Andrew Sullivan, the King of Bloggers, has written a Newsweek cover story which is featuring heavily in American political discussion on tv, in newspapers and on blogs right now. From over here, it’s sometimes difficult to realize that Sullivan is not just a blogger, albeit a big one, but also a pretty prominent “public intellectual” (as they say) in the US, who from time to time – as a very early advocate of gay marriage, as proponent of the Iraq War, as supporter of Obama – generates a lot of public debate.
In the Newsweek article, Sullivan argues, as one of the first people to elaborately do so, passionately for Obama’s re-election. He basically says that Obama’s political strategy is a “long game”, of which we have not seen the results yet, which will only play out in eight years. In doing so, he obviously and correctly dismisses the president’s conservative ”critics” (we may just call them lunatics), but also takes on criticism of Obama from “the left”. Personally, while I certainly agree with Sullivan that Obama has by and large been a good president – in that he has saved the US and the West from plunging into a systemic crisis largely caused by Bush, through the stimulus, the bail-outs of Wall Street and the auto industry, having healthcare reform passed, getting out of Iraq, reaching out to the Muslim world, responding carefully to the Green Revolution and the Arab Spring, and taking on Qadhafi – he has also failed miserably to keep up to his promises to restore the rule of law. Under Obama, indefinite detention has been enshrined into law, Guantánamo Bay has seen its tenth birthday, military commissions have been kept open, a Drone War killing hundreds of innocents has been started, extrajudicial assassination has become normal, and a war on whistleblowers and transparency-seekers has been waged. Torture has merely been halted by executive order and can easily be reversed by a Republican president.
This, I think, is unforgivable; it is a core reason not to support Obama’s re-election; and Sullivan passes it too easily by. I also think he fails to engage seriously with Obama’s critics that he relents too easily in the face of opposition, as was the case with healthcare and the debt ceiling crisis. Sullivan doesn’t mention anywhere the deep interpenetration of the Obama administration and Wall Street lobbyists. And, finally, I think it’s kind of slavish and rather uncritical to say: “It’s all part of the masterplan, just wait, it will all play out in eight years, just vote now, it’s Obama!” But that is a tendency you see more often in Obama supporters.
Anyway. The only reason I wanted to write this was because I thought it was funny to see Sullivan, whom you almost only know by writing, defend his article on television. And he’s doing it pretty well actually. Enjoy this weird-in-a-sympathetic-way person’s discussion with a Republican supporter:
- Edit: In the best response to Sullivan’s article so far, here’s Conor Friedersdorf, who writes it down better than I can. First he asks if Sullivan would have supported a Republican in 2008 who would have proposed the following:
(1) Codify indefinite detention into law; (2) draw up a secret kill list of people, including American citizens, to assassinate without due process; (3) proceed with warrantless spying on American citizens; (4) prosecute Bush-era whistleblowers for violating state secrets; (5) reinterpret the War Powers Resolution such that entering a war of choice without a Congressional declaration is permissible; (6) enter and prosecute such a war; (7) institutionalize naked scanners and intrusive full body pat-downs in major American airports; (8) oversee a planned expansion of TSA so that its agents are already beginning to patrol American highways, train stations, and bus depots; (9) wage an undeclared drone war on numerous Muslim countries that delegates to the CIA the final call about some strikes that put civilians in jeopardy; (10) invoke the state-secrets privilege to dismiss lawsuits brought by civil-liberties organizations on dubious technicalities rather than litigating them on the merits; (11) preside over federal raids on medical marijuana dispensaries; (12) attempt to negotiate an extension of American troops in Iraq beyond 2011 (an effort that thankfully failed); (14) reauthorize the Patriot Act; (13) and select an economic team mostly made up of former and future financial executives from Wall Street firms that played major roles in the financial crisis.
Yet President Obama has done all of the aforementioned things.
No, Obama isn’t a radical Kenyan anti-colonialist. But he is a lawbreaker and an advocate of radical executive power. What precedent could be more radical than insisting that the executive is empowered to draw up a kill list of American citizens in secret, without telling anyone what names are on it, or the legal justification for it, or even that it exists? What if Newt Gingrich inherits that power?
He may yet.
[Sullivan's] Newsweek essay fits the pattern I’ve lamented of Obama apologists who tell a narrative of his administration that ignores some of these issues and minimizes the importance of others, as if they’re a relatively unimportant matter to be set aside in a sentence or three before proceeding to the more important business of whether the president is being critiqued fairly by obtuse partisans.
Like President Bush, [Obama] is breaking the law, transgressing against civil liberties, and championing a radical view of executive power – and he is invoking the War on Terror to get away with it. As much as it was in 2003 or 2007, it is vital in 2012 that there be a backlash against these post-9/11 excesses, that liberty-loving citizens push back so that these are anomalies that are reined in, rather than permanent features of a bipartisan consensus that can only end in a catastrophically abusive executive operating in an office stripped by successive presidents and their minions of both constitutional and prudential checks.
That is the best case against Obama I can think of. It is, indeed, vital that there is a backlash against his policies.
This Wednesday will be the tenth anniversary of the US prison camp at Guantánamo Bay. Opened by Bush and, despite all his campaign promises, kept open by Barack Obama, this camp represents the warped state the rule of law has been put into in the US by both these presidents.
The New York Times has an impressive op-ed by Lakhdar Boumediene, one of the most well-known former Guántanamo prisoners, who was held innocent and subjected to enhanced interrogation techniques for seven years before he was released by court order.
Boumediene was head of the Red Crescent’s humanitarian aid for children department in Bosnia-Herzegovina before he was captured off the streets on October 19, 2001 by the US Army, deported to Gitmo, and held incommunicado without recourse to a lawyer, the court system, or Geneva protections. While he was subjected to stress techniques, his two daughters had to grow up for seven years without him. Only when the Supreme Court intervened to stop the Bush administration’s lawless practices, Boumediene was granted access to court, found innocent, and released.
His case represents the entire argument against Guantánamo. No government on Earth should be allowed to indefinitely detain people and treat them like they want without any check by an independent judiciary. That is what we have human rights for. Barack Obama, moreover, is the president who has turned this once controversial policy into bipartisan consensus. Under this president, indefinite detention has even been signed into law.
So to remind everyone of this poignant fact, here’s the op-ed by Boumediene. There’s another one too, by the way, from yet another Guantánamo survivor, Murat Kurnaz.
ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.
Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.
I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.
When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.
The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.
Well, maybe not the entire Republican Party consists of idiots. There are insurrectionist rebels, such as Ron Paul or Jon Huntsman. Unfortunately, in today’s GOP they don’t stand a chance. But it is important that their voices are heard, as they represent the last bouts of sanity within that political organization.
Listen to Ron Paul opposing torture vis-a-vis a torture-loving audience. Big-time kudos and respect for this man.
A brilliant piece in The New Yorker by Jeffrey Toobin about Supreme Court Justice Clarence Thomas. Thomas, appointed by George H. Bush, is arguably the most conservative Justice on the Court since the 1930s. He adheres to a very strict originalist and textualist reading of the Constitution, meaning that he believes it should be applied to the twenty-first century the way the Founders intended it for society in the late eighteenth century (whoever came up with this comically absurd idea should receive a prize). In addition to that, unlike the other textualist Justices Antonin Scalia and Samuel Alito, Thomas has no qualm about ignoring precendent in court rulings: when he thinks a previous decision is wrong in his interpretation of the Constitution, he will overturn it. In Thomas’ case, this also means historically exploring how the inhabitants of the thirteen American colonies two-and-a-half century ago meant this or that piece of law.
