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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.

May 10, 2011

The Targeted Assassination of Osama Bin Laden

When he announced that Osama bin Laden had been killed by a Navy Seal team in Pakistan, President Barack Obama said, “Justice has been done.” Mr. Obama misused the word, “justice” when he made that statement. He should have said, “Retaliation has been accomplished.” A former professor of constitutional law should know the difference between those two concepts. The word “justice” implies an act of applying or upholding the law.

Targeted assassinations violate well-established principles of international law. Also called political assassinations, they are extrajudicial executions. These are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework.

Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “extrajudicial executions can never be justified under any circumstances, not even in time of war.” The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

In spite of its illegality, the Obama administration frequently uses targeted assassinations to accomplish its goals. Five days after executing Osama bin Laden, Mr. Obama tried to bring “justice” to U.S. citizen Anwar al-Awlaki, who has not been charged with any crime in the United States. The unmanned drone attack in Yemen missed al-Awlaki and killed two people “believed to be al Qaeda militants,” according to a CBS/AP bulletin.

Two days before the Yemen attack, U.S. drones killed 15 people in Pakistan and wounded four. Since the March 17 drone attack that killed 44 people, also in Pakistan, there have been four drone strikes. In 2010, American drones carried out 111 strikes. The Human Rights Commission of Pakistan says that 957 civilians were killed in 2010.

The United States disavowed the use of extrajudicial killings under President Gerald Ford. After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Ford issued an executive order banning assassinations. Every succeeding president until George W. Bush renewed that order. However, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

In July 2001, the U.S. Ambassador to Israel denounced Israel’s policy of targeted killings, or “preemptive operations.” He said “the United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”

Yet after September 11, 2001, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: “The cost of one bullet, if the Iraqi people take it on themselves, is substantially less” than the cost of war. Shortly thereafter, Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided.

In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a “very successful tactical operation.”

After the Holocaust, Winston Churchill wanted to execute the Nazi leaders without trials. But the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: “We could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would … not set easily on the American conscience or be remembered by children with pride.”

Osama bin Laden and the “suspected militants” targeted in drone attacks should have been arrested and tried in U.S. courts or an international tribunal. Obama cannot serve as judge, jury and executioner. These assassinations are not only illegal; they create a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders.

March 27, 2011

Bradley Manning Treatment Reveals Continued Government Complicity in Torture

Army Pfc. Bradley Manning, who is facing court-martial for leaking military reports and diplomatic cables to WikiLeaks, is being held in solitary confinement in Quantico brig in Virginia. Each night, he is forced to strip naked and sleep in a gown made of coarse material. He has been made to stand naked in the morning as other inmates walked by and looked. As journalist Lance Tapley documents in his chapter on torture in the supermax prisons in “The United States and Torture: Interrogation, Incarceration, and Abuse, solitary confinement can lead to hallucinations and suicide; it is considered to be torture. Manning’s forced nudity amounts to humiliating and degrading treatment, in violation of U.S. and international law.

Nevertheless, President Barack Obama defended Manning’s treatment, saying, “I’ve actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are.” Obama’s deference is reminiscent of President George W. Bush, who asked “the most senior legal officers in the U.S. government” to review the
interrogation techniques. “They assured me they did not constitute torture,” Bush said.

The order for Manning’s nudity apparently followed what he described as a sarcastic comment he made to guards after their repeated harassment of him regarding how he was to salute them. Manning said that if he were intent on strangling himself, he could use his underwear or flip-flops.

“In my 40 years of hospital psychiatric practice, I’ve never heard of something like this,” said Dr. Steven Sharfstein, a former president of the American Psychiatric Association. “In some very unusual circumstances, when people are intensely suicidal, you might put them in a hospital gown. … But it’s very, very unusual to be in that kind of suicide watch for this long a period of time.”

Sharfstein also was concerned that military officials appeared to defy the recommendations of mental health professionals. “He’s been examined by psychiatrists who said he’s not suicidal. … They are making medical judgments in the face of medical evaluations to the contrary,” Sharfstein noted.

