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January 15, 2012

Close the Guantánamo Gulag

Travelers to Cuba and music lovers are familiar with the song “Guantanamera”— literally, the girl from Guantánamo. With lyrics by José Martí, the father of Cuban independence, Guantanamera is probably the most widely known Cuban song. But Guantánamo is even more famous now for its U.S. military prison. Where “Guantanamera” is a powerful expression of the beauty of Cuba, “Gitmo” has become a powerful symbol of human rights violations—so much so that Amnesty International described it as “the gulag of our times.”

That description can be traced to January 2002, when the base received its first 20 prisoners in shackles. General Richard B. Myers, chairman of the Joint Chiefs of Staff, warned they were “very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down.” We now know that a large portion of the 750 plus men and boys held there posed no threat to the United States. In fact, only five percent were captured by the United States; most were picked up by the Northern Alliance, Pakistani intelligence officers, or tribal warlords, and many were sold for cash bounties.

The Guantánamo story starts in 1903, when the U.S. Army occupied Cuba after its war of independence against Spain. The Platt Amendment, which granted the United States the right to intervene in Cuba, was included in the Cuban Constitution as a prerequisite for the withdrawal of U.S. troops from the rest of Cuba. That provision provided the basis for the 1903 Agreement on Coaling and Naval Stations, which gave the United States the right to use Guantánamo Bay “exclusively as coaling or naval stations, and for no other purpose.”

In 1934, President Franklin D. Roosevelt signed a new treaty with Cuba that allows the United States to remain in Guantánamo Bay until the U.S. abandons it or until both Cuba and the United States agree to modify their arrangement. According to that treaty, “the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect.” That means Guantánamo Bay can be used only for coaling or naval stations. Additionally, article III of the 1934 treaty provides that the Republic of Cuba leases Guantánamo Bay to the United States “for coaling and naval stations.” Nowhere in either treaty did Cuba give the U.S. the right to utilize Guantánamo Bay as a prison camp.

It is no accident that President George W. Bush chose Guantánamo Bay as the site for his illegal prison camp. His administration maintained that Guantánamo Bay is not a U.S. territory, and thus, U.S. courts are not available to the prisoners there. But, as the Supreme Court later affirmed, the United States, not Cuba, exercises exclusive jurisdiction over Guantánamo Bay. Amanda Williamson, a spokeswoman in the Red Cross’ Washington office, noted that prisoners at Guantánamo “have been placed in a legal vacuum, a legal black hole.” Amnesty International went further, noting an obvious gap between U.S. rhetoric and practice: “Given the USA’s criticism of the human rights record of Cuba, it is deeply ironic that it is violating fundamental rights on Cuban soil, and seeking to rely on the fact that it is on Cuban soil to keep the U.S. courts from examining its conduct.”

Although the Convention Against Torture, a treaty the United States has ratified, forbids the use of coercion under any circumstances to obtain information, prisoners released from Guantánamo have detailed assaults, prolonged shackling in uncomfortable positions, sexual abuse, and threats with dogs. Mustafa Ait Idr, an Algerian citizen who was living in Bosnia when he was sent to Guantánamo, charged that U.S. military guards jumped on his head, resulting in a stroke that paralyzed his face. They also broke several of his fingers and nearly drowned him in a toilet. Mohammed Sagheer, a Pakistani cleric, claimed the wardens at Guantánamo used drugs “that made us senseless.” French citizen Mourad Benchellali, released from Guantánamo in July 2004, said, “I cannot describe in just a few lines the suffering and the torture; but the worst aspect of being at the camp was the despair, the feeling that whatever you say, it will never make a difference.” Benchellali added, “There is unlimited cruelty in a system that seems to be unable to free the innocent and unable to punish the guilty.”

Australian lawyer Richard Bourke, who has represented many of the men incarcerated at Guantánamo, charged that prisoners have been subjected to “good old-fashioned torture, as people would have understood it in the Dark Ages.” According to Bourke, “One of the detainees had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed.” Abdul Rahim Muslimdost, an Afghan who was released from Guantánamo in April 2005, said he suffered “indescribable torture” there.

U.S. and international bodies have verified reports of torture and abuse. Physicians for Human Rights found that “the United States has been engaged in systematic psychological torture of Guantánamo detainees” at least since 2002. FBI agents saw female interrogators forcibly squeeze male prisoners’ genitals and witnessed detainees stripped and shackled low to the floor for many hours. In February 2006, the United Nations Human Rights Commission reported that the violent force-feeding of detainees by the U.S. military at Guantánamo amounts to torture.

The very existence of the Guantánamo prison camp harms America’s international reputation. A January 2005 editorial in Le Monde concluded, “The simple truth is that America’s leaders have constructed at Guantánamo Bay a legal monster.” Moreover, it has created more enemies of the United States. Writing for the New York Times, Somini Sengupta maintained that Guantánamo Bay has been a setback in the war on terror insofar as it has “emerged as a symbol of American hypocrisy.”

The list of Guantánamo critics is a long one. Archbishop Desmond Tutu dubbed it a stain on the character of the United States. Former U.N. Secretary General Kofi Annan said the United States must close the camp as soon as possible. The Economist called for the facility to be dismantled, described the treatment of the prisoners there as “unworthy of a nation which has cherished the rule of law since its very birth,” and claimed it “has alienated many other governments at a time when the effort to defeat terrorism requires more international co-operation in law enforcement than ever before.” The National Lawyers Guild, Association of American Jurists, Inter-American Commission on Human Rights, and Amnesty International have all called for closing the prison camp and releasing or charging prisoners with criminal offenses in accordance with international legal norms.

In addition to legal and political problems with Guantánamo, there are enormous human costs to consider. Attorney Joseph Margulies has been to death row in six states and watched his client be executed. But as he noted, “I have never been to a more disturbing place than the military prison at Guantánamo Bay. It is a place of indescribable sadness, where the abstract enormity of ‘forever’ becomes concrete: this windowless cell; that metal cot; those steel shackles.”

Indeed, Army Col. Terry Carrico, the first warden at Guantánamo, complained that when he was there, the men were held in “basically outdoor cages,” adding, “It’s what you would normally find in a veterinarian’s facilities to hold animals.” Carrico said “very few” of the men imprisoned during his tenure had useful intelligence. He favors closing Guantánamo, but doubts that will ever happen.

President Barack Obama said a year ago that he was committed to closing Guantánamo because it was a symbol that was “probably the No. 1 recruiting tool” on terrorist websites. But Obama signed the National Defense Authorization Act (NDAA), which bars any transfer of detainees to U.S. prisons, even for trial. The act also restricts the President’s authority to transfer detainees to other countries. Of the 171 men remaining at Guantánamo, 89 have been cleared for release by a review conducted by the CIA, FBI, military, and Department of Homeland Security. But those men will likely die at Guantánamo because Obama refused to put the brakes on Congress’s use of the issue as a political football in the NDAA.

