Abu Ghraib Torture Victims Deserve Compensation

Abu Ghraib. Eight years ago the Iraqi prison was the site of physical and psychological torture, rape, sodomy and murder of Iraqi prisoners committed by Americans under the authority of Americans. While 11 soldiers were convicted on detainee abuse charges and Army investigations implicated at least 5 private contractors in similar crimes, no contractor was ever even charged.

But what about the victims?

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Some Thoughts on al Nashiri and Military Commissions While Waiting for the Grown-Ups to Take Over‬

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. They will seek the death penalty for his alleged role in the USS Cole attack of 2000 and an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.‬‪ ‬‪

These charges provide a perfect teachable moment about what's wrong with military commissions and why prosecution of al Nashiri is better left to the regular, federal criminal courts.‬‪ ‬‪

What the government says here is that al Nashiri is a war criminal for attacking the Cole. But if the Cole attack was in a war, then it's not a war crime because under the laws of war, the USS Cole is a legitimate military objective, as are the sailors on the vessel.

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High-tech terrorism or low-tech fear mongering?

To paraphrase H.L Mencken, no one ever went broke underestimating how low a politician will go to gain an advantage.

Exhibit A: Vice President Joseph Biden, who likens Wikileaks honcho Julian Assange to a "high-tech terrorist." 

What a nice marriage of images. Especially for those of us old enough to recall poor Clarence Thomas who, when charged with sexual harassment in his Supreme Court confirmation hearing, so deftly turned defense into offense by calling the accusations a "high-tech lynching for uppity blacks." 

Now that terrorism is the new communism, why shouldn't everyone the government wants to vilify be labeled a terrorist?

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WikiLeaks, then Congress, Reveal Reluctance to Account for Guantanamo and Torture

The pander-to-fear-du-jour for members of congress is a >provision that would prevent the transfer of Guantanamo detainees to the US for any purpose, including for prosecution. Passage of this ill-founded measure could effectively put the nail in the coffin of efforts to end the failed Guantanamo experiment, perpetuating its legacy of arbitrary detention and detainee abuse. It would also leave little alternative but to either release people who should not be released, or detain them indefinitely without charge or trial, or try them in the universally discredited kangaroo courts known as military commissions, which have conclusively demonstrated their inability to try their own way out of a paper bag.

Human Rights First has correctly labeled this initiative as "tantamount to obstruction of justice."

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Wrong, Wrong and Right on Federal Courts for Terrorism Cases

Gabor Rona
International Legal Director

There are two distinct camps criticizing the use of federal courts to try terrorism suspects after last week’s federal court conviction of former Guantanamo detainee Ahmed Ghailani. Both are wrong.

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CIA Misconduct in Peruvian Killing Underlines Inconsistencies--and Problems--in U.S. Policies

Talk about exquisite timing.

Two days ago, the New York Times reported on the just-released publication of a 2008 report on the CIA's negligence, deceit, disregard for its own rules and stonewalling in connection with investigation of its practice of shooting down airplanes in Peru in 2001. Back then, it was deadly mistakes made in the war on drugs.

A day later, the Wall Street Journal published a report about ramping up the CIA's targeted killing program in the war against terrorism (or against Al Qaida, as the Administration now calls it).

The Peru example underscores why the United States should not be using the CIA to conduct targeted killings. The CIA operates, understandably, in secret. When and if its conduct is investigated, the reports of its violations usually remain secret as well. The power to impose death should not be delegated to an entity, and to individuals, so shielded from standard measures of accountability.

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Wikileaks Iraq documents raise critical questions

The trove of Iraq war documents recently made public by Wikileaks underscores several important truths.

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Freedom and Security are not Enemies

Vice President Joe Biden hit the nail on the head when he said Dick Cheney cannot change history and that his recent rhetoric is misinforming Americans. The former Vice President's hypocrisy was clear last weekend when he criticized of the Obama Administration's handling of alleged Christmas bomber Umar Farouk Abdulmutallab. It's time to set the record straight.

It turns out that Umar Farouk Abdulmutallab is providing current, actionable intelligence about al Qaeda in Yemen, despite having been charged in federal court instead of in a military commission, despite being in civilian law enforcement rather than military custody, despite having been spared torture, despite Miranda warnings, despite having been afforded a lawyer who is advising him every step of the way.

The FBI enlisted his family to encourage his cooperation. That would not likely happen in military custody. FBI Director Mueller testified that the U.S. criminal justice system can offer suspects incentives to give truthful information. He emphasized the word "truthful" as if to drive home the point that coercive interrogation is counterproductive, since suspects will say whatever they think will make the abuse stop.

Meanwhile, the "tough on terrorism" - including former Vice President Cheney - crowd is ramping up the rant: "Why should we give alien terrorists constitutional rights?"

