Obama’s First 100 Days: Mixed Messages On Torture

7.5.09

At a press conference to mark his first 100 days in office, President Obama declared, “We have rejected the false choice between our security and our ideals by closing the detention center at Guantánamo Bay and banning torture without exception.” I have looked at the President’s misleading statement about Guantánamo, and analyzed his progress — or lack of it — in closing the prison in a previous article, and in this second article I’m going to focus on his assertion that the new administration has been responsible for “banning torture without exception.”

On the surface, Obama appears to have been true to his word. In two Executive Orders issued on his second day in office (along with an order relating to the closure of Guantánamo), he established that the questioning of prisoners by any US government agency (including the CIA) must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions, and also required the CIA to close any still-existing secret prisons.

This order also established a Special Interagency Task Force on Interrogation and Transfer Policies, to evaluate “whether the interrogation practices and techniques in the Army Field Manual, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidelines for other departments or agencies.” This task force was also charged with evaluating “the practices of transferring individuals to other nations,” to ensure that they do not face torture.

Allied to this, in some ways, is the other Executive Order establishing another Special Interagency Task Force to provide an overview of detention policy options, which was charged with reviewing the “lawful options” available to government with respect to the “apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations.”

These two task forces have until the end of July to deliver their reports, but while the President is undoubtedly to be commended for drawing a clear distinction between himself and his predecessor regarding the broad outlines of detention and interrogation policies, critics have already noted a few worrying signs that certain loopholes may have been left open.

Appendix M of the Army Field Manual

One of these concerns the Army Field Manual. Reintroducing it as the benchmark for military interrogations, for example, is clearly necessary to call a halt to the licensed sadism of the years when Donald Rumsfeld was defense secretary, but Jeff Kaye, psychologist and anti-torture blogger, raised concerns in January about part of the manual, Appendix M, which, as he described it, authorizes the use of specific torture techniques used in the “War on Terror,” including “solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation.” Kaye’s concerns have been picked up by human rights organizations, including Amnesty International, which mentioned, in its review of Obama’s first 100 days (PDF), its disappointment that the administration was “endorsing without qualification” a document “which permits prolonged sleep deprivation, isolation and manipulation of a detainee’s fears contrary to the international ban on torture.”

This was certainly not how the military saw it, when the new Army Field Manual was issued in September 2006. At a press conference, Lt. Gen. Jeff Kimmons, the Army G-2 senior intelligence officer, specifically addressed concerns about Appendix M. As Kimmons described it, “Our four-star combatant commanders also specifically requested, based on battlefield experience, that we include one restricted technique called separation, for use on a by-exception basis only with unlawful enemy combatants. That is, it’s not authorized for use on prisoners of war and other protected persons.”

Kimmons proceeded to explain, “Separation allows interrogators to keep unlawful enemy combatants apart from each other as a normal part of the interrogation process, so they can’t coordinate their stories and so that we can compare answers to questions that interrogators have posed to each other without there having been collusion. It’s for the same reason that police keep murder suspects separated while they’re questioning them, although this is within an interrogation context.”

On the surface, Kimmons’s explanation seemed reasonable enough, but Kaye pointed out that it was, in fact, “inconsistent with the explanation for separation given in the current Army Field Manual,” in which the technique is not about the “normal interrogation process,” as the following passage makes clear (emphasis added): “Separation should be used as part of a well-orchestrated strategy involving the innovative application of unrestricted approach techniques. Separation requires special approval, judicious execution, special control measures and rigorous oversight.”

It may be, as a former intelligence officer noted on his blog (Decline and Fall), that “separation” can only be approved by a General, and, “given the political climate” regarding detainee abuse, would be “very hard to obtain,” but I have to admit that I fail to find it reassuring that techniques that bear more than a passing resemblance to those that drowned the “War on Terror” in a morass of torture and abuse should be sanctioned at all, especially as “separation” is so clearly described as only forming part of an unspecified program involving, as I highlighted above, “the innovative application of unrestricted approach techniques,” and, of course, because it is specifically targeted at prisoners regarded as being outside the reach of the Geneva Conventions (“unlawful enemy combatants,” in the Bush administration’s parlance).