In a recent op-ed in The New York Times, Harvard lecturer Jonathan M. Hansen wrote, “It is past time to return this imperialist enclave to Cuba,” adding, “It has served to remind the world of America’s long history of interventionist militarism.”

Obama should heed Hansen’s words. For the abiding presence of the Guantánamo gulag is not simply illegal and immoral. It also continues to be a symbol of U.S. hypocrisy, and makes us a target for more terrorist attacks.

December 24, 2011

Bradley Manning: Traitor or Hero?

The end of U.S. military involvement in Iraq coincided with Bradley Manning’s military hearing to determine whether he will face court-martial for exposing U.S. war crimes by leaking hundreds of thousands of pages of classified documents to Wikileaks. In fact, there is a connection between the leaks and U.S. military withdrawal from Iraq.

When he announced that the last U.S. troops would leave Iraq by year’s end, President Barack Obama declared the nine-year war a “success” and “an extraordinary achievement.” He failed to mention why he opposed the Iraq war from the beginning. He didn’t say that it was built on lies about mushroom clouds and non-existent ties between Saddam Hussein and Al Qaeda. Obama didn’t cite the Bush administration’s “Plan for Post-Saddam Iraq,” drawn up months before 9/11, about which Former Treasury Secretary Paul O’Neill reported that actual plans “were already being discussed to take over Iraq and occupy it – complete with disposition of oil fields, peacekeeping forces, and war crimes tribunals – carrying forward an unspoken doctrine of preemptive war.”

Defense Secretary Leon Panetta also defended the war in Iraq, making the preposterous claim that, “As difficult as [the Iraq war] was,” including the loss of American and Iraqi lives, “I think the price has been worth it, to establish a stable government in a very important region of the world.”

The price that Panetta claims is worth it includes the deaths of nearly 4,500 Americans and hundreds of thousands of Iraqis. It includes untold numbers wounded – with Traumatic Brain Injury and Post Traumatic Stress Disorder – and suicides, as well as nearly $1 trillion that could have prevented the economic disaster at home.

The price of the Iraq war also includes thousands of men who have been subjected to torture and abuse in places like Abu Ghraib prison. It includes the 2005 Haditha Massacre, in which U.S. Marines killed 24 unarmed civilians execution-style. It includes the Fallujah Massacre, in which U.S. forces killed 736 people, at least 60% of them women and children. It includes other war crimes committed by American troops in Qaim, Taal Al Jal, Mukaradeeb, Mahmudiya, Hamdaniyah, Samarra, Salahuddin, and Ishaqi.

The price of that war includes two men killed by the Army’s Lethal Warriors in Al Doura, Iraq, with no evidence that they were insurgents or posed a threat. One man’s brains were removed from his head and another man’s face was skinned after he was killed by Lethal Warriors. U.S. Army Ranger John Needham, who was awarded two purple hearts and three medals for heroism, wrote to military authorities in 2007 reporting war crimes that he witnessed being committed by his own command and fellow Lethal Warriors in Al Doura. His charges were supported by atrocity photos which have been released by Pulse TV and Maverick Media in the new video by Cindy Piester, “On the Dark Side in Al Doura – A Soldier in the Shadows.” [http://vimeo.com/33755968]. CBS reported obtaining an Army document from the Criminal Investigation Command suggestive of an investigation into these war crimes allegations. The Army’s conclusion was that the “offense of War Crimes did not occur.”

One of the things Manning is alleged to have leaked is the “Collateral Murder” video which depicts U.S. forces in an Apache helicopter killing 12 unarmed civilians, including two Reuters journalists, and wounding two children. People trying to rescue the wounded were also fired upon and killed. A U.S. tank drove over one body, cutting the man in half.

The actions of American soldiers shown in that video amount to war crimes under the Geneva Conventions, which prohibit targeting civilians, preventing the rescue of the wounded, and defacing dead bodies.

Obama proudly took credit for ending U.S. military involvement in Iraq. But he had tried for months to extend it beyond the December 31, 2011 deadline his predecessor negotiated with the Iraqi government. Negotiations between Obama and the Iraqi government broke down when Iraq refused to grant criminal and civil immunity to U.S. troops.

It was after seeing evidence of war crimes such as those depicted in “Collateral Murder” and the “Iraq War Logs,” also allegedly leaked by Manning, that the Iraqis refused to immunize U.S. forces from prosecution for their future crimes. When I spoke with Tariq Aqrawi, Iraq’s Ambassador to Austria and UN representative from Iraq in Vienna, at a recent international human rights film festival, he told me that if they granted immunity to Americans, they would have to do the same for other countries as well.

Manning faces more than 30 charges, including “aiding the enemy” and violations of the Espionage Act, which carry the death penalty. After a seven day hearing, during which the prosecution presented evidence that Manning leaked cables and documents, there was no evidence that leaked information imperiled national security or that Manning intended to aid the enemy with his actions.

On the contrary, in an online chat attributed to Manning, he wrote, “If you had free reign over classified networks… and you saw incredible things, awful things… things that belonged in the public domain, and not on some server stored in a dark room in Washington DC… what would you do?”

He went on to say, “God knows what happens now. Hopefully worldwide discussion, debates, and reforms… I want people to see the truth… because without information, you cannot make informed decisions as a public.“

Manning has been held for 19 months in military custody. During the first nine months, he was kept in solitary confinement, which is considered torture as it can lead to hallucinations, catatonia and suicide. He was humiliated by being stripped naked and paraded before other inmates.

The U.S. government considers Manning one of America’s most dangerous traitors. Months ago, Obama spoke of Manning as if he had been proved guilty, saying, “he broke the law.” But Manning has not been tried, and is presumed innocent in the eyes of the law. If Manning had committed war crimes instead of exposing them, he would be a free man today. If he had murdered civilians and skinned them alive, he would not be facing the death penalty.

Besides helping to end the Iraq war, the leaked cables helped spark the Arab Spring. When people in Tunisia read cables revealing corruption by the ruling family there, they took to the streets.

If Manning did what he is accused of doing, he should not be tried as a criminal. He should be hailed as a national hero, much like Daniel Ellsberg, whose release of the Pentagon Papers helped to expose the government’s lies and end the Vietnam War.

