(A thoroughly disgusting state of affairs - promoted by Paul Rosenberg)
After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.
Liz Cheney declared that the guilty verdict "signals weakness in a time of war."
John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."
And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."
A quick word on the TSA scanner/pat-down outrage, after reading Digby's piece on "security theater", and TSA Administrator John Pistol's op-ed in yesterday's USA Today.
I attended Yom Kippur services a few months ago at Temple Beth Am synagogue in Williamsville, New York, as I do pretty much every year. Every year patrons are asked to remove objects from their pockets and are patted down. I was, it went smoothly, and I went on my way.
I was in Charlottesville last Saturday for a Dave Matthews Band show, and I was patted down before entering John Paul Jones Arena, like every other patron.
I will be home for Thanksgiving this week and will attend a Buffalo Sabres game on Friday, and will be patted down, like I am at every Sabres home game.
The attendance at these three events, non-overlapping, is just under 35,000 people. Yet those screenings were and always are so pathetically cursory that I often joke with my companions on the way in about the knifes or other weapons I could have easily hidden in my shoe, under my belt, or any number of other places. If they can't stop a guy like me from bringing a weapon in, they sure can't stop someone a lot better and more dangerous than me. But hey, we shouldn't go too far into people's privacy- just far enough to keep people feeling safe.
And you know what? That's the real security theater, here- not the airports. It's the events that have tens of thousands, even a hundred thousand people attending, but don't involve an airplane, so just-a-little-screening-but-not-too-much will do. Often it's because of money- I bet some authorities would like to have screening at every DC metro stop, but it's not doable. And I don't want my civil liberties violated, but I'd also like to not get hurt attending a concert, or religious service, or sporting event. Yet when TSA decides it will do that job, except doing it in a way that is far more thorough, people feel violated.
I don't know what the balance is, and I don't pretend to be a terrorism expert. And the new procedures have certain civil liberty concerns. But I will say that the new TSA procedures aren't the outrage, to me. It's in what Digby writes:
It's not like the they haven't shown that they are creative enough to do something other than blowing up an airplane to make their point. Look at the London and Madrid subway bombings or the Mumbai operation or that horrible Chechen school hostage taking.
Exactly. Terrorism goes far beyond the airports. The outrage is what is not being done to improve just-a-little-screening-but-not-too-much checks- or none at all.
This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.
Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.
But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.
That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)
Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.
As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba were reportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.
In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.
On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.
Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.
Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.
What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.
But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.
Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)
In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.
Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.
Lawyers made opening statements Tuesday as the trial began in earnest for the first former Guantanamo detainee transferred to U.S. soil. While the government portrayed the slight, baby-faced 36-year-old as a vicious al Qaeda murderer who helped plan two US embassy bombings that killed 224 people, the defense told a very different story. Although not contesting much of the evidence the government plans to present --- about the bombings themselves, its destructiveness and their innocent victims -- defense lawyers argue that Ahmed Khalfan Ghailani was a hapless young Tanzanian duped into helping his powerful childhood friends who, unbeknownst to him, were al Qaeda killers.
What's most surprising about the case is that, based on the government's opening arguments, it's not clear whether prosecutors have any direct evidence establishing that Ghailani intended to hurt anyone, or even knew that the items he purchased in Tanzania were going to be used as a bomb. That knowledge is a critical element of the charges against him -- particularly the multiple murder charges.
On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.
Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.
In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.
The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.
Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.
"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?
Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.
Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.
If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.
Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.
Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.
The first trial of a former Guantanamo detainee in a U.S. federal court began in New York City this week. With jury selection completed, opening arguments will begin Monday for Ahmed Khalfan Ghailani.
I went to the jury questioning and it was just another day at court, with a second terrorism trial happening next door. Outside the courthouse, there were no protests or demonstrations along the lines of what was staged by groups like Liz Cheney's Keep America Safe last December after the Obama administration announced it would try the September 11 co-conspirators in a New York federal court. In fact, Cheney and Co. were bizarrely quiet about this trial.