Under Obama, we are led to believe that the Geneva Conventions will, henceforth, apply to all prisoners held by US forces, but, as I explain below, there are other reasons for believing that a loophole has been left open for the possible detention of future “illegal enemy combatants.”

“Extraordinary rendition”

My concerns about this possibility center on the Obama administration’s review of the detention and transfer of prisoners; in other words, those parts of the policy directed towards appraising the system of “extraordinary rendition” developed by the Bush administration. In its review of Obama’s first 100 days, Amnesty International singled out “the possibility of the CIA abducting and detaining people in ‘short-term transitory’ facilities” as an unacceptable loophole. This came from an otherwise laudable announcement a month ago by the CIA’s new director, Leon Panetta, in which Panetta stated, “CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites,” but added that the agency “retains the authority to detain individuals on a short-term transitory basis.”

Realistically, it is hard to argue with the agency having the opportunity to hold prisoners on a temporary basis, especially if, as Panetta also stated, “Under the Executive Order, the CIA does not employ any of the enhanced interrogation techniques that were authorized by the Department of Justice from 2002 to 2009.” What is worrying, however, is the suggestion that certain “black sites” were still open just a month ago, and this comment becomes more troublesome when analyzed in connection with Panetta’s additional comments about the agency’s authority to hold prisoners on a short-term basis. Although he wrote that no detentions had occurred “since I have become Director,” he added, “We anticipate that we would quickly turn over any person in our custody to US military authorities or to their country of jurisdiction, depending on the situation.”

I’ve highlighted the phrase that troubles me, as it undoubtedly indicates that, were certain situations to arise in future, the CIA is prepared to transfer prisoners to third countries, where, very possibly, they would face the risk of torture, and the only logical conclusion I can draw is that, essentially, the Obama administration’s only real problem with “extraordinary rendition” is one of scale. The Bush administration’s industrial-scale rendition policies have been banished, but the prospect of limited rendition — to third countries rather than to the US court system, as would surely be more acceptable — is being kept as a possible option.

The Office of Legal Counsel’s torture memos

In some quarters, it has been suggested that the Obama administration’s decision, three weeks ago, to release four previously classified memos issued by the Justice Department’s Office of Legal Counsel in 2002 and 2005 (which purported to justify the use of torture by the CIA) was an important gesture in signaling a break with the previous administration. And in some ways it was, of course, but it should also be remembered that the memos were not released spontaneously, but as the result of a pending lawsuit by the American Civil Liberties Union.

It was also clear that the President was unsure how to play the memos’ release. Both he and Attorney General Eric Holder went out of their way to pledge that no one would be prosecuted for following orders. Obama said, “In releasing these memos, it is our intention to assure those who carrying out their duties relying in good faith upon the legal advice from the Department of Justice that they will not be subject to prosecution,” and, in a similar vein, Holder added, “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

This was understandable in the sense that operatives cannot necessarily be required to know whether or not the orders they are give are legally sound (although it should also be noted that many people knew when they were crossing a line, regardless of what they were told), but Obama then appeared to over-emphasize the point by visiting CIA headquarters, and telling a group of around 1,000 CIA employees, “What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and ideals even when it’s hard — not just when it’s easy.” To my mind, this only ended up insulting those brave souls, like the military defense attorneys in the Military Commission trial system, or the prosecutors who resigned, or other officers who broke ranks to complain about the brutality and injustice of the “War on Terror,” and who, as a result, lost their jobs or otherwise endangered their careers.

It was also noticeable that, when polls seemed to indicate a shift towards a belief that a proper investigation of the Bush administration’s activities should take place, the President dropped his “looking forward and not backwards” mantra, and, while maintaining that “For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted,” added, significantly, “With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that.”

What was particularly disappointing about all of this was that it showed an administration shifting about uneasily in an attempt to avoid confronting the compelling truth that senior Bush officials had admitted that they had been involved in torture, including waterboarding, that both Obama and Holder had stated publicly that waterboarding was torture, and that, as a result, because torture is a crime according to US law, those responsible for implementing it must be held accountable.

