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This article, by Jason Leopold, was posted to TruthOut, May 22, 2009
Former Vice President Dick Cheney intervened in CIA Inspector General John Helgerson's investigation into the agency's use of torture against "high-value" detainees, but the watchdog was still able to prepare a report that concluded the interrogation program violated some provisions of the International Convention Against Torture.
The report, which the Obama administration may soon declassify, was completed in May 2004 and implicated CIA interrogators in at least three detainee deaths in Afghanistan and Iraq and referred eight criminal cases of alleged homicide, abuse and misconduct to the Justice Department for further investigation, reporter Jane Mayer wrote in her book, "The Dark Side," and in an investigative report published in The New Yorker in November 2005.
In "The Dark Side," Mayer described the report as being "as thick as two Manhattan phone books" and contained information, according to an unnamed source, "that was simply sickening."
"The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized," Mayer wrote. "The source said, 'You couldn't read the documents without wondering, "Why didn't someone say, 'Stop!'""
Mayer added that Cheney routinely "summoned" Inspector General Helgerson to meet with him privately about his investigation, launched in 2003, and soon thereafter the probe "was stopped in its tracks." Mayer characterized Cheney's interaction with Helgerson as highly unusual.
Cheney's "reaction to this first, carefully documented in-house study concluding that the CIA's secret program was most likely criminal was to summon the Inspector General to his office for a private chat," Mayer wrote. "The Inspector General is supposed to function as an independent overseer, free from political pressure, but Cheney summoned the CIA Inspector General more than once to his office."
"Cheney loomed over everything," the former CIA officer told Mayer. "The whole IG's office was completely politicized. They were working hand in glove with the White House."
But Mayer said Cheney's intervention in Helgerson's probe proved that as early as 2004 "the Vice President's office was fully aware that there were allegations of serious wrongdoing in the [torture] Program." Helgerson has denied that he was pressured by Cheney.
In October 2007, former CIA Director Michael Hayden ordered an investigation into Helgerson's office, focusing on internal complaints that the inspector general was on "a crusade against those who have participated in [the] controversial detention program."
News reports have suggested that when Helgerson's report is declassified it will seriously undercut claims made by Cheney in numerous interviews that the systematic torture of "high-value" detainees produced valuable intelligence, thwarted pending terrorist plots against the United States and saved "hundreds of thousands of lives."
In addition to showing the inconclusive nature of the value of intelligence gleaned through torture, the report will likely show that Helgerson warned top CIA officials that the interrogation techniques administered to detainees "might violate some provisions of the International Convention Against Torture."
A November 9, 2005, report published in The New York Times said Helgerson's report "raised concern about whether the use of the [torture] techniques could expose agency officers to legal liability."
Sources quoted by The New York Times said "the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.
"The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world."
The American Civil Liberties Union filed a Freedom of Information Act lawsuit to gain access to Helgerson's report. Portions of the report have already been turned over to the organization, but they were heavily redacted.
Mayer also suggested that the CIA may have decided to destroy 92 interrogation videotapes in November 2005, after Sen. Jay Rockefeller began asking questions about the tapes referenced in the report. Helgerson had viewed the tapes at one of the CIA's "black site" prisons.
"Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites," Mayer wrote in her book. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.
"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."
Helgerson's report has been highly sought after by members of Congress and civil liberties organizations for some time. Justice Department torture memos released last month contain several footnotes to the inspector general's report noting the watchdog's concerns about the fact that interrogators strayed from the legal limits set forth in the memos on how specific interrogation methods could be used.
For example, a footnote in a May 2005 Justice Department legal opinion says Helgerson found that, "in some cases," the "waterboard was used with far greater frequency than initially indicated ... and also that it was used in a different manner."
According to court papers in a contempt lawsuit the American Civil Liberties Union filed against the CIA over the destruction of 92 interrogation videotapes, "at the conclusion of [Helgerson's] special review in May 2004, [CIA Office of Inspector General] notified DOJ and other relevant oversight authorities of the review's findings."
A month later, according to documents released last month by the Senate Select Committee on Intelligence, Helgerson's report was made available to top lawmakers on the committee.
That same month, June 2004, then-CIA Director George Tenet asked the White House to explicitly sign off on the agency's torture program with a memo that authorized specific techniques, such as waterboarding. A similar request was also made by the agency at the start of Helgerson's probe in 2003, according to a report published in The Washington Post last October.
"The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency's use of interrogation techniques such as waterboarding against al-Qaeda suspects - documents prompted by worries among intelligence officials about a possible backlash if details of the program became public," the Post reported.
"The classified memos, which have not been previously disclosed (and remain classified), were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency's interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing."
It's unknown whether Helgerson's report led Tenet to request the later memo from the White House.
According to the Post report, "the CIA's anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program" and "Tenet seemed ... interested in protecting his subordinates" from legal liability.
In July 2004, "the CIA briefed the [Senate Intelligence Committee's] Chairman and Vice Chairman on the facts and conclusions of the Inspector General special review," the Post report said.
In an interview with Harper's magazine last year, Mayer said Helgerson "investigated several alleged homicides involving CIA detainees" and forwarded several of those cases "to the Justice Department for further consideration and potential prosecution."
"Why have there been no charges filed? It's a question to which one would expect that Congress and the public would like some answers," Mayer said. "Sources suggested to me that ... it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned."
In "The Dark Side," Mayer wrote that Helgerson was "looking into at least three deaths of CIA-held prisoners in Afghanistan and Iraq."