Adhering to a very strict originalist interpretation of the Constitution means that you believe that only a very small, limited government is constitutionally allowed (just like it was intended back then). If if were up to justices like Thomas, the US government would have no business regulating anything in the American economy or society (although they have, of course, no qualms about executive branch overreach when it comes to military affairs or torture). This leads to predictable conservative positions on such issues as gun rights and federalism, but also – and here it comes – on healthcare. The Obama administration has relied on a ‘broad’ interpretation of the Commerce Clause, which by New Deal-era judicial interpretation has allowed the federal government to intervene in the (trans-state) economy, to mandate individuals to buy health insurance. But it is very much the question whether the current conservative Court, including Justice Thomas, will uphold this interpretation of the Commerce Clause. It is very much possible that Obama’s healthcare reform law will sometime soon be judged unconstitutional by the Supreme Court.
Why is this piece on Clarence Thomas so relevant in this context? Well, because according to Toobin, Justice Thomas’ once extreme positions on various issues he has held since his 1991 confirmation have in the past twenty years become more mainstream. Take, for example, the gun rights issue. Among conservatives today, it is commonplace to argue that the lines in the Constitution about ‘the right to keep and bear arms’ apply to individuals, allowing personal gun rights. But just two decades ago (I didn’t know this), this was considered a radical position in a legal profession that held that the lines apply to state militias only, thus warranting more strict regulation on guns. It was Thomas who came up with the former interpretation, striking down Bill Clinton’s 1999 Brady Bill, and ever since, gun rights in the US have expanded. The same thing has happened on other issues: Thomas’ positions, at first considered radical, move the borders of the acceptable and allow judicial discourse to shift rightwards.
In the era that has seen the rise of the Tea Party out of protests against healthcare reform, the same thing could happen to Obama’s laws. Or, the piece warns, even more broadly to the entire 1930s New Deal-era constellation of laws and regulation that have awarded the federal government a role in protecting the people against the worst excesses of capitalism. Clarence Thomas and his wife are frequent speakers and ardent supporters of the Tea Party and other manifestations of extreme rightwing politics. These people want to take the economy back to the 1920s law of the jungle. In the words of Walter Russell Mead at the American Interest, their goal is to bring the Blue Empire down…
So read this must-read profile of Clarence Thomas to see why he has already been compared to Lord of the Rings’ Frodo – an overlooked actor slowly but steadily moving towards his goal, not taken seriously by his opponents until it is too late.
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
In yet another confirmation that the Obama administration’s handling of counterterrorism policy is nothing but a continuation and, in fact, reinforcement of Bush-era policies, the US Department of Justice decided on Thursday that all cases against (former) low-level CIA and military employees suspected of having employed torture, sometimes leading to murder, are to be dropped, except two.
So there’s not gonna be any accountability for the breaches of human rights and the Geneva Conventions conducted under the last administration in the name of the ‘War on Terror’.
Back in August 2009, the Obama White House already decided that there would be no torture investigations regarding former administration officials (Bush, Cheney, Rumsfeld) and government lawyers (John Yoo, Jay Bybee) who invented and implemented the ‘legal’ architecture for things like indefinite detention, military commissions and ‘enhanced interrogation methods’ (torture), which eventually spread from Guantánamo Bay and the secret ‘black sites’ to Abu Ghraib and Afghanistan. Neither would there be investigations regarding CIA and military employees who stayed ‘within the lines’ of the new torture regime (even though a lot of people, including JAG lawyers, protested at that time).
The only exception to this immunity granted by Obama would be for those employees who went beyond even what was permitted by the Bush administration in terms of torture. And of those 101 cases, all are now dropped except two.
Those two cases are the most gruesome imaginable: one is of a detainee who froze to death in an American secret prison in 2002 after being stripped and chained to the floor, and the other is of the Abu Ghraib detainee who was photographed in 2003 with a guard holding her thumbs up. All other horrors perpetrated under the Bush administration will now be fully, legally protected.
Change we can believe in. And what’s more: except for one executive order ordering a halt to ’enhanced interrogation methods’, there’s nothing that can prevent a future president from starting to employ torture again…
Consider what’s being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons – ”black sites” — purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: ”We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: ”there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation’s history — the systematic, deliberate legalization of a worldwide torture regime — will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party’s control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens’ torture at American hands.
All of those efforts, culminating in yesterday’s entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
As Glenn Greenwald notes, the Obama administration has blocked all attempts by detainees to sue torture facilitators with its generous use of the state secrets doctrine.
What that means is that the only thing preventing a future Republican president from using torture techniques is a flimsy, reversible executive order from the president himself, because no court has ever made a determination that the interrogation techniques themselves were illegal. Both the new Secretary of Defense Leon Panetta, and the new CIA chief David Petraeus, both once among the most prominent opponents of torture, have now expressed support for the idea of using coercive interrogations in “limited” circumstances. Torture became an issue of partisan dispute because Republicans rallied to the defense of their former president. What happens if the same thing happens with Obama supporters, and they feel the need to minimize the magnitude of what happened under Bush in order to defend the lack of accountability sought by their president?
The fact that so few people, if any, will face professional, civil or criminal sanction for torture bothers me far less than the possibility of torture itself becoming American policy again. Between the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability, that outcome seems quite possible.
Interesting piece on Salon that once again highlights how the Obama era, in terms of counterterrorism policy, has for the most part been one of continuation and intensification of the Bush-Cheney era, rather than the break it was promised to be.
At Bagram Air Base in Afghanistan, thousands of detainees are being held under conditions defying international law. And while at Guantanamo Bay the number of detainees is relatively stable, the inmate population at Bagram is growing. Because the Obama administration, like the Bush-Cheney administration before it, regards these detainees – people captured during the Afghanistan war or in the “war” on terror – as “illegal enemy combatants” or “unprivileged belligerents” (a legal category made up by the Bush administration that does not exist in international law), they are deprived of basic legal rights. That is, they have no idea what they are charged with, do not have access to proper legal defence, and so can be held indefinitely.
The article’s author Justin Elliott rightly calls this ‘the Gitmo no one talks about’. Hopefully it will after this article and the Human Rights First report it refers to, because it once again highlights how Obama in this respect is nothing different from his predecessors.
President Obama has presided over a threefold increase in the number of detainees being held at the controversial military detention center at Bagram Air Base, the Afghan cousin of the notorious prison at the Guantanamo Bay Naval Base in Cuba. It’s the latest piece of news that almost certainly would be getting more attention — especially from Democrats — if George W. Bush were still president.
There are currently more than 1,700 detainees at Bagram, up from over 600 at the end of the Bush administration.
The situation at Bagram, especially the legal process that determines whether detainees are released, is the subject of a new report by Human Rights First. It finds that the current system of hearings for detainees “falls short of the requirements of international law” because they are not given “an adequate opportunity to defend themselves against charges that they are collaborating with insurgents and present a threat to U.S. forces.” Human Rights First also argues that cases of unjustified imprisonment are damaging the broader war effort by undermining Afghans’ trust in the military.
What legal status do the detainees at Bagram have? Are they prisoners of war?
The U.S. doesn’t call any of the prisoners we keep in the context of the war on terror — including Afghanistan — “prisoners of war.” They’re called “unprivileged belligerents” which means that they don’t have POW status. That’s because we’re at war with organizations like the Taliban or al-Qaida rather than a country or official government. But these detainees are supposedly being held under the rules of armed conflict.