However, while the administration’s approach to the release of the torture memos has sent out mixed messages, the President and the Justice Department have failed miserably to differentiate themselves from their predecessors on two other fronts relating to the use of torture in the “War on Terror.”

Blocking habeas corpus at Bagram

The first of these concerns Bagram, the prison at the US airbase north of Kabul, Afghanistan, where an estimated 650 prisoners are held, in conditions that make Guantánamo — still an opaque establishment, despite the publicity surrounding it — look positively transparent. The prisoners at Guantánamo have secured several significant Supreme Court victories between 2004 and 2008 establishing that they have rights (however much the nation’s politicians attempted to remove them in the intervening years), and they have also had access to attorneys for over four years, have been through review processes that, however inadequate, have at least cleared some of them for release, and in recent months have, in a few cases, been ordered to be freed by US courts.

At Bagram, however, none of these rights apply, but in February, when four habeas corpus cases filed on behalf of prisoners in Bagram reached a US court, the Obama administration refused to distance itself from its predecessor’s blanket refusal to open up the prison to any kind of outside scrutiny, stating simply that, “Having considered the matter, the Government adheres to its previously articulated position.”

At the time, Judge John D. Bates had already suggested that he suspected that this was an unacceptable position to take, because Bagram appeared to be “a ‘black hole’ for detainees in a ‘law-free zone,’” but it was not until a month ago, having reviewed the arguments more comprehensively, that he understood that there were different categories of prisoner in Bagram: foreigners captured in other countries and “rendered” there, Afghans captured in other countries and “rendered” there, and Afghans captured in Afghanistan.

The latter category were (in theory, at least) connected to events in an ongoing war zone (and were, moreover, subject to delicate negotiations between the US and Afghan governments), and Judge Bates reserved judgment about one of the four cases (an Afghan captured in another country and “rendered” back to his home country), but he had no hesitation in declaring that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram (who included the other three men in the cases before him), because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.” In fact, as Judge Bates also noted (and as I explained in depth in an article at the time), the review process at Bagram is both “inadequate” and “more error-prone” than the tribunal process used at Guantánamo, and “falls well short of what the Supreme Court found inadequate at Guantánamo.”

This is not, strictly speaking, a story about torture, but it becomes one when the stories of these men are examined in any detail, and it becomes apparent that they were all held in a variety of secret prisons in Afghanistan, which were run by the CIA, or under the agency’s control, before they even arrived at Bagram. This knowledge, plus the implications of Judge Bates’s ruling, made it doubly shocking when, instead of abiding by the decision, the Obama administration appealed, prompting the New York Times to declare that the appeal “signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.”

Blocking accountability for the CIA torture team’s “travel agent”

The other shock concerned a case initially brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary, on behalf of five prisoners subjected to “extraordinary rendition” and torture (Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — profiled here), who were suing the company for damages based on their involvement in their ordeal as the CIA’s “travel agent.” The Bush administration had intervened the first time round, invoking the little-used state secrets doctrine, and requesting a dismissal of the entire action before Jeppesen filed an answer to the complaint, and when the case was revived in February, the Obama administration again followed suit, slavishly copying its predecessor, as it did with Bagram.

To be fair, if the administration is determined not to hold operatives to account for crimes sanctioned at the highest level, then it was logical that it would intervene to prevent Jeppesen’s contractors from being held to account, but, when the case was reviewed by the Court of Appeals for the 9th Circuit, the judges — led by Judge Michael Daly Hawkins, and also including Judges Mary M. Schroeder and William C. Canby, Jr. — were not concerned with politics, but with the law, and they had no hesitation in demolishing the government’s case.

Jeppesen’s involvement in, and knowledge of the rendition program was actually revealed in an extraordinary declaration by Sean Belcher, a former employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him,

“We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured. He stated that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

This declaration was cited by the judges, without comment, in a footnote, but when it came the “relatively thin history” of the state secrets doctrine the judges were merciless, dismissing the government’s reliance on the two precedents — one involving a secret agreement between the government and a spy in the nineteenth century, the other (from 1953) with the prevention of “discovery of secret evidence when disclosure would threaten national security” — for their irrelevance to the Jeppesen case.