After State Department spokesman P.J. Crowley criticized Manning’s conditions of confinement, the White House forced him to resign. Crowley had said the restrictions were “ridiculous, counterproductive and stupid.” It appears that Washington is more intent on sending a message to would-be whistleblowers than on upholding the laws that prohibit torture and abuse.

Torture is commonplace in countries strongly allied with the United States. Vice President Omar Suleiman, Egypt’s intelligence chief, was the lynchpin for Egyptian torture when the CIA sent prisoners to Egypt in its extraordinary rendition program. A former CIA agent observed, “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear – never to see them again – you send them to Egypt.” In her chapter in “The United States and Torture,” New Yorker journalist Jane Mayer cites Egypt as the most common destination for suspects rendered by the United States.

She describes the rendering of Ibn al-Sheikh al-Libi to Egypt, where he was tortured and made a false confession that Colin Powell cited as he importuned the Security Council to approve the U.S. invasion of Iraq. Al-Libi later recanted his confession.

Although there is general consensus that torture does not work – the subject will say anything to get the torture to stop – what if it did work? Would that justify torturing people into providing information? Philosopher John Lango’s chapter asks whether an extreme emergency can ever trump the absolute prohibition of torture. Lango rejects the nuclear weapon and ticking bomb scenarios as “fantasy” and declares, “Terrorism can never warrant terroristic torment.” He suggests a protocol to the Convention against Torture to fortify the moral prohibition of torture and cruel treatment.

The moral equivalence of torture and “one-sided warfare” is explored in Professor Richard Falk’s provocative chapter. He contrasts the liberal moral outrage at torture with uncritical acceptance of one-sided warfare. Nations, particularly the United States, inflict horrific pain on primarily non-white people in other countries, but suffer no consequences. Falk draws an analogy between the torture victim and the subjects of one-sided warfare – both are under the total control of the perpetrator. He recommends adherence to international humanitarian law and repudiation of “wars of choice.”

In The United States and Torture, an historian, a political scientist, a philosopher, a psychologist, a sociologist, two journalists and eight lawyers detail the complicity of the U.S. government in the torture and cruel treatment of prisoners both at home and abroad, and strategies for accountability. In her compelling preface, Sister Dianna Ortiz describes the unimaginable treatment she endured in 1987
when she was in Guatemala doing missionary work while the United States was supporting the dictatorship there. The first step in changing policy is to understand its history and the motivation behind it. I hope this book will accomplish that goal.

This piece first appeared on American Constitution Society Book Talk.

March 22, 2011

Stop Bombing Libya

Since Saturday night, the United States, France, and Britain have been bombing Libya with cruise missiles, B-2 stealth bombers, F-16 and F-15 fighter jets, and Harrier attack jets. There is no reliable estimate of the number of civilians killed. The U.S. has taken the lead in the punishing bombing campaign to carry out United Nations Security Council Resolution 1973.

The resolution authorizes UN Member States “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.” The military action taken exceeds the bounds of the “all necessary measures” authorization.

“All necessary measures” should first have been peaceful measures to settle the conflict. But peaceful means were not exhausted before Obama began bombing Libya. 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.

There is no doubt that Muammar Qaddafi has been brutally repressing Libyans in order to maintain his power. But the purpose of the United Nations is to maintain international peace and security. The burgeoning conflict in Libya is a civil war, which arguably does not constitute a threat to international peace and security.

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. Libya has not attacked another country. The United States, France and Britain are not acting in self-defense. Humanitarian concerns do not constitute self-defense.

The UN Charter does not permit the use of military force for humanitarian interventions. But the UN General Assembly embraced a norm of “Responsibility to Protect” in the Outcome Document of the 2005 World Summit. 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 Organization of African Unity. 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” norm 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 norm 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. Nor is it being used to stop the killing of civilians by the United States in Afghanistan and Pakistan.

