Contents: The Sir! No Sir! blog is an information clearing house, drawing on a wide variety of sources, to track the unfolding history of the new GI Movement, and the wars that brought the movement to life.
Where applicable, parallels will be drawn between the new movement and the Vietnam era movement which was the focus of the film Sir! No Sir!
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This article, by Robyn E. Blumner, was published by The St. Petersburg Times, October 25, 2009
Ubi jus ibi remedium.
Probably nothing turns readers off more than starting a column with some incomprehensible Latin phrase. But this one's relevant. It means: Where there is a right, there is a remedy. When a legal wrong has been done, the courts should be able to order some kind of relief. Otherwise, what good is the right?
What good is habeas corpus (more Latin, sorry) if after it is determined that you are being held illegally you can be kept in jail? This is precisely the question the U.S. Supreme Court has agreed to answer. A case taken Tuesday asks whether a court has the power to free Guantanamo detainees after finding they were wrongly imprisoned, even if the only place to send them is the United States.
Here is the crazy situation that exists now: A group of Muslim Uighurs who fled oppression in western China and went to camps in the mountains of Afghanistan were turned over to the U.S. military, reportedly by Pakistani officials for a bounty of $5,000 a head. They have been imprisoned in Guantanamo for more than seven years, and it wasn't until last October that the Uighurs finally had their habeas corpus petitions ruled on by a federal judge. He found they were wrongfully imprisoned. The government has admitted that the Uighurs are not enemy combatants. Whatever beef they have is with China, which is why the men cannot be returned there, where they would be tortured or executed.
But since at the time no other country would take them, U.S. District Judge Ricardo Urbina ordered them released in the United States. A Uighur community promised housing and employment help.
This seems fair. We made them stateless, dragged them to Guantanamo and robbed them of six years of their lives before bothering to give them due process. Releasing them is the least we can do.
But then something astounding happened, at least from a logic, compassion and constitutional standpoint. In February, a federal appellate court set aside the order to free the men. It said that because the Uighurs are aliens and all immigration decisions are the province of the political branches, the court is powerless to order their transfer to our shores.
According to this reasoning, when the U.S. Supreme Court ruled last year in Boumediene vs. Bush that Guantanamo detainees have the right to be free from "arbitrary and unlawful restraint," the court intended a huge loophole. Even if a court determines that a Guantanamo detainee has been unlawfully imprisoned for years, he will have to remain until his jailer finds him another country, whenever that is ... maybe never.
Having a right without a remedy is frustrating when the issue is, say, money damages defeated by sovereign immunity. But here the issue is the most fundamental: liberty.
The Uighur case has resulted in other prisoners ending in the same limbo. Of 30 detainees who federal judges have found in the last year are being unlawfully detained, only 10 have been resettled in foreign countries, none here. Lower court judges are powerless except to admonish the administration to hurry its relocation efforts.
The hope is that even this conservative Supreme Court will side with the Uighurs. The high court was exceptionally protective of habeas corpus during the Bush presidency. It would be stunning if the court allowed those rulings elevating due process over presidential power to be emasculated by immigration law.
The case has iffy prospects on another front. President Barack Obama promised to shutter Guantanamo within a year of his presidency, which could moot the case by the time it is heard next year. Four Uighurs have now been sent to Bermuda, and Palau says it will take others.
But the principle will not go away. Obama promised in his inaugural to protect "the rights of man." To be meaningful, as the president knows, those rights must be more than declaratory. They must include a remedy, a way to walk free from one's illegal imprisonment.
This article, by Richard Norton-Taylor, was published in The Guardian, October 16, 2009
David Miliband, the foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed, a British resident who was held in a secret prison in Pakistan, the high court has ruled.
In a devastating judgment, two senior judges roundly dismissed the foreign secretary's claims that disclosing the evidence would harm national security and threaten the UK's vital intelligence-sharing arrangements with the US.
In what they described as an "unprecedented" and "exceptional" case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002.
"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."
The summary is a CIA account given to British intelligence "whilst [Mohamed] was held in Pakistan ... prior to his interview by an officer of the Security Service", the judges said. The officer, known only as Witness B, is being investigated by the Metropolitan police for "possible criminal wrongdoing".
The seven-page document will not be released until the result of an appeal is known. However, the judges made clear their anger at the position adopted by Miliband, MI5, and MI6 in their hard-hitting judgment.