They did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

The ruling is peppered with passages chastising the government, and I recommend those with an interest to read the full ruling (PDF), but the following is particularly sharp:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law. (emphasis added)

Elsewhere, the judges drew on Boumediene, in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

This kind of hyperbole, exercised to prevent embarrassment (or worse), was, I thought, the hidden sub-text of a shrill submission by CIA director Michael Hayden, moving for dismissal of the original complaint, when he claimed that disclosure of information relevant to the Jeppesen case “could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States,” and the point was rammed home by the judges in a footnote citing a 1953 letter to President Eisenhower from Attorney General Herbert Brownwell, in which Brownwell wrote that classification procedures were then “so broadly drawn … as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.”

It also brings me neatly to my conclusion. I understand that President Obama doesn’t want to rock the boat, endangering a fragile peace with the Republican party, in order to secure as much consensus as possible when so many other major policy decisions need to be made (and, perhaps, members of his own party need to be shielded from revelations of their knowledge of the grisly details of the “War on Terror”). However, as the 9th Circuit Court of Appeals has just demonstrated so admirably, by setting new rules for appropriate conduct while holding at bay any accountability for the Bush administration’s crimes, he is not only shielding those who are no longer in office from full disclosure of their activities — from the embarrassing to the depraved — but is also allowing himself to be infected by the same disdain for the separation of powers, and the same endorsement of unfettered Executive power, that was the Bush administration’s most toxic legacy for the values on which the republic was founded.

I’m still erring on the side of presuming that this is more to do with pragmatism than it is with deliberate, coldly conceived policy, but, like Judge John D. Bates and the judges of the 9th Circuit Court of Appeals, I’m beginning to run out of patience.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on Antiwar.com, CounterPunch, Common Dreams, the Huffington Post and After Downing Street.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah? and CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

28 Responses

  1. Frances Madeson says...

    You make so many excellent points in this post, Andy.

    If the Administration is being somewhat wishy-washy, we must not be. The loopholes, exactly as you have defined them, must be closed, so that what has happened can never happen again. It is too horrible to contemplate that someone else could ever be tormented in the ways you have documented and we have vicariously endured. I know I have experienced, have been deeply hurt by, a second-hand trauma, that has altered my perception of the world and its human occupants simply by reading about the torture and abuse. When I copy poetry—Whitman, Dickinson, Cummings, Rilke—to send to Aafia in my little futile notes, knowing that she is still imprisoned until further notice, my hand actually shakes.

    While I am in a weird sense grateful to have been stripped of certain illusions and to have gained a deeper understanding of the dark side of unchecked power, because it will help me to be more of service to those who have been victimized and motivated to work and fight harder for them and against future abuses, real, undeniable, irreparable damage has been done. The pain the prior Administration has caused sits under the first layer of my skin; it is always there; it may always be. I feel like I’ve been beaten by a rubber hose—you can’t see the scars, but the memory of the beating is indelible, can be recalled in a blink of an eye, and triggered by unexpected stimuli. Sometimes seeing something particularly beautiful will propel my tears. It’s beyond my control; I don’t even try to stop them. I just mop up as best I can and go on with whatever I was doing. I can honestly say, I was not like this before Guantanamo.

    Second, while I agree it takes more energy than any of us have to actively despise those who went along with, or even profited from, the process as defined by the higher ups, those who did not are in a special category. President Obama should make an equally forceful statement publicly praising those who acted on their sense of morality and did not take cover to perpetuate an inherently disgusting system. Perhaps the First Lady could invite them to tea in the organic garden. They deserve special honors for their heroism—garlands of blossoming flowers, rose petals strewn at their feet.

    As to the rest of it, pragmatism, like human patience, has its limits, or should. We are on the far edge of it, even as we hope for relief, for release.