What does this mean in practice about what sort of legal process they face and what rights these detainees have?
It depends who you ask. There are no laws under the rules of war governing how you treat detainees in this kind of armed conflict. So the position of most other civilized nations, most European commissions and human rights bodies is that international human rights laws should apply. The U.S. government says that those laws don’t apply beyond its own borders, and therefore no laws apply.
Early on at Bagram, there were terrible abuses. There were reports of people being killed in custody and tortured. We believe that is not happening anymore. There is still something called the black jail at Bagram, what the government calls a “screening facility.” It’s called the black jail because there are no windows and no natural light, and no one knows what time of day it is. The conditions there are much worse than at the main prison. People who have been at the black jail complain of being strip-searched in humiliating ways, being subjected to extreme cold temperatures, lights on 24 hours a day, and not having a mattress. But still nothing as bad as the kind of torture that was reported early on.
You went to Afghanistan and attended some of the hearings for Bagram detainees. How does this all work and what did you find?
They are supposed to get a hearing on their detention after 60 days and then at six months and every six months after. The hearings sound good on paper but then when you actually attend them — I hate to use the cliché — it’s Kafkaesque. They’re not allowed to see much of the evidence against them because it’s classified. So a military person will stand up and read the charges — say that the detainee was found to be an IED maker. And the accused will say, “Well what is the evidence against me?” And the military won’t produce it because it’s classified. The accused does not get a lawyer; they get what’s called a personal representative. That’s a field-grade soldier who is assigned to represent a detainee — but they have no legal training beyond a 35-hour course. Many former detainees told me they did not trust their representatives, who are uniformed soldiers. And at least in the public sessions, we did not see the representatives ever challenge evidence. There are also classified sessions, where we of course don’t know what happens.
Wonderbaarlijk genoeg leidt de dood van Osama bin Laden er ineens toe dat in Nederland, in kranten en op televisie, de buitenlegale maatregelen van opeenvolgende Amerikaanse regeringen onderwerp van debat zijn. Onbemande vliegtuigjes, Guantánamo Bay, marteling, onbeperkte opsluiting; zaken waar we op deze blog alanderhalfjaaraandachtvoorproberentevragen (weliswaar in het Engels) worden ineens besproken op nationale tv.
Blijkbaar wordt, zodra het zo concreet wordt als de buitenrechtelijke executie van Osama bin Laden, het de Nederlanders opeens te gortig.
Mooi, natuurlijk, maar waar waren alle Nederlandse mainstream media, zoals de Volkskrant en het NRC, het afgelopen decennium? De afgelopen drie jaar in ieder geval vooral druk met het kritiekloos bewonderen van Obama, zonder erop te wijzen dat deze met amper enige wijziging het buitenlegale antiterreurbeleid van Bush en Cheney heeft voortgezet.
Mede debet aan deze nationale hausse van aandacht voor Amerikaanse buitenlegale praktijken is advocaat en internationaal strafrechtgeleerde Geert-Jan Knoops. Afgelopen maandag, toen het nieuws van Bin Laden’s verscheiden nog vers was en gans het Westen (nou ja, de VS) in juichstemming verkeerde, was Knoops de eerste die wees op het illegale karakter van deze actie. Aanvankelijk nog in een zijkolom, maar allengs uitgroeiend tot een van de belangrijkste stemmen in het debat.
Knoops mogen we dan ook wel kwalificeren als een koning. Zo was hij betrokken bij de verdediging van Salid Hamdan, de op Guantánamo Bay opgesloten ’chauffeur van Bin Laden’, wiens rechtszaak een van de belangrijkste werd in de strijd tussen de regering-Bush en het Hooggerechtshof over de rechten van gedetineerden. Knoops was ook de advocaat van Marco Kroon, en volgens de site van KRO’s Oog in oog ‘adviseerde hij zowel Saddam Hoessein als Barack Obama’ (wat dat inhoudt weet ik niet). Daarnaast bepleitte hij allerlei zaken voor de Joegoslavië- Rwanda- en Sierra Leone-tribunalen.
O ja, Knoops is ook bergbeklimmer en diepzeeduiker. En marinier.
In other words, een interessant Mensch om eens een uurtje naar te luisteren, zeker wanneer hij gehakt maakt van het Amerikaanse contraterreurbeleid van het afgelopen decennium, en het buitenlegale karakter daarvan. De Nederlandse Glenn Greenwald:
Yesterday, I expressed the hope that with the demise of Osama bin Laden, America could return to being the constitutional democracy with the rule of law that it was before 9/11.
Luckily (and of course), I’m not the only one who sees this as possibly the most important aspect of yesterday’s operation. Here’s probably the best commentary that I’ve read so far in the wake of Bin Laden’s death, by Peter Beinart of The Daily Beast. Beinart argues that now the figurehead of the 9/11 attacks is gone, it’s time to call an end to the so-called ‘war’ on terror. This doesn’t mean that counterterrorism policies should come to a halt! On the contrary, in the coming time period they should probably be increased to prevent retaliation. But it does mean that the ‘war’ on terrorism should cease to be the primary paradigm through which US (and Western) foreign policy operates.
Because let’s face it: the threat of radical islamist terrorism is not the biggest policy problem the West faces. It isn’t now, and it wasn’t after 9/11. If I’d to point at anything, I’d had to choose between the rise of China or the long-term budgetary and financial problems the US and the West are facing. But certainly not the threat of a bunch of medieval rag tag terrorists who, admittedly, can do short-term symbolic (and personal) damage, but do not pose any fundamental threat to the existence of our society in this form.
The terrorist incidents of 9/11 and those after that can, however, present long-term problems when executive powers choose to overreact, and thereby aim to fundamentally transform the structures of constitutional democracy and the rule of law. This is what happened in America under Bush-Cheney, where an emergency became the pretext for a global, unending, infinite ‘war’ on terror in which anything was allowed. That’s when you got ‘enemy combatants’, indefinite detention, torture and a Gulag archipel of ’black sites’ and Guantánamo Bay. By and large, this ‘legal architecture’ for combating terrorism – with the exception of torture – has been retained by Obama, who added drone attacks and the targeting of American citizens abroad of his own.
When a state of emergency ceases to be the exception and starts to be the norm, then you have a problem. Either it expands (and turns on citizens), or it becomes the baseline on which to build yet other ‘emergency’ measures. So let’s say the state of emergency started on 9/11 (I don’t agree, but let’s say it did); can we then now say that with the demise of Osama bin Laden, who apparently was so important that streets are filled with chanting people, the state of emergency has ended? Can we please do away with renditions, indefinite detention, Guantánamo Bay, illegal wiretapping, and so forth?
[We] have more to be grateful for than this one villain’s demise. We must give thanks for something broader: The war on terror is over. I don’t mean that there is no threat of further jihadist attack. In the short term, the threat may even rise. I don’t mean that we should abandon all efforts at tracking terrorist cells. Of course not. But the war on terror was a way of seeing the world, explicitly modeled on World War II and the Cold War. It suggested that the struggle against “radical Islam” or “Islamofascism” or “Islamic terrorism” should be the overarching goal of American foreign policy, the prism through which we see the world.