One of those prisoners was Manadel al-Jamadi, who was captured by Navy SEALs outside Baghdad in November 2003.
"The CIA had identified him as a 'high-value' target, because he had allegedly supplied the explosives used in several atrocities perpetrated by insurgents, including the bombing of the Baghdad headquarters of the International Committee of the Red Cross, in October 2003," Mayer reported in The New Yorker.
"After being removed from his house, Jamadi was manhandled by several of the SEALs, who gave him a black eye and a cut on his face; he was then transferred to CIA custody, for interrogation at Abu Ghraib. According to witnesses, Jamadi was walking and speaking when he arrived at the prison. He was taken to a shower room for interrogation. Some forty-five minutes later, he was dead."
At the time of his death, Jamadi's head was covered with a plastic bag, he was shackled in a crucifixion-like pose that inhibited his ability to breathe and according to forensic pathologists who have examined the case, he suffocated.
The CIA interrogator implicated in his death was Mark Swanner, who was never charged with a crime despite a recommendation by investigators working for Helgerson that the Justice Department launch a criminal investigation into the matter.
The Swanner/Jamadi case was forwarded in 2004 to then-Deputy Attorney General Paul McNulty, where the file remained. McNulty is under scrutiny by a special prosecutor investigating the role he and other Bush administration officials played in the firings of nine US attorneys in 2006.
Helgerson also "had serious questions about the agency's mistreatment of dozens more, including Khalid Sheikh Mohammed," Mayer wrote in her book, adding that there was a belief by some "insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations."
Pasadena City College, Building R room 122
1570 E. Colorado Blvd in Pasadena
All are welcome to attend this forum for veterans, military families, and experts to share their views and experiences concerning the military. We will address the Vietnam, Iraq and Afghanistan conflicts. We will also have a question and answer session.
Boots on the Ground-Marine Infantry (Iraq Veterans Against the War)
History's Relevance-Vietnam Veterans Against the War
A Daily Sacrifice-Military Families Speak Out
The Ultimate Sacrifice-Gold Star Families
Military Combat Strategy-Why the U.S. can't win an occupation
Guests should park in the designated student lot and follow the signs to building R room 122. Make sure to pay the $2 fee for parking and display it on your dashboard to avoid college citations. Please be prepared to register by showing identification and association to an organization (if any) the day of the event. All attendees should have proper registration to be allowed in by security personnel.
This is a peaceful and informative gathering. Attendees agree to abide to a strict Code of Conduct by registering and by presence. Violence, slander, or any other disruptive activity will not be tolerated and attendees displaying such behavior will be asked to leave.
Dinner and snacks will be provided and donations are highly encouraged and appreciated.
The event will also include informational resources from:
Military Families Speak Out
Vietnam Veterans Against the War
Veterans for Peace
Orange County Recruitment Awareness Project
Addicted to War
Peace Action West
SoCal Oath Keepers
For more information or to volunteer to help out at the event, please email Wendy Barranco at firstname.lastname@example.org. Members of the media contact should contact Pat Alviso at email@example.com.
This article, by Jason Leopold, was posted to the Public Record, March 27, 2009
While Congress has focused primarily on the country’s economic turmoil and the lavish bonuses paid to Wall Street executives, a Senate Armed Services Committee report currently in the process of being declassified will force lawmakers to shift gears.
The Armed Services Committee will release--possibly as early as next week—its voluminous report on the treatment of alleged terrorist detainees held in U.S. custody and the brutal interrogation techniques they were subjected to, according to Defense Department and intelligence sources who described the report as the most detailed account to date of the roles senior Bush administration and Defense Department officials played in implementing a policy of torture at Guantanamo, Abu Ghraib prison in Iraq and other detention centers.
The full declassified version of the report is 200 pages, contains 2,000 footnotes, and will reveal a plethora of new information about the genesis of the Bush administration's interrogation policies. The investigation relied upon the testimony of 70 people, generated 38,000 pages of documents, and took 18 months to complete. The declassified version of his report will include a full account of the roles military psychologists played in assisting the Bush administration implement a policy of torture.
The committee released a 19-page summary of its investigation last year and voted last November to accept the full classified version of the report's findings. According to the executive summary, “efforts by administration officials to place responsibility for detainee abuses mostly on lower ranking military personnel as both inaccurate and misleading.”
The release of the full declassified version of the Armed Service's Committee report will also put additional pressure on the Obama administration to immediately launch a full-scale investigation into the Bush administration’s interrogation program. Last week, the ACLU called on Attorney General Eric Holder to appoint a special prosecutor to probe Bush administration officials who signed off on and approved the torture of prisoners.
But at his first prime-time news conference in February, Obama said in response to questions about the Bush administration's interrogation practices that no one is above the law but that he favored looking forward, not backward.
“What I have said is that my administration is going to operate in a way that leaves no doubt that we do not torture that we abide by the Geneva Conventions and that we observe our traditions of rule of law and due process as we are vigorously going after terrorists that can do us harm,” Obama said.
"My view is also that nobody is above the law, and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen. But generally speaking I am more interested in looking forward than I am in looking backwards.”
Levin has asked Holder to appoint someone to further probe his report’s findings and make a recommendation to Holder on how to proceed. The attorney general hasn't yet responded. Matthew Miller, a Justice Department spokesman, said Friday he was working on obtaining a response to Levin's recommendation to Holder but Miller was unable to provide The Public Record with a response by the time this story was published. We will, however, update this report with Miller's response when we receive it.