November 19, 2011

GOP Candidates Advocate Torture

At last week’s debate, Republican presidential candidates Herman Cain and Michelle Bachman defended waterboarding. Cain said, “I don’t see it as torture. I see it as an enhanced interrogation technique,” which is what the Bush administration used to call its policy of torture and abuse. Bachman declared, “If I were president, I would be willing to use waterboarding. I think it was very effective. It gained information for our country.” And after the debate, Mitt Romney’s aides told CNN that he does not think waterboarding is torture.

President Obama correctly retorted, “Waterboarding is torture.” He added, “Anybody who has actually read about and understands the practice of waterboarding would say that is torture – and that’s not something we do, period.”

The United States has long considered waterboarding to be torture. Several federal court opinions refer to waterboarding as torture. Our government prosecuted, convicted and hung Japanese military leaders following World War II for waterboarding. The U.S. War Crimes Act defines torture as a war crime.

George W. Bush, Dick Cheney, and John Yoo have all admitted participating in decisions to waterboard detainees, knowing that interrogators would carry out their orders. Under the doctrine of command responsibility, commanders all the way up the chain of command to the commander-in-chief can be prosecuted for war crimes if they knew or should have known their subordinates would commit them and the commanders did nothing to stop or prevent it. Therefore, Bush, Cheney, and Yoo have admitted to the commission of war crimes.

But by refusing to investigate them for their admitted torture, the Obama administration has given the Bush officials a free pass.

Moreover, Bachman was wrong when she claimed torture is effective. Former high level FBI interrogators, including Ali Soufan and Dan Coleman, say the person being tortured will say anything to get the torture to stop – even providing false information. The best results, interrogators add, are obtained with humane methods.

Obama also accurately noted that waterboarding “is contrary to America’s tradition, it’s contrary to our ideals. That’s not who we are. That’s not how we operate. We don’t need it in order to prosecute the war on terrorism. We did the right thing by ending that practice. If we want to lead around the world part of our leadership is setting a good example.”

Unfortunately, during his hearing to be confirmed as CIA director, David Petraeus told Congress there might be occasions in which we must return to “enhanced interrogation” to get information. Alarmingly, that comment signaled that the Obama administration may return to the use of torture and abuse. That would be unacceptable.

August 23, 2011

Explaining ‘Why They Hate Us’

Review of Deepak Tripathi, “Breeding Ground: Afghanistan and the Origins of Islamist Terrorism” (Potomoc Books, Inc., 2011)

After the terrorist attacks on September 11, 2001, the Bush administration rolled out its “Global War on Terror.” Although the Obama White House doesn’t use that moniker, many of its policies are indistinguishable from those of its predecessor. Both administrations have focused on combating the symptoms of terrorism rather than grappling with its root causes. Longtime BBC correspondent Deepak Tripathi was based in Kabul, Afghanistan for 15 months in the early 1990s, where he gained a unique perspective about the genesis of terrorism from his access to Afghan leaders and citizens during the civil war following the expulsion of the communist regime there.

Breeding Ground makes a significant contribution toward understanding the origins and triggers of terrorism. Tripathi traces the development of a ‘culture of violence’ in Afghanistan—largely due to resistance against foreign invasion—from the “U.S.-led proxy war” against the USSR to the current U.S. war. Without such historical insight, efforts to make us safe from acts of terror will prove futile.

Absent from the national discourse after 9/11 was a substantive inquiry into why nineteen men could hate the United States so much they would blow themselves up and take more than three thousand innocents with them. The source of that hatred can be traced to foreign occupation of Afghanistan as well as resentment of the United States for its uncritical support of Israel’s occupation of Palestinian lands.

Tripathi reproduces an October 7, 2001 statement by Osama bin Laden that says, “What America is tasting now is something insignificant compared to what we have tasted for years,” citing “humiliation and degradation.” Bin Laden adds, “Millions of innocent children are being killed as I speak. They are being killed in Iraq [from the blockade and sanctions] without committing any sins.” And he writes, “Israeli tanks infest Palestine . . . and other places in the land of Islam, and we don’t hear anyone raising his voice or moving a limb.”

Bin Laden’s statement mirrors the grievances set forth in a 1998 Al Qaeda declaration, which listed Israel’s control over Jerusalem, the Palestinian problem, and Iraq as its three primary complaints. The declaration cited America’s “occupying the lands of Islam in the holiest of places, plundering its riches, dictating to its rulers, humiliating its people, terrorizing its neighbors and turning its bases into a spearhead” against Muslims. It complained of “the huge number of those killed” by the blockade of Iraq after the 1991 Gulf War. The declaration described U.S. aims as “religious and economic,” with a desire to serve Israel’s interests by diverting attention from its occupation of Jerusalem and the murder of Muslims in the occupied Palestinian territories.

Tripathi dialectically traces the rise of radical Islam against communism in Afghanistan, U.S. support for the Islamic forces to repel the Soviets, and the later development of terrorism in opposition to American policies once the Soviet Union was expelled from Afghanistan.

In 1979, the USSR invaded Afghanistan and began a ten-year occupation to prop up the struggling Afghan communist government which had come to power the year before. “The rise of communism radicalized the country’s Islamic groups,” Tripathi writes. After the invasion, bin Laden moved to the Afghan-Pakistan border to “liberate the land from the infidel invader.” Supported by the CIA, he created an organization to fight the Soviets. It became part of the Mujahideen, which was based in Pakistan and backed by the United States.

The U.S. and its allies financed the war against the Soviet Union with billions of dollars worth of weapons. American aid was funneled by the CIA to the Mujahideen via the Inter-Services Intelligence Directorate (ISI) in Pakistan, which received $3 billion in U.S. assistance for its efforts. President Jimmy Carter began a policy of active confrontation with the communists by authorizing secret support of the Mujahideen. When Ronald Reagan assumed the presidency, he made a conscious decision to increase CIA military aid to the Mujahideen. By 1987, 65,000 tons of arms and ammunition was going through the CIA pipeline to the Afghan resistance. “These fundamentalist fighters were willing to endure extreme hardship and make the ultimate sacrifice—martyrdom,” notes Tripathi. Many defectors and prisoners of the Mujahideen were tortured or killed. The ISI had a great deal of influence over Mujahideen leaders.

“Terror was fundamental in the Soviet occupation of Afghanistan,” according to Tripathi. The occupation lasted until 1989 when the Soviet Union was forced to withdraw from Afghanistan due to its devastating costs. In the decade of war and brutality, over 1.3 million Afghans were killed and more than a third of the population became refugees.

Bin Laden formed Al Qaeda in the mid-1980s to overthrow corrupt, heretical regimes in Muslim countries and replace them with Islamic law. “Al Qaeda’s ideology was intensely anti-Western,” Tripathi says, “and bin Laden saw America as the greatest enemy that had to be destroyed.” While the United States supported radical Islam against the communists in Afghanistan with money and weapons, it “failed to recognize that the demise of the Soviet empire would leave the United States itself exposed to assaults from groups like al Qaeda,” Tripathi writes. “In time, this failure proved to be a historic blunder.”

