PLRC Blog

This blog supplements Chapter 9 of America in Peril

16 February 2008

The Pentagon announced February 11^th that six Guantanamo prisoners will be tried by Military Commission for complicity in the 9/11 attacks, and that the Bush administration is seeking the death penalty. Five of them were held for years in secret CIA prisons and transferred to Guantanamo in September 2006. The sixth has been at Guantanamo since 2002. Bringing terrorists to justice is a natural desire but there are several things wrong with the Military Commission procedure. Vincent Warren, head of the Center for Constitutional Rights called this a show trial devoid of any due process, saying: “Rather than playing politics the Bush administration should be seeking speedy and fair trials,” instead of them being “based on torture as confessions as well as secret evidence.” (Andrew Gumbel, The Independent UK, 12 February 2008)

The Military Commission Act of 2006 authorized trials at Guantanamo for alien unlawful enemy combatants who had violated the laws of war or any other offenses specified in the Act. The “other offenses” include such common crimes as perjury, obstructing justice, contempt, and of course the catch-all crime of conspiracy.

An unlawful enemy combatant is defined as a one who has engaged in or supported hostilities against the US and has been classed as an unlawful enemy combatant by a Combat Status Review Tribunal. These tribunals were set up by executive order to ostensibly meet a treaty requirement that enemy combatant status be determined by a reputable tribunal. They have military officers, not lawyers, to represent the defendant. Those making decisions are also military officers, not judges. The tribunals are not to prove guilt, but to determine whether incarceration should continue and if the defendant should be tried by Military Commission. Nevertheless, confessions made during these tribunals, run by non-lawyers and non-judges, play a major role in later proceedings.

Back to the Military Commission Act. It deprives habeas corpus relief for the defendant. The most common use of habeas corpus is a court order that a prisoner be told the reason for confinement or to produce evidence of a charge so it can be challenged. Absence of habeas corpus allows hearsay evidence, evidence derived by torture, and secret evidence which the defendant cannot see or challenge. It is strictly up to a military judge to determine what to admit. The Act also exempts Military Commissions from any rights the defendant may claim concerning contempt, speedy trial, self-incrimination warnings, and pretrial investigations. The US Supreme Court is to decide soon if the Military Commission Act is unconstitutional in denying habeas corpus to Guantanamo detainees. The case was heard in December 2007 but a decision has not yet been handed down, so Military Commissions continue.

The so-called “Mastermind of 9/11,” Khalid Shaikh Mohammed, is one of the six defendants. Sensational news stories about Mohammed’s March 2007 Combat Status Review Tribunal told of censored transcripts and confessions. According to the transcripts he confessed to planning the 9/11 attacks and 30 others, most of which failed or never happened. Censored parts of his testimony are believed to be references to his treatment in CIA prisons. Mohammed did refer to previous confessions extracted by torture. Those may be what were read into the record by his interpreter. The public, the press, even civilian lawyers were excluded from the tribunal hearings. Without observers no one knows how much out of context or how inaccurate the transcripts were. (The previous 558 status review tribunals for Pentagon prisoners had all been open.)

On February 5^th, a couple months after it was revealed that the CIA destroyed tapes of detainees being tortured by a technique called waterboarding, CIA director General Michael V. Hayden said that only three terrorist suspects, including Khalid Shaikh Mohammed, had been waterboarded by the CIA, but that the Agency hasn’t used that technique since 2003. He did not mention two other avenues by which the CIA obtains confessions through waterboarding and other forms of torture to escape culpability. One is “extraordinary rendition” where the CIA captures or kidnaps suspects and puts them on secret flights to countries that condone torture. The Agency tells the foreign interrogators what information is sought. An Agency operative is sometimes allowed to watch.

The other method is hiring contractors to perform “enhanced interrogation,” a euphemism for torture. They have been used at Guantanamo, Afghanistan, Iraq, and in secret prisons. The contractors are usually small companies – or at least small front companies – such as Sytex, Inc. (owned by Lockheed Martin Corporation) and Premier Technology Group (owned by CACI International, Inc).