In January, at a progressive media summit, Levin said, “There needs to be, I believe, an accounting of torture in this country.”
“I suggested to Eric Holder, who will be the next Attorney General despite the delay that took place today, that he select some people or hire an outside person who's got real credibility, perhaps a retired federal judge, to take all the available information, and there’s reams of it,” Levin said Jan. 21. “Look, the Vice President, the former Vice President of the United States, acknowledged that they engaged in torture. He says that waterboarding’s not torture, he’s wrong. Waterboarding is torture, period.
“And this administration and Eric Holder has said so. It’s torture and there’s other forms that they engaged in, so what needs to be done, I believe, in addition to finishing the investigation, is for the Attorney General, the new Attorney General, to identify some people in his office to take the existing documentation. The acknowledgment, folks, this is not a very difficult — this is almost like a case in court with an agreed upon statement of facts, that the previous administration acknowledges that they engaged in waterboarding, period. . .”
The Armed Serivces Committee investigation has already concluded that “members of [Bush’s] Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.”
But the declassified committee report contains detailed information about those secret meetings. John Yoo, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel, participated in several of these meetings prior to writing a legal opinion authorizing interrogators to subject detainees to waterboarding and other brutal techniques.
Last year, in response to questions by Armed Services Committee Chairman Carl Levin, Condoleezza Rice, who was National Security Adviser when interrogation methods were discussed, said that beginning as early as the summer of 2002 Yoo provided legal advice at “several” meetings that she attended and that the Department of Justice’s advice on the interrogation program “was being coordinated by Counsel to the President Alberto Gonzales.”
Yoo met with Gonzales and David Addington, counsel to Vice President Dick Cheney, to discuss the subjects he intended to address in the August 2002 torture memos, according to a declassified summary of the Armed Services Committee report.
Those meetings and the legal opinions that followed have also been scrutinized in a separate report by the Justice Department’s Office of Professional Responsibility (OPR), which spent four years reviewing the legal work of Yoo and other attorneys at the OLC. The OPR report, which is still classified, zeroed in on the meetings Yoo participated in and concluded that Yoo had breached “professional standards” by acting as an advocate for White House policy, according to Justice Department officials who spoke on the condition of anonymity because the report is still classified. SERE Techniques
The declassified report will include a full accounting of how the military’s Survival Evasion Resistance and Escape (SERE) training program, which was meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, was reverse engineered and used against detainees during interrogations. SERE training techniques include stress positions, forced nudity, use of fear, sleep deprivation and, until recently, the Navy SERE school used the waterboard.
Already, the committee has revealed that discussion surrounding the use of SERE techniques on detainees began in the spring of 2002 and inquiries about the use of SERE methods were made in December 2001, well before the issuance of a legal opinion authorizing the use of harsh interrogation methods.
“Resistance training (the “R” in SERE) was a subject of discussion,” Levin said in a statement last December accompanying an executive summary of his committee’s report. “We discovered that in July 2002, at the request of [Department of Defense] General Counsel Jim Haynes’s office, the Joint Personnel Recovery Agency (JPRA) - the DoD agency that oversees SERE training - provided Haynes’s office a list of techniques used in SERE school and an assessment of the psychological effect of using those techniques on students.
“In December 2002, Secretary of Defense [Donald] Rumsfeld authorized some of those same techniques for use against detainees at [Guantanamo]. We discovered that, in January 2003, SERE instructors traveled to [Guantanamo] and trained interrogators to hit detainees and put them in stress positions. And the investigation revealed that instructors from JPRA’s SERE school participated in at least one abusive interrogation and were present for others during a visit to Iraq in September 2003.
“Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there,” the Armed Services Committee report concluded.” Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in [Guantanamo’s] October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.”
The investigation found that the CIA’s interrogation program “included at least one SERE training technique, waterboarding.”
“Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques,” a declassified summary of the report said. “Legal opinions subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques.
“Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.”
Last June, Levin said he sent Jay Bybee, the former assistant attorney general at OLC who signed the infamous Aug. 1, 2002 torture memo, a list of questions about the implementation of SERE methods.
“In his response to my questions, Jay Bybee said that, in July 2002 – just before those two OLC opinions were issued and about the same time Jim Haynes’s office requested a list of SERE training techniques and information on the psychological effects of SERE (including waterboarding), the CIA provided OLC with an assessment of the psychological effects of SERE resistance training,” Levin said last December. “Jay Bybee wrote me that the assessment provided by the CIA was used to “inform” the August 1, 2002 OLC legal opinion that has yet to be made public. (CIA officials, including George Tenet and acting General Counsel John Rizzo declined to answer questions relating to both that assessment and the CIA’s interrogation program.)
“Judge Bybee’s answers provide insight into how senior officials in the United States government sought information on aggressive techniques used in SERE training, twisted the law to create the appearance of their legality, and authorized their use against detainees.”
Bybee’s legal work in this area was also harshly criticized by OPR, according to sources familiar with the contents of the watchdog's report. Bybee is now a judge on the 9th Circuit Court of Appeals in San Francisco.
The investigation Levin's committee conducted concluded that a Feb. 7, 2002, action memorandum signed by George W. Bush that excluded “war on terror” suspects from Geneva Convention protections was responsible for the abuse of detainees at Abu Ghraib and Guantanamo.
“Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody,” the committee’s report concluded.
“The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
Rumsfeld and Chertoff
Rice told Levin in written responses to his committee’s queries last September that the CIA’s interrogation program was reviewed by National Security Council principals and that Rumsfeld participated in that review.
