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.
For more about this, read Glenn Greenwald. Also check the Bradley Manning Support Network. You can donate to Bradley Manning’s legal defence fund here.
And so Barack Obama finally commits to the creation of a parallel justice system – one in which the threshold of evidence is lower, people can be preventively detained or have no trial at all (indefinitely), and that is run by military commissions. On Cuba, a satellite piece of land outside the US mainland and its ordinary criminal justice system. Even though as a presidential candidate, the darling of civil libertarians, liberals and Democrats, Obama said to vehemently oppose the Bush-Cheney counterterrorism policies that had resulted in the prison camp at Guantánamo Bay, the military commissions, and indefinite preventive detention for terrorism suspects.
If Obama taught me one thing, it is that you should never, ever trust politicians. That’s the lesson that I guess is to be learnt from this guy’s election and presidency.
But anyway. Indefinite detention is now a fact. Procedurally, some things have of course been improved since Bush-Cheney. Detainees on trial now have legal rights which come closer to those in the ordinary justice system; detainees who will not be tried will, it is promised, within a year receive status reviews of the level of ‘threat’ they impose. Obama’s executive order lifting his two-year ban on military trials requires compliance with the Geneva Conventions and the Convention Against Torture. Also – importantly – this order only covers those currently held, and does not extent to any possible future detainees.
But otherwise, Gitmo will not be closed, 9/11 plotters will not get a criminal trial (which would have shown the world what a law-honoring, justice-minded country the US would be), and the way is open for any future Republican president to expand upon this parallel justice system. Yes we can.
President Obama on Monday reversed his two-year-old order halting new military charges against detainees at Guantánamo Bay, Cuba, permitting military trials to resume with revamped procedures but implicitly admitting the failure of his pledge to close the prison camp.
Mr. Obama said in a statement that he remained committed to closing Guantánamo someday and to charging some terrorism suspects in civilian criminal courts. But Congress has blocked the transfer of prisoners from Guantánamo to the United States for trial, frustrating the administration’s plan to hold civilian trials for Khalid Shaikh Mohammed, the self-professed chief plotter of the Sept. 11 attacks, and others accused of terrorism.
Officials declined to say whether Mr. Mohammed would be scheduled for a military commission or would await a trial in federal court if Congress lifts its prohibition.
Separately, for detainees who will not get trials, Mr. Obama set out new rules in an executive order Monday requiring a review of their status within a year and every three years after that to determine whether they remain a threat, should be scheduled for a military trial or should be released. The order also requires compliance with the Geneva Conventions and the international treaty that bans torture and inhumane treatment.
Civil liberties advocates, who have long been critical of Guantánamo, expressed disappointment that the military system remained in place more than two years after Mr. Obama took office.
“This is a step down the road toward institutionalizing a preventive-detention regime,” said Elisa Massimino, president of Human Rights First. “People in the Mideast are looking to establish new rules for their own societies, and this sends a mixed message at best.”
Glenn Greenwald at Salon.com is, as always, indispensable. He especially debunks the idea, also found in the NYT article above, that it is Congress, not Obama, that drives these policies:
It is true that Congress — with the overwhelming support of both parties — has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for “closing Guantanamo” in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.
The preservation of the crux of the Bush detention scheme was advocated by Obama long before Congress’ ban on transferring detainees to the U.S. It was in May, 2009 — a mere five months after his inauguration — that Obama stood up in front of the U.S. Constitution at the National Archives and demanded a new law of “preventive detention” to empower him to imprison people without charges: a plan the New York Times said “would be a departure from the way this country sees itself.” It was the same month that the administration announced it intended to continue to deny many detainees trials, instead preserving the military commissions scheme, albeit with modifications. And the first — and only — Obama plan for “closing Guantanamo” came in December, 2009, and it entailed nothing more than transferring the camp to a supermax prison in Thompson, Illinois, while preserving its key ingredients, prompting the name “Gitmo North.”
None of this was even arguably necessitated by Congressional action. To the contrary, almost all of it took place before Congress did anything. It was Barack Obama’s position — not that of Congress — that detainees could and should be denied trials, that our court system was inadequate and inappropriate to try them, and that he possessed the unilateral, unrestrained power under the “laws of war” to order them imprisoned for years, even indefinitely, without bothering to charge them with a crime and without any review by the judiciary, in some cases without even the right of habeas review (to see why claims of such “law of war” detention power are so baseless, see the points here, especially point 5).
In other words, Obama — for reasons having nothing to do with Congress — worked from the start to preserve the crux of the Bush/Cheney detention regime.
- Edit: The Guardian, by the way, is up to date and puts it right. You won’t find that in a Dutch newspaper. Kudos to Liz.
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.
Here’s the summary:
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.
And thank God for WikiLeaks.