Revolution #157, February 22, 2009
Torture, Rendition & Detention…
Anybody who thought the nightmare of renditions, indefinite detention, and torture would be over when Barack Obama replaced George Bush ought to take a hard look at the case of Binyam Mohamed.
In 2002 Mohamed, a 31-year-old Ethiopian with refugee status in Britain, became a victim of rendition while visiting Pakistan. Rendition is the U.S. practice of snatching people overseas and throwing them into secret CIA prisons, or moving them to third countries where they may be tortured and/or killed. Rendition began in 1993 under Democratic President Clinton and was taken to a whole other level under Bush, when it became known as “extraordinary rendition.”
From Pakistan, Mohamed was put on a plane operated by Jeppesen DataPlan, Inc.—a Boeing subsidiary and CIA contractor—and sent to Morocco, where he was tortured for 18 months by Moroccan intelligence agents. He was rendered again on a Jeppesen-operated plane to Afghanistan where he was tortured some more. In 2004 he was rendered a third time to the U.S. torture camp at Guantanamo where he remains today. Mohamed has been on a hunger strike with 45 other Guantanamo detainees and is being force fed while strapped to a chair.
In 2007 the American Civil Liberties Union (ACLU) filed a federal lawsuit against Jeppesen DataPlan on behalf of Mohamed and four other detainees. The suit charges that Jeppesen collaborated with the CIA, in violation of international laws, to provide aircraft and crews used to “disappear” the five men to torture and detention without any charges.
According to legal briefs in this suit, in Morocco Mohamed “was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis...”
Soon after the lawsuit was filed, the Bush administration convinced a federal judge that the case should be thrown out because it endangered “state secrets.” The use of “state secrets privilege” by the U.S. government to suppress specific evidence in court has a long history. But as part of their moves to greatly expand presidential powers, the Bush regime used this device to have entire cases thrown out—like lawsuits challenging indefinite detentions or the illegal wiretapping program that spied on millions of people.
Glenn Greenwald points out in his widely read legal affairs blog on Salon.com that this use of state secrets privilege “places Presidents and their aides beyond and above the rule of law, since it empowers them to break the law and then prevent their victims—or anyone else—from holding them accountable in a court of law.”
The ACLU appealed the decision in mid-2008, at a time when the Obama campaign was lambasting Bush’s policy on state secrets. The website barackobama.com said then that “The Bush administration has ignored public disclosure rules and has invoked a legal tool known as ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.”
But now as president, Obama is taking the very same position as Bush did on the state secrets issue. In a February 9 federal court hearing in the Mohamed et al. case, Douglas Letter of the Obama Department of Justice invoked the “state secrets privilege” to demand that the ACLU lawsuit be dismissed. The judges on the court were reportedly taken by surprise. One “startled” judge asked Letter, “The change in Administration has no bearing?” Letter answered “No” and said that his position was “thoroughly vetted with the appropriate officials within the new administration.” And he even issued a warning: “Judges shouldn’t play with fire.”
ACLU’s Ben Wizner, counsel for the five Guantanamo detainees, said, “This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course.”
On January 22, two days into his presidency, Obama signed three executive orders that initially caused excitement among those who deeply hate the torture and other crimes carried out by the Bush regime.
The first order calls for the closing of Guantanamo “as soon as practicable, no later than one year” and halts Bush’s Military Commissions trials—essentially kangaroo courts where the defendants had no rights. Detainees are to be sent back to their countries of origin, brought to the U.S. for continued detention, or tried in civil court.
The second order, on detention policies, calls for a task force to “identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.”
The third order, on interrogations, says that the treatment of detainees should follow the prohibition of torture and other abuses under the Geneva Conventions and other international and U.S. laws.
These orders are different in some ways from what came out of the Bush White House. But just what has changed…and what has NOT changed? In the ACLU lawsuit on behalf of five Guantanamo detainees, Obama acted exactly as Bush did by using the “state secrets” justification to quash a court case. In the last few weeks, there have been other telling indications of Obama policies that should deeply disturb—and demand resistance by—anyone who had been sold on the promise of real “change” under the new president.
In his book Against All Enemies: Inside America’s War on Terror,” Richard Clarke, former Clinton “counter-terrorism” official, recalls the objections of a White House lawyer to a proposed rendition because it broke international laws. Then-Vice President Al Gore laughed at the objection and said, “That’s a no-brainer. Of course it’s a violation of international law. That’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”
It’s true that renditions took a leap with Bush, who blatantly advertised that the U.S. was kidnapping people off the streets and torturing them. But as Clarke’s story reveals, renditions were the norm—a “no-brainer”—under Clinton. The main difference with Bush is that Clinton kept it mostly “covert”—and now Obama is going back to the “don’t tell–just do it” policy on renditions. Or as Walter Slocombe, Clinton’s undersecretary of defense, once put it, the only difference between Democratic and Republican rendition is that Democrats “drilled holes in the boxes” (as recounted by Reuel Marc Gerecht, former CIA officer, in a 12/13/08 New York Times op-ed piece titled “Out of Sight”).