Rice said that when the CIA sought approval of the interrogation program she asked Tenet to brief the principals and asked Attorney General John Ashcroft to “personally advise NSC Principals whether the program was lawful.”
John Bellinger, Rice’s Legal Advisor, told Levin that he asked CIA lawyers to seek legal advice not only from the OLC, but also from the Criminal Division of the Department of Justice, headed at the time by Michael Chertoff.
Chertoff reportedly advised the CIA General Counsel Scott Muller and his deputy, John Rizzo, that the August 1, 2002, legal opinion protected CIA interrogators from prosecution if they used waterboarding or other harsh tactics.
In February 2005, during his Senate confirmation hearing to become Homeland Security secretary, Chertoff said he provided the CIA broad guidance in response to its questions about interrogation methods, but never addressed the legality of specific techniques.
Abu Zubaydah’s Torture
The declassified report will also for the first time include a full account about the fierce objections the FBI had toward the CIA’s interrogation of Abu Zubaydah, an alleged “high-value” al-Qaeda detainee, and an in-depth accounting of the meetings and discussions that led to his torture..
According to documents Levin’s committee obtained from the Department of Justice, Daniel Levin, the former head of the agency’s Office of Legal Counsel, indicated that in 2002 "in the context of the Zubaydah interrogation, he attended a meeting at the National Security Council (NSC) at which CIA techniques were discussed.
Daniel “Levin stated that a DOJ Office of Legal Counsel (OLC) attorney gave advice at the meeting about the legality of CIA interrogation techniques. Levin stated that in connection with this meeting, or immediately after it, FBI Director Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though OLC had determined such techniques were legal," according to questions directed to Rice by Sen. Levin.
Daniel Levin was forced to resign in 2004 when Alberto Gonzales became Attorney General because he objected to waterboarding.
The CIA videotaped Zubaydah’s interrogations and the tapes were destroyed. Two weeks ago, author Mark Danner disclosed a report prepared by the International Committee of the Red Cross (ICRC), concluding that the abuse of 14 “high-value” detainees, including Zubaydah, “constituted torture.”
“In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment,” according to the ICRC report. Since the ICRC’s responsibilities involve ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war, the organization’s findings carry legal weight.
The ICRC report also found that there was a consistency in many details from the detainees who were interviewed separately and that the first “high-value” detainee to be captured, Abu Zubaydah, appeared to have been used as something of a test case by his interrogators. Zubaydah was one of the prisoners whose interrogations were videotaped by the CIA.
In her responses to Sen. Levin’s questions regarding Zubaydah’s interrogation, Rice said she had “general recollection that FBI had decided not to participate in the CIA interrogations but I do not recall any specific discussions about withdrawing FBI personnel from the Abu Zubaydah interrogation.”
In the book The One Percent Doctrine, author Ron Suskind said Zubaydah was not the “high-value detainee” the CIA had claimed. Rather, Zubaydah was a minor player in the al-Qaeda organization, handling travel for associates and their families, Suskind wrote.
However, “Bush was fixated on how to get Zubaydah to tell us the truth,” Suskind wrote. Bush asked one CIA briefer, “Do some of these harsh methods really work?”
Zubaydah was strapped to a waterboard and, fearing imminent death, he spoke about a wide range of plots against a number of U.S. targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, the information Zubaydah provided under duress was not credible.
According to Suskind, Zubaydah’s captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind wrote.
Still, in public statements, President Bush portrayed Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States” and added: “So, the CIA used an alternative set of procedures” to get Zubaydah to talk.
The President did not want to “lose face” because he had stated his importance publicly, Suskind wrote.
The final conclusion of Levin’s investigation was that the “abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own.”
“Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at [Guantanamo],” a declassified summary of his report said. “Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.”
This article, by John Dean, was posted to AlterNet, January 24, 2009
Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.
It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC "Countdown" anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass.
With few exceptions, the discussion about what the Obama Administration will do regarding the torture of detainees during the Bush years has been framed as a domestic matter, and the fate of those involved in torturing has been largely viewed as a question of whether the Department of Justice will take action. In fact, not only is the world watching what the Obama Administration does regarding Bush's torturers, but other countries are very likely to take action if the United States fails to do so.
Bush's Torturers Have Serious Jeopardy
Philippe Sands, a Queen's Counsel at Matrix Chambers and Professor of International law at University College London, has assembled a powerful indictment of the key Bush Administration people involved in torture in his book Torture Team: Rumsfeld's Memo and the Betrayal of American Values. He explains the legal exposure of people like former attorney general Alberto Gonzales, Dick Cheney's counsel and later chief of staff David Addington, former Office of Legal Counsel attorney John Yoo, the former Department of Defense general counsel Jim Haynes, and others for their involvement in the torture of detainees at Guantanamo, Abu Ghraib, and CIA secret prisons.
After reading Sands's book and, more recently, listening to his comments on Terry Gross's NPR show "Fresh Air," on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity -- for which the world is ready to hold them responsible.
Here is what Professor Sands told Terry Gross on NPR: "In talking to prosecutors around the world, as I have done, they all recognize the very real political difficulties of taking on someone who has been Vice President of the United States, or President of the United States, or Secretary of Defense of the United States. But those arguments melt away as you go a little down the chain. And I don't think the same arguments would apply in relation to the man, for example, who was Vice President Cheney's general counsel, at the time the decisions were taken, David Addington ... I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture ... " Later, referring to "international investigations," he added that Addington (and others) were at "serious risk of being investigated."
