Archive for April 12th, 2009

Maj. Gen. Taguba to speak at Harvard: The Challenge of Accountability

For my Boston area readers, an important event:

The Challenge of Accountability:
A Conversation with Major General Antonio Taguba

Tuesday, April 14, 2009
4:00-6:15 PM
Austin Hall North, Harvard Law School
Cambridge MA

Please join PHR [Physicians for Human Rights] and Retired U.S. Army Major General Antonio Mario Taguba for an exciting afternoon of discussion, debate and dialogue on torture by US forces in the war against terror-and how we can hold accountable those who committed these heinous crimes.

General Taguba is the author of the 2004 Taguba Report, an internal U.S. Army report on detainee abuse at Abu Ghraib prison in Iraq. He has testified before Congress on the issue of detainee abuse, and in the preface of the 2008 Physicians for Human Rights publication Broken Laws, Broken Lives he wrote that “…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.”

This event is co-sponsored by Physicians for Human Rights, the Human Rights Program at Harvard Law School, Harvard Law Student Advocates for Human Rights, HLS ACLU, and the National Security and Law Association.

For more information on this event,
contact Sarah Kalloch at skalloch@phrusa.org or 617.301.4235.

April 12th, 2009

Hari: The truth about pirates

The Independent columnist Johann Hari has a fascinating piece on pirates, who, he claims, are misunderstood. Such misunderstanding is not surprising given that history and “news” tends to be written in the interests of the powerful:

You Are Being Lied to About Pirates

By Johann Hari

Who imagined that in 2009, the world’s governments would be declaring a new War on Pirates? As you read this, the British Royal Navy – backed by the ships of more than two dozen nations, from the US to China – is sailing into Somalian waters to take on men we still picture as parrot-on-the-shoulder pantomime villains. They will soon be fighting Somalian ships and even chasing the pirates onto land, into one of the most broken countries on earth. But behind the arrr-me-hearties oddness of this tale, there is an untold scandal. The people our governments are labeling as “one of the great menace of our times” have an extraordinary story to tell — and some justice on their side.

Pirates have never been quite who we think they are. In the “golden age of piracy” – from 1650 to 1730 – the idea of the pirate as the senseless, savage thief that lingers today was created by the British government in a great propaganda-heave. Many ordinary people believed it was false: pirates were often rescued from the gallows by supportive crowds. Why? What did they see that we can’t? In his book Villains of All nations, the historian Marcus Rediker pores through the evidence to find out. If you became a merchant or navy sailor then – plucked from the docks of London’s East End, young and hungry – you ended up in a floating wooden Hell. You worked all hours on a cramped, half-starved ship, and if you slacked off for a second, the all-powerful captain would whip you with the Cat O’ Nine Tails. If you slacked consistently, you could be thrown overboard. And at the end of months or years of this, you were often cheated of your wages.

Pirates were the first people to rebel against this world. They mutinied against their tyrannical captains – and created a different way of working on the seas. Once they had a ship, the pirates elected their captains, and made all their decisions collectively. They shared their bounty out in what Rediker calls “one of the most egalitarian plans for the disposition of resources to be found anywhere in the eighteenth century.” They even took in escaped African slaves and lived with them as equals. The pirates showed “quite clearly – and subversively – that ships did not have to be run in the brutal and oppressive ways of the merchant service and the Royal navy.” This is why they were popular, despite being unproductive thieves.

The words of one pirate from that lost age – a young British man called William Scott – should echo into this new age of piracy. Just before he was hanged in Charleston, South Carolina, he said: “What I did was to keep me from perishing. I was forced to go a-pirating to live.” In 1991, the government of Somalia – in the Horn of Africa – collapsed. Its nine million people have been teetering on starvation ever since – and many of the ugliest forces in the Western world have seen this as a great opportunity to steal the country’s food supply and dump our nuclear waste in their seas.