Human Rights First staff interviewed New Yorkers on the street in front of the courthouse while proceedings began. The overwhelming response was nonchalance, or confidence. Far from the nightmare scenarios predicted by those who oppose civilian trials for the 9/11 defendants. Watch the video released yesterday:
If you didn't already know the trial was going on, you'd never know that anything was different at all in the Southern District of New York courthouse and in the immediate vicinity. Sure, security was tight, but it always is. Observers had to pass through the usual metal detectors and check in their cell phones. It was business as usual.
In fact, although most New Yorkers don't realize it, there are now two major terrorism trials going on in the downtown Manhattan courthouse. In addition to Ghailani's, there's the case of four men charged with planting what they thought were bombs outside two Bronx synagogues, and planning to fire missiles at military planes. That trial, which hinges on the role of a government informant, has been going on for five weeks now without any safety incidents.
As this trial gets underway, you have to wonder what all the fuss was about. Civilian courts have convicted 400 terrorists since 9/11. Military commissions, 4. The trial itself has caused no disruption in lower Manhattan and is running smoothly.
I will be headed to Guantánamo later this month to witness the military commissions trial of Omar Khadr. Instead of taking the subway to the proceedings, I'll be flown down and escorted by U.S. government officials to a facility that has cost hundreds of millions of dollars to build and an additional $125 million every year to maintain. This doesn't seem to add up.
When Ahmed Khalfan Ghailani was first transferred to New York from Guantanamo Bay last year, House Republican leader John Boehner of Ohio called it "the first step in the Democrats' plan to import terrorists into America."
More than a year later, Ghailani remains the only detainee from Guantanamo Bay to be brought to the United States. He's scheduled to go on trial starting this week in lower Manhattan. Jury selection begins Monday.
Ghailani is a Tanzanian accused of helping to bomb two U.S. embassies in East Africa in 1998 that killed 224 people. Like the September 11, 2001 attacks, those bombings have been attributed to Osama bin Laden.
In hundreds of legal charges filed with the federal court in New York, Ghailani is accused of having scouted out the American embassy in Tanzania before it was bombed, assembled bomb materials and escorted the suicide bomber to the site. After the bombings, prosecutors say he fled to Afghanistan and rose up the ranks of al Qaeda, forging documents for the group and working as a cook and a bodyguard for Osama bin Laden.
When he was captured in Pakistan in 2004, U.S. authorities deemed Ghailani a "high-value" detainee and sent him to a secret CIA prison for interrogation, where Ghailani claims he was tortured. Indeed, a variety of so-called "enhanced interrogation techniques," including waterboarding, were authorized for use by CIA interrogators on high-value detainees.
Ghailani was transferred to Guantanamo Bay in 2006. Last year, more than ten years after the embassy bombings, he was transferred to the New York prison. The same prison has safely held such notorious criminals as John Gotti and the blind terror leader Sheik Omar Abdel-Rahman.
Critics of Ghailani's transfer warned that his prosecution could be derailed by his abuse in prison and the long delay in bringing him to trial. But the federal judge hearing the case, Judge Lewis A. Kaplan, has denied the defense lawyers' requests to dismiss the trial on those grounds.
Last week, former New York mayor Rudy Giuliani insisted that it would be safer to try Ghailani in a military commission in Guantanamo Bay than in New York City.
Ghailani has already appeared in court for pretrial hearings, however, without incident. New York City police have said that while they will provide some extra security for the trial, the proceedings will not require any of the elaborate and costly measures that New York City officials had warned would be necessary for a trial of the 9/11 plotters. After receiving complaints from local business groups about the potential disruption that trial might cause, Police Commissioner Ray Kelly announced that he would take a range of extraordinary security measures, including a flood of uniformed police officers, checkpoints and thousands of interlocking metal barriers. Mayor Bloomberg estimated the cost at $200 million a year, and the Obama administration soon backed away from the plan.
Despite the huge costs and inconvenience predicted for the 9-11 plotters' trial, no such estimates have been made for the trials of any of those accused of carrying out al Qaeda's U.S. embassy bombing attacks.
Four other men have already been tried and convicted in the same New York courthouse for their roles in the U.S. embassy attacks. All were sentenced to life in prison without parole.