  2. Andy Worthington says...

    Beautiful commentary, Frances. Your feelings for what these men have suffered provide a poignant example of what empathy actually involves, and demonstrate, by contrast, just how soulless were those who took your country to a place where you can end up saying, “I was not like this before Guantanamo.”

    I always look forward to your comments, and I hope others are reading them too. The spirit and the humanity of Walt Whitman and Emily Dickinson are alive and well.

  3. khadija says...

    Greetings Andy,
    I am Khadija, wife of Abou Elkassim Britel, Italian citizen victim of extraordinary rendition in May 2002.
    Thanks for your good article! the Italian newspapers don’t publish the news of the sentence by the Court of Appeal for the Ninth Circuit and our government has not done anything.
    My husband suffers a lot for this unfair detention, often get sick, he strives to make his dignity and his rights be respected, but the conditions of the Moroccan jails are ashamed (on the English page of my site there are articles on this matter: http://www.giustiziaperkassim.net/?page_id=105).
    The situation is serious: Kassim suffers for the injustice that continues despite his tried innocence, he is held following a long series of violations of his rights and the Italian government is directly responsible of it. All this continuous from March 2002 and the September 2012 is very distant!
    please, you also read my interview to cageprisoners http://www.cageprisoners.com/articles.php?id=22991
    I have been working for many years because the truth could come out, but I do not get results and our tragedy continues.
    Congratulations on your work, salam khadija

  4. Andy Worthington says...

    Khadija,
    Thank you for getting in touch, and for letting myself and the readers here know more about your husband, and his suffering in a Moroccan jail. Please convey my best wishes to him, if possible, and let him know that there are many of us out here who deplore the manner in which he and so many others were treated, and who were heartened by the ruling delivered by the 9th Circuit Court of Appeals.

    I urge anyone interested to follow Khadija’s links above, which will, sadly, reveal a story that is familiar to those who have studied the stories of certain prisoners in Guantanamo: the story of a man (Kassim) picked up randomly in Pakistan in May 2002 — when many hundreds of foreigners were rounded up indiscriminately — interrogated by FBI agents, and then, like Binyam Mohamed two months later, sent not to Guantanamo, but to Morocco.

    Released without charge after nine months, he was then seized by the Moroccan authorities three months later, and, in January 2004, was sentenced to 15 years in prison, reduced to nine years on appeal. The sentence has since been criticized by, amongst others, the European Commission and the European Parliament.

    If you would like to make a complaint to the Moroccan authorities about Kassim’s treatment — or, particularly, to the Italian government, which was clearly responsible for feeding false allegations to the the US and the Moroccans about his alleged involvement with terrorist activities, even though an Italian investigation found no evidence at all of any such connections — please see some contact details at the bottom of the following Cageprisoners article.

    You may, as I did, find it significant that “The European Parliament has … called on the Italian government ‘to take concrete measures to obtain the immediate release of Abou Elkassim Britel,’” and that “Members of the Italian and European Parliaments have requested that the Moroccan Royal Cabinet grant him a pardon,” and may also be disturbed to discover that, although, in December 2006, “the Italian undersecretary for justice, Luigi Li Gotti, guaranteed that maximum effort would be put into securing this,” absolutely no progress has been made.
    http://www.cageprisoners.com/campaigns.php?id=628

  5. Andy Worthington says...

    After this article was published on CounterPunch, I received the following message from Bruce Wick:

    Dear Andy:

    It bears mentioning that all this torture and abuse takes place without trial and during confinements of dubious legality–if not during confinements flatly arbitrary and illegal.

    Torture and arbitrary confinement go together, hand-in-glove; but arrest (or capture) and confinement is the sine qua none of torture, and as a practical matter, such confinements are almost always illegal.

    So, arbitrary arrest and imprisonment are to be prohibited, in their own right surely, but also because of the abuses they PERMIT. Hasn’t this been a basic principle of English law, since at least the Petition of Right?

    Best regards,

    BRUCE WICK

  6. Andy Worthington says...

    This was my reply:

    Hi Bruce,
    Thanks for the message. You’re absolutely right, of course, to point out that people are forgetting that arbitrary detention in the first place was — and is — illegal.

