Archive for October, 2007

So farewell, then, to a Colonel named Morris, the old chief prosecutor of Guantánamo’s tainted Military Commissions, who resigned two weeks ago, and welcome, er, a Colonel named Morris, the Commission’s new chief prosecutor.

To be fair, this new Morris is actually a different man, as the photos show. The new Morris, Col. Lawrence J. “Larry” Morris, as opposed to the old incumbent, Air Force Col. Morris “Moe” Davis, is a veteran Army Colonel with a background in both military intelligence (useful for an administration lacking in intelligence) and legal defense cases (not useful at all for an administration that does not believe in defense lawyers).

Old Morris.

New Morris.

“Larry,” who currently runs the Army’s defense services for soldiers accused of crimes, will take over as soon as his old job comes to an end, and as soon as the chief prosecutor’s poisoned chalice has been polished by the Pentagon to make it look appealing. Given the career-suicidal pressures of the job, however, and its relatively fast turnover (“Larry” is the fourth chief prosecutor in as many years), I’d be looking out for an alternative career if I was a Colonel in any of the branches of the US military, and if any of my names was Morris.

For more on Guantánamo and the Military Commissions, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

Speaking to journalists last week, Navy Capt. Theodore Fessel Jr., the chief representative at Guantánamo for the Pentagon’s Office of Administrative Review of Detained Enemy Combatants (OARDEC), which oversees the tribunals and review boards convened to assess the detainees’ status, hinted that the authorities had “begun seeking new or previously overlooked evidence that may warrant new hearings after the process came under fire,” as the Associated Press described it.

Capt. Fessel, who ignored long-standing complaints that the tribunals and review boards are worthless because they rely on secret evidence, possibly obtained through torture, and because the detainees are not allowed representation by lawyers, was referring in particular to recent claims made by former insiders –- as reported in several articles here –- that the tribunals, mostly held in 2004-05, relied on weak and often “generic” evidence and were designed to rubber-stamp the detainees’ prior designation as “enemy combatants.”

“With all the outside eyes looking in at the process,” Fessel explained, “it’s forcing us to say, ‘OK, did we take everything into consideration when we did the Combatant Status Review Tribunals?’” Stating that, by reviewing cases, the military was “recognizing that some detainees may no longer pose a threat” –- and blithely ignoring the fact that 56 percent of the detainees have already been released for just such reasons –- Fessel attempted to justify his comments by citing the hypothetical example of “a detainee who belonged to a Taliban faction that has stopped fighting,” who “may no longer be a security risk,” and summed up the administration’s position as follows: “It’s an acknowledgment that if there is new evidence or a new thing to take into bearing, in the spirit of being an open and fair process, we have to take that into consideration.”

Kessel’s comments provoked outrage from Lt. Col. Stephen Abraham, the first insider to speak out in June. In an email to the Associated Press, he wrote, “Ultimately, conducting new CSRTs –- even discussing the possibility –- repudiates every prior assertion that the original CSRTs were valid acts. They are, in essence, both a hypocritical act as well as an act of moral cowardice.” Picking up on what astute readers will also have noticed in Kessel’s reference to “the spirit” of “an open and fair process” –- namely, an unconscious acknowledgment that the process was not actually either “open” or “fair” –- Abraham added, “The CSRTs were NOT fair. They were specifically designed to reach a result and, in the few instances where a contrary result was reached, pressure was exerted to change the decision, a new tribunal was selected,” or the decision was disregarded.

Photo © Todd Heisler/New York Times.

Since filing his affidavit in June, Lt. Col. Abraham has been feted by lawyers who have suggested that his damning analysis of the tribunals helped persuade the Supreme Court –- in a move that was so rare that it last took place 60 years ago –- to reverse a decision made in April, and to agree to hear the detainees’ cases over the coming months. Lawyers hope that the Supreme Court will decide, once and for all, that the detainees have the right to challenge the basis of their detention, and that crucial passages in last fall’s shameful Military Commissions Act, which stripped them of their habeas corpus rights, will be struck down.

