Tag: Human Right

Dahlia Lithwick, a lawyer and senior editor at Slate, spoke with Cenk Uygur about returning the rule of law to thus country now that Osama bin Laden is dead. She calls for President Obama to fulfill his campaign promises to close Guantanamo, end military tribunal in lieu of Article III trials. In her article at Slate she discusses “Closing Pandora’s Box” ending the euphemistic “was on terror”:

The killing of Osama bin Laden has, for a brief instant, united an America that seemed permanently torn in two over birth certificates, the deficit, and the Donald. We can debate whether there should have been a trial, whether Americans ought to be dancing in the streets, whether it was legal to kill him, or even whether it matters whether it was legal to kill him. But we all appear to basically agree that the world is a far better place because the man responsible for one of the most vicious attacks in U.S. history is no longer in it.

So now what? Legally speaking, there are two broad lessons to derive from the Obama administration’s latest salvo in the war on terror. One is that it shows the need to continue operating outside legal norms indefinitely. The other is that it allows us to declare a symbolic victory over terrorism and return once more to the pre-9/11 regime in which the rule of law is inviolate.

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About all we can say with certainty is this: We tortured. We live in a world in which we must contend with information obtained by torture. We now need to decide whether we want to continue to live that way. Writers from ideological backgrounds as diverse as Matt Yglesias and Ross Douthat argue that it is time to return to the paradigm abandoned after 9/11. Let’s put the 9/11 attacks and the existential threat it created behind us. With Bin Laden’s death, let’s simply agree that the objectives of the Bush administration’s massive anti-terror campaign have finally been achieved, and that the time for extra-legal, extra-judicial government programs-from torture, to illegal surveillance, to indefinite detention, to secret trials, to nontrials, to the prison camp at Guantanamo Bay-has now passed. There will be no better marker for the end of this era. There will be no better time to inform the world that our flirtation with a system of shadow-laws was merely situational and that the situation now is over.

Although, I agree with Ms. Lithwick that President Obama has a grand opportunity to fulfill some of his campaign promises ending many of the extra-legal abuses of the Bush administration and his own, I disagree on others. Without prosecuting US war criminals — Bush, Cheney, Rumsfeld, Rice, all the lawyers and military commanders — the United States will never regain the stature it once had in the world in Human Rights. Pretending it never happened not going to make all the violations of International and US law go away. It is unrealistic to think it will.

Obama continues to make Dick Cheney proud.

U.S. Prepares to Lift Ban on Guantánamo Cases

WASHINGTON – The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.

Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.

Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

The rules for admissible evidence that these commission operate under are far loser than a civilian court.

Jerralyn Merrick at Talk Left explains:

One of those expected to be recharged and tried is Abd al Rahim al Nashiri, who was captured in 2002. Al-Nashiri was originally charged by the Bush Administration with participating in the 2000 bombing of the U.S.S. Cole. He was facing the death penalty. The Obama Administration moved to dismiss the charges against in in 2009. Al-Nashiri’s co-defendants were moved to federal court. Why wasn’t Al-Nashiri? The obvious answer is because the evidence against him was obtained by torture. His lawyer, Lt. Com. Stephen Reyes says:

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

Most of those who will be charged and face the death penalty are not prosecutable in a civilian court because not only is all of the evidence against them was obtained through torture but the detainees themselves were tortured. President Obama and Attorney General Holder are prosecuting the wrong people. They should be trying Bush and Cheney who have both publicly confessed to personally authorizing torture.

And if you the average American citizen thought you were safe from this abuse, think again:

Obama administration keeps new policy on Miranda secret

The Justice Department has a new policy for terrorism interrogations — but officials won’t publicly release it

The Obama administration has issued new guidance on use of the Miranda warning in interrogations of terrorism suspects, potentially chipping away at the rule that bars the government from using information in court if it was gathered before a suspect was informed of his right to remain silent and to an attorney.

But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.” So we don’t know the administration’s exact interpretation of Miranda, even though it may have significantly reshaped the way terrorism interrogations are conducted.