    I wish more commentators were paying attention to the timeline established by the Senate Armed Services Committee in its report on detainee abuse — or, for that matter, the one established in my book and others (The Dark Side etc.) — establishing detention outside the Geneva Conventions as the prelude to torture, even though it should be noted that illegal detention and torture went hand-in-hand from the beginning with, for example, the torture of John Walker Lindh, and the activities of Special Forces and the CIA. These very obviously preceded any supposed legal justification, as I examined here:
    http://www.andyworthington.co.uk/2009/04/27/cia-torture-began-in-afghanistan-8-months-before-doj-approval/

    Best,
    Andy

    And see here for articles about the Senate report:
    http://www.andyworthington.co.uk/2008/12/23/will-the-bush-administration-be-held-accountable-for-war-crimes/
    http://www.andyworthington.co.uk/2009/04/29/even-in-cheneys-bleak-world-the-al-qaeda-iraq-torture-story-is-a-new-low/

  7. Obama’s First 100 Days: Mixed Messages On Torture by Andy Worthington « Dandelion Salad says...

    [...] Mixed Messages On Torture by Andy Worthington Posted on May 8, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 8 May [...]

  8. msfreeh says...

    to view a partial list of crimes committed by FBI agents over 1500 pages long see
    http://www.forums.signonsandiego.com/showthread.php?t=59139

    to view a partial list of FBI agents arrested for pedophilia see
    http://www.dallasnews.com/forums/viewtopic.php?t=3574

  9. Andy Worthington says...

    This just in:

    A brilliant analysis and elegantly stated

    Andy,

    “However, as the 9th Circuit Court of Appeals has just demonstrated so admirably, by setting new rules for appropriate conduct while holding at bay any accountability for the Bush administration’s crimes, he is not only shielding those who are no longer in office from full disclosure of their activities — from the embarrassing to the depraved — but is also allowing himself to be infected by the same disdain for the separation of powers, and the same endorsement of unfettered Executive power, that was the Bush administration’s most toxic legacy for the values on which the republic was founded.”

    Great article.

    Sincerely,

    Andrew Steen

  10. Andy Worthington says...

    After I replied to Andrew, and asked if it was OK to post his comment, he replied with a succinct question:

    I wonder if Obama even understands what you have pointed out.

  11. Andy Worthington says...

    And this from the Talking Dog:

    Andy:

    Given that the “4-month stay” on the commissions proceeding ends in less than two weeks time, this could be a most interesting month; we will see.

    The unbroken string of habeas wins before judges not named Richard Leon continues as well; one does wonder what the “executive reviews” are about, when, it seems, just letting the courts deal with this would pretty much empty the place in relatively short order… unless, of course, emptying the place was never the intention in the first place. Well, I guess we’ll have to wait and see on those exec. reviews as well.

    The good news for me is that I can only be surprised pleasantly! Any reversion to “business as usual” will simply be what I was expecting from the Obama team all along.

  12. Andy Worthington says...

    And my reply:

    Hi TD,

    Good to hear from you. Perhaps if we keep banging on about the courts’ right to do the work that the Supreme Court mandated them to do nearly five years ago we might get a few other people to pay attention, especially now it is becoming apparent that the Justice Department is dragging its heels in providing exculpatory evidence to various detainees’ lawyers.

    I am, of course, worried by the differing “enemy combatant” labels being used by the courts, as well as Judge Leon’s few rulings regarding those who, in his opinion, can still be held (“for how long?” being my first question, followed swiftly by clarification of what kind of prisoners they are, as they are still neither convicted criminals nor prisoners of war), but so far the results have mostly been a vindication of the judiciary’s right to involve itself in matters of Executive detention.

    Of course, it may be that the administration is deciding that the best way to deal with this mess is, yet again, to follow the precedent established by its predecessor i.e. do away with notions of justice altogether, and look for political/diplomatic solutions, hence the mention, during Robert Gates’ Saudi visit, of establishing a rehabilitation center for all the Yemenis (apart from Ramzi bin al-Shibh and a few others, presumably).