Noticeably, however, Lt. Col. Abraham’s condemnation of the tribunal process was not acclaimed universally, and the Department of Justice in particular attempted to smear his account as “innuendo.” In an email exchange with me last week, Lt. Col. Abraham explained that the recent criticism of the tribunal process by an Army Major who took part in nearly 10% of the tribunals –- which has provoked this latest admission of backsliding by Capt. Fessel –- was personally satisfying. “Part of me feels vindicated by the revelations,” he wrote. “Of course, it can hardly be said now that I didn’t know what I was talking about.”

He then added a poignant footnote, which balanced his criticism of the administration with a regard for the extra-legal plight of the detainees: “But I am saddened by the fact that more detainees, about whom there is no evidence of involvement in terrorism, will likely die before something is done.”

Planning new tribunals, as Capt. Fessel, has suggested, would not only reveal the original process as a sham; it would also prolong an already intolerable situation, in which, as Lt. Col. Abraham correctly points out, men against whom no evidence of terrorist activity exists will lose more years of their lives –- and may even die in Guantánamo –- without ever having had the opportunity to challenge the basis of their detention in a manner that is either meaningful or legally acceptable. They should be resisted as yet another example of an administration that, having rashly jettisoned the existing legal system six years ago, remains fixated on patching up its brutal replacement, conceived in haste and fueled by arrogance and vengeance, which has been repeatedly revealed as unjust, immoral and inadequate.

For more on Guantánamo and the tribunals, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on the Huffington Post and Anti-war.com.

In a genuinely startling development in the US District Court for the District of Columbia, Judge Gladys Kessler has ruled that Mohammed Abdul Rahman, a Tunisian detainee at Guantánamo who was cleared for release after the first round of administrative reviews in 2006, “cannot be sent to Tunisia because he could suffer ‘irreparable harm’ that the US courts would be powerless to reverse,” as the Washington Post described it.

An economic migrant, who traveled to Pakistan from Italy, where he had been living, the 42-year old Tunisian, who told his Administrative Review Board in 2005 that his real name was actually Lufti bin Ali, said that he went to Pakistan for medical treatment and to find a wife. “I have told my story five hundred times,” he said. “I went to Pakistan for drugs. I was sick and I wanted to heal myself, so I went to Pakistan.” He also traveled, he said, “to get married and relax and to get out of what I was in.”

Denying a barrage of allegations about his purported involvement with terrorists and training camps, he stated that he was not involved with either the Algerian Armed Islamic Group (GIA) or the Tunisian Combat Group (TCG), and specifically denied allegations that he had participated in establishing the TCG, and was on its Advisory Council. He also denied an allegation that in Italy he had met Pakistanis from the ICI mosque (in Milan), who were attempting to recruit people to go to Pakistan and Afghanistan, denied visiting a Tunisian guest house in Afghanistan “operated by a Tunisian cell with possible ties to al-Qaeda,” and also stated that he had no knowledge of the Khaldan training camp, where, it was alleged, “a senior al-Qaeda lieutenant” identified him as having studied in 1998 or 1999.

He said that he only went to Afghanistan because the Pakistan government started a campaign against Arabs (and pointed out that he was, in fact, arrested on his return to Pakistan –- in Quetta, according to the Unclassified Summary of Evidence for his ARB), and retracted a confession, “admitted some time ago,” that he associated with “various amounts” of terrorists while in Jalalabad, saying, “I do not pose a threat. I am against terrorism … I am against the killing of innocent people … I live a normal life. I do not like problems. That’s it.”

What was particularly noticeable about his ARB hearing was that a whole new set of allegations had been added since his Combatant Status Review Tribunal the year before. In his CSRT hearing, it was only alleged that he “traveled to Afghanistan in 1998 and remained living in Afghanistan in 2001,” that he “stayed at an Algerian guest house on multiple occasions in Jalalabad,” that he “stayed at a guest house, which is associated with individuals who have trained at al-Qaeda camps,” and –- the allegation that he refuted in his ARB –- that he “associated with several terrorists,” whereas in his ARB “a senior al-Qaeda lieutenant” identified him as having trained at Khaldan, the Algerian guest house became a Tunisian guest house “possibly associated with al-Qaeda,” and Abdul Rahman became a key player in the TCG and “reportedly” the GIA.