There is also hypocrisy inherent in the U.S. bombing of Libya to enforce international law. The Obama administration has thumbed its nose at its international obligations by refusing to investigate officials of the Bush administration for war crimes for its torture regime. Both the Convention Against Torture and the Geneva Conventions compel Member States to bring people to justice who violate their commands.

The United States is ostensibly bombing Libya for humanitarian reasons. But Obama refuses to condemn the repression and government killings of protestors in Bahrain using U.S.-made tanks and weaponry because that is where the U.S. Fifth Fleet is stationed. And Yemen, a close U.S. ally, kills and wounds protestors while Obama watches silently.

Regime change is not authorized by the resolution. Yet U.S. bombers targeted the Qaddafi compound and Obama said at a news conference in Santiago that it is “U.S. policy that Qaddafi needs to go.” The resolution specifically forbids a “foreign occupation force.” But it is unlikely that the United States, France and Britain will bomb Libya and leave. Don’t be surprised to hear there are Western forces on the ground in Libya to “train” or “assist” the rebels there.

Defense Secretary Robert Gates pegged it when he said that a “no-fly zone” over Libya would be an “act of war.” Although the Arab League reportedly favored a no-fly zone, Amr Moussa, Secretary General of the Arab League, said that “what is happening in Libya differs from the aim of imposing a no-fly zone.” He added, “What we want is the protection of civilians and not the shelling of more civilians.” He plans to call a new meeting of the league to reconsider its support for a no-fly zone.

The military action in Libya sets 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? During the Bush administration, Washington leveled baseless allegations to justify an illegal invasion of Iraq.

Moreover, Obama took military action without consulting Congress, the only body with the Constitutional power to declare war. It is not clear what our mission is there or when it will end. Congress – and indeed, the American people – should debate what we are doing in Libya. We must not support a third expensive and illegal war. There is a crying need for that money right here at home. And we should refuse to be complicit in the killing of more civilians in a conflict in which we don’t belong.

March 12, 2011

Assault on Collective Bargaining Illegal, Says International Labor Rights Group

By Jeanne Mirer and Marjorie Cohn

The International Commission for Labor Rights (ICLR) sent a notice to the Wisconsin Legislature, explaining that its attempt to strip collective bargaining rights from public workers is illegal.

Anyone who has watched the events unfolding in Wisconsin and other states that are trying to remove collective bargaining rights from public workers has heard people protesting the loss of their “rights.” The ICLR explained to the legislature exactly what these rights are and why trying to take them away is illegal.

The ICLR is a New York based non-governmental organization that coordinates a pro bono network of labor lawyers and experts throughout the world. It investigates labor rights violations, and issues reports and amicus briefs on issues of labor law.

The ICLR identified the right of “freedom of association” as a fundamental right and affirmed that the right to collective bargaining is an essential element of freedom of association. These rights, which have been recognized worldwide, provide a brake on unchecked corporate or state power.

In 1935, when Congress passed the National Labor Relations Act (also known as the NLRA, or the Wagner Act), it recognized the direct relationship between the inequality of bargaining power of workers and corporations and the recurrent business depressions. That is, by depressing wage rates and the purchasing power of wage earners, the economy fell into depression. The law therefore recognized as policy of the United States the encouragement of collective bargaining.

While the NLRA covered U.S. employees in private employment, the law protecting collective bargaining in both the public and private sectors has developed since 1935 to cover all workers “without distinction.”

The opening paragraph of the ICLR statement reads:

“As workers in the thousands and hundreds of thousands in Wisconsin, Indiana and Ohio and around the country demonstrate to protect the right of public sector workers to collective bargaining, the political battle has overshadowed any reference to the legal rights to collective bargaining. The political battle to prevent the loss of collective bargaining is reinforced by the fact that stripping any collective bargaining rights is blatantly illegal. Courts and agencies around the world have uniformly held the right of collective bargaining in the public sector is an essential element of the right of Freedom of Association, which is a fundamental right under both International law and the United States Constitution.”