    Anything to get most of the men freed, and the damned place closed down would suit me, to be honest …

  13. Andy Worthington says...

    And a little post-script from the Talking Dog:

    The OLC report is up soon… not sure exactly when, or what value it will have, given how many cooks seem to be aiming to water down what little was there. I do like the buck-passing– refer the miscreants to their various state bars for “discipline”! Move the battles to those twin metropolises of Carson City, NV (for Bybee) and Harrisburg, PA (for Yoo). Technically, I believe neither actually requires their bar membership to hold their cushy jobs… criminal convictions would be something else, of course…

  14. Andy Worthington says...

    Hi, Andy,

    < <...[the]“memorandum of notification” issued to the CIA by President Bush on September 17, 2001, which authorized the agency, in the broadest terms possible, to “to capture, detain and interrogate terrorism suspects.” >>

    You’re quite right to stress pre-Memo murder, torture and abuse, which would have had only Bush’s VERBAL authorization, as has been reported by numerous sources, including Bob Woodward.

    If the means of “capturing, detaining and interrogating terrorism suspects” are unspecified, they are presumed to be LEGAL means, only.

    But even if Mr. Bush had specifically authorized 17 September 2001 (Constitution Day, by the way) what the Torture Memos subsequently did attempt to authorize; reliance upon Mr. Bush’s authority, for anything not routine, much less suspect, would have been totally MISPLACED.

    Most importantly for your argument, as I understand it, neither CIA, DoD nor anyone else, WAS prepared to act upon Mr. Bush’s authority alone. Instead, they all DEMANDED and GOT express legal assurances, which no doubt went through several drafts, each STRONGER and more EXPLICIT than the last!

    Cautious murderers and torturers, these! So, the US Government bound itself every which way to indemnify and defend those who did its dirty work–which is what makes it so difficult now to repudiate those solemn arrangements. Leading members of Congress undoubtedly were brought on board, giving commitments both for themselves AND for their junior or their future colleagues.

    The argument from necessity rings hollow, compared to the situation which actually confronted Lincoln in the Spring of 1861. Kindly see his Special Message to Congress (link below), which is about as dramatic a recitation of facts, as you’ll see in an official document.

    Best regards,

    BRUCE T.
    ________________________
    Abraham Lincoln
    Special Message to Congress
    May 26, 1862

    http://www.presidency.ucsb.edu/ws/index.php?pid=69751

  15. Andy Worthington says...

    Bruce,
    Thanks for the follow-up message. You paint a very convincing picture of how everyone had to be brought on board — “Cautious murderers and torturers, these!” — which I find convincing.

    Hopefully, however, given how important it was to have the legal justifications, rather than just the “memorandum of notification” for the CIA, and Congress’ Authorization for Use Of Military Force as the general founding document of the “War on Terror,” it will be possible, whatever happens in future, to maintain the focus on the early incidences of torture (from December 2001 onwards) to hold those responsible to account.

    Note: I’ve just realized that some of Bruce’s comments above refer not to this article, but to “CIA Torture Began In Afghanistan 8 Months Before DoJ Approval,” available here:
    http://www.andyworthington.co.uk/2009/04/27/cia-torture-began-in-afghanistan-8-months-before-doj-approval/

  16. Andy Worthington says...

    Here’s further correspondence from Khadija, the wife of Kassim (Abou Elkassim Britel), following on from Comments 3 and 4 above:

    Dear Andy,
    Thanks for your willingness and encouragement.
    I say to Kassim about your words and your article.
    Yes, we felt better after the decision of the Court.
    I will put on the site what you sent me.

    The link of Cageprisoners is of last year: the Italian government has changed and today Foreign Minister is Frattini, who has great responsibility in the ugly history of my husband, the Minister of Justice is Alfano. The Italian Government does not intend to do anything.