Noticeably, when he asked the Board, “These accusations, all of them, where did you get them from?” a Board Member replied, “From a compilation of interviews and interrogations and outside sources” –- in other words, from other prisoners both inside and outside Guantánamo, who were either bribed, coerced or tortured to make such claims. Lest there be any doubt that the “senior al-Qaeda lieutenant” and others had made up all these claims, it’s important to remember that Abdul Rahman was cleared for release –- as close as this administration, with its insistence that those it releases are not in fact innocent, but are, instead, “No Longer Enemy Combatants,” ever gets to admitting that it has made terrible, life-crushing mistakes.

To complicate matters, Abdul Rahman was convicted in absentia for fictional crimes by the dictatorship of Zine El Abidine Ben Ali, and sentenced to 20 years in prison, and would clearly be in danger if he were returned to Tunisia, which, as the US State Department notes every year, has an appalling human rights record. His situation is complicated further because of the precarious state of his health. As his lawyers, Mark and Josh Denbeaux of the Seton Hall Law School have explained, he “suffers frequent chest pains and intense heart palpitations related to [a] replaced aortic heart valve and pacemaker,” and has “many other ailments that would make a transfer to Tunisia extremely risky.”

Back in June, when two other Tunisian detainees –- Abdullah bin Omar and Lofti Lagha, both economic migrants like Abdul Rahman –- were returned to the country of their birth, I mistakenly thought that Abdul Rahman was one of them, but it transpires that, when government lawyers notified Mark and Josh Denbeaux in May that they were planning to send him back to Tunisia, they managed to get a court to issue a temporary restraining order. Although the government subsequently argued that the court lacked jurisdiction in the matter –- and that, by extension, the administration could do what the hell it liked with the already ruined lives of wrongly detained and brutally imprisoned innocent men –- it is Judge Kessler’s disagreement with this position that has saved Abdul Rahman from further horrors (accepting, that is, that one day he will be released from Guantánamo to another country).

Abdul Rahman was clearly fortunate that he had lawyers to protect him. As I reported here, here and here, both bin Omar and Lagha have reportedly been treated brutally on their return to Tunisia, underlining how worthless are the “diplomatic assurances” of humane treatment that the US administration has agreed with Zine El Abidine Ben Ali, as part of its desperate and unprincipled attempts to rid itself of its own mistakes. In this, as I reported here, its motives overlap with those of the British government, which, like its partner in the “special relationship,” is busily engaged in compounding its initial illegal activities –- holding men indefinitely without charge or trial –- with further illegality, as it attempts to break international laws again by signing “diplomatic assurances” and “memoranda of understanding” with the dictators running various North African and Gulf countries (including Tunisia), which are both worthless and illegal.

Recognizing this, and also acknowledging that the looming Supreme Court showdown over detainees’ rights is beginning to filter down to the lower courts, Judge Kessler explained, as she dared to put down the government, that she had made her decision because the Supreme Court’s decision to look once more at the detainees’ rights “cast a deep shadow of uncertainty” over previous rulings restricting their rights. “In view of the grave harm Rahman has alleged he will face if transferred,” she continued, “it would be a profound miscarriage of justice” if the court denied his petition to remain in Guantánamo. Noting that the Supreme Court could eventually decide that the detainees had the right to challenge their detention or their transfer to other countries, she added that an injunction preventing his return was “necessary to ensure his survival.” Otherwise, she concluded, “At that point, the damage would have been done.”

Exulting in what the New York Times described as a judgment that “appears to be the first ruling of its kind,” Josh Denbeaux praised Judge Kessler’s actions, stating, unequivocally, “This is the first time the judicial branch has exercised its inherent power to control the excesses of the executive as to treatment of prisoners at Guantánamo Bay. The executive has now been told it cannot bury its Guantánamo mistakes in Third World prisons.”