After the demise of the USSR, which was partially attributable to its loss in the Afghan war, Afghanistan sank into chaos and civil war. Radical Islamic forces came to the fore. “Helped by America and its allies, the Afghan resistance generated its own culture of terror, which grew in Afghanistan—and beyond—over time.” Afghanistan, which generally had been a peaceful country, became identified with global terror in the 1990s. Toward the middle of that decade, the Taliban rose to prominence. Comprised of young Afghan refugees from the war against the Soviet Union, many grew up in Pakistan. Most of the Taliban leaders hailed from poor backgrounds. Relying on strict Shari’ah law, they promised to restore peace and security to Afghanistan. But it came at a price. Shi’a Afghans, women and ethnic minorities became victims of Taliban atrocities. ISI supplied the Taliban with military equipment and fighters. By 1998, the Taliban controlled most of Afghanistan. “Torture and ill-treatment had become systematic.”

The adage, ‘Be careful what you wish for,’ is nowhere more relevant than in Afghanistan. The CIA gave weapons and copies of the Quran to Afghan and Arab groups. The virulent anti-communism of Carter, Reagan and President George H.W. Bush backfired. “Al Qaeda and the Taliban’s anti-Western ideology was a grotesque mirror image of the Carter and Reagan-Bush administration’s anti-Soviet policy,” Tripathi observes. “The rise of Al Qaeda and its Afghan hosts, the Taliban, was as much a reaction to America’s relentless pursuit of an anti-Soviet policy as it was a symbol of the fundamentalists’ will to advance their brand of Islam.”

George W. Bush launched his “war against terror” after the 9/11 attacks by invading and occupying Afghanistan. The dead include 1,672 Americans, 2,604 coalition troops, and, by the end of 2010, at least ten thousand Afghan civilians. Under the guise of fighting terror, Bush also attacked and occupied Iraq, which had no connection to Al Qaeda. In Iraq, 4,474 Americans, 4,792 coalition troops, and between 101,906 and 111,369 Iraqi civilians have been killed. Those occupations continue to claim lives. Between 9/11 and 2012, the projected cost of these two wars is $1.42 trillion.

The Bush administration developed a policy of torture and abuse of prisoners, many of whom have been detained for years without evidence of any connection to terrorism. The U.S. prison at Guantánamo became synonymous with the dehumanization of men of Arab and Muslim descent. Photographs of cruel treatment that emerged from Abu Ghraib prison in Iraq sent shock waves around the world. The Guantánamo prison still operates under the Obama administration, which has also increased attacks by unmanned drones in Pakistan, Yemen and Somalia. More than 90 percent of those killed have been civilians, according to the Brookings Institution.

Rather than endearing us to the people in these countries, those policies incur hatred against the United States, making us more vulnerable to terrorism. Tripathi’s excellent work ends with a call to replace the military strategy in Afghanistan and Pakistan with development, reconciliation, and reconstruction. It behooves us to
heed his wise counsel.

This review first appeared in History News Network.

August 11, 2011

Lost in the Debt Ceiling Debate: The Legal Duty to Create Jobs

By Jeanne Mirer and Marjorie Cohn

The debate about the debt ceiling should have been a conversation about how to create jobs. It is time for progressives to remind the government that it has a legal duty to create jobs, and must act immediately – if not through Congress, then through the Federal Reserve.

With official unemployment reaching over 9%, the unofficial rate in double digits, and the unemployment rate for people of color more than double that of whites, it is nerve wracking to hear right wing political pundits say the government cannot create jobs. Do people really believe this canard? On “Real Time with Bill Maher” a few weeks ago, Chris Hayes of The Nation stated that the government should create and has in the past created jobs, but he was put down by that intellectual giant Ann Coulter who said, ”but they (WPA jobs) were only temporary jobs.” No one challenged her.

Most of the jobs created under the Works Progress Administration (WPA) – and there were millions of them – lasted for many years, or until those employed found other gainful employment. They provided a high enough income to allow the worker’s family to meet basic needs, and they created demand for goods in an economy that was suffering, like today’s economy, from lack of demand. The WPA program succeeded in sustaining and creating many more jobs in the private sector due to the demand for goods that more people with incomes generated.

The most galling thing about pundits stating with such certainty that the government cannot create jobs is the implication that the government has no business employing people. In actuality, however, the law requires the government, in particular the President and the Federal Reserve, to create jobs. This legal duty comes from three sources: (1) full employment legislation including the Humphrey Hawkins Full Employment Act of 1978, (2) the 1977 Federal Reserve Act, and (3) the global consensus based on customary international law that all people have a right to a job with favorable remuneration to provide an adequate standard of living.

1. Full Employment Legislation

The first full employment law in the United States was passed in 1946. It required the country to make its goal one of full employment. It was motivated in part by the fear that after World War II, returning veterans would not find work, and this would provoke further economic dislocation. With the Keynesian consensus that government spending was necessary to stimulate the economy and the depression still fresh in the nation’s mind, this legislation contained a firm statement that full employment was the policy of the country. As originally written, the bill required the federal government do everything in its authority to achieve full employment, which was established as a right guaranteed to the American people. Pushback by conservative business interests, however, watered down the bill. While it created the Council of Economic Advisors to the President and the Joint Economic Committee as a Congressional standing committee to advise the government on economic policy, the guarantee of full employment was removed from the bill.

In the aftermath of the rise in unemployment which followed the “oil crisis” of 1975, Congress addressed the weaknesses of the 1946 act through the passage of the Humphrey-Hawkins Full Employment Act of 1978. The purpose of this bill as described in its title is:

“An Act to translate into practical reality the right of all Americans who are able, willing, and seeking to work to full opportunity for useful paid employment at fair rates of compensation; to assert the responsibility of the Federal Government to use all practicable programs and policies to promote full employment, production, and real income, balanced growth, adequate productivity growth, proper attention to national priorities.”

The Act sets goals for the President. By 1983, unemployment rates should be not more than 3% for persons age 20 or over and not more than 4% for persons age 16 or over, and inflation rates should not be over 4%. By 1988, inflation rates should be 0%. The Act allows Congress to revise these goals over time.

If private enterprise appears not to be meeting these goals, the Act expressly calls for the government to create a “reservoir of public employment.” These jobs are required to be in the lower ranges of skill and pay to minimize competition with the private sector.

The Act directly prohibits discrimination on account of gender, religion, race, age or national origin in any program created under the Act.

Humphey-Hawkins has not been repealed. Both the language and the spirit of this law require the government to bring unemployment down to 3% from over 9%. The time for action is now.