Yes: nuclear waste. As soon as the government was gone, mysterious European ships started appearing off the coast of Somalia, dumping vast barrels into the ocean. The coastal population began to sicken. At first they suffered strange rashes, nausea and malformed babies. Then, after the 2005 tsunami, hundreds of the dumped and leaking barrels washed up on shore. People began to suffer from radiation sickness, and more than 300 died. Ahmedou Ould-Abdallah, the UN envoy to Somalia, tells me: “Somebody is dumping nuclear material here. There is also lead, and heavy metals such as cadmium and mercury – you name it.” Much of it can be traced back to European hospitals and factories, who seem to be passing it on to the Italian mafia to “dispose” of cheaply. When I asked Ould-Abdallah what European governments were doing about it, he said with a sigh: “Nothing. There has been no clean-up, no compensation, and no prevention.”

At the same time, other European ships have been looting Somalia’s seas of their greatest resource: seafood. We have destroyed our own fish-stocks by over-exploitation – and now we have moved on to theirs. More than $300m worth of tuna, shrimp, lobster and other sea-life is being stolen every year by vast trawlers illegally sailing into Somalia’s unprotected seas. The local fishermen have suddenly lost their livelihoods, and they are starving. Mohammed Hussein, a fisherman in the town of Marka 100km south of Mogadishu, told Reuters: “If nothing is done, there soon won’t be much fish left in our coastal waters.”

This is the context in which the men we are calling “pirates” have emerged. Everyone agrees they were ordinary Somalian fishermen who at first took speedboats to try to dissuade the dumpers and trawlers, or at least wage a ‘tax’ on them. They call themselves the Volunteer Coastguard of Somalia – and it’s not hard to see why. In a surreal telephone interview, one of the pirate leaders, Sugule Ali, said their motive was “to stop illegal fishing and dumping in our waters… We don’t consider ourselves sea bandits. We consider sea bandits [to be] those who illegally fish and dump in our seas and dump waste in our seas and carry weapons in our seas.” William Scott would understand those words.

No, this doesn’t make hostage-taking justifiable, and yes, some are clearly just gangsters – especially those who have held up World Food Programme supplies. But the “pirates” have the overwhelming support of the local population for a reason. The independent Somalian news-site WardherNews conducted the best research we have into what ordinary Somalis are thinking – and it found 70 percent “strongly supported the piracy as a form of national defence of the country’s territorial waters.” During the revolutionary war in America, George Washington and America’s founding fathers paid pirates to protect America’s territorial waters, because they had no navy or coastguard of their own. Most Americans supported them. Is this so different?

Did we expect starving Somalians to stand passively on their beaches, paddling in our nuclear waste, and watch us snatch their fish to eat in restaurants in London and Paris and Rome? We didn’t act on those crimes – but when some of the fishermen responded by disrupting the transit-corridor for 20 percent of the world’s oil supply, we begin to shriek about “evil.” If we really want to deal with piracy, we need to stop its root cause – our crimes – before we send in the gun-boats to root out Somalia’s criminals.

The story of the 2009 war on piracy was best summarised by another pirate, who lived and died in the fourth century BC. He was captured and brought to Alexander the Great, who demanded to know “what he meant by keeping possession of the sea.” The pirate smiled, and responded: “What you mean by seizing the whole earth; but because I do it with a petty ship, I am called a robber, while you, who do it with a great fleet, are called emperor.” Once again, our great imperial fleets sail in today – but who is the robber?

*******

Johann Hari is a writer for the Independent newspaper. To read more of his articles, click here. or here.

POSTSCRIPT: Some commenters seem bemused by the fact that both toxic dumping and the theft of fish are happening in the same place – wouldn’t this make the fish contaminated? In fact, Somalia’s coastline is vast, stretching to 3300km. Imagine how easy it would be – without any coastguard or army – to steal fish from Florida and dump nuclear waste on California, and you get the idea. These events are happening in different places – but with the same horrible effect: death for the locals, and stirred-up piracy. There’s no contradiction.