An explanation was needed, they said, about "what the United Kingdom government actually knew about what was alleged to be cruel, inhuman or degrading treatment or torture, in particular what Witness B knew before he interviewed [Mohamed] ... in Pakistan". The judges added that it was important to explain what MI5 "and others knew when they provided further information to the United States to be used in the interrogation".
There was a "compelling public interest" to disclose what Miliband wanted to suppress, they said; there was nothing in the seven-paragraph summary that had anything remotely to do with "secret intelligence".
"In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom."
The judges sharply criticised the way Miliband and his lawyers tried to persuade the Obama administration to back the suppression of the CIA material. Lawyers acting for Mohamed, the Guardian and other media organisations pointed out that Obama had himself set up an inquiry into CIA practices and published details of their interrogation techniques.
In the end, Miliband had to rely for help on a CIA letter to MI6 claiming that disclosure of the document would harm the security of the US and UK.
The judges made it clear they did not believe the claim was credible. "The public interest in making the paragraphs public is overwhelming," they said.
The document would show what Witness B – an MI5 officer who interrogated Mohamed in Pakistan in 2002 – knew about Mohamed's condition before he questioned him incognito in a Pakistani jail, the judges said.
The CIA secretly flew Mohamed to Morocco, Afghanistan and then Guantánamo Bay, the court has heard. The judges criticised MI5 and MI6 for the belated disclosure of documents that revealed an MI5 officer was in Morocco when Mohamed was held there in a secret jail.
Miliband's lawyers continued to argue that a number of passages in the judges' ruling must be redacted as well as the seven-paragraph CIA document.
Jonathan Evans, the head of MI5, admitted in a speech at Bristol University on Thursday that the Security Service had been "slow to detect the emerging pattern of US practice in the period after 9/11".
"But it is important to recognise that we do not control what other countries do, that operational decisions have to be taken with the knowledge available, even if it is incomplete, and that when the emerging pattern of US policy was detected, necessary improvements were made."
He repeated the mantra that MI5 "does not torture people, nor do we collude in torture or solicit others to torture people on our behalf".
However, he said the situation posed a dilemma. "Given the pressing need to understand and uncover al-Qaida's plans, were we to deal, however circumspectly, with those security services who had experience of working against al-Qaida on their own territory, or were we to refuse to deal with them, accepting that in so doing we would be cutting off a potentially vital source of information that would prevent attacks in the west?
"In my view we would have been derelict in our duty if we had not worked, circumspectly, with overseas liaisons who were in a position to provide intelligence that could safeguard this country from attack. I have every confidence in the behaviour of my officers in what were difficult and, at times, dangerous circumstances".
This article, by Danielle Kurtzleben, was distributed by the Inter Press Service News Agency, August 14, 2009
WASHINGTON, Aug 14 (IPS) - The U.S. government continues to withhold even the most basic information about prisoners in the Bagram detention facility in Afghanistan, according to the American Civil Liberties Union (ACLU), a New York-based legal rights organisation.
An April 2009 ACLU Freedom of Information Act (FOIA) request for documents and information about the detainment of prisoners at Bagram has yielded dead ends with both the Department of Defence (DOD) and the Central Intelligence Agency (CIA).
The ACLU wants the Obama Administration to make these records public, including information about "the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as ‘enemy combatants.’"
The Bagram detention facility, located on an air base north of Kabul, reportedly houses around 600 detainees. These detainees comprise a mixture of suspected terrorists from outside Afghanistan and Iraq, as well as Afghanis captured while fighting American soldiers.
In a letter responding to the ACLU’s FOIA request, the CIA said it could "neither confirm nor deny the existence or nonexistence" of records containing the information requested by the ACLU.
The DOD’s response said that the department has a list containing basic detainee information, including names, capture dates and circumstances, and length of detainment. However, the DOD said that this list is classified, and cannot be released for national security and personal privacy reasons.
Bagram is a major topic of interest for several human rights groups, including Human Rights Watch (HRW) and the International Justice Network, which have criticised the Obama Administration’s record on promoting justice in its overseas prisons, comparing conditions at Bagram to those at the much- criticised U.S. facility at Guantanamo Bay, Cuba.
"There are serious concerns that Bagram is another Guantanamo - except with many more prisoners, less due process, no access to lawyers or courts and reportedly worse conditions," said Melissa Goodman, staff attorney with the ACLU National Security Project, in a statement issued on Thursday.
"As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that exist there," said Goodman.