2. Federal Reserve

The Federal Reserve has among its mandates to “promote maximum employment.” The origin of this mandate is the Full Employment Act of 1946, which committed the federal government to pursue the goals of “maximum employment, production and purchasing power.” This mandate was reinforced in the 1977 reforms which called on the Fed to conduct monetary policy so as to “promote effectively the goals of maximum employment, stable prices and moderate long term interest rates.” These goals are substantially equivalent to the long-standing goals contained in the 1946 Full Employment Act. The goals of the 1977 act were further affirmed in the Humphrey-Hawkins Act the following year.

3. The global consensus based on customary international law that all people have a right to a job with favorable remuneration and an adequate standard of living

In the aftermath of World War II, and for the short time between the end of the war and the beginning of the Cold War, there was an international consensus that one of the causes of the Second World War was the failure of governments to address the major unemployment crisis in the late 20’s and early 30’s, and that massive worldwide unemployment led to the rise of Nazism/facism. The United Nations Charter was created specifically to “save succeeding generations from the scourge of war.” To do so the drafters stated that promoting social progress and better standards of life were the necessary conditions “under which justice and respect for obligations arising under treaties and respect for international law can be maintained.”

It is no accident that one of the first actions of the UN was to draft the Universal Declaration of Human Rights. (UDHR or the Declaration). The Declaration was ratified by all then members of the United Nations on December 10, 1948. It is an extremely important document because it not only recognized the connection between the respect for human dignity and rights, and conditions necessary to maintain peace and security. The Declaration is the first international document to recognize the indivisibility between civil and political rights (like those enshrined in the Bill of Rights) on the one hand, and economic, social and cultural rights on the other. The UDHR is the first document to acknowledge that both civil and political rights are necessary to create conditions under which human dignity is respected and through which a person’s full potential may be realized. Stated another way, without political and civil rights, there is no real ability for people to demand full realization of their economic rights. And without economic rights, peoples’ ability to exercise their civil rights and express their political will is replaced by the daily struggle for survival.

The Declaration, although not a treaty, first articulated the norms to which all countries should aspire. It stated that everyone has the right to an adequate standard of living. This includes the rights to: work for favorable remuneration, (including the right to form unions), health, food, clothing, housing, medical care, necessary social services, and social insurances in the event of unemployment, sickness, disability or old age. There has been a conspiracy of silence surrounding these rights. In fact, most people have never heard of the Universal Declaration of Human Rights.

Similarly, most Americans do not know that the UN drafted treaties which put flesh on the broad principles contained in the Declaration. One of the treaties enshrines Civil and Political Rights; the other guarantees Economic, Social and Cultural Rights. These treaties were released for ratification in 1966. The United States ratified the treaty on civil and political rights and has signed but not ratified the economic, social and cultural rights treaty.

The latter treaty requires the countries which have ratified it to take positive steps to “progressively realize” basic economic rights including the right to a job. Almost all countries of the world have either signed or ratified this treaty. When most countries become party a treaty, they do so not because they think they are morally bound to follow it but because they know they are legally bound. Once an overwhelming number of countries agree to be legally bound, outliers cannot hide behind lack of ratification. The global consensus gives that particular norm the status of binding customary law, which requires even countries that have not ratified a treaty to comply with its mandate.

The conspiracy of silence

With the duty to create jobs required by U.S. legislation, monetary policy and customary law, why has the government allowed pundits to reframe the debate and state with certainty the government cannot do what it has a legal obligation to do?

We allow it because of the conspiracy of silence which has prevented most people from knowing that the full employment laws exist, that the Federal Reserve has a job-creating mandate, and that economic human rights law has become binding on the United States as customary international law.

Congressman John Conyers of Michigan knows about the Humphrey-Hawkins Full Employment Act, and he has introduced legislation that would fund the job creation aspects of that Act in the “The Humphrey-Hawkins 21st Century Full Employment and Training Act,” HR 870. It would create specific funds for job training and creation paid for almost exclusively by taxes on financial transactions, with the more speculative transactions paying a higher tax.

If Congress refuses to enact this legislation, the President must demand that the Federal Reserve use all the tools relating to controlling the money supply at its disposal to create the funds called for by HR 870, and to start putting people back to work through direct funding of a reservoir of public jobs as Humphrey-Hawkins mandates.

There is nothing that would prevent the Federal Reserve from creating a fund for job training and a federal jobs program as HR 870 would require, and selling billions of treasury bonds for infrastructure improvement and jobs associated with it. The growth in jobs would stimulate the economy to the point that the interest on these bonds would be raised through increased revenue. There is no reason the Fed on its own could not add a surcharge on inter-bank loans to fund these jobs. These actions could be done without Congressional approval and would represent a major boost to employment and grow the economy. If the Federal Reserve is going to abide by its mandate to promote maximum employment, and comply with the Humphrey Hawkins Act, and the global consensus it must take these steps.

Failure of the Fed and the President to take these affirmative steps is not only illegal, it is also economically unwise. The stock market losses after the debt ceiling deal is in part based on taking almost 2 million more jobs out of the economy and will only further depress demand creating further contraction in the economy. This is not an outcome any of us can afford.

Jeanne Mirer, who practices labor and employment law in New York, is president of the International Association of Democratic Lawyers. Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild.

August 10, 2011

Compensate Victims of U.S. Chemical Warfare in Vietnam

Today marks the 50th anniversary of the start of the chemical warfare program in Vietnam without sufficient remedial action by the U.S. government. One of the most shameful legacies of the Vietnam War, Agent Orange continues to poison Vietnam and the people exposed to the chemicals, as well as their offspring.

H.R. 2634, the Victims of Agent Orange Relief Act of 2011 [ http://www.govtrack.us/congress/billtext.xpd?bill=h112-2634], which California Congressman Bob Filner just introduced in the House, would provide crucial assistance for social and health services to Vietnamese, Vietnamese-American, and U.S. victims of Agent Orange.

From 1961 to 1971, approximately 19 million gallons of herbicides, primarily Agent Orange, were sprayed over the southern region of Vietnam. Much of it was contaminated with dioxin, a deadly chemical. Dioxin causes various forms of cancers, reproductive illnesses, immune deficiencies, endocrine deficiencies, nervous system damage, and physical and developmental disabilities.

In Vietnam more than three million people, and in the United States thousands of veterans, their children, and Vietnamese-Americans, have been sickened, disabled or died from the effects of Agent Orange/dioxin.

