars in the country) on such subjects as civil procedure, freedom of speech, and equal protection of the law. But his palpable disagreement with the way federal courts were, in the name of an uncertain and shifting war, largely avoiding judicial scrutiny of everything from manifest torture to far-reaching surveillance led him, beginning in 2003, to write the ten essays now collected by his former student Trevor Sutton in A War Like No Other.

A few of the most prominent examples that Fiss discusses will illustrate his concern. First, there is the CIA’s use of torture following September 11. One may assume for the sake of argument that torture may sometimes be effective in extracting information that cannot be obtained by ordinary interrogation—although most studies suggest that its main effect is to force the victim to tell his torturer what he believes the torturer wants to hear. Indeed, historically, one of torture’s most prominent uses has been to coerce false confessions, as in the “show trials” of the Stalinist period.

In any case, torture, regardless of any perceived benefits, has been condemned from the earliest days of the American republic. Most scholars agree that it was revulsion at the English kings’ use of torture that led to enactment of the Fifth Amendment’s prohibition against compelled self-incrimination and also played a part in the enactment of the Eighth Amendment’s prohibition of cruel and unusual punishment. Evidence of Americans’ continuing abhorrence of torture can also be found in numerous current statutes: for example, torturing a victim before murdering him is one of the “aggravating factors” that, under current federal law, warrants the death penalty.

Most directly applicable, in 1988 the United States signed and in 1994 ratified the United Nations Convention Against Torture, which thereby became a binding part of our law. Article 1 of the convention defines torture to encompass, among other things, “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.” Article 2 requires each signatory state to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (emphasis added). Article 2 also provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.”

Although the language in Article 2 italicized above might seem to permit a government agent operating abroad to make use of torture, in 1994, Congress, as part of the legislation implementing the convention, enacted section 2340A of the Federal Criminal Code, which, among other things, prohibits any US agent operating even “outside the United States” from inflicting torture on any person within his custody or physical control. Yet following September 11, CIA agents working abroad subjected suspected terrorists to waterboarding—a technique derived from the Spanish Inquisition in which water is forced into the nose and mouth of the subject so as to induce the perception of suffocating or drowning.

Waterboarding would thus clearly appear to be torture. Nonetheless, legal memoranda prepared by senior Justice Department officials shortly after September 11 purported to justify its use by arguing that the convention’s definition of torture covered only “the worst forms of cruel, inhuman, or degrading treatment or punishment,” and that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” As for mental suffering, it must, according to the memoranda, be of a kind that leads to psychological harm lasting “for months or even years” to constitute torture.

Since, however, it is up to the judiciary to make the final determination of what a law means, one might have imagined that once the CIA’s waterboarding was made public, a court would then have decided whether or not it constituted torture under section 2340A. But this did not occur, in part because the government also took the position that the CIA’s waterboarding, as an instrument in the war on terror, was exempt from judicial review.

After some uncertainty, this exemption from judicial review of any decision to waterboard became the Bush administration’s position at the highest levels and was effectively reiterated in 2005, after Congress passed the Detainee Treatment Act, which, among other things, provided that “no person in the custody or under the effective control of the Department of Defense” shall be subjected to certain specified “technique[s] of interrogation” that included waterboarding. In addition to maintaining that the legislation did not apply to the CIA, President Bush, in signing the bill, asserted his power to interpret it “consistent with the constitutional limitations on judicial power”—a clear suggestion that his interpretations were exempt from judicial review. In effect he was saying, “if we decide to waterboard, no court can say us nay.”

As it happened, this supposed exemption was never put to the test as far as CIAwaterboarding was concerned. Rather, the issue was resolved politically. Specifically, President Obama, soon after taking office in 2009, banned the use of waterboarding even by the CIA, and Congress effectively codified this order in 2015. (Donald Trump has however announced his support for waterboarding.) Despite rumors, moreover, there have been no verified reports of CIA waterboarding since 2003. So at the moment, at least, there is nothing for a court to decide when it comes to waterboarding by US agents.