Hayden said the information forced from Mohammed and another prisoner named Abu Zubaydah provided 25% of the human intelligence circulated by the CIA since 9/11. Claiming that information derived from torture saves American lives is pure deception. What torture does is induce false confessions. Take the case of three Britons detained at Guantanamo – Shafiq Rasul, Asif Iqbal, and Ruhel Ahmed. After three months of solitary confinement they confes­sed to meeting with Osama bin Laden. British intelligence MI5 showed that on the date of the alleged meeting the three were in the United Kingdom. “This experience does not appear to have been unique. In reviewing declassified Combat Status Review Tribunal files in March 2006 reporters found them ‘replete’ with such retractions. ‘Detainees who had confessed to having ties to Al Qaida or the Taliban or terrorism frequently told the tribunals that they had only made those admissions to stop beatings or torture by their captors.’” (“Trials Under Military Order: A Guide to the Rules for Military Commissions,” a report by Human Rights First, updated and revised May 2006)

One bit of information the CIA obtained from Zubaydah was that Jose Padilla, an American citizen later dubbed the “dirty bomber,” was assigned to find materials to build a bomb that would spread radioactive material over a wide area in the US. Padilla was arrested at Chicago’s O’Hare Airport in May 2002 on a material witness warrant issued by federal judge Michael B. Mukasey (now attorney general of the US) in New York City. In June 2002 Padilla was declared an enemy combatant by Bush and transferred to a Navy brig.

In February 2005, almost three years later, a US District Court Judge ruled that Padilla must be charged with a crime or released. That ruling was reversed by the US 4^th Circuit Court of Appeals so Padilla’s lawyers petitioned the US Supreme Court. In November 2005, just before the deadline for briefs to show Bush has the power to detain enemy combatants in the US indefinitely, the administration dropped the enemy combatant status and charged Padilla with several federal crimes. He was released from military custody and imprisoned under the Attorney General.

Padilla’s attorneys argued in federal court that Zubadah had been tortured into saying Padilla worked with Al Qaeda. The court dismissed that allegation as meritless because it could not be proved. That would not have been the case had tapes of Zubadah’s torture not been destroyed at the time Padilla was being transferred from military custody. When it looked like the administration might be embarrassed, the notorious “dirty bomber,” declared one of the worlds worst, was transferred to a civilian court and charged with lesser offenses, and the evidence of terrorism destroyed. The prosecution presented no evidence of Padilla’s involvement in a terrorist plot.

As for Zubaydah, he told his Combat Status Review Tribunal that despite what he said after being waterboarded, “I disagreed with the Al Qaida philosophy of targeting innocent civilians like those at the World Trade Center … I never conducted nor financially supported, nor helped in any operation against America.” (Nat Hentoff, The Village Voice, 15 January 2008) Earlier, when Zubaydah was still in a secret prison, and when Bush was touting him as “one of the top operatives plotting and planning death and destruction against the United States,” the FBI’s leading expert on Al Qaida said Zubaydah was “insane, certifiable, split personality,” and not the top operative he was made out to be. (Hentoff, op. cit.)

This summary of Combat Status Review Tribunals and torture will give the reader an inkling of what to expect from the Military Commission now convening at Guantanamo to try six of the “worst of the worst” prisoners. With the kind of evidence being used it is shaping up to be the mother of all kangaroo courts. It could turn out that, on appeal, actual terrorists may be acquitted and go free because due process was lacking.

In this blog I have used Khalid Shaikh Mohammed and Abu Zubaydah to epitomize how detainee treatment denigrates American values. Similar cases could be made for the other defendants. I do not propose that these prisoners are innocent. I am merely saying that guilt or innocence should be decided in a court that observes the same rights to fair treatment that we citizens are guaranteed by the US Constitution. As stated in a New York Times editorial: “Instead of being what they should be – a model of justice dispensed impartially, surely and dispassionately – the trials will proceed under deeply flawed procedures that violate this country’s basic fairness.” (13 February 2008)

I have addressed the above issues in much greater detail in Chapters 8 & 9 of my new book America in Peril. Copies may be ordered from Hope Publishing House, P.O. Box 60008, Pasadena, CA 91116. (360 pages, $16.95 plus $3 shipping)

Bob Aldridge

My book America in Peril may be ordered from Hope Publishing House, P.O. Box 60008, Pasadena, CA 91116. (360 pages, $16.95 plus $3 shipping)

This blog supplements Chapter 8 of America in Peril

8 February 2008

The Attorney General of the United States, head of the cabinet-level Department of Justice, is the nation’s top law enforcement officer. It is his/her duty to guard our human and civil rights as outlined by the US Constitution. We have seen how John Ashcroft and Alberto Gonzales, the first two appointed by George W. Bush, failed in that mandate. Now we have a third Bush appointee – Michael B. Mukasey. Is he a hope for something better? Do not forget the old cliché — the more things appear to change, the less they actually do. Let’s look at Mukasey’s track record so far.