Vietnamese of least three generations born since the war are now suffering from disabilities due to their parents’ exposure to Agent Orange or from direct exposure in the environment. The organization representing Vietnam’s victims, the Vietnam Association for Victims of Agent Orange/Dioxin, has set up some ‘peace villages’ to care for the severely disabled, but many more such facilities and services are needed. Dioxin residues in the soil, sediment, and food continue to poison many people in 28 “hot spots” in southern Vietnam.

Many U.S. veterans suffer from effects of Agent Orange due to their exposure in Vietnam, as do their children and grandchildren. Vietnamese-Americans exposed directly to Agent Orange and their offspring suffer from the same health conditions.

The bill, which the Vietnamese Agent Orange Relief & Responsibility Campaign assisted Congressman Filner in writing, defines “victim” as “any individual who is a Vietnamese national, Vietnamese-American, or United States veteran who was exposed to Agent Orange, or the progeny of such an individual, and who has a disease or disability associated with this exposure.” In addition to compensating the victims of Agent Orange, H.R. 2634 would also clean up the toxic hot spots in Vietnam.

One provision of the bill would expand programs and research for the benefit of U.S. vets and establish medical centers “designed to address the medical needs of descendants of the veterans of the Vietnam era.” This creates a presumption that certain birth defects that children and grandchildren of exposed victims suffer would be considered the result of contact with Agent Orange.

While the U.S. government has begun to fund environmental cleanup in Vietnam, it has refused to recognize its full responsibility to heal the wounds of war and provide assistance to Vietnamese, Vietnamese-American, and U.S. victims for the serious health and environmental devastation caused by Agent Orange.

There has been some compensation for U.S. veteran victims of Agent Orange, but not nearly enough. In spite of President Richard Nixon’s 1973 promise of $3.25 billion in reconstruction aid to Vietnam “without any preconditions,” the Vietnamese and Vietnamese-American victims of the disgraceful chemical warfare the United States conducted in Vietnam have not seen one penny of compensation.

Fifty years is long enough. It is high time to compensate the victims for this shameful chapter in our history. H.R. 2634 will go a long way toward doing just that.

Marjorie Cohn is co-coordinator of the Vietnam Agent Orange Relief and Responsibility Campaign (www.vn-agentorange.org).

July 18, 2011

Prisoners Strike against Torture in California Prisons

The torture of prisoners in U.S. custody isn’t confined to foreign countries. Since July 1, inmates at California’s Pelican Bay State Prison have been on a hunger strike to protest torturous conditions in the Security Housing Unit (SHU) there. Prisoners have been held for years in solitary confinement, which can amount to torture. More than 6,000 inmates throughout California’s prison system have refused food in solidarity with the Pelican Bay prisoners.

Inmates in the SHU are confined to their cells for 22 ½ hours a day, mostly for administrative convenience. They are released for only one hour to walk in a small area with high walls. The cells in the SHU are eight feet by 10 feet with no windows. Flourescent lights are often kept on 24 hours per day.

Solitary confinement can lead to hallucinations, catatonia and even suicide, particularly in mentally ill prisoners. It is considered torture, as journalist Lance Tapley explains in his chapter on American Supermax prisons in The United States and Torture: Interrogation, Incarceration, and Abuse.

The Commission on Safety and Abuse in America’s Prisons (CSAAP), which is headed by a former U.S. attorney general and a former chief judge of the U.S. Court of Appeals, found: “People who pose no real threat to anyone and also those who are mentally ill are languishing for months or years in high-security units.” The commission also stated, “In some places, the environment is so severe that people end up completely isolated, confined in constantly bright or constantly dim spaces without any meaningful contact – torturous condition that are proven to cause mental deterioration.”

Prisoners in other California prisons have reported that medications, including those for high blood pressure and other serious conditions, are being withheld from prisoners on strike. “The situation is grave and urgent,” according to Carol Strickman, a lawyer for the Prisoner Hunger Strike Solidarity coalition. “We are fighting to prevent a lot of deaths at Pelican Bay. The CDCR [California Department of Corrections and Rehabilitation] needs to negotiate with these prisoners, and honor the request of the strike leaders to have access to outside mediators to ensure that any negotiations are in good faith.”

One of the hunger strike demands is an end to the “debriefing process” at Pelican Bay. Prisoners are forced to name themselves or others as gang members as a condition of access to food or release from isolation. Naming others as gang members itself amounts to a death sentence due to retaliation by other prisoners.

In May, the U.S. Supreme Court upheld a lower court ruling that incarceration in California prisons constitutes unconstitutional cruel and unusual punishment.

July 8, 2011

A Free Pass for Torturers

“Nobody’s above the law,” President Barack Obama declared in 2009, as Congress contemplated an investigation of torture authorized by the Bush administration. But Mr. Obama has failed to honor those words. His Justice Department proclaimed its intention to grant a free pass to Bush officials and their lawyers who constructed a regime of torture and abuse. Attorney General Eric H. Holder Jr. announced on June 30 that his office will investigate only two instances of detainee mistreatment. He said the department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” Holder has granted impunity to those who authorized, provided legal cover, and carried out the “remaining matters.”

Both of the incidents that Holder has agreed to investigate involved egregious treatment and both resulted in death. In one case, Gul Rahman froze to death in 2002 after being stripped and shackled to a cold cement floor in a secret American prison in Afghanistan known as the Salt Pit. The other man, Manadel al-Jamadi, died in 2003 at Abu Ghraib prison in Iraq. He was suspended from the ceiling by his wrists, which were bound behind his back. Tony Diaz, an MP who witnessed al-Jamadi’s torture, reported that blood gushed from his mouth like “a faucet had turned on” when al-Jamadi was lowered to the ground. These two deaths should be investigated and those responsible punished in accordance with the law.

But the investigation must have a much broader scope. More than 100 detainees have died in U.S. custody, many from torture. And untold numbers were subjected to torture and cruel treatment in violation of U.S. and international law. Gen. Barry McCaffrey said, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.”

Detainees were put in stress positions, including being chained to the floor, slammed against walls, placed into small boxes with insects, subjected to extremely cold and hot temperatures as well as diet manipulation, blaring music, and threats against themselves and their families.

At least three men were waterboarded, a technique that makes the subject feel as though he is drowning. Pursuant to the Bush administration’s efforts to create a link between Saddam Hussein and Al-Qaeda, Khalid Sheikh Mohammed was waterboarded 183 times. Abu Zubaydah received this treatment on 83 occasions.

American law has long recognized that waterboarding constitutes torture. The United States prosecuted Japanese military leaders for torture based on waterboarding after World War II. The Geneva Conventions and the U.S. War Crimes Act make torture punishable as a war crime.