I remember how seductive that vision was in the aftermath of 9/11. It imposed order on the world and gave purpose to American power. But it was a mistake from the start. Even the Cold War was a dangerously overblown vision, which blinded American policymakers to the fact that much of what happened in, say, Vietnam or Angola, had little to do with Moscow or communism. But the war on terror was worse. It made East Asia an afterthought during a critical period in China’s rise; it allowed all manner of dictators to sell their repression in Washington, just as they had during the Cold War; it facilitated America’s descent into torture; it wildly exaggerated the ideological appeal of a jihadist-Salafist movement whose vision of society most Muslims find revolting.
Even before the U.S. killed bin Laden, the Arab Spring had already rendered him irrelevant. President Obama now has his best chance since taking office to acknowledge some simple, long-overdue truths. Terrorism does not represent the greatest threat to American security; debt does, and our anti-terror efforts are exacerbating the problem. We do not face, as we did in the 1930s, a totalitarian foe with global ideological appeal. We face competitors who, in varying ways, have imported aspects of our democratic capitalist ideology, and are beating us at our own game.
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.
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.
But for those who would argue for a continuation of the lawlessness of the post-9/11 legal era, the question is now this: When does it end? If the death of Bin Laden doesn’t signal the end of the 9/11 legal regime, what does? Do we continue to avail ourselves of these illegal methods until every last enemy of America is dead? If torture produced information about the men hiding Bin Laden, does that give America license to torture anyone, anywhere? If the prison camp at Guantanamo is the only reason we were able to obtain intelligence about Bin Laden’s protectors, shouldn’t Guantanamo be expanded and kept open forever? Shouldn’t we start shipping Americans there?
The “war on terror” language was always metaphorical, I realize, but it unloosed a very real Pandora’s box of injustice on a nation that prides itself on its notions of fairness. That makes the highly symbolic death of Bin Laden an apt time—perhaps the last apt time—to ask whether this state of affairs is to be temporary or permanent. If President Obama truly believes, as he said last night, that justice has finally been done, he should use this opportunity to restore the central role of the rule of law in achieving justice in the future.
Obama’s shame is getting bigger and bigger. Yesterday, 250 of America’s most eminent legal scholars have signed a letter protesting the inhumane treatment of Bradley Manning – the 23-year old soldier who was the original whistleblower to WikiLeaks. The signatories include Laurence Tribe of Harvard University, a foremost authority on US constitutional law, former professor of Obama, and backer of his 2008 campaign.
As featured extensively on the Internet (including this blog, see here, here, here and here) and lately also in the mainstream media, Manning is treated in ways that are cruel and inhumane, if not amounting to torture. He is permanently stripped of clothes during the night and public morning inspection; solitarily confined for 23 hours a day; permanently shackled during his one hour of outside-cell time; and under constant surveillance, even though he is not suicidal.
Manning’s treatment, clearly unlawful and unconstitutional, seems very much meant to intimidate future whistleblowers. All this is occurring under the watchful eye of Barack Obama. So no wonder the American legal establishment is (finally) starting to protest – including regarding the constitutionality of Manning’s treatment. Read the full letter here.
Bradley Manning is the soldier charged with leaking US government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.
The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application…of… procedures calculated to disrupt profoundly the senses or the personality.”
Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention.
The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.
If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pretrial punishment. As the State Department’s P.J. Crowley put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.
The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does, not what it says.
President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions—and immediately end those that cannot withstand the light of day.
Some signatories: Brucke Ackerman, Jack Balkin, Kwame Anthony Appiah, Alexander M. Capron, Norman Dorsen, Michael W. Doyle, Randall Kennedy, Mitchell Lasser, Sanford Levinson, David Luban, Frank I. Michelman, Robert B. Reich, Kermit Roosevelt, Kim Scheppele, Alec Stone Sweet, Laurence H. Tribe, and more than 250 others. Check the full list here.
Even across mainstream media, President Obama is increasingly being criticized for the way in which the Pentagon has decided to treat Bradley Manning (23), the WikiLeaks whistleblower. As documented earlier on this blog (and earlier before that), Manning is under a detention regime of enforced nudity, 23-hour isolation, and constant surveillance. As he is, according to his laywer, family and friends, not suicidal, this is clearly meant to intimidate him and possible future whistleblowers.
Just three days ago, the spokesman of the State Department Philip J. Crowley publicly criticized the treatment of Manning, calling it “ridiculous and counterproductive and stupid”.
And how does Barack Obama react to that? By firing the guy. That’s how this president deals with criticism regarding the torturous treatment of an American citizen and soldier at the hands of the US army on American soil, after an act of whistleblowing.
As Andrew Sullivan (a longtime Obama cheerleader) has written, Obama now officially “owns” the case of the treatment of Bradley Manning. But not only Sullivan is starting to get his doubts about this president; across the media spectrum, commentators formerly supportive of Obama are voicing their concerns about his decisions. Glenn Greenwald has a nice round-up:
Denunciations of the President from his own supporters are as intensive and pervasive here as they have been for other prior incident, if not more so. Matt Yglesias wrote that “to hold a person without trial in solitary confinement under degrading conditions is a perversion of justice” and that it’s a ”sad statement about America that P.J. Crowley is the one being forced to resign over Bradley Manning.” Andrew Sullivan — writing under the headline ”Obama Owns the Treatment of Manning Now” — said that Crowley was forced out “for the offense of protesting against the sadistic military treatment of Bradley Manning,” that “the president has now put his personal weight behind prisoner abuse,” and that “Obama is directly responsible for the inhumane treatment of an American citizen.” Meanwhile, Ezra Klein previews his denunciation of the President’s treatment of Manning and Crowley by announcing that it’s his first ever lede “that isn’t about economic or domestic policy” but rather is ”about right and wrong,” and then questions “whether the Obama administration is keeping sight of its values now that it holds power.” Those strong words are all from supporters of the President.
Elsewhere, The Philadelphia Daily News‘ progressive columnist Will Bunch accuses Obama of “lying” during the campaign by firing Crowley and endorsing “the bizarre and immoral treatment of alleged Wikileaks leaker.” In The Guardian, Obama voter Daniel Ellsberg condemns “this shameful abuse of Bradley Manning,” arguing that it “amounts to torture” and “makes me feel ashamed for the [Marine] Corps,” in which Ellsberg served three years, including nine months at Quantico. Baltimore Sun columnist Ron Smith asks: ”Why is the U.S. torturing Private Manning?,” while UCLA Professor Mark Kleiman — who only last year hailed Obama as “the greatest moral leader of our lifetime” and eagerly suggested on Friday (before Obama’s Press Conference) that Crowley was speaking for Obama — mocked Obama’s defense of the Manning treatment as “clueless on the Bush level” and now says of Crowley’s firing: ”The Torturers Win One,” lamenting Obama’s overt support for a policy that is ”unconscionable and un-American and borderline criminal.”
Not all is bad for Obama though. On the Republican right, his policies are increasingly finding approval…
HotAir‘s Ed Morrissey, as but one example, lavishly praises the President’s decisions: ”The White House acted appropriately in kicking Crowley out at State, and should be commended for taking quick action,” and then defends the conditions of Manning’s detention as appropriate and necessary. It really is quite striking — and quite revealing — how, at least in the areas about which I wrote most (civil liberties, secrecy, surveillance, privacy, war, due process, detention, etc. etc.), and for many of the specific controversies on which I’ve focused (WikiLeaks, Manning, indefinite detention, Afghanistan, drone attacks, the due-process-free assassination program, legal immunity for Bush officials, state secrets, etc.), the greatest support for the President’s policies (with a few early exceptions) are found, by far, among the same faction of America’s Right who so eagerly supported the Bush/Cheney policy framework.