    I unfortunately don’t know English and I’m not able to translate everything. On my blog you can find just the last letter of the Minister Frattini to European Parlamentarians, in Italian:
    http://kassimlibero.splinder.com/post/20411132/%%20C2%%20AB%20+%20The%20+prisoner%20+%20Britel%%202C%20+%20Torture
    (Note: I don’t know if this link works; when I tried it the site was down for maintenance)

    Tomorrow I will listen to your interview on Popular Radio, I will shortly speak also.
    I will send you the news when they will be.
    I hope that your book will find an Italian publisher soon, we are talking too little of the whole horror of Guantanamo and the war on terrorism and raising awareness is very important.

    a dear greeting,
    khadija
    http://www.kassimlibero.splinder.com
    http://www.giustiziaperkassim.net

  17. Frances Madeson says...

    President Lincoln defended his actions to his peers and for all of time in nine skillful paragraphs. Sub-literacy aside, could Bush (with heavy assistance in composition, grammar and spelling) do the same? If not, why not?

  18. My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” by Andy Worthington « Dandelion Salad says...

    [...] he didn’t, of course, mention some reservations about loopholes in this policy that I explored here — and unreservedly refuted claims that waterboarding was either necessary or useful (a familiar [...]

  19. turning the page on tyranny « seeking spirit says...

    [...] I banned the use of so-called enhanced interrogation techniques by the United States of [...]

  20. Will Eric Holder Be The Anti-Torture Hero? by Andy Worthington « Dandelion Salad says...

    [...] comprehensive repudiation of all the Bush administration’s “War on Terror” policies — the ongoing Jeppesen debacle is not the only occasion when the Justice Department has shown itself unwilling or unable to [...]

  21. US Torture Under Scrutiny In British Courts by Andy Worthington « Dandelion Salad says...

    [...] the United States, as I explained in an article in May, “Obama’s First 100 Days: Mixed Messages On Torture,” the Obama administration’s Justice Department has resisted attempts by the ACLU to hold [...]

  22. Is Bagram Obama’s New Secret Prison? by Andy Worthington « Dandelion Salad says...

    [...] this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that “the only logical conclusion” I could draw was that, “essentially, the Obama [...]

  23. oolaah | Is Bagram Obama’s New Secret Prison? says...

    [...] this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that “the only logical conclusion” I could draw was that, “essentially, the Obama [...]

  24. New Book: The Guantánamo Lawyers – and a talk by Jonathan Hafetz by Andy Worthington « Dandelion Salad says...

    [...] Practically speaking, that means a few things. It means that that the remaining prisoners at Guantánamo should be promptly charged and brought to trial in our federal courts or released. It means that the United States cease the claim that it may detain terrorist suspects — captured anywhere in the world — without charge or trial. It also means the United States must cease creating “new Guantánamos” as it is doing at the Bagram Theater Internment Facility in Afghanistan, where, much like Guantánamo, it is claiming the ability to detain individuals without habeas corpus review. And it must ensure not only that torture is abolished (as President Obama has taken steps to do) but that there be actions taken for past abuses, both in the form of holding those responsible accountable and ensuring the possibility of compensation for victims rather than closing the courthouse doors by classifying torture as a “state secret.” [...]

  25. Guantánamo and Yemen: Obama Capitulates to Critics and Suspends Prisoner Transfers by Andy Worthington « Dandelion Salad says...

    [...] defense of Bush-era policies regarding Military Commissions, indefinite detention, Bagram and “state secrets” — as well as his surge in Afghanistan — has left progressives wondering how much difference [...]

  26. People's Blog for the Constitution :: Extraordinary Rendition: No rights, no recourse. says...

    [...] judges’ opinion sets a terrible precedent going forward as the metrics for litigation are at the whim of any presidents’ decision on [...]

  27. The Progressive Mind » By One Vote, US Court OKs Torture and “Extraordinary Rendition” :: www.uruknet.info :: informazione dal medio oriente :: information from middle east :: [vs-5] says...

    [...] I explained in an article at the time: [The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the [...]

  28. By One Vote, US Court OKs Torture and “Extraordinary Rendition” « Dandelion Salad says...

    [...] I explained in an article at the time: [The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the “clear [...]

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