Psyche, Science, and Society

Do the withheld Iraq photographs depict rape and sodomy?

In a piece by Salon’s Mark Benjamin, Gen. Taguba denies last week’s Telegraph story on the content of the Iraq photos withheld by the Obama administration:

Taguba denies he’s seen abuse photos suppressed by Obama

The general told a U.K. paper about images he saw investigating Abu Ghraib — not photos Obama wants kept secret.

By Mark Benjamin

Retired Army Maj. Gen. Antonio Taguba denied reports that he has seen the prisoner-abuse photos that President Obama is fighting to keep secret, in an exclusive interview with Salon Friday night.

On Thursday an article in the Daily Telegraph reported that Taguba, the lead investigator into Abu Ghraib abuse, had seen images Obama wanted suppressed, and supported the president’s decision to fight their release. The paper quoted Taguba as saying, “These pictures show torture, abuse, rape and every indecency.”

But Taguba says he wasn’t talking about the 44 photographs that are the subject of an ongoing ACLU lawsuit that Obama is fighting.

“The photographs in that lawsuit, I have not seen,” Taguba told Salon Friday night. The actual quote in the Telegraph was accurate, Taguba said — but he was referring to the hundreds of images he reviewed as an investigator of the abuse at Abu Ghraib prison in Iraq — not the photos of abuse that Obama is seeking to suppress.

In March 2006 Salon published “The Abu Ghraib Files,” 279 photographs and 19 videos collected by the Army’s Criminal Investigation Division as it examined the shocking cases of prisoner abuse at the notorious Baghdad prison. The photos depict scenes of extreme cruelty – prisoners forced to publicly masturbate, naked prisoners held in extreme stress positions, or being walked naked by a female guard. Some photos show prisoners bloodied and otherwise injured, with untrained guards tending to their wounds.

Several news organizations have described some of those same images as among the ones Obama is seeking to suppress, when in fact, they’ve already been published by Salon.

Taguba says the Telegraph story got one important fact right: He said he does support Obama’s decision to fight the release of the images subject to the lawsuit, even though he has not seen those images. “No other photographs should be released,” Taguba told Salon, because he worries additional images might threaten the safety of U.S. troops.

On the other hand, Scott Horton claims to have validated the Telegraph report:

The Bogus Torture Coverup

The Pentagon is denying the facts: Photographs of Abu Ghraib torture are even more sexually explicit than first reported, including rape and sodomy, writes The Daily Beast’s Scott Horton, who has obtained specific and detailed corroboration of the photos.

by Scott Horton

The Daily Beast has confirmed that the photographs of abuses at Iraq’s Abu Ghraib prison, which President Obama, in a reversal, decided not to release, depict sexually explicit acts, including a uniformed soldier receiving oral sex from a female prisoner, a government contractor engaged in an act of sodomy with a male prisoner and scenes of forced masturbation, forced exhibition, and penetration involving phosphorous sticks and brooms.

These descriptions come on the heels of a British report yesterday about the photographs that contained some of these revelations—and whose credibility was questioned by the Pentagon as well as the British newspaper’s source, who claims he was misunderstood.

The Daily Beast has obtained specific corroboration of the British account, which appeared in the London Daily Telegraph, from several reliable sources, including a highly credible senior military officer with firsthand knowledge, who provided even more detail about the graphic photographs that have been withheld from the public by the Obama administration.

A senior military officer familiar with the photos told me that they would likely provoke a storm of outrage if released. The well-informed source confirmed, just as reported in the Telegraph, that many of the photographs are sexually explicit, including those mentioned above. The photographs differ from those already officially released. Some show U.S. personnel engaged in sexual acts with prisoners and each other. In one, a female prisoner appears to have been forced to expose her breasts to be photographed. In another, a prisoner is suspended naked upside down from the top bunk of a bed in a stress position.

The Telegraph article quoted retired Major General Antonio Taguba, who directed the official inquiry in 2004 into the abuses at Abu Ghraib. Taguba told the Telegraph that the “pictures show torture, abuse, rape, and every indecency.” The Telegraph reported: “At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee. Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire, and a phosphorescent tube. Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts.”

In response to the Telegraph account, Bryan G. Whitman, a deputy assistant secretary of Defense, attacked the newspaper. “That news organization has completely mischaracterized the images,” he said. “None of the photos in question depict the images that are described in that article.” White House press secretary Robert Gibbs, later in the day, widened the assault to a general one against British journalism. “If I wanted to read a writeup today of how Manchester United fared last night in the Champions League Cup, I might open up a British newspaper,” Gibbs said. “If I was looking for something that bordered on truthful news, I’m not entirely sure it’d be in the first pack of clips I’d pick up.”

In one withheld photograph, not previously described, Specialist Charles A. Graner, Jr., an Abu Ghraib guard, is shown suturing the face of a prisoner, a reliable source tells The Daily Beast. The suturing appeared to serve no ostensible medical purpose than perhaps Graner’s attempts to humiliate or terrorize the prisoner, the source suggested. Graner was court-martialed and sentenced to 10 years’ imprisonment in 2005 for charges that included prisoner abuse. A number of the withheld photographs, according to reliable sources, show Graner engaged in sexual acts with Specialist Lynndie A. England, another soldier assigned to duty at Abu Ghraib. She appears in some of the most notorious photographs disclosed so far, including one in which she walked a detainee on a leash—enacting a regimen later revealed as an authorized technique known as “walking the dog.”