Alex Knapp at Outside the Beltway captures my feelings exactly when he writes about the depressed feeling he gets from the ‘mainstreaming of brutality’ that is going on in the US. Now I’m not surprised about that stuff coming from Republicans; what upsets me is how Obama – Obama, of all people – has made bipartisan and acceptable that people can be held indefinitely in prisons without a trial; that American citizens can get shot abroad without a trial if they are suspected of terrorism; and that whistleblowers get treated like the worst criminals. It runs against everything that America once stood for. And what was that thing about the audacity of hope again?
I’ve been trying for the past couple weeks to write about Bradley Manning, but I can’t. It makes me sick to my stomach. The whole trend of brutality and betrayal of American ideals over the past decade makes me sick to my stomach.
We have gone from being the first country that established the principle that prisoners of war should be treated respectfully to a country that operates black sites and sends prisoners to other countries to be tortured–when we don’t torture them ourselves.
In the American Revolution, the number one cause of death for American soldiers was maltreatment and disease in British POW camps. In the Civil War, Andersonville was a cause of national outrage. In the early 20th century, the United States emphatically supported the adoption of the Geneva Conventions. In World War II, German soldiers happily surrendered to Americans in the West, knowing they’d be well treated. But in the East, they fought the Russians to the last man because they knew they wouldn’t be.
Now, in the 21st century, we send robot planes to bomb civilians in a country that’s ostensibly an ally. We have prisons where people are routinely denied basic essentials, denied due process, are maltreated and tortured. We reverse decades of tradition and not only have legalized assassination, but have legalized assassination of United States citizens.
And there’s no outrage on Main Street. There’s no outrage in Washington. There’s only outrage on the internet. And half the internet rage is coming not from the acts themselves but rather partisan bullshit surrounding them. (“You only hate torture when Bush does it!” “You only hate it when we do it to white people!” “Nuh-uh!” “Uh-huh!”)
The first time I voted in a Presidential election, in 2000 (for Harry Browne), no part of my consideration of any of the candidates had to do with whether they wished to torture people or assassinate American citizens. It didn’t have to be, because it wouldn’t cross anybody’s mind to have a position on it. Americans don’t torture. That was our position. We were a shining city on a hill. You can’t torture people in the basement if you’re trying to set an example of decency to the world.
In 2004, this became a partial voting issue, as John Kerry oh so politely pointed out that maybe throwing people into a prison might be a little wrong? Maybe? But since at the time Kerry seemed to be supporting whichever way the wind was blowing, it didn’t seem to matter as much. (In the end, I voted for “None of the Above.”)
Then in 2008, one major reason why I voted for Barack Obama was because he forcefully claimed to be opposed to such policies. And I was mad that that was actually a voting issue for me, because you’d think that not torturing people is a moral no-brainer.
But, as it turned out, Obama lied.
Now, as I look to vote in 2012, I realize that just like in 2000, no part of my consideration for any of the candidates will involve their positions on torture, war crimes, secret prisons, renditions, etc.
Because both candidates will be in favor. Without apology.
The NYT reports that Bradley Manning (23) - the American soldier who originally passed the Iraq helicopter video, the Iraq and Afghan war logs and the US diplomatic cables to WikiLeaks – is being treated in an increasingly inhumane way in the cell in which he is locked up in Quantico, Virginia. He is now permanently stripped of this clothes during the night and the morning inspection, where he stands along the other detainees. This comes in addition to his 23-hour solitary confinement; his one hour of outside-cell time, during which he is shackled and must walk around all time; his deprivation of exercise; and the constant surveillance he is under. Bradley Manning, even though he is not suicidal and has acted like a model detainee (although he’s increasingly showing signs of psychological duress) has been forced to endure this treatment for the past ten months.
Let’s be clear about this: Bradley Manning’s treatment amounts to torture. Forced nudity is a breach of the standards of the Geneva Conventions, and prolonged solitary confinement is torture anyhow. And this is being done under one President Barack Obama. Manning is the person thanks to whom we know that American soldiers in Iraq shot innocent civilians from an Apache helicopter; thanks to whom we know how high the death toll of the Iraq War really was; and thanks to whom we know all those revelations from the WikiLeaks cables, that are still coming out. They even played a role in the Tunisian uprising, leading to the historic events of the past few weeks. In other words, this person is a hero if there ever was one. And yet, even though he has not been convicted of any crime, he is being handled in a manner reserved for the worst criminals in Supermax prisons (or terror suspects in Guantánamo Bay).
Here’s an excerpt from the chat logs between Adrian Lamo (the guy who turned him in) and Manning, revealing the latter’s motivations for revealing information being held secret to the public:
Manning: [B]ecause it’s public data. . . . it belongs in the public domain -information should be free – it belongs in the public domain – because another state would just take advantage of the information… try and get some edge – if its out in the open . . . it should be a public good.
Lamo: what’s your endgame plan, then?. . .
Manning: well, it was forwarded to [WikiLeaks] – and god knows what happens now – hopefully worldwide discussion, debates, and reforms – if not, than [sic] we’re doomed – as a species – i will officially give up on the society we have if nothing happens – the reaction to the [Baghdad Apache attack] video gave me immense hope; CNN’s iReport was overwhelmed; Twitter exploded – people who saw, knew there was something wrong . . . Washington Post sat on the video… David Finkel acquired a copy while embedded out here. . . . – i want people to see the truth . . . regardless of who they are . . . because without information, you cannot make informed decisions as a public.
So this is how the American government treats whistleblowers. And it is all happening under the watchful eye of President Obama, who as a candidate in 2007 said the following things:
They will be ready to show the world that we are not a country that ships prisoners in the dead of night to be tortured in far off countries. That we are not a country that runs prisons which lock people away without ever telling them why they are there or what they are charged with. That we are not a country which preaches compassion and justice to others while we allow bodies to float down the streets of a major American city.
That is not who we are.
Yes we can, President Obama. Change we can believe in.
Despite his highly publicized meetings with opposition groups, the limited concessions and promises of future liberalization are not promising. Suleiman’s torturous ways have apparently not let up, with his dreaded Mukhabarat running makeshift torture chambers across Cairo, according to two New York Times reporters who witnessed one firsthand. When the opposition Wafd Party asked Suleiman if he was considering lifting the decades-old state of emergency, which allows the government to arrest and detain with impugnity, the longtime intelligence chief responded incredulously, “At a time like this?”
Suleiman’s repression and brutality — on behalf of both the U.S. and Mubarak — has been well-documented elsewhere (The New Yorker‘s Jane Mayer was the first to flag it after the Egyptian uprising, while ABC News recounted how he once offered to chop off the arm of a Terrorist suspect to please the CIA … [Tuesday]‘s Times article does a decent job of conveying how unwilling Suleiman is to bring about anything resembling a real transition to democracy, how indifferent (if not supportive) the Obama administration seems to be about that unwillingness, and how dangerously that conduct is fueling anti-American sentiment among the protesters. But the fact that American policy has “changed” from imposing Mubarak on that country to imposing someone with Suleiman’s vile history and character belongs at the forefront of every discussion, especially ones purporting to examine who he is.