Most people don't even realize it, but an alleged al Qaeda terrorist - deemed among the most dangerous terrorists in US custody by US counterterrorism officials - has been quietly appearing in a U.S. federal court in downtown Manhattan for pretrial hearings for weeks now. His trial is scheduled to start there next week. And as the Wall Street Journal notes today, the NYPD - who are the national experts on counterterrorism security - don't see any need for extra funds to buttress their normal security procedures.
That's a far cry from the $200 million the police department said last year it would need to secure the trial of some other alleged al Qaeda operatives: Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attack.
Ahmed Khalfan Ghailani is being tried for his role in an earlier al Qaeda terrorist attack on U.S. interests: the bombings of two U.S. embassies in Africa in 1998. He was considered so important to al Qaeda that after he was captured in Pakistan in 2004, he was subjected to so-called "enhanced interrogation techniques" in CIA "black sites" while interrogators pumped him for information. He was only transferred from the Guantanamo Bay prison camp to a New York prison for civilian trial last year.
Critics of the Obama administration's decision to use civilian trials for alleged terrorists claim, among other things, that trial and imprisonment in the United States pose a major security threat. But according to Devlin Barrett and Sean Gardiner in today's Journal:
The New York Police Department plans some behind-the-scenes security adjustments for Mr. Ghailani's trial, but there will be no street closures or extra officers assigned to security outside the courthouse.
For anyone who actually lives in New York and knows what the downtown courthouse area is like, that makes perfect sense. Ever since the September 11 terrorist attacks, the NYPD has stepped up its patrols and security in the area. There are now concrete barriers around all federal buildings that make it impossible for someone to drive a bomb up anywhere near them. Security entering the courthouse has always been tight, which makes sense, given that the Manhattan courthouse has long been the primary location for terrorist trials.
The problem with the plan to try KSM and his alleged associated there wasn't that New York City lacked sufficient security; it was that political opponents of the Obama Administration turned the trial into a political tool they could use to undermine the administration. And once opponents like Liz Cheney whipped some locals up into a frenzy about the need to close streets and add security, downtown businesses got scared about how that all might affect their bottom line.
The truth is, as the Ghailani trial demonstrates, that the NYPD and federal prison guards are fully capable of securing the massive stone courthouse and adjacent high-security prison that's long housed suspected terrorists safely. We neither need to shut down the city nor spend another $200 million to accomplish that.
(As the Obama Administration seeks to "normalize" the criminal practices of the Bush Administration, it seems that it may have a LITTLE problem with international law... - promoted by Paul Rosenberg)
On Saturday, the New York Times reported that administration officials are "alarmed" by the military commission case of Omar Khadr, the Canadian citizen seized as a 15-year-old by U.S. forces in Afghanistan who's now spent a third of his life in the U.S. prison at Guantanamo Bay. Trying an alleged child soldier based largely on confessions he made after being threatened with gang-rape and murder is not the case the Obama administration had hoped to showcase in its first military commission trial.
But the argument in a new paper published today by Loyola Law School professor David Glazier should give the administration even more cause for alarm. Glazier, an expert on international law and the laws of armed conflict, argues that the military commission trial of Omar Khadr is itself a war crime.
Dick Cheney was famous for his "One Percent Doctrine", described by Ron Suskind in his book of the same name:
If there's a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It's not about our analysis ... It's about our response.
And yet, curiously, that same attitude did not apply to the threat of global warming, which was known about as far back as the 1970s, and theorized in the late 1800s. While those outside the climate science community have been artfully confused by a denialist strategy, no one can credibly claim that experts regard the chance of global warming at less than 1%. Nor, indeed, has the chance been seen as that remote since at least the 1980s. So why no 1% doctrine there?
Setting aside the question of answers for the moment, the question itself is most illuminating. First of all, how come it has not been asked very often? Suskind's book was a NYT bestseller. The question--if not some variation--is a fairly obvious one. So why hasn't it been asked quite doggedly? Secondly, what does it mean to have risk formulated this way? How does it comport with professional risk analysis and risk management? How does it compare with traditional practices in the field of insurance? Or other fields where risks must be assessed and resonded to? Whatever the reasons involved in why this doctrine was formulated, just how different is it?