If Bush was bad, Obama is taking it to new levels.

Human Rights First, a non-profit, nonpartisan international human rights organization, has issued it report card for President Obama on issues of human rights and the rule of law. The report overall is not encouraging for a President who as a candidate purported to restore the rule of law. His overall grade is “D”.

The President did garner two “A-“‘s with caveats. While he has denounced torture, detainee abuse and secret detention sites, there are still major concerns about “various interrogation techniques that are permitted by Appendix M of the Army Field Manual that are inconsistent with the Geneva Conventions requirement of humane treatment” and “the Joint Special Operations Command detention facility in Parwan, Afghanistan operates outside the authority of the Joint Task Force established to oversee detention.” “B” and  “C-” are given for transferring GTMO detainees cleared for release and trying terror suspects in Federal courts, respectively. He gets a “C” for establishing accountability and oversight of U.S. private security and other contractors but didn’t go far enough holding “private security contractors in zones of armed conflict and elsewhere accountable for violations of international and domestic law, including incidents involving allegations of torture.” The rest of the report is damning.

The President gets a failing grade for not closing Guantanamo although he promised to do that two years ago. Even though the President has publically argued for closure of Guantanamo, he has failed to do so.

The continued use of military commissions to prosecute detainees gets an “F”. The commissions constitute a war crime under international law for a number of reasons:

. . . (the commissions) prosecute as war crimes conduct that was not a violation of the laws of war at the time the conduct occurred. They fail to ensure exclusion of evidence gained through torture or other abuse. They do not ensure that an accused or defense counsel will be able to see all relevant inculpatory and exculpatory evidence. Permissive hearsay rules fail to ensure that an accused or defense counsel will be able to confront witnesses. New rules governing procedure were introduced in the spring. While the rules are an improvement over the past iterations, they do not cure the fundamental flaws of the commissions. The only way to ensure that detainee trials comport with applicable law is to end military commissions and transfer prosecutions to federal criminal court.

An “F” is given for not holding accountable those who authorized and perpetrated torture against prisoners in U.S. custody:

In November 2010, the Justice Department announced that there would be no prosecutions for destruction of CIA tapes that allegedly recorded acts of torture committed by employees or agents of the United States. Special Prosecutor John Durham has yet to release his report on the investigation into whether crimes were committed by U.S. officials during any interrogations that included “enhanced interrogation techniques,” such as waterboarding, a well-known form of torture. The failure to hold accountable those responsible for acts of torture and to provide redress to victims (see “State Secrets” below) is a violation of international law and diminishes the credibility of the United States as standard-bearer for human rights worldwide.

The abuse of states secrets privilege also gains an “F”:

The Obama Administration has repeatedly asserted the “state secrets privilege” to obtain dismissal of legal claims by victims of U.S.-sponsored torture. Although federal courts have procedures they can use to protect the disclosure of classified information, the Administration has instead successfully convinced courts to dismiss these cases in their entirety on state secrets grounds. This has made it impossible for victims of U.S.-sponsored torture to obtain any form of accountability and redress.

“D”‘s are given for:

Not ending indefinite detention:

It was reported on December 22, 2010 that the Obama Administration plans to issue an Executive Order that would provide for legal representation and a review process for the 48 Guantanamo detainees who have been designated to be held indefinitely without trial.

Not articulating a rule of law for targeted killings:

The Obama administration over the past year dramatically stepped up its secret program of targeted killings, particularly along the Afghanistan-Pakistan border, but has failed to adequately articulate the legal basis for the program and how its choices of targets meet the requirements of international law.

The continued use of extraordinary rendition and lack of diplomatics assurances:

The Obama Administration continues to assert the right to transfer detainees to other countries without the protections of legal process based on diplomatic assurances from the receiving country that the detainee will not be abused, even where that country is known to abuse and torture detainees.

The report gives the President an “Incomplete” on establishing due process in Afghanistan and the remainder of the report enumerates eight things the President can do in the future to improve his “grades”. I wouldn’t hold my breath.