Two things appear to be clear as we round out two weeks of pro-democracy protests since the initial Egyptian ‘Day of Rage’ was launched on January 25th. First, that to the degree that protestors might have benefited in their hopes of realizing regime change in either the immediate or short-term from the support of Western democracies, including the United States and members of the European Union, any such benefits are not likely to accrue. The Western democracies uniformly appear happy to carve out a position marked by inconsistent messaging, tepid criticism, calls for change and, ultimately, acceptance of a slow process that formally leaves power in Mubarak’s hands as the best means of securing ‘stability’ and ‘orderly transition’. And by the way, I am not suggesting protestors wanted Western support. They likely did not. The point here is just that the West is willing to accept and support Mubarak rule for at least the next half-year at this point, and, as such, has made clear that its support for democracy around the world is conditional.
The latest example is aptly provided by White House Press Secretary Robert Gibbs who described ‘new’ Vice-President Omar Suleiman’s remarks that ‘Egypt is not ready for democracy’ as “very unhelpful”. Very unhelpful? Is Gibbs sure that won’t set off a diplomatic crisis?
Second, the protestors are not showing any signs of going away quickly. Many reports from news agencies and those on the ground today suggest that there were more protestors today than any day so far. This is truly remarkable. In the face of thinly veiled threats, violence and kidnappings by the state security apparatus, people have made clear they are rejecting the empty ‘concessions’ on offer from the Mubarak regime (and it is getting hard to keep up with the empty promises on offer). It appears, as per the message of protestors from the start, anything short of Mubarak’s actual departure will not satisfy the revolutionaries occupying Tahrir Square and spread throughout much of the rest of the country.
One of the most recent rallying points drawing more people to participate is the story of Wael Ghonim. Ghonim is a Cairo native who is married to an American and lives and works in Dubai as Head of Marketing for Google Middle East and North Africa. He is being credited with being an early, albeit, at the time anonymous catalyst of the movement. Ghonim, under a false identity started the “We are all Khaled Said“ Facebook page commemorating the torture and killing of a 28-year old Egyptian blogger at the hands of the police for exposing police wrongdoing, agitating against police intimidation and brutality as well as calling for the January 25th protest.
Ghonim ’disappeared’ on January 27th during the protests by the Egyptian regime, which under the leadership of Suleiman allegedly participated in the United States’ extraordinary rendition programme that used foreign countries to torture detainees as part of the so-called War on Terror. Considerable attention was called to his disappearance by journalists and internal human rights organizations such Amnesty International before his eventual release yesterday.
Shortly after his release Ghonim granted a highly emotional interview to Egyptian channel DreamTV which has since been posted on the web complete with English subtitles. I consider this essential viewing.
The sincere compassion shown to everyone involved in the protests including his interrogators and the even-handedness with which Ghonim assesses what is happening and what should happen is remarkable, especially for a man who is just hours removed from being held captive for 12 days by a regime that his own past writing makes clear is to be feared. Among the highlights of the interview are when Ghonim makes clear that this is not the time to settle scores, to divide up the cake or to impose ideologies.
It is not the place of anyone to set a barometer for which countries ought to be a democracy and which ought not, besides the citizens of those countries. But even if it was, what more could we ask for than what Wael Ghonim and his compatriots have put on offer? Personally, the interview lays bare just how hypocritical Western governments are being in choosing a brutal authoritarian regime that has no claim whatsoever to democratic legitimacy over hundreds and hundreds of thousands of people who day after day have peacefully taken to the streets breaking down traditional gender, religious and socio-economic divides to demand justice and democracy. I could not imagine a more cynical and, frankly, disgusting stance.
With all the fuss about either the WikiLeaks cables or the Anonymous hacks, the fate of Bradley Manning, the 22-year old private in the U.S. Army who allegedly leaked the Apache helicopter video, the Afghan and Iraq war documents and the U.S. embassy cables to WikiLeaks, has received scarce attention.
The indispensable Glenn Greenwald, however, has a large piece about the conditions of Manning’s detention. For seven months straight, Manning has been held in solitary confinement (a treatment normally reserved for the worst convicted criminals) in Kuwait and Quantico, Virginia. He only has one hour of outside time a day, and has even been denied sheets and a pillow. He is not allowed to exercise, and is under constant surveillance to enforce this. Also, he has no access to news and current evens programs. This is based on interviews with friends and relatives, as well as a Quantico brig official.
Conceivably, even though Manning has acted as a model detainee with no disciplinary problems, he is now starting to show signs of psychological stress and exhaustion; and is treated with antidepresssants as a result. As Greenwald notes, the complete isolation of solitary confinement is considered torture by many nations. Moreover, Manning has not even been convicted of anything! Yet, he is receiving the treatment normally reserved for the worst criminals in Supermax prisons.
Please spread word of this injustice far and wide. Manning is the guy thanks to whom we know about the Apache helicopter incident, the higher death tolls in Iraq and Afghanistan, the U.S.-run United Nations espionage program, Pfizer’s smear tactics in Nigerian drug experiment trials, and so much more.
You can donate to the legal defense fund of Bradley Manning here.
- Update: MSNBC’s Keith Olbermann has a segment on the inhumane conditions of Manning’s detention. Also, Glenn Greenwald appeared on Democracy Now! to discuss this.
Bradley Manning, the 22-year-old U.S. Army Private accused of leaking classified documents to WikiLeaks, has never been convicted of that crime, nor of any other crime. Despite that, he has been detained at the U.S. Marine brig in Quantico, Virginia for five months — and for two months before that in a military jail in Kuwait — under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture. Interviews with several people directly familiar with the conditions of Manning’s detention, ultimately including a Quantico brig official (Lt. Brian Villiard) who confirmed much of what they conveyed, establishes that the accused leaker is subjected to detention conditions likely to create long-term psychological injuries.
Since his arrest in May, Manning has been a model detainee, without any episodes of violence or disciplinary problems. He nonetheless was declared from the start to be a “Maximum Custody Detainee,” the highest and most repressive level of military detention, which then became the basis for the series of inhumane measures imposed on him.
From the beginning of his detention, Manning has been held in intensive solitary confinement. For 23 out of 24 hours every day — for seven straight months and counting — he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions. For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch). For the one hour per day when he is freed from this isolation, he is barred from accessing any news or current events programs. Lt. Villiard protested that the conditions are not “like jail movies where someone gets thrown into the hole,” but confirmed that he is in solitary confinement, isolated entirely alone in his cell except for the one hour per day he is taken out.
In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.
Manning is barred from communicating with any reporters, even indirectly, so nothing he has said can be quoted here. But David House, a 23-year-old MIT researcher who befriended Manning after his detention (and then had his laptops, camera and cellphone seized by Homeland Security when entering the U.S.) is one of the few people to have visited Manning several times at Quantico. He describes palpable changes in Manning’s physical appearance and behavior just over the course of the several months that he’s been visiting him. Like most individuals held in severe isolation, Manning sleeps much of the day, is particularly frustrated by the petty, vindictive denial of a pillow or sheets, and suffers from less and less outdoor time as part of his one-hour daily removal from his cage.
That is plainly what is going on here. Anyone remotely affiliated with WikiLeaks, including American citizens (and plenty of other government critics), has their property seized and communications stored at the border without so much as a warrant. Julian Assange — despite never having been charged with, let alone convicted of, any crime — has now spent more than a week in solitary confinement with severe restrictions under what his lawyer calls “Dickensian conditions.” But Bradley Manning has suffered much worse, and not for a week, but for seven months, with no end in sight. If you became aware of secret information revealing serious wrongdoing, deceit and/or criminality on the part of the U.S. Government, would you — knowing that you could and likely would be imprisoned under these kinds of repressive, torturous conditions for months on end without so much as a trial: just locked away by yourself 23 hours a day without recourse — be willing to expose it? That’s the climate of fear and intimidation which these inhumane detention conditions are intended to create.