Like decisions made by appeal courts in the UK, preventing the illegal return of men who have never been charged to regimes that may well torture them, Judge Kessler’s principled decision is being seen as a mortal blow to the US administration’s attempts to do the same with innocent men, held without charge or trial in Guantánamo. And it augurs well, I think, for the coming Supreme Court showdown over the detainees’ rights to challenge the basis of their detention. Nearly six years of arrant lawlessness and injustice on the part of the executive is more than enough. Let those detainees against whom the administration thinks it has a case be pursued in a recognizable court; and let the others –- the ones against whom no case can be built, because there is none –- be freed, to countries that will not subject them to further torture or ill-treatment.

For more on the legal struggles over Guantánamo, and the stories of the Tunisian detainees, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on CounterPunch (as “A Gitmo Detainee Finally Gets a Break”).

[Note: Mr. Lagha’s first name is spelled incorrectly. It is “Lotfi” not “Lofti.”]

The saga of the Guantánamo whistleblowers, which sprang to life in June, but then, like so many news stories, was considered done and dusted by a media hungry for fresh meat, resurfaced unexpectedly last week when an Army Major filed an affidavit in the case of Adel Hamad, a Sudanese detainee who was kidnapped in July 2002 from his home in Pakistan, where he was working as a hospital administrator. The Major, who does not wish to be identified, stated that, between October 2004 and February 2005, he served on 49 of the 558 Combatant Status Review Tribunals at Guantánamo, which were convened to assess whether or not the detainees had been correctly designated as “enemy combatants.”

In his affidavit, the Major, a Judge Advocate’s General (JAG) officer who served as a Second Lieutenant in the Army Reserves, and has worked as a Deputy District Attorney, explained that the training he received, both in Washington and Guantánamo, was “minimal,” that the CSRT process was “not well defined,” and that, “although the CSRT rules required having a JAG on each CSRT panel,” they were “silent as to the role.” He and other JAG lawyers concluded that they were there as “informal legal advisors to the other board members,” whose legal knowledge was often poor. He described, for example, “a sentiment among the JAG officers that many of the CSRT officers did not understand the distinction between conclusory statements and evidence,” and noted that some tribunal members “did not understand that the presumption was to be given to the evidence.” In part, however, this was by design on the government’s part, as he also noted, “The CSRT rules afforded the government evidence a presumption of correctness. For me as a tribunal member this meant that when I had a piece of evidence with some small corroboration, then I had to view that with great significance and it would also have made it difficult for any detainee to rebut.”

One of the trailers at Guantánamo, in which the CSRTs were held.

Describing the 49 tribunals on which he sat as a member, he wrote that he and his colleagues typically worked 14-hour days, six or seven days a week, and explained that the tribunals’ recorders, whose general role was “to generate the evidence“ to present to the panels, “did not have much control over the content of the information to be presented to the CSRT hearings,” adding that “Much of the material presented was supplied by intelligence agencies and were summaries that were not necessarily justified by the underlying evidence.”

He also explained that the role of the Personal Representatives, who liaised with the detainees and sometimes helped them put their case to the tribunals, was “unclear,” noting that “some PRs did little,” but that one Air Force Major “strongly advocated for the detainees he was assigned to assist.” In a further demonstration that some of those involved in the process were more concerned with results than with justice, he added, “I heard some CSRT members say that they did not appreciate the zeal with which he tried to assist the detainees.”

In a particularly telling passage, in which he discussed the CSRT of Adel Hamad, he explained that “the tribunal members had very little discussion of the evidence in his case,” and that his “primary concern” was that there was “insufficient evidence to describe him as an enemy combatant.” After drafting a dissenting opinion, he discussed it with a Navy Commander, who was also on the panel, and was surprised that his colleague “questioned the meaning of some of the definitions used in my dissenting report,” concluding that it “came from a lack of legal training.” In one of the most damning passages, he also noted that, although exculpatory evidence, which might have exonerated the detainees, was supposed to be presented separately, “as required in the CSRT rules,” none was presented in any of his 49 tribunals, and the only time he ever encountered exculpatory evidence was “by accident,” when “some of the evidence presented by the recorder would contradict the allegations made against the detainee.”