April 12th, 2009

Fein joins those critical of Obama’s expansive powers claims

Conservative Constitutional lawyer Bruce Fein joins those profoundly distressed by President Obama’s rejection on human rights and turn to absolutist arbitrary state power:

Czar Obama
The president’s incredibly imperialist wielding of executive power

By Bruce Fein

President Barack Obama’s claim to czarlike powers in a perpetual global war against international terrorism has been blunted by a judicial appointee of former President George W. Bush. Last week, in the case Fadi al Maqaleh, United States District Judge John D. Bates denied that President Obama could make suspected “enemy combatants” disappear into the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan without an opportunity for exoneration. (While President Obama has abandoned the term enemy combatant for Guantanamo Bay detainees, he has retained the label for detainees held elsewhere.)

Bates’ ruling is a welcome check on an emerging pattern of mightily expansive claims of executive authority by the new administration. In early February, President Obama sought another imperial power before the United States Court of Appeals for the 9th Circuit in the case Mohammed v. Jeppesen Dataplan. The complaint alleged that the plaintiffs had been seized by American personnel, taken to airports, stripped, blindfolded, shackled to the floor of a Gulfstream V, and taken to destination countries for torture and harsh incarceration. The District Court dismissed the complaint because then-President Bush and Vice President Cheney argued that state secrets would be exposed if the case were litigated. During oral argument before the 9th Circuit, Obama echoed the state-secrets argument made by Bush and Cheney. Similarly, the president who promised “change” is wielding the tool of state secrets in aiming to dismiss, without the gathering of evidence, challenges to the National Security Agency’s Terrorist Surveillance Program, which entailed warrantless phone or e-mail interceptions of American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. This defense has failed before Judge Vaughn R. Walker in early rounds of the litigation. And, again, the state-secrets privilege is the administration’s response, if ancillary to a defense of retroactive immunity, in a brief filed last week to the efforts of the Electronic Frontier Foundation to sue Bush administration officials for the NSA’s wiretapping.

In principle, President Obama is maintaining that victims of constitutional wrongdoing by the U.S. government should be denied a remedy to prevent the American people and the world at large from learning of the lawlessness perpetrated in the name of national security and exacting political and legal accountability. Thus Mahar Arar, who was tortured by Syrian agents, allegedly with the complicity of U.S. intelligence or immigration agents, has been denied a judicial remedy, again based on the state-secrets rule, to hide the identifies of his U.S. government persecutors. Similarly, victims of torture authorized by the president or vice president would encounter the state-secrets bar if they sought redress. Disclosing the methods of torture, the government has argued, might enable al-Qaida detainees to prepare better psychologically or physically to resist the criminal abuse! Such reasoning more befits the pages of Alexander Solzhenitsyn’s Gulag Archipelago than the U.S. Supreme Court opinion in ex parte Milligan: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

In the Bagram Prison litigation, Judge Bates summoned the observation of Alexander Hamilton writing in The Federalist 84: “[C]onfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” Accordingly, he held that enemy combatant detainees at Bagram who were captured outside Afghanistan and who were not Afghan citizens could challenge the constitutionality of their detentions in federal courts through writs of habeas corpus.

If President Obama had embraced the principles of a republic (which cares about injustice) instead of the arrogance of empire (which admires swagger), neither the habeas corpus nor state-secrets litigation would have been necessary. In the former case, four detainees held at Bagram for six years or more filed petitions in the United States District Court for the District of Columbia assailing the legality of their incarcerations based solely on the president’s assertion that they were “enemy combatants.” That concept—as defined by President Obama—sweeps far beyond persons accused of directly aiding or participating in hostilities against the United States. It includes persons who “supported hostilities in aid of enemy forces,” which might encompass the provision of food, medicines, or trousers. The detainees had been captured in Tunisia, Thailand, Dubai, and an unknown location outside Afghanistan. One was an Afghan citizen, two were Yemenis, and one was Tunisian.

President Obama ratified the following charade to make “enemy combatant” determinations at Bagram, which can be the equivalent of life sentences. The initial judgment is made “in the field.” It is reviewed within 75 days, and then at six-month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board, a panel of three commissioned officers. It examines “all relevant information reasonably available.” The detainee is denied access to a personal representative or lawyer. He is denied access to the government’s evidence. He is denied an opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted. After its sham hearing, the UECRB makes a recommendation by majority vote to the commanding general as to whether the detainee is an “enemy combatant.”