WikiLeaks is a gift that keeps on giving. Just by accident – I was looking for a document that revealed that the Netherlands, together with Germany and Italy, proposed to remove American nuclear weapons from its soil – I stumbled on this report of a meeting between John Bellinger (above), legal advisor of then-State Secretary Condoleezza Rice, and a couple of important European counterterrorism figures, back in 2006. These include John Cooper, Director-General for Common Foreign and Security Policy at the EU Council Secretariat, and Gijs de Vries, EU Coordinator for the Fight against Terrorism.
The report reveals nothing new, but it does provide a great summary of the legal (or quasi-legal) architecture of the Bush-Cheney War on Terror. On the meeting, Bellinger tries to explain this legal architecture – why suspected terrorists can be held indefinitely at Guantánamo, how extraordinary renditions can be justified, why the Geneva Conventions don’t apply – and tries to convince his European counterparts of their appropriateness. I was very relieved when reading the reactions of the Europeans at the table: very critical, and not very convinced at all.
So if you’re interested in how the Bush administration, rather candidly I must say, defended its treatment of terrorism suspects abroad, and how well it fared in this case in Europe, read on.
Secstate Legal Adviser John Bellinger met with a comprehensive array of EU interlocutors in Brussels on February 7-8 to discuss U.S. views on the legal framework for the war on terrorism. He stressed that U.S. decisions on how to deal with an unprecedented global terrorist threat had been made after serious consideration of all legal and political options, and that European officials must publicly underline U.S. EU solidarity in the fight against terror. On Guantanamo detainees and Al Qaeda, Bellinger argued that the U.S. was and is acting in the context of a new form of international armed conflict, and that therefore, while the Geneva Conventions do not fit this new situation well, the rules of war provide a more appropriate framework than domestic criminal law. He discussed European concerns about the treatment of detainees. Bellinger also argued that rendition is a vital tool against terror. Finally, he urged the EU not to support a Cuban resolution at the UN Human Rights Commission on Guantanamo. The EU response to the visit was for the most part extremely positive, with the Legal Adviser of the Austrian EU presidency underlining that ”the fight against terror is our (shared) struggle.” Europeans, however, remain concerned about protection issues.
Note how the Bush-Cheney administration reasoned in terms of a “new paradigm”: the idea that the War on Terror is not a metaphorical construct, but an actual war, an international armed conflict, to which the rules of war apply. Yet, the rules of war according to Bush-Cheney only apply selectively, to the extent that the U.S. President deems fit. The Geneva Conventions and the Torture Convention, after all, to them do not apply to terror suspects.
Here we see more of this:
Bellinger stressed that the situation in which the U.S. and its allies find themselves is unprecedented –faced with thousands of Al Qaeda and associated terrorists around the globe whose goal is to inflict mass casualties on innocent civilians by any means possible. The legal frameworks that are readily available, the Geneva Conventions or domestic criminal law, do not fit this unprecedented situation well.
The U.S. believes that the continuing struggle against Al Qaeda remains a legal state of international armed conflict.
Al Qaeda is not the same as domestic European terrorist groups like the IRA or RAF because it is global and operates outside the U.S. and across borders. It is in effect a new manifestation on the battlefield, that of “armies of terrorists.” Conceptually, this is a military conflict, not a police action to round up criminals.
Yet even though this is apparently an international armed conflict, the Geneva Conventions to the U.S. do not apply. Al Qaeda is not a ‘High Contracting Party’ to the Conventions, they are not soldiers wearing uniforms, and neither are they ‘protected persons’ (civilians caught up in a conflict). So what are they then?
If not covered as POWs or protected persons, what, then, is the status of Al Qaeda and Taliban combatants? (…) [They] are best defined as unlawful combatants who do not have a right to any protections under the Geneva Conventions.
And this, then, is a new category of people that can be held indefinitely, have no right to a hearing in court, and can be tortured and extradited at will. Of course the Bush-Cheney administration and Mr. Bellinger ignored completely that large parts of the Geneva Conventions, and the Torture Convention, are simply common law – they apply regardless of the state of conflict or the participants in it. Each person in the world is free from being detained indefinitely without recourse to a legal court, and free from torture.
Yet the Americans apply international law only selectively, to the extent to which “military necessity” allows it. And what military necessity is, is of course to the unreviewable discretion of the U.S. President. This is the war paradigm reasoning again.
Accordingly, to clarify U.S. policy towards detainees President Bush issued a public directive on February 7, 2002, titled “Humane Treatment of Al Qaeda and Taliban Detainees.” This directive orders that all detainees under the control of the Armed Forces be treated humanely and, to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions. In addition, the U.S. remains bound by, and committed to, the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. This includes Article 4, which prohibits torture, and Article 3, which prohibits transfers of persons to countries where there is substantial likelihood that they will be tortured. Article 3 is applied on a case-by-case basis.
Bellinger however does address the obvious question: if detainees can be held for the duration of the “war”, and if the War on Terror is only over when America declares it over (which willl, probably, never occur), does that mean that people can be held forever? Why, yes, they can:
Can detainees be held indefinitely? What if some are innocent? The U.S. recognizes that these are troubling questions, but does not believe such questions could justify a decision not to detain people who represent a danger to American citizens. To deal with this problem at Guantanamo, the U.S. has created an annual Administrative Review Board process to determine, for each individual detainee, whether that detainee should still be considered as in a state of war with the U.S.
The question has also been raised as to the possible innocence of Guantanamo detainees. As the Geneva Conventions dictate, if there is any doubt about whether or not an individual is a POW, there must be an Article 5 tribunal. Since Taliban and Al Qaeda fighters clearly did not meet the conditions necessary to be granted POW status, the President decided that Article 5 tribunals were not necessary.
So, in a twisted rendering of the language of international law, individuals can be determined to be “in a state of war” with the U.S., whereas status determination tribunals for terror suspects need not be established, as there is no doubt as to their status: they are terrorists.
Bellinger than goes on to the address the European concern that people have been snatched from the street by the CIA, and transported to Guantánamo, or secret “black sites” that we don’t even know about. Although it has by now been confirmed that people (and sometimes innocent people) have been abducted by the CIA, back in 2006 it could still be denied. He also chooses not to go into CIA flights:
Bellinger sought to dispel allegations that hundreds of people had been kidnapped from European streets. He pointed out that there is no evidence for such allegations, and that the United States respects the sovereignty of European governments. On renditions, CIA flights, and other intelligence operations, the U.S. will not confirm or deny specific allegations, in order not to compromise the confidentiality of intelligence operations as such.
After that, Bellinger tries to bully the Europeans into not supporting a motion by Cuba against American actions at Guantánamo in the U.N. Human Rights Commission:
Some EU interlocutors expressed concern that some EU member states would support a Cuban resolution against U.S. actions in Guantanamo at the upcoming UN Human Rights Commission, that might be modeled after a European Parliament resolution on the subject. Bellinger warned that European support for a Guanatanamo resolution would be a serious setback to U.S.-EU cooperation against terrorism, and give the unacceptable impression that the EU was aligned with Cuba against the U.S.
Soo… Having come at the end of his expose, how did the Europeans at the table react?