Regretfully, however, President Obama’s ban on waterboarding did not put an end to US involvement in the use of torture as part of the war on terror. Instead, within the past decade the US has repeatedly made use of the device known as extraordinary rendition, by which suspected terrorists detained by the US are turned over to police authorities in other countries that regularly employ torture as an interrogation technique.

Fiss, who views this practice, along with waterboarding, as “one of the most egregious of all abuses associated with the War on Terror,” gives as an example the case of Maher Arar, a dual citizen of Canada and Syria, who was thought by US authorities to be a supporter of al-Qaeda. While returning to Canada from a vacation in Tunisia, Arar had to change planes at JFK in New York. He was immediately taken into custody by US agents, who held him for twelve days and then, after their interrogation apparently did not lead to the desired results, shipped him to Syria, where (he alleges) they knew he would be tortured—as he was.

The Second Circuit Court of Appeals, in a full court decision filed in late 2009, held, by a vote of 7–4, that these facts did not constitute a legitimate legal claim. Similarly, in a case involving five former detainees who alleged that the CIA arranged for them to be flown to other countries so that they could be interrogated by torture, the Ninth Circuit Court of Appeals held in 2010, by a vote of 6–5, that the detainees’ lawsuit was barred by prohibitions against exposing state secrets.

Although the split votes in these cases suggest that judicial opinion is not uniform about whether extraordinary rendition is beyond judicial scrutiny, for the time being it remains a device by which US officials can effectively use the torture techniques of other countries to interrogate those suspected of aiding the war on terror. The majority view of the judiciary is not to interfere.

If the judiciary’s response to extraordinary rendition is an example of its hands-off approach to dubious practices associated with the war on terror, a different kind of judicial response, which might be described as “words without deeds,” is presented by another of Fiss’s examples, namely, detention without trial of persons alleged to be enemy combatants. . .

Continue reading. There’s more.

Written by LeisureGuy

11 September 2016 at 10:22 am

How many terrorists does the U.S. itself create? ISIS leader was held in Abu Ghraib prison

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When the U.S. uses a drone-fired missile to kill an entire wedding party, how do you think the surviving family members feel? I suppose in part the answer depends on how you feel about your own family members and how you would feel if a foreign power fired a missile into a group of them. But I think many would take it hard.

And how would feel about being imprisoned and tortured by soldiers from a foreign nation, and being humiliated in your own country? Or what would you feel if that happened to a relative or friend? Again, you might accept that such things happen, but I can easily imagine that some might carry a serious grudge.

Joshua Eaton reports in The Intercept:

In February 2004, U.S. troops brought a man named Ibrahim Awad Ibrahim al-Badry to Abu Ghraib in Iraq and assigned him serial number US9IZ-157911CI. The prison was about to become international news, but the prisoner would remain largely unknown for the next decade.

At the time the man was brought in, Maj. Gen. Antonio Taguba was finalizing his report on allegations of abuse at Abu Ghraib’s Hard Site — a prison building used to house detainees singled out for their alleged violence or their perceived intelligence value. Just weeks later, the first pictures of detainee abuse were published on CBS News and in the New Yorker.

Today, detainee US9IZ-157911CI is better known as Abu Bakr al-Baghdadi, the leader of the Islamic State. His presence at Abu Ghraib, a fact not previously made public, provides yet another possible key to the enigmatic leader’s biography and may shed new light on the role U.S. detention facilities played in the rise of the Islamic State.

Experts have long known that Baghdadi spent time in U.S. custody during the occupation of Iraq. Previous reports suggested he was at Camp Bucca, a sprawling detention facility in southern Iraq. But the U.S. Army confirmed toThe Intercept that Baghdadi spent most of his time in U.S. custody at the notorious Abu Ghraib.

Baghdadi’s detainee records don’t mention Abu Ghraib by name. But the internment serial number that U.S. forces issued when they processed him came from the infamous prison, according to Army spokesperson Troy A. Rolan Sr.

“Former detainee al-Baghdadi’s internment serial number sequence number begins with ‘157,’” Rolan said, describing the first three digits of the second half of Baghdadi’s serial number. “This number range was assigned at the Abu Ghraib theater internment facility.”