First, the words "give" and "rights" do not belong in the same sentence. We do not speak of "constitutional privileges," we speak of "constitutional rights." Privileges are given and may be withheld. Rights are rights.

Second, "alien" (meaning non-U.S. citizen) serial killers, bank robbers and drunk drivers are no less the owners of constitutional rights than are American citizens. Same goes for terrorists. For a country built on immigration and precepts of equality under the law, a "debate" about whether non-citizens accused of crimes in the U.S. have constitutional rights is about as relevant as whether they are also subject to the law of gravity. Those who doubt these propositions, including several Senators who should know better, doubt the very concept of constitutional rights.

Third, what really seems to be animating this debate is the false assumption that military treatment results in better intel than its civilian counterpart.

Let's start with interrogation. Whether in civilian or military custody, a suspect has the right to remain silent. If you think otherwise, it can only be because you believe that coercive interrogation is permitted. Aside from the well-established fact that abusive treatment is counterproductive, it is also immoral (remember John McCain correctly and eloquently noting that this is about who we are, not about who they are?) and illegal.

Well, then what about Miranda warnings? Turns out, Abdulmutallab was questioned for some time prior to Miranda. This is permissible for any reason so long as the results of that initial interrogation are not offered at trial. In other words, failure to give Miranda is not a constitutional violation. It's the introduction of non-Mirandized statements at trial that is the violation. And if the reason to withhold Miranda warnings is really public safety (e.g., are there other bombers on other planes right now?), then the non-Mirandized statements may still be used at trial. Abdulmutallab is, in fact, a poster child for why Miranda is not an issue in a typical terrorist attack case. There were solid eyewitnesses, so prosecutors don't need his confession to convict him and can interrogate him to their heart's content without Miranda and without jeopardizing a prosecution. Consistent with this understanding of the law, he was only Mirandized after he stopped providing information following his initial interrogation, and following consultation between the FBI, CIA, Justice Department and State Department.

What about the right to counsel? Here too, no real difference. "Unprivileged enemy belligerents" in military custody in the U.S. are just as entitled to lawyers as are criminal suspects in federal criminal custody.

What about trials? Fact is, federal courts have put away over 200 international terrorism-related suspects since 9/11. The discredited, dysfunctional, on-again-off-again Military Commissions have put away 3, two of whom are now free and the third is still contesting the validity of the proceedings. Military commissions simply provide defendants with many more grounds to challenge their convictions than federal courts do.

True, the international laws of war authorize detention without charge or trial in some instances. But the promiscuous abuse of that power has led us into a quagmire of illegality that values cheap "tough on terrorism" sound bites at the expense of sound counterterrorism policy.

Remember Richard Reid, who also tried to blow up a plane with a bomb in his clothes and who pled guilty to federal charges in 2003 and got life? "Enemy combatant" detention was already well established but there was no outcry then about the choice of civilian interrogation, detention and prosecution. He was given Miranda warnings within minutes of arrest and they were repeated five times! What's the difference? Shoes v. underwear? Bush-time v. Obama-time? "Reid" v. "Abdulmutallab?" White vs. black? I hope none of the above. But what then?

Dick Cheney and other "tough on terrorism" lawmakers and pundits play a dangerous, cynical game by falsely painting the administration as weak. Enough from those who are willing to sacrifice both civil liberties and national security to score political points.

Contrary to the fear mongers' platform, freedom and security are not enemies. They are interwoven threads of one fabric that is America. Those who understand this should be pulling the lever for civilian, not military, treatment of terrorism suspects every time.




Andy McCarthy's Analysis Doesn't Add Up

 Andy McCarthy is playing 3 Card Monte, and not very well, at that. His thesis appears to be that the highly respected Human Rights First report, In Pursuit of Justice, is inflating (or in his words, "cooking the books" on) the number of successful terrorism prosecutions in federal courts.

The report, co-authored by experienced former federal prosecutor Jim Benjamin and (now) chief of the criminal division of the Manhattan U.S. Attorney's office, Rich Zabel, meticulously details the many criminal cases involving international terrorism that the federal courts have successfully handled since 9/11. It busts several myths that McCarthy and others have been peddling to slander the federal courts, such as "they can't protect classified evidence" and "they can't handle cases that arise in a context of armed hostilities."

McCarthy attacks the report's conclusion that federal courts have convicted 195 individuals in international terrorism-related cases since 9/11. He says this number is "false and an exercise in hypocrisy." In the same breath, he notes that "report does not claim that 195 international terrorists have been convicted. Rather, it says that 195 defendants have been convicted so far in 119 cases that have some connection, however attenuated, to terrorism."

So which is it Mr. McCarthy, are we lying because we claim that all 195 were "international terrorists" or because we do not claim that they were all "international terrorists?" You can't have it both ways.