In the first day of his Senate confirmation hearings in early February, Leon Panetta, the nominee for the new CIA head, criticized Bush for rendering prisoners “for torture.” But the very next day—under grilling by Republican Kit Bond who demanded that Panetta come up with evidence backing his statement, or else take it back—Panetta issued an explicit retraction, saying that “I was not aware of the validity of those claims.” In other words, Panetta was declaring that the testimony of victims like Binyamin Mohamed and other evidence of U.S. torture are invalid and baseless.
In the same testimony, Panetta made clear that Obama would continue renditions to other countries—but only if they got “assurances” that the prisoners “would not be treated inhumanely.” But Bush & Co. also claimed to have gotten “assurances” that prisoners subject to rendition would not be mistreated—even as a great deal of evidence surfaced that those prisoners were in fact tortured or killed.
We Don’t Torture…Unless We Have To
Bush’s lawyers had put forward a legal doctrine claiming that the President, as wartime commander-in-chief, was under no restraints in ordering waterboarding and other torture. In contrast, Obama says that the interrogation of detainees must follow the U.S. Army Field Manual guidelines. But included in that Manual is an “Annex M”—which allows isolation of prisoners for (renewable) periods of 30 days and use techniques like sleep deprivation, which are widely considered torture.
And Panetta openly said at this confirmation hearing that he would approve torture when a prisoner supposedly has information on an imminent attack on the U.S. He said, “If we had the ticking bomb situation and I felt that whatever we were using wasn’t sufficient, I would not hesitate to go to the president and request any additional authority that we would need.”
The insidious logic behind Panetta’s words is: “We don’t torture…unless we really have to.” The difference with what went on before is that the Bush team practically bragged that they tortured, while the new Obama team—realizing that this had bitterly alienated huge numbers of people around the world and within the U.S., and had called into serious question the whole legitimacy of their so-called “war on terror”—is continuing certain essential parts of the same policy, while engaging in double-talk and deception.
Continuing Indefinite Detentions
Obama’s January 22 orders called for shutting down secret CIA prisons and closing Guantanamo. But he is not closing the U.S. prisons in Iraq where 50,000 civilians are held, or the huge new U.S. prison at Bagram, Afghanistan. And his orders have not ended detentions for indefinite periods without trials.
Obama’s new Attorney General, Eric Holder, said in his confirmation hearing that prisoners captured by the U.S. could be preventatively detained, without charges or a trial, for the “the duration of a conflict.” And since Obama is a big promoter of the U.S. “war on terror”—which the U.S. rulers have said could last for decades—“the duration of a conflict” basically means indefinite detention.
Another Obama nominee, Elena Kagan, also backed indefinite detention during her confirmation hearing for solicitor general. The L.A. Times reported that Kagan and Holder “both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.”
Obama did order a halt to Bush’s Military Commissions “trials,” which were nothing but railroads of Guantanamo prisoners. But he has left open the possibility of other commission-type proceedings or “National Security Courts” for “bad guys”—where the defendant has little or no rights to see the evidence against them or question witnesses.
Panetta said in his confirmation hearing, “If we capture a high-value prisoner, I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” But who would determine which prisoner is “high value”? Clearly, the president and his officials. And what did Panetta mean by “temporarily”—a week, a month, a year, or more?
How is all this any different from Bush’s outrageous claim of unlimited power, as “war time president,” to declare people “enemy combatants” on his say-so and imprison them indefinitely?
Commander-in-Chief of an Empire
What all this points to is the fact that both the Democrats and Republicans represent the interests of the U.S. ruling class, which is in a war for greater and more powerful global empire, cloaked in the guise of the “war on terror.” Obama is now the Commander-in-Chief of this imperialist system, which faces deep and unprecedented challenges. To maintain and expand this empire, the U.S. rulers need their military bases in 180 countries. They need the ability to kidnap and torture anybody who stands in their way. They need their CIA and other spies to be further unleashed, and (in Obama’s own words) not have to “spend all their time looking over their shoulders and lawyering.”
People who care about humanity, yearn for a radically new world, and think American lives are NOT more important than other lives, have to come to grips with what horrors will be carried out under a “torture ban” that doesn’t ban torture. Those who let such things go unopposed are remaining silent in the face of—if not being actively complicit with—great injustices and monstrous crimes.
What are YOU going to do to stop these crimes?
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