The details of Baghdadi’s biography have always been murky, and his time in U.S. custody is no exception. In June 2014, the Daily Beast reported that the United States held Baghdadi at Camp Bucca from 2005 to 2009, citing Army Col. Kenneth King, the camp’s former commanding officer. However, King backtracked after U.S. officials told ABC News that Baghdadi was out of U.S. custody by 2006.

Days later, the Pentagon confirmed that Baghdadi was only in U.S. custody for 10 months, from February to December 2004. The Department of Defense told the fact-checking website PunditFact in a statement that Baghdadi was held at Camp Bucca. “A Combined Review and Release Board recommended ‘unconditional release’ of this detainee and he was released from U.S. custody shortly thereafter. We have no record of him being held at any other time.”

In February 2015, the Army released Baghdadi’s detainee records to Business Insider, in response to a records request. They showed that . . .

Continue reading. There’s more worth reading.

Later in the article:

. . . In the occupation’s first few years, U.S. facilities like Abu Ghraib and Camp Bucca developed a reputation as “jihadi universities” where hard-line extremists indoctrinated and recruited less radical inmates. Analysts have long suspected that Baghdadi took full advantage of his time at Bucca to link up with the jihadis and former Iraqi military officials who would later fill out the Islamic State’s leadership.

In November 2014, the Soufan Group, a private intelligence firm, published a list of nine Islamic State leaders it said had been detained at Camp Bucca. The list included Baghdadi and Hajji Bakr, a former Iraqi military official who became head of the Islamic State’s military council and is widely reported to have spent time in Bucca. . .

Written by LeisureGuy

25 August 2016 at 2:43 pm

Uncovering the brutal truth about the British empire

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Nations, like any organization, can make horrible errors and do great wrong, and (like any organization) the most common response is to cover up the misdeeds and attack those who expose them. We see that playing out now, as described by Marc Parry in the Guardian:

Help us sue the British government for torture. That was the request Caroline Elkins, a Harvard historian, received in 2008. The idea was both legally improbable and professionally risky. Improbable because the case, then being assembled by human rights lawyers in London, would attempt to hold Britain accountable for atrocities perpetrated 50 years earlier, in pre-independence Kenya. Risky because investigating those misdeeds had already earned Elkins heaps of abuse.

Elkins had come to prominence in 2005 with a book that exhumed one of the nastiest chapters of British imperial history: the suppression of Kenya’s Mau Mau rebellion. Her study, Britain’s Gulag, chronicled how the British had battled this anticolonial uprising by confining some 1.5 million Kenyans to a network of detention camps and heavily patrolled villages. It was a tale of systematic violence and high-level cover-ups.

It was also an unconventional first book for a junior scholar. Elkins framed the story as a personal journey of discovery. Her prose seethed with outrage. Britain’s Gulag, titled Imperial Reckoning in the US, earned Elkins a great deal of attention and a Pulitzer prize. But the book polarised scholars. Some praised Elkins for breaking the “code of silence” that had squelched discussion of British imperial violence. Others branded her a self-aggrandising crusader whose overstated findings had relied on sloppy methods and dubious oral testimonies.

By 2008, Elkins’s job was on the line. Her case for tenure, once on the fast track, had been delayed in response to criticism of her work. To secure a permanent position, she needed to make progress on her second book. This would be an ambitious study of violence at the end of the British empire, one that would take her far beyond the controversy that had engulfed her Mau Mauwork.

That’s when the phone rang, pulling her back in. A London law firm was preparing to file a reparations claim on behalf of elderly Kenyans who had been tortured in detention camps during the Mau Mau revolt. Elkins’s research had made the suit possible. Now the lawyer running the case wanted her to sign on as an expert witness. Elkins was in the top-floor study of her home in Cambridge, Massachusetts, when the call came. She looked at the file boxes around her. “I was supposed to be working on this next book,” she says. “Keep my head down and be an academic. Don’t go out and be on the front page of the paper.”

She said yes. She wanted to rectify injustice. And she stood behind her work. “I was kind of like a dog with a bone,” she says. “I knew I was right.”