The ICLR statement summarizes the development of this law from the Universal Declaration of Human Rights, through the International Labor Organization’s Conventions on Freedom of Association (that is, the right to form and join unions) and on Collective Bargaining. It cites court cases from the United States and around the world. All embrace freedom of association as a fundamental right and the right to collective bargaining as an essential element of freedom of association.

Some anti-union voices argue that since federal employees presently do not have the right to bargain collectively, neither should state workers. In fact, the argument should go the other way. The law cited in the ICLR statement means that denying Federal employees collective bargaining rights – which they have had over the years when presidents have recognized them by executive order – is just as illegal as denying collective bargaining rights to state public employees. President Obama should take this opportunity to reinstate the rights of Federal employees to collective bargaining.

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.

February 17, 2011

Law professor says Egypt was a common destination for torture of detainees sent by U.S.

National Law Journal interview of Marjorie Cohn by Amanda Bronstad:

On Feb. 11, outgoing Egyptian President Hosni Mubarak resigned, leaving the country’s government under military rule and its hopes for democracy uncertain. Also unclear is whether the country’s history of human rights abuses and torture will continue in Egypt, according to Marjorie Cohn, editor and co-author of The United States and Torture: Interrogation, Incarceration, and Abuse. The book, published last month, is a collection of essays on torture in various countries, including Egypt.

Cohn, who is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild, talked to The National Law Journal about her new book’s relevance in light of the recent events in Egypt. This Q&A has been edited for length and clarity.

NLJ: Why did you decide to publish this book?

MC: I had been researching and writing and speaking about the policy of torture and abuse that came to light during the Bush administration. So I collected a number of people from different disciplines to write chapters that would shed light on different aspects of this problem of torture and the U.S. involvement in it. Unfortunately, people don’t get the full picture from the mass media about what the United States is doing — the policy of cruel treatment set during the Bush administration and the history of U.S. involvement in torture, which goes way back. The CIA wrote a torture manual. The School of the Americas in the United States trained many dictators from Latin America and military leaders in the art of torture, and the CIA pursued a program of research on psychological torture. It didn’t start with the Bush administration. It was a continuation of a long policy in this country of not just engaging in torture ourselves but also supporting, training and financing repressive governments that torture and abuse their people.

NLJ: Your book talks about Egypt as an example of where this policy took place. What does it say?

MC: Egypt is discussed throughout the book, especially in Jane Mayer’s chapter, a writer for The New Yorker. She talks about Egypt as being the most common destination for suspects that are sent by the U.S. for interrogation and ultimately torture. It’s called “extraordinary rendition.” And she describes the rendering of Ibn al–Shaykh al-Libi to Egypt, where he was tortured and made false confessions cited by Colin Powell when he appeared in the U.N. Security Council seeking approval for the U.S. invasion of Iraq. The CIA knew it was a false confession, and he later recanted his confession.

NLJ: What’s the “extraordinary rendition” program?

MC: Extraordinary rendition is a program where, for example, the CIA sends detainees to other countries where they are then interrogated and in many cases tortured. It’s called torture by proxy, sometimes, or outsourcing torture. Now, sometimes CIA agents actually come with them, and they’re in the interrogation room. Most of the time, they’re outside the interrogation room so that after the detainee is tortured, the CIA can come in and ask them questions.

NLJ: How would you describe the torture methods that were used in Egypt during the time of President Mubarak’s reign?

MC: I can quote from the State Department’s 2002 report on Egypt, where it notes detainees were stripped and blindfolded, suspended from a ceiling or door frame with just their feet touching the floor, beaten with fists, metal rods, doused with hot or cold water, flogged on the back, burned with cigarettes, subjected to electric shock, forced to strip and threatened with rape, by the Egyptian secret police. And in 2005, the U.N.’s Committee Against Torture found that Egypt resorted to consistent and widespread use of torture, and the risk of such treatment was particularly high in the case of detainees held for political and security reasons. The United States sends Egypt $1.5 billion per year, most of which goes to the military. And yet all along the United States has known about these egregious human rights violations by the Egyptian government. We funded the whole government and the police who were committing the acts. Omar Suleiman, the vice president, was the linchpin for Egyptian torture when the CIA sent prisoners to Egypt in its extraordinary rendition program. And he actually committed some of the worst torture himself. He oversaw the torture by the secret police, and yet he’s a very close friend of the U.S. government, including the Obama administration.