These are remarkable statements from a very well-informed man. Because we have a common publisher, I was able to contact him in London, and pose a few questions. I find his book, statements and responses to my questions chilling.
Q & A With Professor Philippe Sands
The following is my email exchange with Professor Sands:
John W. Dean: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you -- and others with your expertise and background -- have sufficient information to call for other countries to take action if the Obama Administration fails to act?
Philippe Sands: Last week's intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: "The Turning Point: How the Susan Crawford interview changes everything we know about torture"). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.|
JD: If yes, can you share what you and others might do, and when?
PS: I am in the process of completing the epilogue to my book Torture Team, which will be published in May 2009. That will set out, in detail, what I learned when I made a return visit to the European judge and prosecutor with whom I met in the summer of 2007, as described in the book. Watch this space.
JD: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?
PS: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last. That said, having set out the relevant facts in one case [in my book], to the best of my abilities, I feel it will now be for others to take this forward as they consider appropriate.
JD: Also, when talking to Ms. Gross you said that you did not think that David Addington and others involved in torture were likely to be travelling outside the United States. Do you know for a fact that any country might take action? Have you discussed this with any prosecutors who could do so?
PS: This will be addressed in the epilogue to Torture Team.
JD: Do you believe that a failure of the Obama Administration to investigate, and if necessary, prosecute, those involved in torture would make them legally complicit in the torture undertaken by the Bush Administration?
PS: No, although it may give rise to violations by the United States of its obligations under the Torture Convention. In the past few days there have been a series of significant statements: that of Susan Crawford, of former Vice President Cheney's confirming that he approved the use of waterboarding, and by the new Attorney General Eric Holder that he considers waterboarding to be torture. On the basis of these and other statements it is difficult to see how the obligations under Articles 7(1) and (2) of the Torture Convention do not cut in: these require the US to "submit the case to its competent authorities for the purpose of prosecution". What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards ("authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State") and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.
JD: Finally, you mentioned the case proceeding in the UK regarding possible torture of a British national. Is it possible that even an American ally like Great Britain could seek extradition, and undertake prosecution, of U.S. officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain -- if the U.S. fails to act?
PS: It is possible. The more likely scenario, however, is that which occurred in Senator Pinochet's case: the unwitting traveller sets foot in the wrong country at the wrong time.
What Will The Obama Administration Do?
As all who have followed this issue know, President Obama hedged after he was elected as to what he may or may not do. So too did his Attorney General nominee. After Eric Holder declared waterboarding to be unlawful, no one on the Senate Judiciary Committee truly followed up as to what he was going to do, but it appears they are going to now press him on that point.
My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be "change we can believe in" if the new administration harbors war criminals -- which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?
One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence -- the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.
We must all hope that the Obama Administration does the right thing, rather than forcing another country to clean up the mess and seek to erase the dangerous precedent these people have created for our country. A first clue may come when Holder resumes testifying.
This article, by Jim MacKenzie, was published by McClatchy, January 26, 2009.
KABUL, Afghanistan - Afghans were paying close attention last week when Barack Obama was sworn in as the 44th president of the United States. After all, Obama has pledged to move Afghanistan to center stage in his new administration's foreign policy concerns.
KABUL, Afghanistan - "There is a lot of optimism around Obama," said Sayed Nasim, a graduate of the law and political science department of Balkh University, in northern Afghanistan.
"America has not fulfilled expectations during its past seven years here, but during his campaign Obama was emphasizing that that he would give this country serious attention," he said.
"We want real change, not just some shift in the pieces on the chess board of power," Nasin said. "Obama should make economic change his priority, rather than sending more troops." America brought dramatic change to Afghanistan more than seven years ago after the U.S.-led invasion ousted the Taliban. Today, however, Afghanistan seems more deeply mired in violence and corruption than ever.
Development in much of the country is all but at a standstill; in the southern provinces the insurgency is gaining ground almost daily.
Military operations against the insurgents by the U.S.-led coalition and the NATO-led International Security Assistance Force have angered the local population, who seem much more willing to hold foreign troops responsible for the resulting death and destruction than they are the Taliban.
Afghans who expected immediate benefits from the international presence are bitterly disappointed and eager to vent their frustrations on the international community in general and former U.S. President George W. Bush for the current situation.
"Over the past seven years, Bush has done a lot of damage that Mr. Obama is going to have to fix," said Khalil Rahman Omed, a journalist in Lashkar Gah. "My only wish is that he will do good things for this country." Many here are skeptical that Obama's plan to nearly double the number of American forces in Afghanistan to 60,000 is one of those good things.
"We accept the foreign forces on one condition: that Obama changes Bush's policies," said Abdul Jabar, who trained as a journalist in Iran but now works as a cook in Kabul. "If he does good things for Afghanistan economically, then we will agree to the troops. But if it is the same as in the past, if innocent civilians are killed in these daily bombardments, then we are just fed up," he said.
Mohammad Sedeq, a shopkeeper in Kabul, had a similar message.
"If (Obama) sends 20,000 or 40,000 more troops, it will make no difference," he said. "They won't be able to control even one valley if there is resistance. If Mr. Obama has a good heart, and good intentions, there will be a positive impact. But if he is like this George Bush guy, we don't want him. It would be really dangerous for Afghanistan." Sedeq also said that Obama's idea of arming former warlords or tribal militias to fight the Taliban is a bad idea.