The Major also wrote about taking part in six CSRT hearings, “where there was a unanimous decision that the detainee was a Non Enemy Combatant (‘NEC’).” He explained that in each case “the Command directed that a new CSRT be held or the original CSRT was ordered reopened,” but pointed out that “the ‘new evidence’ that was presented was in fact a different conclusory intelligence finding,” which, significantly, “was not justified by the underlying evidence.” In addition, he and other dissenting tribunal members were “briefed by CID (intelligence) agents who were brought in by Command to explain why the NEC results were wrong,” and he described discussions that followed these meetings, when he and other tribunal members concluded, with some justification, “that this was an attempt to influence the results of the CSRT hearings.”

In other passages, he described acrimonious meetings and a “heated conference” that followed “inconsistent decisions” in the cases of 18 Uyghur detainees (Chinese Muslims, oppressed by their government, who had fled to Pakistan from Afghanistan after a ruined village they were living in was bombed by US forces), and explained how his suggestion, based on his experience of the criminal justice system, that “inconsistent results were good for the system,” and would show that it was “working correctly,” were ignored.

In a final point, which also indicates how loaded the process was in favor of the government’s allegations, the Major noted that he spent a month and a half working as a legal advisor to the CSRTs, but “was never told that I could review the sufficiency of the evidence and write or discuss that issue with a CSRT.”

While it remains to be seen whether the Major’s statement will add significantly to the growing clamor to return habeas corpus rights to the Guantánamo detainees, it has certainly revived a vitally important story, which looked, until now, as if it had been allowed to fall off the radar.

The first Guantánamo whistleblower to speak out publicly was Lt. Col. Stephen Abraham, an Army reservist with 26 years’ experience in military intelligence. In an affidavit filed in the case of the Kuwaiti detainee Fawzi al-Odah, Lt. Col. Abraham, who had been part of the team responsible for compiling the “evidence” used in the tribunals, delivered a blistering condemnation of the entire process, stating that the CSRTs were severely flawed, relying on intelligence “of a generalized nature –- often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that, moreover, the process was designed to rubber-stamp the detainees’ prior designation as “enemy combatants.” Like the Army Major, Lt. Col. Abraham also experienced bullying when he and the other members of his tribunal decided, in the case of Abdul Hamid al-Ghizzawi, a Libyan shopkeeper who was married to an Afghan woman, that the detainee was not an “enemy combatant.”

Despite the uproar that Lt. Col. Abraham’s affidavit caused for a few weeks in June and July this year, the press soon moved on. A few ripples of interest still lingered when he visited Capitol Hill in early August to reiterate his testimony before the House Armed Services Committee, but there the trail ended. A week later, after liaising with him, I reported exclusively that another officer who had taken part in the CSRT process had written to wish him luck, and to declare, “my recollections of the process are similar to yours. The finding of enemy combatant was expected, the finding of not an enemy combatant was looked upon as a failure of the process.” Another officer also “expressed support for his efforts,” but by that time everyone was on holiday, and the plight of the “enemy combatants” was forgotten.

The affidavit filed by the army major in Adel Hamad’s case not only revives the important story that Lt. Col. Abraham bravely divulged in June; it also raises the number of former insiders criticizing the process to four, and neatly returns to the first reports of dissent within the ranks of those involved in the CSRTs, which first surfaced in August 2006. In an article for the Boston Globe, Farah Stockman reported on Adel Hamad’s case, noting that an Army Major –- clearly the same man who has now filed an affidavit publicly, even though no one involved in the case is providing any further information –- had issued a dissenting opinion. Taking into account the fact that neither of the charity organizations for which Hamad had worked in Pakistan –- the Saudi-based World Association of Muslim Youth, and the Kuwait-based Lajanat Dawa Islamiya –- appeared on the State Department’s list of terrorist organizations, he argued that, “even assuming all the allegations … are accurate, the detainee does not meet the definition of enemy combatant.” He added, “These NGOs presumably have numerous employees and volunteer workers who have been working in legitimate humanitarian roles. The mere fact that some elements of these NGOs provide support to ‘terrorist ideals and causes’ is insufficient to declare one of the employees an enemy combatant.”