NLJ: What are your overall thoughts on what has happened in Egypt in the past few weeks?

MC: I think it’s been an incredible revolution by the people of Egypt to throw off the yoke of tyranny they’ve suffered for the past 30 years with Mubarak. Since 2006, there has been a wave of strikes by workers against low wages and horrendous working conditions, and the economic and social conditions in Egypt have been horrendous for a long period of time. But it’s still striking to see millions of people in the streets coming together, from all walks of life, to demand President Mubarak step down.

NLJ: What effect does the overthrow of Mubarak have on human rights abuses in Egypt going forward?

MC: This was in effect a military coup motivated by the popular protest by people in the streets. The military’s now in charge. They have disbanded Parliament and the Constitution, but they have not lifted the state of emergency, and the state of emergency, which has been in effect for 30 years, has been the excuse for secret police to arrest people without any charges, detain them and torture them. Most of the torture is committed by the secret police. But The Guardian reported that the Egyptian military, since the protests started, secretly detained hundreds and possibly thousands of suspected government opponents since mass protests began, and at least some of these have been tortured. Keep in mind the military has been the backbone for this oppressive regime for 30 years, and they’ve been a central pillar of this police state.

NLJ: What needs to happen to stop human rights violations there?

MC: The state of emergency has to be lifted, thousands of political prisoners have to be released, all use of torture has to be outlawed and Egyptians need to see the formation of a new democratic Constitution that guarantees human rights and free and fair elections as soon as possible.

NLJ: What’s your opinion about the U.S. response to the upheaval in Egypt?

MC: The officials in the U.S. government have held their fingers up to the wind to see which way it’s blowing, and that’s the way they went. When they weren’t sure Mubarak was gone, they were not calling for his ouster. But when it became clear that Mubarak was gone, they immediately did an about-face, and President Obama went on television and celebrated the great victory of the Egyptian people. I didn’t hear anything from the president about making sure that torture didn’t proceed, that people who were being arbitrarily held were released. And the U.S. is continuing to fund the government there, which is really a military government. It is the vast amount of money the U.S. government has sent to Egypt all these years that has enabled Mubarak to rule with a fist of terror. And the U.S. government continues to support other vicious dictators around the world, including several in the Middle East.

February 2, 2011

U.S. Chickens Come Home to Roost in Egypt

Barack Obama, like his predecessors, has supported Egyptian President Hosni Mubarak to the tune of $1.3 billion annually, mostly in military aid. In return, Egypt minds U.S. interests in the Middle East, notably providing a buffer between Israel and the rest of the Arab world. Egypt collaborates with Israel to isolate Gaza with a punishing blockade, to the consternation of Arabs throughout the Middle East. The United States could not have fought its wars in Iraq without Egypt’s logistical support.

Now with a revolution against Mubarak by two million Egyptians, all bets are off about who will replace him and whether the successor government will be friendly to the United States.

Mubarak’s “whole system is corrupt,” said Hesham Korayem, an Egyptian who taught at City University of New York and provides frequent commentary on Egyptian and Saudi television. He told me there is virtually no middle class in Egypt, only the extremely rich (about 20 to 25 percent of the population) and the extremely poor (75 percent). The parliament has no input into what Mubarak does with the money the United States gives him, $300 million of which comes to the dictator in cash each year.

Torture is commonplace in Egypt, according to Korayem. Indeed, Omar Suleiman, Egypt’s intelligence chief whom Mubarak just named Vice-President, was the lynchpin for Egyptian torture when the CIA sent prisoners to Egypt in its extraordinary rendition program. Stephen Grey noted in Ghost Plane, “[I]n secret, men like Omar Suleiman, the country’s most powerful spy and secret politician, did our work, the sort of work that Western countries have no appetite to do ourselves.”