Although Bellinger tries to cover it up in diplomatic language, and calls the paragraph “European Reactions Positive for U.S.”, I’d say it’s pretty clear that they were critical and not convinced. Which, by the way, creates the question why Bellinger would report that European reactions were positive. Maybe to make himself look good back home?
By and large, Bellinger’s European interlocutors responded very positively to his visit. Their questions were many and varied, and all of the meetings were marked by vigorous but constructive discussion. It is clear that many Europeans continue to believe that Article 3 of the Geneva Conventions can be applied to enemy combatants, and still afford the United States the flexibility it seeks. It is also apparent that lingering concerns (fed by negative public perceptions) remain about the treatment of detainees, and protection against wrongful detentions. Some governments remain focused on renditions, and the possibility that there will be negative revelations that impact on them directly.
That said, the visit was very helpful in beginning to dispel European misunderstandings and misgivings about our pursuit of the war on terror. Continued engagement on these issues is critical in the coming months to persuade EU governments to stand more firmly and publicly in the face of their public’s concerns and suspicion regarding Guantanamo, renditions, and the legality of U.S. actions against Al Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand Trauttmansdorf, concluded the meeting with the following message: “We leave this discussion with the notion that America is carefully considering these difficult questions in good faith.” He said also that the fight against terror was a burden shared by the EU, and that the U.S. has as much of a right to ask questions of the EU, as the EU does of the U.S. On the upcoming Human Rights Commission, urgent consultations with the EU will be necessary to avert the possibility of EU support for a Cuban Guantanamo resolution.
Note the quasi-objective and kinda manipulative tone that seems to be common to confidential diplomatic memos (we saw it earlier in the secret CIA document on the manipulation of European public opinion on the war in Afghanistan). Lingering concerns are “fed by negative public perceptions”. The meeting was helpful in beginning to “dispel” European “misunderstandings” and “misgivings” about the war on terror. “Continued engagement” by the U.S. is necessary to push European governments in line vis-a-vis their publics critical of Guantánamo Bay and illegal CIA flights.
Finally, I found it very interesting that the U.S. administration was so worried that the EU would support a Cuban resolution in the U.N. on Guantánamo Bay. Does anyone know how that played out?
In conclusion, what do we learn from scrutiny of this document? Well, as I said, nothing really new. It only confirms again the extent to which the Bush-Cheney administration reasoned from a “war paradigm”: the idea that the fight against Al Qaeda is a new kind of actual international armed conflict, to which the rules of war however only apply limitedly. This reasoning allows them to treat terror suspects in utter disregard of international law. Moreover, since an end to the ”War” on Terror is not in sight, since it is not limited to boundaries, and since it is ultimately to the President’s unreviewable discretion whether military necessity exists, this makes the U.S. kind of a universal imperial policeman, with nothing that can be put in its way. Is that clear-cut authoritarianism? I’d say it is. Happily, at least also behind the scenes, some people stood up.
Boris Johnson, my favourite television comedian (and Mayor of London), has a scathing column in The Telegraph, already a week old but still relevant, on the legacy of George W. Bush. And note: this is a prominent politician of the Conservative Party in Great Britain.
Johnson, with his flamboyant Oxford demeanour, is, I believe, not always taken seriously, but with this piece he decidedly redeems himself, in my view.
It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.
One moment he might be holding forth to a great perspiring tent at Hay-on-Wye. The next moment, click, some embarrassed member of the Welsh constabulary could walk on stage, place some handcuffs on the former leader of the Free World, and take him away to be charged. Of course, we are told this scenario is unlikely. Dubya is the former leader of a friendly power, with whom this country is determined to have good relations. But that is what torture-authorising Augusto Pinochet thought. And unlike Pinochet, Mr Bush is making no bones about what he has done.
Unless the 43rd president of the United States has been grievously misrepresented, he has admitted to authorising and sponsoring the use of torture. Asked whether he approved of “waterboarding” in three specific cases, he told his interviewer that “damn right” he did, and that this practice had saved lives in America and Britain. It is hard to overstate the enormity of this admission.
“Waterboarding” is a disgusting practice by which the victim is deliberately made to think that he is drowning. It is not some cunning new psych-ops technique conceived by the CIA. It has been used in the dungeons of dictators for centuries. It is not compatible either with the US constitution or the UN convention against torture. It is deemed to be torture in this country, and above all there is no evidence whatever that it has ever succeeded in doing what Mr Bush claimed. It does not work.
It does not produce much valuable information — and therefore it does not save lives. Of course we are all tempted, from time to time, by the utilitarian argument. We might become reluctant supporters of “extreme interrogation techniques” if we could really persuade ourselves that half an hour of waterboarding could really save a hundred lives — or indeed a single life. In reality, no such calculus is possible. When people are tortured, they will generally say anything to bring the agony to an end — which is why any such evidence is inadmissible in court.
All the policy has achieved is to degrade America in the eyes of the world, and to allow America’s enemies to utter great whoops of vindication.
[If] your end is the spread of freedom and the rule of law, you cannot hope to achieve that end by means that are patently vile and illegal.
How could America complain to the Burmese generals about the house arrest of Aung San Suu Kyi, when a president authorised torture? How can we talk about human rights in Beijing, when our number one ally and friend seems to be defending this kind of behaviour? I can’t think of any other American president, in my lifetime, who would have spoken in this way. Mr Bush should have remembered the words of the great Republican president, Abraham Lincoln, who said in 1863 that “military necessity does not admit of cruelty”. Damn right.
In another high mark of the presidency of Barack H. Obama, today the first trial of a child soldier in modern U.S. history will commence at Guantánamo Bay. Well done, President Obama, thank you very much! The suspect, the Canadian Omar Khadr, was captured in Afghanistan in 2002 when he was 15 years old. He is suspected of killing an American soldier with a grenade.
What’s more, he will be tried in a military commission: a remnant of the Bush administration’s attempt to try terrorist suspects in quasi-legal military courts with lower standards than the normal federal civilian courts, that has been kept by Obama. So, Khadr also has the honor of being the first detainee to be tried in a military commission under the presidency of Barack Obama.
The Huffington Post has a harrowing, eye-opening story about the details of this case. First of all, Khadr was taken to Afghanistan by his father, an alleged Al Qaeda financier, when he was only 9 years old; according to a report by a Canadian intelligence agency, based on interrogations, he viewed Al Qaeda “through the eyes of a child”. Secondly, Khadr has, according to testimony by former interrogators at the pretrial hearings, been molested and tortured (yelled at, things thrown at, kept awake, threatened with gang rape and death) by U.S. interrogators in Bagram and Guantánamo to extract a confession; before that, by the way, when he was captured, he was already shot twice in the back, blinded in one eye and damaged in his face due to shrapnel. Thirdly, military commission judge Col. Pat Parrish has ruled that his confessions, despite being obtained by molestation, can actually serve as evidence in his trial.
Then there’s another thing. Even if Khadr had killed the soldier, that would have been a normal act of war had he been a soldier himself. Because he’s a civilian, however, it constitutes a criminal act that can be prosecuted in a normal court (like more than 400 terror suspects have been in the past eight years). Yet currently he’s being prosecuted for “war crimes”, because he belongs to a special category of persons made up by the Bush administration and retained by the Obama administration (without the name): the “enemy combatant“, who can be indefinitely detained and must be tried by a specially created quasi-legal military tribunal.
So I think it’s appropriate here to cite the closing lines of the HuffPost article:
It will also create a lasting legacy for the Obama administration. “Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier,” Jackson said.
Somehow that doesn’t seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.