A rough answer to these questions is fairly straightforward: It's quite different. The normal way of calculating potential losses is to multiply the potential loss by the probabilty. A 1% probability of even a terrible loss is still enormously different from a 100% probability. What's more, treating it as a certainty would entail acting in a manner that ignores any costs involved in the potential over-reaction. We may not know what those costs might be. They could be quite high, or they could be relatively trvial. But if we do not even stop to consider them, then we are not even attempting to engage in a rational process. This can be especially disastrous if we actually increase the probabily of what we fear by assuming it to already be certain. There is also, of course, the chance that concentrating on one improbably threat may distract us from attended to other, more imminant and credible threats.
Thus, whatever the reasons for Cheney's approach embodied in the "one percent doctrine", it is perfectly clear that it is not a normal procedure for those accustomed to dealing with threats, it does not accurately assess the threat involved, nor does it consdier the existence of additional threats that it may actually enhance or even create where they do not presently exist.
With those problematic aspects of the "one percent doctrine" already established, we can now turn to the questions of "Why?" And here there is already a fairly rich literature.
They better not build that mosque down by Ground Zero, we're being told, not just because it's insensitive, but because we have no idea what they'll be up to down there.
I mean, where did the money come from?
Who does this Imam hang out with, anyway?
And, at a time when our Nation faces more threats than ever, why would we let these Muslim madmen situate their "terror command posts" anywhere?
Well, I don't know about all of that...but I do know a place where lots of these Islamic terrorists go to obtain the equipment and supplies they need to support their particular craft, and I decided to make a bit of an undercover visit to the spot, so that I might "observe and report" on what goes on at this specific location.
So put on your dark glasses...and let's go see what we can find out.
Last week, the United States government transferred an Algerian national, imprisoned for the last eight years at the U.S. detention facility at Guantanamo Bay, Cuba, back to his home country.
Normally, such transfers are a cause for celebration by the prisoners involved. But the reaction of 35-year-old Abdul Aziz Naji was markedly different: he was terrified. That's in part because the Algerian government has a bad track record for its treatment of anyone arrested on "security grounds." In fact, the U.S. State Department reports that in such cases, Algerian authorities still use torture to elicit confessions. A recent decision from the European Court of Human Rights reached the same conclusion, blocking a transfer to Algeria from France.
Naji also argued that he was afraid of local fundamentalist groups terrorizing him into fighting for their cause. In fact, he'd fled Algeria as a teenager precisely because he'd been attacked by extremists. As a result, Naji begged the U.S. government to allow him to remain in prison at Guantanamo rather than be returned to Algeria. But the U.S. government ignored that; it sent him to Algeria anyway.
Although Naji is now back home, reportedly under Algerian government surveillance, there are still another five Algerians left at Guantanamo Bay who are afraid to return home due to fear of mistreatment. Still other prisoners, from countries such as Tajikistan and Morrocco, have similar fears. And terror suspects arrested by U.S. authorities and sent to another country for interrogation and prosecution, under current U.S. rendition policy, face a similar risk.
The U.S. government's actions in Naji's case don't bode well for any of them.
Under international law, the United States isn't supposed to transfer anyone to a country where they're likely to face torture or cruel, inhuman or degrading treatment. That's exactly what Naji fears will happen to him if he's arrested in Algeria. But he did not get an opportunity to make his case to any sort of neutral U.S. arbiter. Although the Obama administration said that the Algerian government had promised not to torture Mr. Naji upon his return, Naji never got a chance to explain why he's skeptical of that promise, and why he's still afraid.
Unfortunately, despite the requirements of the international Convention Against Torture, Naji's treatment complies with official U.S. policy. U.S. officials have insisted that they can send a prisoner or terror suspect to a country that's known to torture prisoners so long as that country provides "diplomatic assurances" -- essentially, an official promise -- that the person will be treated fairly. Perhaps the U.S. obtained such a promise from authorities in Algeria. But what are these "diplomatic assurances" worth?
As the United Nations and many other international experts have recognized, not much. According to Manfred Nowak, the U.N.'s Special Rapporteur on torture, "diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment and such assurances," and are usually sought "from States where the practice of torture is systematic." They're also not legally binding.
Thus Maher Arar, for example, a Canadian terror suspect (who turned out to be innocent) rendered to Syria by the Bush administration, was brutally tortured under interrogation there, despite "diplomatic assurances" provided to U.S. authorities by the Syrian government.