Following the 9/11 attacks, a Justice Department dragnet rounded up 1,182 “special interest” detainees. According to an Associated Press dispatch (New York Times, 15 October 2007) it was Mukasey, then chief federal trial judge for Manhattan, who approved the secret warrants for that Muslim roundup. Congress authorized material witness warrants in 1984 to allow holding people who might flee before testifying, and barred the public from hearings regarding such detainees. What actually happened after 9/11 was that family and lawyers couldn’t even contact detainees, or find out if or where they were being held. And of course all this makes no sense when the Bush administration had already escorted 140 Saudi nationals and bin Laden relatives safely out of the country.

In October 2007 Bush chose Mukasey to replace deposed and discredited Attorney General Gonzales. Torture was a hot political issue at that time and “waterboarding” (simulated drowning – a technique dating back to at least the Spanish Inquisition) became the epitome of torture. Of course the senators at Mukasey’s confirmation hearing wanted to know how this prospective top law enforcement official defined torture. When asked about waterboarding, Mukasey feigned naiveté, saying: “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.” (Dan Eggen and Paul Kane, Washington Post, 19 October 2007) One senator called that a massive hedge. Mukasey’s stonewalling almost derailed his nomination. Nevertheless, the Senate confirmed him when he assured the committee he would review the legality of waterboarding and report back.

Then another hot issue surfaced. In late 2005 the CIA destroyed interrogation videotapes of two Al Qaida suspects. This raised questions about the government withholding evidence from the courts, Congress, and the 9/11 Commission. In December 2007 two federal district judges called hearings to determine if destroying the tapes violated their court orders to preserve all evidence of interrogation techniques used at Guantanamo (although not taped at Guantanamo they still evinced the techniques used there). Lawyers in Mukasey’s Justice Department urged the judges to give them time to investigate.

Likewise in Congress, the Justice Department urged lawmakers to hold off questioning witnesses about the tapes pending the joint Justice Department/CIA investigation. Mukasey would not give Congress any information and, in spite of his promise to the Senate, refused to issue an opinion on whether waterboarding is or is not torture. One senator commented: “It’s like you’re opposed to stealing but not quite sure bank robbery would qualify.” (New York Times, 30 January 2008)

When Senators pressed Mukasey during late January 2008 hearings if suspects were waterboarded and if Bush approved it, he replied: “I can’t speak to whether people were in fact waterboarded or whether the president approved it.” He said he was not authorized to speak about the past and, given “that waterboarding is not part of the current program and may never be added to the current program, I don’t think it would be appropriate for me to pass definitive judgment on the technique’s legality.” (Manu Raju, TheHill.com, 30 January 2008) So much for Mukasey’s confirmation promise!

During that same hearing Mukasey said the limit of enhanced interrogation techniques should extend to the “shock-the-conscience” standard – that the “heinousness of doing it, the cruelty of doing it” should be weighed against the information obtained. A senator retorted: “You’re the first person I’ve ever heard say what you just said. Matter of fact, it shocks my conscience.” But when asked if he would consider waterboarding torture if he were the victim, he said: “I would feel that it was.” (Manu Raju, op. cit.)

In early February the Bush administration admitted that waterboarding had been used earlier on three occasions as part of the CIA’s enhanced interrogation practices. Mukasey then refused House Judiciary Committee pressure to open a criminal investigation into waterboarding, saying: “Waterboarding, because it was authorized to be part of the program” approved by the Justice Department at the time “cannot possibly be the subject of a Justice Department investigation. That would mean that the same department that authorized the program would now prosecute someone for taking part” in it. (Dan Eggen, Washington Post, 7 February 2008)

On this same day White House spokesman Tony Fratto said waterboarding was legal and that Bush could authorize it again “under certain circumstances,” such as when there is “belief that an attack might be imminent.” He said the top intelligence officials “didn’t rule anything out.” (Greg Miller, Los Angeles Times, 7 February 2008) Such re-authorization would violate the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and the 2006 revision of the Army Field Manual on torture. But the CIA is not governed by Army regulation and military commissions, and it is questionable if culpability can be proved for what takes place in secret overseas prisons. Compounding the matter further, the CIA uses former intelligence officers hired as private contractors to conduct interrogation. Their names, of course, are secret.

So, what about this new Attorney General of the United States. We certainly can’t expect him to safeguard our Constitutional rights and give germane legal advice to the president. He is obviously just another puppet chosen to legalize whatever illicit behavior the administration chooses to follow. Mukasey will not improve anything.

Bob Aldridge

My book America in Peril may be ordered from Hope Publishing House, P.O. Box 60008, Pasadena, CA 91116. (360 pages, $16.95 plus $3 shipping)