What she didn’t know was that the lawsuit would expose a secret: a vast colonial archive that had been hidden for half a century. The files within would be a reminder to historians of just how far a government would go to sanitise its past. And the story Elkins would tell about those papers would once again plunge her into controversy.


Nothing about Caroline Elkins suggests her as an obvious candidate for the role of Mau Mau avenger. Now 47, she grew up a lower-middle-class kid in New Jersey. Her mother was a schoolteacher; her father, a computer-supplies salesman. In high school, she worked at a pizza shop that was run by what she calls “low-level mob”. You still hear this background when she speaks. Foul-mouthed, fast-talking and hyperbolic, Elkins can sound more Central Jersey than Harvard Yard. She classifies fellow scholars as friends or enemies.

After high school, Princeton University recruited her to play soccer, and she considered a career in the sport. But an African history class put her on a different path. For her senior thesis, Elkins visited archives in London and Nairobi to study the shifting roles of women from Kenya’s largest ethnic group, the Kikuyu. She stumbled on to files about an all-female Mau Mau detention camp called Kamiti, kindling her curiosity.

The Mau Mau uprising had long fascinated scholars. It was an . . .

Continue reading.

Written by LeisureGuy

20 August 2016 at 9:20 am

Fractured Lands: How the Arab World Came Apart

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The NY Times has published a lengthy piece on the catastrophe of the conflicts that are tearing apart the Arab world. A convenient starting point is the disastrous decision by the U.S. to invade Iraq (because of the weapons of mass destruction that the Bush Administration assured us were there, despite much evidence to the contrary—the attitude seemed to be, “Let’s invade anyway. What’s the worst that could happen?”, and then we found out. This is quite directly the responsibility of George W. Bush and his key administration figures: Dick Cheney, Donald Rumsfeld, Condoleezza Rice, George Tenet, and others. They suffer no accountability for what they did, but the destruction they unleashed was vast and is still on-going.

The Times notes:

This is a story unlike any we have previously published. It is much longer than the typical New York Times Magazine feature story; in print, it occupies an entire issue. The product of some 18 months of reporting, it tells the story of the catastrophe that has fractured the Arab world since the invasion of Iraq 13 years ago, leading to the rise of ISIS and the global refugee crisis. The geography of this catastrophe is broad and its causes are many, but its consequences — war and uncertainty throughout the world — are familiar to us all. Scott Anderson’s story gives the reader a visceral sense of how it all unfolded, through the eyes of six characters in Egypt, Libya, Syria, Iraq and Iraqi Kurdistan. Accompanying Anderson’s text are 10 portfolios by the photographer Paolo Pellegrin, drawn from his extensive travels across the region over the last 14 years, as well as a landmark virtual-reality experience that embeds the viewer with the Iraqi fighting forces during the battle to retake Falluja.

It is unprecedented for us to focus so much energy and attention on a single story, and to ask our readers to do the same. We would not do so were we not convinced that what follows is one of the most clear-eyed, powerful and human explanations of what has gone wrong in this region that you will ever read.

– Jake Silverstein, Editor in Chief

It’s worth reading. Although the Arab world has long held internal tensions, it was the US invasion that released them and has resulted in so many deaths and so much destruction. And those who perpetrated the outrage: no accountability.

 

Written by LeisureGuy

11 August 2016 at 1:43 pm

Guantánamo Diary author cleared for release after 14 years of imprisonment with no charges ever filed

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Just a guy who had bad luck. The US government will not, of course, offer any compensation or apologies for torturing him and imprisoning him for 14 years. The US believes that it can do that sort of thing with impunity, though of course the US would mightily object if some country did that to US citizens—or maybe not. The US seems to care less and less about its citizens: look at how the US runs VA, at how many unarmed people are shot to death by police, at how citizens are no longer protected by the 4th Amendment against unreasonable searches and seizures (e.g., civil asset forfeiture).

Cora Currier reports in The Intercept:

An interagency review board has determined that Guantánamo detainee Mohamedou Ould Slahi poses no threat to the United States and has recommended that he be released, setting the bestselling author on the path to be reunited with his family.