Fact is, there's one thing Mr. McCarthy gets right. It's that many of these convictions were, as the report claims, of individuals "with some connection" to international terrorism. Mr. McCarthy seems to suggest that since not all of these convictions were of Osama bin Ladens and for the crime of mass murder, it somehow diminishes the claim that federal courts are proper venues for such cases. Huh? Seems that if Mr. McCarthy were truly interested in bringing terrorism's hangers-on to justice instead of trying to make political hay out of thin air - and if he were supportive of the use of the criminal justice system to thwart the next terrorist attack, rather than just punish the last one - he would speak glowingly of the fact that such individuals can be prosecuted under a vast menu of crimes that are within federal jurisdiction, including "material support" for terrorism, as well as false statements, financial fraud, and immigration fraud.

His complaint about the resolution of the al Marri case is another bait-and-switch exercise. He doesn't like the sentence al Marri received. But his complaint is not about federal courts vs. other options, it's about the fact that al Marri pled guilty to "material support" instead of some other charge that McCarthy thinks would have merited a tougher sentence. If Mr. McCarthy thinks federal prosecutors mishandled the case by allowing this plea bargain, he should focus his criticism on them, not on the use of federal courts, and make his case for the alternative of military commission trials (see below)..

What really galls Mr. McCarthy, though, is not that federal courts have done well in prosecuting those in supporting roles for international terrorism. It's that they've also done well in prosecuting the few major players that have been caught. McCarthy declines to mention the Moussaoui case, the Shoe Bomber, the First World Trade Center bombing case - all successful federal court prosecutions of the kinds of people Mr. McCarthy would put into the "real terrorist' category. This, it seems, does not accord with his preference for bringing such cases in the discredited, dysfunctional military commissions which in their eight years of on-again/off-again existence, have managed to convict only 3 people, 2 of whom are now free.

In a grand finale that is meant to bring us to the barricades, Mr. McCarthy warns of the Christmas bomber being prosecuted for an immigration violation instead of attempted murder (seems he simply has not seen the indictment: attempted use of weapon of mass destruction, attempted murder, willful attempt to destroy aircraft, placing a destructive device on an aircraft, illegal possession of a destructive device) and of KSM being accorded due process that his victims will never again enjoy. The point being what exactly? Should murder suspects not be accorded trials? Whatever the unspoken details of Mr. McCarthy's proposed alternative to federal prosecution might be, to hamstring law enforcement is a radical proposal that flies in the face of crucial counter-terrorism victories of the past decade. Every single terrorism suspect arrested in the United States during the Bush administration after September 11 was initially held under federal civilian criminal law. More than 200 terror suspects have been interrogated by the FBI and tried in civilian courts since 9/11, including Richard Reid, the "shoe bomber," who is now serving a life sentence. Vital actionable intelligence can--and has--been obtained from terrorism suspects after they've been arrested as criminal suspects. Interrogation of terrorism suspects after criminal arrest has resulted in vital intelligence information that has saved American lives. Such terrorism suspects have given information about al-Qaida sleeper cells within the United States, training camps in Afghanistan, and details about high-level terrorism suspects such as Khalid Sheik Mohammed. Umar Farouk Abdulmutallab, the suspected Christmas day bomber, who was appropriately questioned before he was Mirandized, provided valuable intelligence and is now reportedly cooperating with investigators. On the other hand, detainees in military custody in the United States and tried before U.S. military commissions are also entitled to a legal representation, limiting any alleged advantage for interrogations conducted in military custody.

Andy McCarthy is an experienced federal prosecutor. He could put his knowledge to much better uses than knocking down straw man arguments and sowing counterproductive discord that impedes consensus on efforts to prevent further attacks and hold terrorists accountable. Please Andy, let us all instead put an end to the fear-mongering and rancorous cacophony that continues to divide us.


Appeals Judge Disses Gitmo detainee, Geneva Conventions, Supreme Court and President

You could almost feel the pleasure taken by Judge Janice Rogers Brown in her opinion in al-Bihani vs. Obama (Jan. 5 - D.C. Circuit Court of Appeals), concluding that the international laws of armed conflict have no bearing on the scope of government power to decide who may be detained as a wartime enemy. It wasn't in her grandiloquent declaration that war trumps law (“War is a challenge to law, and the law must adjust”) and it wasn't in the brazenness of this staunch conservative’s extreme judicial activism. No, it was in a simple, almost invisible, aside; a gratuitously deprecating retort to the petitioner’s claim that the lower court ruling against him was erroneous: “Al-Bihani’s argument clearly demonstrates error, but that error is his own.” Or, as I would say on the 5th grade playground when Freddy Harris called me a jerk, “I know you are, but what am I?”

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