The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that “enemy combatant” status justifies detention, enforces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the “very definition of tyranny” in The Federalist 47. In addition, the incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.

President Obama’s claim of wartime necessity as justifying constitutional shortcuts is unpersuasive. The United States granted accused war criminals captured in the China Theater a particularized statement of charges and a rigorous adversarial process, noted by the United States Supreme Court in the 1950 case Eisentrager v. Johnson. As regards state secrets, the government can always accept a default judgment, meaning an acceptance of liability for alleged injuries, if it wishes to preserve vital intelligence sources and methods. The government confronts the same choice in criminal cases—i.e., either to disclose classified information necessary for a fair trial or to drop the prosecution.

President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president’s adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself.

********

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.

April 12th, 2009

Samuels: Israeli interests dictate an Iran attack

David Samuels in Slate has a very interesting argument as to Why Israel Will Bomb Iran. In an odd way, it is refreshingly realistic in discussing the issue totally within the context of the national interests of the various actors. In particular, an Israeli attack on Iran is seen as a way that Israel has of extending its usefulness to the US as its main client state in the Middle East:

The key fact of the American-Israeli alliance that most commentators seem eager to elide is that Israel is America’s leading ally in the Middle East because it is the most powerful country in the Middle East….

By shattering the old balance of power in the Middle East with its spectacular military victory in the Six Day War, Israel announced itself to America as the reigning military power in the region and as a profoundly destabilizing influence that needed to be contained. The parallels between Israel’s rise to superpower-client status in the 1950s and 1960s and the Iranian march toward regional hegemony over the past decade are quite striking. Both Israel circa 1967 and modern-day Iran are non-Arab states that utilized innovative military tactics to panic the Arabs. Yet where Iran is a non-Arab country with a population of more than 70 million, Israel was and is a tiny non-Arab, non-Muslim country whose small population and seat-of-the-pants style of leadership made even the country’s modest colonial ambitions seem like a stretch. In the absence of any fixed plan of expansion, or any long-term plan for dealing with its neighbors, Israel decided to use its excess military power and captured lands as a chit that it could exchange for resources provided from outside the region by its wealthy American patron.

This logic leads Israel to take actions to counter its declining importance to the US:

[T]he weaker and more dependent Israel becomes, the more Israeli interests and American interests are likely to diverge. Stripped of its ability to take independent military action, Israel’s value to the United States can be seen to reside in its ability to give the Golan Heights back to Syria and to carve out a Palestinian state from the remaining territories it captured in 1967—after which it would be left with only the territories of the pre-1967 state to barter for a declining store of U.S. military credits, which Washington might prefer to spend on wooing Iran.The untenable nature of this strategic calculus gives a cold-eyed academic analyst all the explanation she needs to explain Israel’s recent wars against Hezbollah and Hamas, its assassinations of Iranian nuclear scientists and engineers, and its 2007 attack on the Syrian nuclear reactor. Israel’s attempts to restore its perceived capacity for game-changing independent military action are directed as much to its American patron as to its neighbors.

This logic will lead, Samuels argues, to an attack on Iran:

An attack on Iran might be risky in dozens of ways, but it would certainly do wonders for restoring Israel’s capacity for game-changing military action….

Short of an Iranian-hostage-rescue-mission-type debacle in which a small Israeli tactical force crashes in the Iranian desert, or a presidential order from Obama to shoot down Israeli planes on their way to Natanz, any Israeli air raid on Iran is likely to succeed in destroying masses of delicate equipment that the Iranians have spent a decade building at enormous cost in time and treasure. It is hard to believe that Iran could quickly or easily replace what it lost. Whether it resulted in delaying Iran’s march toward a nuclear bomb by two years, five years, or somewhere in between, the most important result of an Israeli bombing raid would be to puncture the myth of inevitability that has come to surround the Iranian nuclear project and that has fueled Iran’s rise as a regional hegemon.