Several former and current Bagram detainees have accused U.S. soldiers at Bagram of holding them without charge, conducting harsh interrogations, and engaging in abusive practices such as beatings and sleep deprivation. While many agree that abusive practices towards prisoners at Bagram have stopped, denial of legal rights remains a major problem.
"The chief complaint [among Bagram detainees] is lack of meaningful process to challenge their detention," said Sahr Muhammedally, Senior Associate with the Law and Security Program at Human Rights First, a human rights advocacy organisation headquartered in New York. She said that many prisoners at Bagram do not know why they are being detained.
Muhammedally has travelled to Afghanistan to interview 30 Bagram detainees, most recently in April. She told IPS that the capacity does not currently exist to process all of the prisoners and bring them all to fair trials.
The question of fair trials for Bagram detainees was raised in April, when the Obama Administration appealed a federal judge’s decision to allow three Bagram detainees to challenge their detention in U.S. courts - a move that drew heavy criticism.
However, despite the current lack of transparency and due process at Bagram, Muhammedally told IPS that she remains hopeful that the Obama Administration will create meaningful changes at Bagram, citing a task force created in January to review and potentially change policies and procedures at the facility.
AFP reported in July that the Pentagon’s proposed "overhaul" of practices in Bagram is in response to a report by Marine Major General Douglas Stone, who helped to reform U.S. detention practices in Iraq. Ideas for new programmes at the facility include training "more moderate inmates" in job skills and de-radicalisation before their release.
Muhammedally thinks that these potential changes show that the Obama Administration remains committed to justice at Bagram. "I’m not ready to completely write off the administration’s policy on this issue, because I think they are concerned about what is going on there," she told IPS.
She added, "They are seriously looking at reforming the detention regime in Afghanistan. I’m just waiting to see what some of those reforms are going to be."
This article, by Jack Goldsmith, was psted to e-Arianna, June 01, 2009
The revelation last weekend that the United States is increasingly using foreign intelligence services to capture, interrogate and detain terrorist suspects points up an uncomfortable truth about the war against Islamist terrorists. Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off.
The U.S. rendition program -- which involves capturing suspected terrorists and whisking them to another country, outside judicial process -- began in the 1990s. The government was under pressure to take terrorists off the streets and learn what they knew. But it could not bring them to the United States because U.S. law made it too hard to effectively interrogate and incapacitate them here. So instead it shipped them to Egypt and other places to achieve the same end.
A similar phenomenon has occurred with the U.S. detention of terrorist suspects at Guantanamo Bay. The Gitmo facility was established after the Sept. 11, 2001, attacks because the Bush administration believed it needed to apply a different detention and interrogation regime than would be allowed at home. Over the past eight years, courts have exported U.S. legal standards to the island, and now President Obama has promised to close the detention facility.
But closing Guantanamo or bringing American justice there does not end the problem of terrorist detention. It simply causes the government to address the problem in different ways. A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower.
The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process.
There are at least two problems with this general approach to incapacitating terrorists. First, it is not ideal for security. Sometimes it would be more useful for the United States to capture and interrogate a terrorist (if possible) than to kill him with a Predator drone. Often the United States could get better information if it, rather than another country, detained and interrogated a terrorist suspect. Detentions at Guantanamo are more secure than detentions in Bagram or in third countries.
The second problem is that terrorist suspects often end up in less favorable places. Detainees in Bagram have fewer rights than prisoners at Guantanamo, and many in Middle East and South Asian prisons have fewer yet. Likewise, most detainees would rather be in one of these detention facilities than be killed by a Predator drone. We congratulate ourselves when we raise legal standards for detainees, but in many respects all we are really doing is driving the terrorist incapacitation problem out of sight, to a place where terrorist suspects are treated worse.
It is tempting to say that we should end this pattern and raise standards everywhere. Perhaps we should extend habeas corpus globally, eliminate targeted killing and cease cooperating with intelligence services from countries that have poor human rights records. This sentiment, however, is unrealistic. The imperative to stop the terrorists is not going away. The government will find and exploit legal loopholes to ensure it can keep up our defenses.
This approach to detention policy reflects a sharp disjunction between the public's view of the terrorist threat and the government's. After nearly eight years without a follow-up attack, the public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice.
The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe. When one of its approaches to terrorist incapacitation becomes too costly legally or politically, it shifts to others that raise fewer legal and political problems. This doesn't increase our safety or help the terrorists. But it does make us feel better about ourselves.