Lawyers in the Bush Justice Department’s Office of Legal Counsel, including John Yoo and Jay Bybee, wrote the torture memos. They redefined torture much more narrowly than the Convention against Torture and the War Crimes Act, knowing interrogators would follow their advice. They also created elaborate justifications for torture and abuse, notwithstanding the absolute prohibition of torture in our law. When the United States ratified the Convention against Torture, it became part of U.S. law under the Constitution’s Supremacy Clause. The convention says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

George W. Bush, Dick Cheney and Yoo have all said they participated in the decision to waterboard and would do it again. Thus, they have admitted the commission of war crimes.

Maj. Gen. Anthony Taguba, who directed the investigation of mistreatment at Abu Ghraib, wrote, “there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Taguba’s question has been answered. None of those lawyers or officials will be brought to justice. Outgoing C.I.A. Director Leon Panetta said, “We are now finally about to close this chapter of our agency’s history.” Ominously, David Petraeus, incoming C.I.A. Director, told Congress there might be circumstances in which a return to “enhanced interrogation” is warranted. That means torture may well continue during Obama’s tenure. This is unacceptable.

Not only is torture illegal; it doesn’t work and it makes people outside the U.S. resent us even more. High-level interrogators such as F.B.I. agent Ali Soufan have said the most valuable intelligence was obtained using traditional, humane interrogation methods. Former F.B.I. agent Dan Coleman agrees. “Brutalization doesn’t work,” he observed. “Besides that, you lose your soul.”

May 15, 2011

The Responsibility to Protect – The Cases of Libya and Ivory Coast

The United States, France and Britain invaded Libya with cruise missiles, stealth bombers, fighter jets and attack jets. Although NATO has taken over the military operation, U.S. President Barack Obama has been bombing Libya with Hellfire missiles from unmanned Predator drones. The number of civilians these foreign forces have killed remains unknown. This military campaign was ostensibly launched to enforce United Nations Security Council Resolution 1973 in order to protect civilians in Libya.

In addition, the United Nations and France have been bombing the Ivory Coast to protect civilians against violence by Laurent Gbagbo, who refuses to cede power to the newly elected president after a disputed election. UN Secretary Ban Ki-Moon insists that the United Nations is “not a party to the conflict.” France, former colonial ruler of Ivory Coast, has over 1,500 troops stationed there. Ivory Coast is the world’s second largest coffee grower and biggest producer of cocoa. The bombing of Ivory Coast is being undertaken to enforce Security Council Resolution 1975 to protect civilians there.

The UN Charter does not permit the use of military force for humanitarian interventions. The military invasions of Libya and Ivory Coast have been justified by reference to the Responsibility to Protect doctrine.

The Responsibility to Protect is contained in the General Assembly’s Outcome Document of the 2005 World Summit. It is not enshrined in an international treaty nor has it ripened into a norm of customary international law. Paragraph 138 of that document says each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. Paragraph 139 adds that the international community, through the United Nations, also has “the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Chapter VI of the Charter requires parties to a dispute likely to endanger the maintenance of international peace and security to “first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Chapter VIII governs “regional arrangements,” such as NATO, the Arab League, and the African Union. The chapter specifies that regional arrangements “shall make every effort to achieve pacific settlement of local disputes through such regional arrangements . . .”

It is only when peaceful means have been tried and proved inadequate that the Security Council can authorize action under Chapter VII of the Charter. That action includes boycotts, embargoes, severance of diplomatic relations, and even blockades or operations by air, sea or land.

The Responsibility to Protect doctrine grew out of frustration with the failure to take action to prevent the genocide in Rwanda, where a few hundred troops could have saved myriad lives. But the doctrine was not implemented to stop Israel from bombing Gaza in late 2008 and early 2009, which resulted in a loss of 1,400 Palestinians, mostly civilians.

Security Council Resolution 1973 begins with the call for “the immediate establishment of a ceasefire.” It reiterates “the responsibility of the Libyan authorities to protect the Libyan population” and reaffirms that “parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians. The resolution authorizes UN Member States “to take all necessary measures . . . to protect civilians and civilian populated areas” of Libya.

But instead of pursuing an immediate ceasefire, immediate military action was taken instead. The military force exceeds the bounds of the “all necessary measures” authorization. “All necessary measures” should first have been peaceful measures to settle the conflict. Yet peaceful means were not exhausted before the military invasion began. A high level international team – consisting of representatives from the Arab League, the African Union, and the UN Secretary General – should have been dispatched to Tripoli to attempt to negotiate a real cease-fire, and set up a mechanism for elections and for protecting civilians. Moreover, after the passage of the resolution, Libya immediately offered to accept international monitors and Qadaffi offered to step down and leave Libya. These offers were immediately rejected by the opposition.

Security Council Resolution 1975 regarding Ivory Coast is similar to resolution 1973 regarding Libya. The former authorizes the use of “all necessary means to . . . protect civilians under imminent threat of physical violence” in Ivory Coast. It reaffirms “the primary responsibility of each State to protect civilians” and reiterates that “parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians.”

The UN Charter commands that all Members settle their international disputes by peaceful means, to maintain international peace, security, and justice. Members must also refrain from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United
Nations.

Only when a State acts in self-defense, in response to an armed attack by one country against another, can it militarily attack another State under the UN Charter. The need for self-defense must be overwhelming, leaving no choice of means, and no moment for deliberation. Neither Libya nor Ivory Coast had attacked another country. The United States, France and Britain in Libya, and France and the UN in Ivory Coast, are not acting in self-defense. Humanitarian concerns do not constitute self-defense.

There is a double standard in the use of military force to protect civilians. Obama has not attacked Bahrain where lethal force is being used to quell anti-government protests because that is where the U.S. Fifth Fleet is stationed. In fact, the Asia Times reported that before the invasion of Libya, the United States made a deal with Saudi Arabia, whereby the Saudis would invade Bahrain to help put down the anti-democracy protestors and Saudi Arabia would enlist the support of the Arab League for a no-fly-zone over Libya.

The League’s support for a no-fly-zone effectively neutralized opposition from Russia and China to Security Council Resolution 1973. Moreover, the military action by the U.S., France and Britain has gone far beyond a no-fly-zone. Indeed, Obama, France’s President Nicolas Sarkozy and Britain’s David Cameron penned an op-ed in the International Herald Tribune that said the NATO force will fight in Libya until President Muammar Qaddafi is gone, even though the Resolution does not sanction forcible regime change.

When Obama defended his military actions in Libya, he said “Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different.” Two weeks later, the Arab League asked the Security Council to consider imposing a no-fly-zone over the Gaza Strip in order to protect civilians from Israeli air strikes. But the United States, an uncritical ally of Israel, will never allow the passage of such a resolution, regardless of the number of Palestinian civilians Israel kills. This is a double standard.