After Lt. Col. Abraham first spoke out in June, I wrote an article that drew on Farah Stockman’s original story, in which I also noted her shocked conclusion –- that the Major was overruled by his colleagues, one of whom, in a single line that discredits the whole tribunal process as effectively as the recent affidavits, wrote that the case “passed the ‘low evidentiary hurdle’ set up by the rules of the hearings” –- and I’m pleased to note that, with the Army Major now stepping forward to join the ranks of the Guantánamo whistleblowers, the mystery of Adel Hamad’s dissenting tribunal member has now been solved. After the abuse that Lt. Col. Abraham received after going public in June, when the Department of Justice attempted to belittle him, and smeared his account as “innuendo,” I also understand why he has refrained from revealing his identity.

All that remains now is for more former CSRT personnel to follow his lead, and also, if he’s watching and waiting to do the right thing, for a dissenting officer who served as the Personal Representative in Guantánamo to two detainees to come forward too. First reported by Corine Hegland in the National Journal in February 2006, the story of this particular Personal Representative showed a principled man speaking truth to power on a heroic scale. Alarmed that those he was representing had been accused of crimes that they couldn’t possibly have committed, this man –- perhaps the Air Force Major referred to by the Army Major in his affidavit –- checked the file of the detainee who had made the allegations, saw that he had accused 60 men of attending a particular training when none of them had even been in Afghanistan at the time, and took the unprecedented step of submitting a written protest to the authorities after the CSRT of Farouq Saif, a teacher of the Koran who was allegedly seen at Osama bin Laden’s private airport in Kandahar. In his letter, he stated that the government’s sole evidence that Saif had been at the airport was the statement of another prisoner, who, according to an FBI memo, which he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” The Personal Representative added, “I do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody.”

We know the identity of one of the other 59 men accused by the “notorious liar” –- Mohammed al-Tumani, a young Syrian who had gone to Afghanistan with his whole family, to be reunited with his father, who was working as a cook in Kabul –- but, although some of the other falsely accused detainees are almost certainly covered in my book The Guantánamo Files, in which I look in depth at false allegations and false confessions, the knockout blow to the credibility of the corrupt tribunals might be delivered if this man, with his insight into lies that were treated as “evidence” on a colossal scale, could be persuaded to join the ranks of Guantánamo’s principled whistleblowers.

As published on CounterPunch (as “Fourth Whistleblower Rocks Guantánamo”). An edited version appeared on the Huffington Post.

[Note: After this article was published, Steve Wax, one of Adel’s lawyers, wrote to me to point out, “The document filed with the court was a declaration by William Teesdale, an investigator and attorney in my office. It says that the major read and approved the contents. It was not an affidavit from the major himself”].

For further articles about Stephen Abraham, see here and here.

Over in the Economist, a detailed three-part series on terrorism and civil liberties has just come to a close –- and very impressive it is, too. It began with an editorial pointing out that “the past six years have seen a steady erosion of civil liberties even in countries that regard themselves as liberty’s champions. Arbitrary arrest, indefinite detention without trial, ‘rendition,’ suspension of habeas corpus, even torture –- who would have thought such things possible? Governments argue that desperate times demand such remedies. They face a murderous new enemy who lurks in the shadows, will stop at nothing and seeks chemical, biological and nuclear weapons. This renders the old rules and freedoms out of date. Besides, does not international humanitarian law provide for the suspension of certain liberties ‘in times of a public emergency that threatens the life of the nation’?”

The article continues, “There is great force in this argument. There is, alas, always force in such arguments. This is how governments through the ages have justified grabbing repressive new powers.” After briefly commenting on procedures undertaken in World War II –- when “the democracies spied on their own citizens, imposed censorship and used torture to extract information,” and the US “interned its entire Japanese-American population,” which is described as “a decision now seen to have been a cruel mistake” –- the article proceeds to point out:

There are those who see the fight against al-Qaeda as a war like the second world war or the cold war. But the first analogy is wrong and the moral of the second is not the one intended.