For Israel fears that the US will eventually surrender Israel as its primary Middle East client for Iran:

The parallels between Israel’s rise to superpower client status after 1967 and Iran’s recent rise offer another strong reason for Israel to act—and act fast. The current bidding for Iran’s favor is alarming to Israel not only because of the unfriendly proclamations of Iranian leaders but because of what an American rapprochement with Iran signals for the future of Israel’s status as an American client. While America would probably benefit by playing Israel and Iran against each other for a while to extract the maximum benefit from both relationships, it is hard to see how America would manage to please both clients simultaneously and quite easy to imagine a world in which Iran—with its influence in Afghanistan and Iraq, its control over Hezbollah and Hamas, and easy access to leading members of al-Qaida—would be the partner worth pleasing.

In a surprising conclusion, Samuels argues that a Palestinian state will be the price that Israel will have to pay for its attack on Iran, and that this is a price they are quite willing to pay:

The only real downside for Israel of an attack on Iran is Washington’s likely response to the anger of the Arab street and the European street, both of which are likely to express their fierce outrage against Israel and the United States. The price of an Israeli attack on Iran is therefore clear to anyone who reads Al Ahram or the Guardian: a Palestinian state. It seems fair to say that both Israeli Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak see the establishment of some kind of Palestinian state as inevitable and also as posing real security risks to Israel.

Yet, in a perverse way, the idea that the price of an attack on Iran will be the establishment of a Palestinian state makes the logic of such an attack even clearer. Israel’s leaders know that the security threats inherent in giving up most of the West Bank will be greatly augmented or diminished depending on how a Palestinian state is born. A Palestinian state born as the result of Israeli weakness is a much greater danger to Israel than a state born out of Israeli strength….

The inevitability of a future Palestinian state is the most powerful argument for the inevitability of an Israeli attack on Iran—unless the Iranian nuclear program is stopped by other means. Taking out the Iranian nuclear program is the one obvious avenue by which Israel can turn the debilitating drip-drip-drip of territorial giveaways and international condemnation into a convincing appearance of strength. Destroying a respectable number of Iranian centrifuges will end Iran’s march to regional hegemony and eliminate Israel’s chief rival for America’s affections while also allowing Israel to gain the legal and demographic benefits of a Palestinian state with a minimum of long-term risk.

While I’ve extracted the central argument here, the entire article is well worth reading. I do not know if the argument is correct. But it certainly is plausible.

UPDATE: For an alternate view, that Isreal may be tempted to attack, but simply cannot do so without US permission, see Roane Carey’s Don’t Flash the Yellow Light.

April 12th, 2009

Not all CIA torture protected by OLC “golden shield”

New evidence supports the case that the CIA was using “enhanced interrogation” techniques befoer August 1, 2002, when they received their “get out of jail free card” from the Justice Department, in the form of the torture memos. Jason Leopold reports:

The CIA began videotaping interrogations of two alleged “high value” terrorist detainees in April 2002, four months before Bush administration attorneys issued a memo clearing the way for CIA interrogators to use “enhanced interrogation techniques,” the Justice Department disclosed in court documents.

However, In a letter to a federal court judge Thursday, the Justice Department only agreed to provide details on the harshest interrogations of prisoner Abu Zubaydah that occurred in August 2002 – after the Bush administration’s lawyers had provided the legal cover for waterboarding and other brutal tactics.

That letter prompted ACLU lawyers to express concern over why the government offered no promises regarding the preceding months. Amrit Singh, an ACLU staff attorney, said the government’s “motivations in confining its [latest] response to the month of August are highly suspect.”…

“It seems like the letter provides no explanation for why records for other months should not be included in the government’s work plan,” the ACLU’s Singh said in an interview. “We already know that an FBI agent who witnessed Abu Zubaydah’s interrogation prior to August 2002 said he believed it to be ‘borderline torture.’”…

“There are questions as to who was authorizing what for the CIA before August,” Singh said. “Those facts need to be made public and that’s why we need to have an investigation.”

April 12th, 2009


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