In her chapter in the newly published book, “The United States and Torture: Interrogation, Incarceration, and Abuse,” Jane Mayer cites Egypt as the most common destination for suspects rendered by the United States. “The largest recipient of U.S. foreign aid after Israel,” Mayer writes, “Egypt was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality.” She describes the rendering of Ibn al-Sheikh al-Libi to Egypt, where he was tortured and made a false confession that Colin Powell cited as he importuned the Security Council to approve the U.S. invasion of Iraq. Al-Libi later recanted his confession.

The State Department’s 2002 report on Egypt noted that detainees were “stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, metal rods, or other objects; doused with hot or cold water; flogged on the back; burned with cigarettes; and subjected to electrical shocks. Some victims . . . [were] forced to strip and threatened with rape.”

In 2005, the United Nations Committee Against Torture found that “Egypt resorted to consistent and widespread use of torture against detainees” and “the risk of such treatment was particularly high in the case of detainees held for political and security reasons.”

About a year ago, an Italian judge convicted 22 CIA operatives and a U.S. Air Force colonel of arranging the kidnapping of a Muslim cleric in Milan in 2003, then flying him to Egypt where he was tortured. Hassan Mustafa Osama Nasr told Human Rights Watch he was “hung up like a slaughtered sheep and given electrical shocks” in Egypt. “I was brutally tortured and I could hear the screams of others who were tortured too,” he added.

A former CIA agent observed, “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear – never to see them again – you send them to Egypt.”

So what will happen next in Egypt?

Suleiman, who is intensely loyal to Mubarak, will not be an acceptable successor to the Egyptian people. Some fear the Muslim Brotherhood, which supports Hamas, will take power once Mubarak is forced out. But “[t]hough it is the largest opposition group, it by no means enjoys overwhelming support, and its leaders are for the most part moderate and responsible,” Scott MacLeod, Time magazine’s Middle East correspondent from 1995 to 2010, wrote in the Los Angeles Times. Korayem concurs. He says the Brotherhood, which has formally renounced terrorism and violence, is more educated and peaceful now. The Brotherhood provides social and economic programs that augment public services in Egypt.

Indeed, the Brotherhood supports Mohamed ElBaradei to negotiate with the Egyptian government. ElBaradei, the former U.N. International Atomic Energy Agency chief and Nobel Peace Prize recipient, recently returned to Egypt to stand with the protesters. He told Fareed Zakaria that the Brotherhood favors a secular state, and “has nothing to do with the Iranian movement, has nothing to do with extremism as we have seen it in Afghanistan and other places.”

The Obama administration has been slow to acknowledge that Mubarak is on his way out. Vice President Joe Biden, still in denial, said on the PBS News Hour, “I would not refer to him as a dictator.” ElBaradei criticized Obama for supporting Mubarak in the face of the popular revolt in Egypt. “You are losing credibility by the day,” he told CBS News. “On one hand you’re talking about democracy, rule of law and human rights, and on the other hand you are lending support to a dictator that continues to oppress his people.”

Korayem sees the United States’ uncritical support for Israel as key to the problems in Egypt and elsewhere in the Middle East. If the United States acted as an honest broker, even “slightly fair to the Palestinians,” that would go a long way to solving the difficulties, he said. But, according to Gareth Porter, “The main function of the U.S. client state relationship with Egypt was to allow Israel to avoid coming to terms with Palestinian demands.” Chris Hedges adds, “The failure of the United States to halt the slow-motion ethnic cleansing of Palestinians by Israel has consequences. The failure to acknowledge the collective humiliation and anger felt by most Arabs because of the presence of U.S. troops on Muslim soil . . . has consequences.”

We are seeing those consequences in the streets of Egypt and the likelihood of similar developments in Jordan, Yemen, and other Middle Eastern countries. Until the U.S. government stops uncritically supporting tyrants, torturers, and oppressors, we can expect the people to rise up and overthrow them.