"Tribal militias will upset the balance in tribal shuras (councils)," he said. "Local elders have authority among their people, but they will not be able to do anything if there are men with guns standing in front of them. Why don't (the Americans) help the ministries of defense and interior, instead?" Many Afghans fear that arming local militias will bring the country back to an era when warlords terrorized the population. Few are eager to return to that chaotic time, which served as a prelude to the reign of the Taliban, who gained power in large part because they were able to curb the warlords' excesses.
"Tribal militias are a bad idea," said Mohammad, a shopkeeper in Kabul's Charahi Shaid neighborhood. "They may fight against terrorists during the day, but they will become thieves at night." Like others, he said that economic aid was the key to security.
"Now, as Obama takes power, I pray to God that we get security," he said. "He should pave the roads, and make it possible for businessmen to open big factories. He should help get rid of unemployment." Some have some high expectations for the new president.
"Our hope is that (Obama) will help get this country out of poverty, unemployment, and bad luck," said Sayed Basir, who owns a furniture store in the northern city of Mazar-e-Sharif. "This is a brave nation with a long history, but financial problems have turned a lot of people bad. Let's see what Obama can do for us. Will he be better than the last guy? Or, God forbid, even worse?" Afghans can be a prickly bunch who will not be patient for long. While Obama appears to have a lot of good will for now, he may also have a small window of opportunity.
"Afghans have been a toy on the superpower playground for long enough," said Abdul Hakim, a nurse in Mazar-e-Sharif. "Our people are now poor because of this, they do not have technology, a developed economy, culture. We have been made into a weak country. I ask Obama to stop this."
Sayed Hamed Razawi, a mechanic in Mazar, had a sterner warning, "If Obama has the same nasty policies as Bush, he will be shamed in front of the world." The most plaintive appeal came from Helmand in the south, where foreign troops are battling the Taliban on a daily basis.
"Barack Obama jan," said Mujtaba Mohammedi, the head of the local youth association, using a common form of endearment. "Listen to me. Please stop the killing of innocent civilians in Helmand. Please."
This note, by Adrian Cousins, was published by Military Families Speak Out, January 20, 2009.
Today we saw George W Bush leave the White House and we saw people from all over go to Washington DC to see Bush go and Obama become president of the USA.
It was a great day to see this warmonger leave the White House, a man who has caused so much hurt, so many tears and brought a country down. A man that loved to go to war.
So lets hope that Obama will be true to his word and bring the troops home. Lets hope now that he is the president he is not like the rest of the elected government and goes back on his word.
When I saw that man leave the White House I had a big smile on my face - I say thank god this horrible man has left.
George Bush and Tony Blair have now left behind them the power that they had - so lets hope that one day these two men will have to stand up in court and say "I swear to tell the truth, the whole truth and nothing but the truth"
Shame on you.
This article, by Karen DeYoung and Peter Finn, was published in The Washington Post, January
President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.
Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.
Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.
But other former officials took issue with the criticism and suggested that the new team has begun to appreciate the complexity and dangers of the issue and is looking for excuses.
After promising quick solutions, one former senior official said, the Obama administration is now "backpedaling and trying to buy time" by blaming its predecessor. Unless political appointees decide to overrule the recommendations of the career bureaucrats handling the issue under both administrations, he predicted, the new review will reach the same conclusion as the last: that most of the detainees can be neither released nor easily tried in this country.
"All but about 60 who have been approved for release," assuming countries can be found to accept them, "are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people," said the former official who, like others, insisted on anonymity because they were not authorized to talk to reporters about such matters. He acknowledged that he relied on Pentagon assurances that the files were comprehensive and in order rather than reading them himself.
Obama officials said they want to make their own judgments.
"The consensus among almost everyone is that the current system is not in our national interest and not sustainable," another senior official said. But "it's clear that we can't clear up this issue overnight" partly because the files "are not comprehensive."
Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for detainee affairs in 2006-2007, said he had persistent problems in attempts to assemble all information on individual cases. Threats to recommend the release or transfer of a detainee were often required, he said, to persuade the CIA to "cough up a sentence or two."
A second former Pentagon official said most individual files are heavily summarized dossiers that do not contain the kind of background and investigative work that would be put together by a federal prosecution team. He described "regular food fights" among different parts of the government over information-sharing on the detainees.
A CIA spokesman denied that the agency had not been "forthcoming" with detainee information, saying that such suggestions were "simply wrong" and that "we have worked very closely with other agencies to share what we know" about the prisoners. While denying there had been problems, one intelligence official said the Defense Department was far more likely to be responsible for any information lapses, since it had initially detained and interrogated most of the prisoners and had been in charge of them at the prison.
Pentagon spokesman Geoff Morrell said that the Defense Department would cooperate fully in the review.
"Fundamentally, we believe that the individual files on each detainee are comprehensive and sufficiently organized," Morrell said. He added that "in many cases, there will be thousands of pages of documents . . . which makes a comprehensive assessment a time-consuming endeavor."
"Not all the documents are physically located in one place," Morrell said, but most are available through a database.
"The main point here is that there are lots of records, and we are prepared to make them available to anybody who needs to see them as part of this review."
There have been indications from within and outside the government for some time, however, that evidence and other materials on the Guantanamo prisoners were in disarray, even though most of the detainees have been held for years.
Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.
In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."
Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases.
In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."
He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."
As George W. Bush leaves office and Barack Obama takes over, we are in danger of missing the opportunity for change our new president has promised -- unless we come to grips with what the great historian and Librarian of Congress Daniel Boorstin called our "hidden history," not just of the past eight years but of the past half-century and more.