Slahi was arrested in his native Mauritania in 2001, and was held and tortured in secret prisons in Afghanistan and Jordan before being secreted to Guantánamo, an odyssey he recounted in a memoir, Guantánamo Diary, which became a bestseller last year. He has been imprisoned for over 14 years without being charged with a crime.

In early June, Slahi made his case to the Periodic Review Board as part of a sort of parole process instituted by the Obama administration to evaluate the cases of the remaining men at Guantánamo to determine if they might be safely transferred to another country.

At that hearing, Slahi’s advocates, including his lawyer and two representatives from the military, described his plans to continue writing and to start a small business, and noted the strong network of family and other supporters who could help him. They spoke to his unusual language skills and warm relationship with his lawyers and even the guards assigned to him. The military representatives described him as “an advocate for peace” and stated they were “certain that Mohamedou’s intentions after Guantánamo are genuine, and that he possesses sound judgment, and that he is good for his word.” One former guard submitted a letter attesting that he “would be pleased to welcome [Slahi] into my home.” (In keeping with the general secrecy of proceedings at Guantánamo, Slahi was not allowed speak during the open portion of the review, and he declined to have his own statement from the closed session made public.)

In a document dated July 14 but released today, the board members noted Slahi’s “highly compliant behavior in detention,” “candid responses to the Board’s questions,” and “clear indications of a change in the detainee’s mindset.” They had also taken into consideration his “robust and realistic plan for the future.”

Slahi has admitted to traveling to Afghanistan in the early 1990s to fight with the mujahideen against the Soviet-backed government, and the government claims he helped recruit and facilitate the travel of al Qaeda fighters. In 2010, a federal judge found that he was not a member of al Qaeda when the U.S. picked him up; the judge ordered his release, but that casestalled on appeal.

The board’s recommendation on a detainee is just a first step. The secretary of defense must arrange for a country to receive him and notify Congress of the transfer. In Slahi’s case, the government of Mauritania has already indicated that it would be willing to take him back.

One of Slahi’s lawyers, Hina Shamsi of the American Civil Liberties Union, said they were pressing the Pentagon to arrange for his actual release as soon as possible, but the exact timing is uncertain.

“We will now work toward his quick release and return to the waiting arms of his loving family,” said Nancy Hollander, another of his lawyers, in a statement. “This is long overdue.”

Slahi’s mother and one of his brothers died while he was imprisoned, and his father died nearly three decades ago. But he has 10 other siblings and has described plans to “take care of his sisters.”

There are currently 76 men still held in Guantánamo. Including Slahi, 31 of them have been approved for release. . .

Continue reading.

Presumably he’s being released because he paid his debt to society? But that’s not it: he never did anything wrong.

Written by LeisureGuy

21 July 2016 at 2:31 pm

CIA Director Says Next President Could Order Agency to Torture and It Might Comply

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I’m sure the CIA would indeed comply: there’s no punishment at all for torturing people when the president orders it. That’s been well established under George W. Bush (the president who ordered that people be tortured) and Barack Obama (the succeeding president who made the decision that the torturers and those who ordered the torture would not be punished or even charged—indeed, quite a few received promotions, as did the CIA official who destroyed all the video evidence). I don’t see that there’s any “might” about it.

Here’s the article by Alex Emmons in The Intercept:

It is, of course, against the law for members of the government to torture people, and it’s quite explicit (as in the Convention Against Torture treaty that the US signed and ratified). That makes no difference. The precedent is that the US government can torture people and can block any legal action from the victims. That’s the takeaway, and that’s the direction the US has elected to go. And the GOP candidate for president has promised explicitly that he will inaugurate much more brutal torture programs, and his supporters seem to like it.

I think government torture is definitely a part of the US identity now.

Written by LeisureGuy

14 July 2016 at 11:58 am

Not snark: David Brooks wrote an interesting column.

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See what you think.

The previous post was written before I read Brooks’s column, but they seem to be on the same wave length.

BTW, it seems perfectly clear that David Brooks, like so many, has been following the James Fallows series on American Futures in his travels across America.

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