A hot, total war like the second world war could not last for decades, so the curtailment of domestic liberties was short-lived. But because nobody knew whether the cold war would ever end (it lasted some 40 years), the democracies chose by and large not to let it change the sort of societies they wanted to be. This was a wise choice not only because of the freedom it bestowed on people in the West during those decades, but also because the West’s freedoms became one of the most potent weapons in its struggle against its totalitarian foes.

If the war against terrorism is a war at all, it is like the cold war –- one that will last for decades. Although a real threat exists, to let security trump liberty in every case would corrode the civilized world’s sense of what it is and wants to be.

There then follows the most extraordinary defense of what the decision not to let security always trump liberty actually means. Initially, this appears confusing. The article states, “When liberals put the case for civil liberties, they sometimes claim that obnoxious measures do not help the fight against terrorism anyway. The Economist is liberal but disagrees. We accept that letting secret policemen spy on citizens, detain them without trial and use torture to extract information makes it easier to foil terrorist plots.”

When I first read this passage, I assumed that it was leading to the kind of authoritarian nonsense that many former “liberals” –- ageing malignantly, and bizarrely attempting to equate the “War on Terror” with the Nazis –- come up with, but in fact the Economist was taking a completely different viewpoint, accepting that “obnoxious measures” might well help to foil terrorism, but, crucially, refusing to endorse them because they are morally self-defeating, tending, as described above, to “corrode the civilized world’s sense of what it is and what it wants to be.” Here’s the key passage: “To eschew such tools is to fight terrorism with one hand tied behind your back. But that –- with one hand tied behind their back –- is precisely how democracies ought to fight terrorism.”

I read on, wondering if I had misinterpreted this radical conclusion, but there followed a suitably scathing dismissal of the “ticking time-bomb” rationale for torture: “A famous thought experiment asks what you would do with a terrorist who knew the location of a ticking nuclear bomb. Logic says you would torture one man to save hundreds of thousands of lives, and so you would. But this is a fictional dilemma. In the real world, policemen are seldom sure whether the many (not one) suspects they want to torture know of any plot, or how many lives might be at stake. All that is certain is that the logic of the ticking bomb leads down a slippery slope where the state is licensed in the name of the greater good to trample on the hard-won rights of any one and therefore all of its citizens.”

A slippery slope? I had read it correctly, and now awaited the final reiteration of the Economist’s advocacy of inviolable legal and moral principles, which went even further than I had anticipated. Here’s the final paragraph: “Human rights are part of what it means to be civilized. Locking up suspected terrorists –- and why not potential murderers, rapists and paedophiles, too? –- before they commit crimes would probably make society safer. Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavoury practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it.”

Yes, you read it correctly. The conduct of the “War on Terror” –- with “arbitrary arrest, indefinite detention without trial, ‘rendition,’ suspension of habeas corpus, [and] even torture” –- is so harmful that, if we are not to lose our values, which, as in the cold war, are what distinguishes us from our enemies, then we must work within the law, and not jettison rights that took 800 years to develop.

This is, I believe, an incredibly bold stance to take, and the Economist’s writers are clearly aware of its impact, choosing to refer to the possible loss of “thousands of lives,” as a risk worth taking –- or even a price worth paying –- to ensure that we do not sink to the level of the tyrants and terrorists whom we profess to despise. Bravely, it takes the argument against torture, “extraordinary rendition,” and indefinite detention without charge or trial to its armchair supporters, forcing them to confront the dark truth that underpins their casually repressive claims that all means are justified in the attempt to eradicate terrorism. Without even touching on the failure of fighting terror with terror –- and creating, as in Iraq, recruiting grounds for would-be terrorists that are far more fertile now than they were before 9/11 –- the Economist has asserted the supremacy of decency over fear, and is to be congratulated for saying out loud what few dare even to acknowledge privately.

The cost of misplaced zeal in the “War on Terror”: detainees on one of the first flights to Guantánamo.

[Note: See here, here and here for the Economist’s three-part series. The first looks at torture, the second at the surveillance society, and the third at the judges and parliamentarians who are “restraining the zeal of governments who want a free hand to fight terror.” All are well worth reading].

Andy is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press).

As published on American Torture.