President Obama will face a staggering array of challenges, most, if not all, of which stem from the policies of Bush. But efforts at reform will fall short if we fail to probe and confront the powerful forces that wanted this disastrous administration in the White House in the first place -- and that remain ready and able to maintain their influence behind the scenes today.
Like most people, I took the failings of George W. Bush at face value: an inattentive, poorly prepared man full of hubris, who committed colossal blunders as a result. Then I spent five years researching my new book, Family of Secrets and came to see that the origins go much deeper. This backstory is getting almost no attention in the talking-heads debate over the Bush legacy. Yet it will continue to play, affecting our country and our lives, long after Bush leaves office.
A more profound explanation for the rise of George W. Bush came as I studied the concerted effort to convince the public that he was independent of, and often in disagreement with, his father. The reason for this, it turned out, was that exactly the opposite was true. W. may have been bumptious where his father was discreet, but in fact the son hewed closely to a playbook that guided his father and even his grandfather.
Over much of the last century, the Bushes have been serving the aims of a very narrow segment from within America's wealthiest interests and families -- typically through involvement in the most anti-New Deal investment banking circles, in the creation of a civilian intelligence service after World War II, and in some of that service's most secretive and still-unacknowledged operations.
Through declassified documents and interviews, I unearthed evidence that George W. Bush's father, the 41st president of the United States, had been working for the intelligence services no less than two decades before he was named CIA director in 1976. Time and again, Bush 41 and his allies have participated in clandestine operations to force presidents to do the bidding of oil and other resource-extraction interests, military contractors and financiers. Whenever a president showed independence or sought reforms that threatened entrenched interests, this group helped to ensure that he was politically attacked and neutralized, or even removed from office, through one means or another.
We are not dealing here with what are commonly dismissed as "conspiracy theories." We are dealing with a reality that is much more subtle, layered and pervasive -- a matrix of power in which crude conspiracies are rarely necessary and in which the execution or subsequent cover-up of anti-democratic acts become practically a norm.
In 1953, 23 years before he became CIA director as a supposed neophyte, George H.W. Bush began preparing to launch an oil-exploration company called Zapata Offshore. His father, investment banker Prescott Bush, had just taken a Senate seat from Connecticut; and his father's close friend Allen Dulles had just taken over the CIA. A staff CIA officer, Thomas J. Devine, purportedly "resigned" to go into the oil business with young George.
Bush then began to travel around the world. His itineraries had little apparent relationship to his limited and perennially unprofitable business enterprises. But they do make sense if the object was intelligence work. When his company at last put a few oil rigs in place, they ended up in highly sensitive spots, such as just off Castro's Cuba before the Bay of Pigs invasion.
As part of his travels, Bush senior even appeared in Dallas on the morning of the Kennedy assassination, although he would famously claim that he could not recall where he was at that historic moment. After leaving the city, he called the FBI with a false tip about a possible assassin, pointedly emphasizing that he was calling from outside Dallas. It is also intriguing to learn that an old friend of Bush's, a White Russian émigré with intelligence connections, shepherded Lee Harvey Oswald upon his return to America in the year preceding the assassination. In any event, when Lyndon Johnson replaced Kennedy, the oilmen and the intelligence-military establishment once again had a friend in the White House.
The pattern continued. New evidence suggests that Bush senior and his associates in the intelligence services, far from being the loyalists to Richard Nixon they claimed to be, had turned on the 35th president early in his administration, unceasingly working to weaken and eventually force him out. These efforts culminated in what appears to have been a deliberately botched Watergate office burglary -- led by former CIA officers.
Ironically, Nixon's career had been launched with the quiet backing of Wall Street finance figures upset with the man Nixon would defeat, a leading congressional supporter of banking reform, and Prescott Bush himself had played a key role. Yet, when Nixon finally achieved the presidency, he became surprisingly resistant to pressure from the very power centers that had helped him get to the top. He turned a deaf ear to the demands of the oil industry, battled with the CIA and cut the Pentagon out of the loop as he (and his aide Henry Kissinger) negotiated secretly with Moscow and Beijing.
These acts estranged Nixon from those who felt he had betrayed his sponsors -- men who had the means to do him in. Bush senior, it turns out, was closely allied with the surprising number of White House officials with covert ties to the intelligence service that surrounded Nixon. Through it all, Bush senior would routinely claim to be "out of the loop," as he would later pretend during the Iran-Contra scandal of the Reagan era, although we know that as vice president he was at the center of that and other abuses of power.
None of this let up after Nixon was forced to resign. His pliant successor, Gerald Ford, brought in young staffers named Richard Cheney and Donald Rumsfeld, and the two participated in the so-called Halloween massacre, which saw the administration veer in a far-right direction on foreign policy, a development that paved the way for the appointment of Bush senior as CIA director. This happened just as Congress was launched into the deepest investigation ever of intelligence abuses, and public voices were clamoring to reopen official inquiries into the assassinations of John F. Kennedy, his brother, Robert F. Kennedy and Martin Luther King Jr.
Then came Jimmy Carter, whose plans to reform the CIA were an echo of JFK's intent to scatter the CIA to the winds after the ruinous Bay of Pigs invasion. When Carter defeated Ford, ousted Bush from the CIA helm and sought to bring the intelligence juggernaut under control, he ended up deeply compromised by complex financial shenanigans orchestrated by figures from the same intelligence circles -- and undermined by the crisis with Iran, exacerbated by covert dissident CIA elements tied to Bush. Carter was a one-term president, defeated by a ticket with none other than George H.W. Bush, backed by a phalanx of CIA officers, as vice president. And then Bush senior became president himself.