The military actions in Libya and Ivory Coast set a dangerous precedent of attacking countries where the leadership does not favor the pro-U.S. or pro-European Union countries. What will prevent the United States from stage-managing some protests, magnifying them in the corporate media as mass actions, and then bombing or attacking Venezuela, Cuba, Iran, or North Korea? Recall that during the Bush administration, Washington leveled baseless allegations to justify an illegal invasion of Iraq.

During a discussion of the Responsibility to Protect in the General Assembly on July 23, 2009, the Cuban government raised some provocative questions that should give those who support this notion pause: “Who is to decide if there is an urgent need for an intervention in a given State, according to what criteria, in what framework, and on the basis of what conditions? Who decides it is evident the authorities of a State do not protect their people, and how is it decided? Who determines peaceful means are not adequate in a certain situation, and on what criteria? Do small States have also the right and the actual prospect of interfering in the affairs of larger States? Would any developed country allow, either in principle or in practice, humanitarian intervention in its own territory? How and where do we draw the line between an intervention under the Responsibility to Protect and an intervention for political or strategic purposes, and when do political considerations prevail over humanitarian concerns?”

The Responsibility to Protect doctrine violates the basic premise of the UN Charter. Last year, the General Assembly’s Fifth Committee declined funding for the office of the new Special Advisor on Responsibility to Protect. Some member States argued that the Responsibility to Protect had not been agreed to as a norm at the World Summit. The debate will continue. But for many States, this is a slippery slope that should be viewed with extreme caution.

May 14, 2011

Torture Is Never Legal and Didn’t Lead Us to Bin Laden

The assassination of Osama bin Laden has rekindled the discourse about the efficacy and legality of using torture in the “war on terror.” Torture is illegal under all circumstances, even in wartime. Moreover, the United States located Bin Laden with traditional interrogation methods over several years, not by the use of torture.

When the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it became part of U.S. law under the Supremacy Clause of the Constitution, which says treaties are the supreme law of the land. The Torture Convention states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The prohibition against torture is unequivocal, regardless of the circumstances.

Pundits proclaim that the successful hit on Bin Laden exonerates the Bush administration for its use of “enhanced interrogation techniques” – aka torture. John Yoo wrote in the Wall Street Journal that the kill “vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden’s door.” The author of the most egregious torture memos, Yoo maintains that “the tough interrogations” of Khalid Sheikh Mohammed and Abu Faraj al-Libi provided the United States with the identity of Bin Laden’s courier.

Yoo’s claims are false. Senator John McCain declared in a speech on the Senate floor yesterday, “It was not torture, or cruel, inhuman and degrading treatment of detainees that got us the major leads that ultimately enabled our intelligence community to find Osama bin Laden.” McCain said that CIA Director Leon Panetta told him: “The first mention of Abu Ahmed al-Kuwaiti – the nickname of the al-Qaeda courier who ultimately led us to bin Laden – as well as a description of him as an important member of al-Qaeda, came from a detainee held in another country, who we believe was not tortured. None of the three detainees who were waterboarded provided Abu Ahmed’s real name, his whereabouts or an accurate description of his role in al-Qaeda.”

McCain added, “In fact, the use of ‘enhanced interrogation techniques’ on Khalid Sheik Mohammed produced false and misleading information.” Mohammed was waterboarded 183 times in 2003. It is well-established in U.S. case law that waterboarding constitutes torture.

Tommy Vietor, spokesman for the National Security Council, agrees that waterboarding didn’t lead us to Bin Laden. He said, “The bottom line is this: If we had some kind of smoking-gun intelligence from waterboarding in 2003, we would have taken out Osama bin Laden in 2003.” He added: “It took years of collection and analysis from many different sources to develop the case that enabled us to identify this compound, and reach a judgment that Bin Laden was likely to be living there.”

White House Press Secretary Jay Carney concurs: “It simply strains credulity to suggest that a piece of information that may or may not have been gathered eight years ago somehow led to a successful mission [on May 1]. That’s just not the case.” Dianne Feinstein, chairwoman of the Senate Intelligence Committee, confirmed that “none of it came as a result of harsh interrogation practices.”

A 2006 study by the National Defense Intelligence College found that traditional, rapport-building interrogation techniques are extremely effective even with the most hardened detainees, but coercive tactics create resistance and resentment.

Interrogators agree that torture is not efficacious to glean intelligence. Glenn L. Carle, who supervised the 2002 interrogation of a high-level detainee for the CIA, told The New York Times that coercive techniques “didn’t provide useful, meaningful, trustworthy information.”

Likewise, Ali Soufan, who interrogated Abu Zubaydah, testified before Congress that harsh interrogation techniques “are ineffective, slow, and unreliable, and as a result harmful to our efforts to defeat al Qaeda.” Soufan wrote in the Times that any useful information Zubaydah provided happened before the “enhanced interrogation techniques” were utilized.

Matthew Alexander, a former senior military interrogator who supervised or conducted 1,300 interrogations in Iraq, which led to the capture of several al-Qaeda leaders, echoes Soufan’s sentiments. Alexander said, “I think that without a doubt, torture and enhanced interrogation techniques slowed down the hunt for Bin Laden.”

When I testified in 2008 before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush administration interrogation policy, one of the Republican congressmen asked me how I would fashion an interrogation statute. I replied that it would require humane, kind, respectful treatment to develop trust. As the questioner sniggered, Professor Philippe Sands, who also testified on the same panel that day, said I was correct, that the British got much better intelligence from the Irish Republican Army when they used humane techniques.

In her chapter in The United States and Torture: Interrogation, Incarceration, and Abuse, journalist Jane Mayer discusses Ibn Sheikh al Libi, who was tortured in CIA custody. Al Libi provided a link between Saddam Hussein and al Qaeda, which Colin Powell cited in his speech before the Security Council as he tried to secure a resolution authorizing the invasion of Iraq. The CIA knew Al Libi’s information was false; indeed, he later recanted, and died under mysterious circumstances.

Torture is not simply illegal, immoral and ineffective. It is also counter-productive. Former Navy General Counsel Alberto Mora testified before Congress that the two most effective recruiting tools for those who would do harm to our soldiers in Iraq were Abu Ghraib and Guantánamo. When people see the U.S. government torturing detainees from their countries, they resent us even more.

Indeed, an interrogator currently serving in Afghanistan, told Forbes, “I cannot even count the amount of times that I personally have come face to face with detainees, who told me they were primarily motivated to do what they did, because of hearing that we committed torture . . . Torture committed by Americans in the past continues to kill Americans today.”

Until the United States completely revamps our foreign policy and ends the wars, occupations, and harsh treatment of people in U.S. custody, we will continue to be vulnerable to terrorism.