Nowak and Martin Scheinin, the U.N. Rapporteur on Human Rights and Counter-Terrorism, last week protested the United States' return of Naji to Algeria.
Although Naji was never charged, tried or convicted of anything by the United States, his imprisonment for the last eight years, supposedly on security grounds, suggests he's likely to be a target of interest to the Algerian authorities.
Indeed, after he was returned home on July 18, his lawyers reported that he had disappeared. He was presumably held and interrogated in secret detention by Algerian security forces.
Then on Monday, Reuters reported that he'd been returned home and was "resting." An Algerian prosecutor said he'd been treated lawfully.
Meanwhile, the Associated Press reported that Naji had been indicted on terrorism-related charges and placed under "judicial supervision."
Whatever Naji's status is now, it could change at any time. Even though the U.S. never charged him with anything, Algerian authorities could go a different route. Or they could detain him for questioning and torture him in prison. Now that the United States has released him, it no longer has any authority to determine his treatment.
But the U.S. doesn't have to follow suit for the other Algerian detainees still imprisoned without charge at Guantanamo, who similarly face repatriation against their will. Human Rights First has called on the Obama administration to back up its professed commitment against torture by systematically providing a hearing before a neutral arbiter before returning anyone in U.S. custody to a country where he fears persecution. The United States should stop relying on the "diplomatic assurances" that have proved utterly ineffective in the past.
The Supreme Court's refusal this week to hear the claims of Maher Arar, a Canadian sent to Syria to be interrogated under torture in 2002, is appropriately being condemned as another example of the U.S. avoiding any legal or moral responsibility for government- sanctioned torture.
What seems to shock and outrage people about the Arar case in particular is that the facts are not in dispute. Canada, whose security services were complicit in his rendition to Syria, has publicly acknowledged its responsibility, compensated Arar,and launched a criminal investigation of U.S. and Syrian officials. The United States, on the other hand, has still neither admitted its role nor held any U.S. officials accountable. And, it hasn't paid Arar a dime.
The United States' refusal to acknowledge its role in the torture of terrorism suspects even when faced with overwhelming evidence of U.S. involvement has become an unfortunate pattern. But it's heartening to see that other countries aren't dropping the matter.
On Monday, the European Court of Human Rights announced that it would hear the case of Khaled el-Masri, a German citizen seized by Macedonian authorities at the request of the United States. El-Masri was beaten and abused during interrogations in both Macedonia and the notorious "Salt Pit" in Afghanistan. Authorities unceremoniously dumped him on a roadside in Albania without charging him with any wrongdoing.His case against U.S. officials was dismissed by a federal court on the grounds that it would reveal "state secrets." The Bush and Obama Administrations have both invoked State Secrets to stop the disclosure of evidence that may reveal government misconduct.
And last year, an Italian court convicted 21 alleged CIA operatives and a US air force operator for their role in the kidnapping and rendition to Egypt of Abu Omar, a Muslim cleric who was already under surveillance by Italian authorities, who suspected him of having ties to al Qaeda. Omar claims he was held incommunicado and tortured in an Egyptian prison for seven months. He was eventually released without charge.
The Obama administration has repeatedly insisted that it wants to look forward, not backward, and so has refused to examine the role of senior U.S. officials in the torture of terrorism suspects. In adopting that position, the government is reneging on its obligations under the Convention Against Torture, which demands both that torturers be held accountable and that victims receive remedies.
Until the U.S. lives up to those responsibilities, its past practices and officers will continue to be scrutinized by foreign governments and justice systems. Those verdicts will cast judgment not only on the past administration's conduct, however. To the extent that foreign governments have to intervene to bring justice to victims of U.S. policies, they will reveal the extent of the United States' current respect for the rule of law as well.
Testifying to the House Judiciary Committee today, Attorney General Eric Holder reiterated his support for civilian trials for suspected terrorists and emphasized that Miranda warnings do not prevent suspects from talking. But he also repeated his statement, first made last Sunday, that the "public safety exception" to the Miranda rule should be "modernized" and "clarified" - although he never explained what's wrong with the Supreme Court rule as it stands now.
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