Bill Clinton apparently grasped the pattern. He cultivated a friendly relationship with the elder Bush and instituted virtually no significant reforms in, or issued challenges to, either the intelligence or military establishments.
All this is relevant today because the furtive forces and pressures that haunted, and ultimately dominated, these past presidents have not abated.
Indeed, what the presidency of George W. Bush truly represented was the unfettered, most reckless manifestation of the objectives this group has pursued for many decades. In Bush 43's trademark pattern of showing the old man how it's done, the son was bringing virtually into the open the kinds of things his father preferred pursued sub-rosa. But behind the different façade it was the same game all over again.
The dirty tricks of Karl Rove, who got his first job under Bush 41 at the Republican Party during Watergate; the use of the Supreme Court to force an election their way; an early move to suppress the records of prior presidencies; the maniacal secrecy of Vice President Cheney; the false rationale used to justify the seizure of Iraqi oil reserves through invasion; the clampdown on dissent and the unauthorized domestic eavesdropping, the efforts to smear independent voices like Joseph Wilson (the husband of CIA officer Valerie Plame) and newsman Dan Rather; and last and perhaps most significant, the unleashing from government oversight of their friends and allies in finance and industry -- these and more emerged from the old dreams and methods of this anti-democratic culture.
Now, as a new president enters the White House promising reform, how much will he be able to achieve if his reforms step on the same big toes? We must begin to take seriously, and speak openly about, the true nature of the forces behind the Bush family enterprise. If we do not, we will find ourselves, several years from now, shaking our heads at new disaster, still unable to comprehend what has happened -- and why.
The following report, by Jackie Northam, was broadcast on NPR, January 21, 2008
the verge of signing an executive order — perhaps as early as Thursday morning — setting a one-year deadline to close the U.S. prison camp at Guantanamo Bay, Cuba.
The still-unsigned executive order is expected to call for an immediate review of how to handle the approximately 245 prisoners who remain at Guantanamo. Some may be repatriated or sent to third nations.
About 60 detainees have already been cleared for release, but the outgoing Bush administration had little luck in finding a home for them.
The executive order will also cover the possibility that some prisoners will be transferred to facilities in the U.S.
Status Of Military Commissions In Doubt
It's not believed that the order will call for a halt to the troubled military commissions which were set up as a legal system to try the detainees. However, hours after taking office, Obama requested that all pending military hearings at the U.S. prison camp at Guantanamo Bay in Cuba be suspended for 120 days.
The new president wants a complete review of the military commissions used to try the detainees at the remote prison camp. The move was seen as the first step in closing Guantanamo.
Other executive orders are expected soon, including one that would establish new rules for interrogation methods.
From the start, the military commissions — designed solely for use in Guantanamo courtrooms — were widely criticized as inherently unfair to the detainees: The trials were mired in delays and plagued by legal challenges.
Throughout the presidential campaign, Obama pledged to close the detention camp and signaled that he was not happy with the commissions.
"I think, clearly, the new administration's legal review of military commissions began long before yesterday's inauguration," says Matthew Waxman, a professor at Columbia Law School and a former deputy assistant secretary of defense for detainee affairs.
He says it is important that Obama made the decision to suspend the commissions quickly, because the longer the procedures were allowed to continue, the more difficult it would be for him to pull them back later.
21 Cases On Hold
Obama's decision immediately froze Tuesday's trial of a Canadian-born detainee, as well as the trial Wednesday of five men accused of plotting the Sept. 11 attacks. The five, who were facing the death penalty, protested the delay in their case. Earlier, they had said they wanted to be "martyrs."
The new president's decision effectively brings all 21 pending cases at Guantanamo to a halt until at least May 20, while the new administration studies the process.
Eugene Fidell, the president of the National Institute of Military Justice, says it's unlikely the commissions will be reconstituted.
"Obviously, the military commissions have been severely discredited everywhere — in our legal system, in the court of public opinion and around the world. So I find it hard to imagine that the Obama administration would exert itself to preserve their viability," Fidell says.
People involved with the Obama transition team say the order would also include repatriating some of the detainees — and transferring others into the United States. Ireland and Switzerland signaled on Wednesday that they may be willing to take some of the prisoners.
Geneve Mantri with Amnesty International says these moves by the Obama administration are positive steps.
"What we're really looking forward to seeing is what the administration puts in its place — what human rights safeguard it has, whether it has the safeguards we'd like to see in any legal system, and all the things that most people have criticized this process as lacking," Mantri says.
A 'Mare's Nest' Of Legal Woes
The Obama administration will have to decide what legal system should be used to prosecute the detainees and where they will be detained, says Fidell.
"The Bush administration left the Obama administration with a mare's nest of legal and practical problems. And it's going to take some time, and the best minds that the legal profession has, to sort those problems out," he says.
The new administration will also have to decide what to do with detainees whom the government does not have enough evidence to try — but whom U.S. intelligence agencies say are too dangerous to release. Waxman, the former detainee affairs official, says Obama will have to strike the right balance.
"In trying to navigate these policy dilemmas, the new president needs to balance on the one hand security, with on the other hand, not just civil liberties, but also legitimacy," he says.
Waxman says it's more important now to move competently, rather than quickly, in deciding what to do with Guantanamo.