Other suppressed photographs show a female prisoner assuming sexually suggestive poses in a chair, while a prison guard appears behind her in some frames. In another series, prisoners are shown hooded in a transport with open copies of pornographic magazines in their laps.

Still other withheld photographs have been circulating among U.S. soldiers who served in Iraq. One soldier showed them to me, including a photograph in which a male in a U.S. military uniform receives oral sex from a female prisoner.

The Obama administration’s decision to challenge the Telegraph account presents a dilemma because many of the photographs have already been leaked, and they match the very images that Taguba described and which Pentagon spokesman Whitman denied. The already leaked photographs can be seen at the Web sites of Salon.com, the Sydney Morning Herald of Australia, the Australian Broacasting Corp. Dateline program, and the Spanish newspaper El Mundo.

The suppressed photographs and videos are the subject of a Freedom of Information Act litigation brought by the American Civil Liberties Union. The ACLU prevailed against government claims of secrecy both in the federal district court and in the U.S. Court of Appeals for the Second Circuit. (Full disclosure: I supplied a legal expert’s opinion on the Geneva Conventions, which was cited by both courts in reaching their conclusions.) Yesterday, the Justice Department filed papers asking the court to reconsider its decision directing that the photographs be made public. In its papers, the Justice Department suggested it would seek to have the matter reviewed in the Supreme Court if its motion were to be denied.

The immediate pushback against the Telegraph story from the Pentagon, coupled with the decision of White House press secretary Gibbs to chime in, suggests the sensitivity of the issue. The full-scale strike against the Telegraph, the leading conservative quality newspaper in Britain, broadened into an offensive against the whole of British journalism, suggesting the precariousness of the public-relations effort.

The Pentagon spokesperson, Bryan G. Whitman, who came to prominence during the Bush administration, has drawn on standard operating procedures honed during the Rumsfeld era. Instead of offering correction of supposed factual inaccuracies, he has slammed the credibility of the publication itself. Yet his statement is both sweeping and extremely vague, and the claim that none of the photos reflect the descriptions in the article is immediately belied by an examination of the photos that have already been leaked.

Whitman has used this sort of bludgeoning attack on news organizations before. Ask Michael Isikoff at Newsweek. When Newsweek’s April 30, 2005, issue ran a brief Periscope piece referring to an internal report’s description of an incident in which a Quran was thrown down a toilet, Whitman launched a dramatic attack on the publication, pressuring it to retract and apologize. The report had, it later turned out, been correct. In 2007, the ACLU secured, through a Freedom of Information Act request, a copy of a 2002 FBI report which documented a prisoner’s charge that his Quran has been thrown in the toilet; five other cases of mishandling Qurans were reported, although the Pentagon insisted that none of them amounted to desecration.

The most prominent victim in the past of Whitman’s disinformation may have been none other than Barack Obama. On the campaign trail, in Austin, Texas, candidate Obama said he had gotten a message from an Army captain in Iraq who described how his unit had been shorted in munitions and equipment. I learned from reporters that Whitman started a whispering campaign with the Pentagon press corps telling them (not for attribution) that he didn’t believe Obama’s claims were true. Whitman’s game, however, was stopped by ABC reporter Jake Tapper, who tracked down the captain, interviewed him and fully verified the account.

Bryan Whitman remains on the job in the Pentagon today. But the effort to suppress the shocking photographs is already failing, as they leak to the public and reliable sources verify their authenticity. A senior military officer told me that in the months before the Abu Ghraib scandal broke, Pentagon officials engaged in strange maneuvers to avoiding viewing the pictures. That, he noted, didn’t make the photos any less real. But it apparently made it easier for Pentagon officials to dissemble about them. That process hasn’t stopped.

********

Scott Horton is a law professor and writer on legal and national-security affairs for Harper’s magazine and The American Lawyer, among other publications.

It isn’t clear from Horton’s account if the photographs he is discussing are necessarily the specific ones involved in the court case. In any case, it has been clear for a long time from multiple reports that pictures of rape and sodomy at Abu Ghraib exist.

It should also be remembered that many of the pictures the ACLU has fought for years to receive access to are not from Abu Ghraib, but from elsewhere in Iraq. Their importance is not so much the disturbing content, but the graphic evidence they will provide that the abuses of Abu Ghraib were in no sense isolated and could not have been the creations of a few isolated MPs, but were, rather, common throughout the Iraq conflict at that time. That is, that they were either authorized or tolerated up the entire chain of command. That is why the government has fought so hard to withhold those pictures. They would provided a vivid argument for the need for investigation and accountability for US torture.

May 31st, 2009

Town Hall Debate on Torture Accountability

Aljazeera yesterday recorded and is broadcasting over the next several days, a Town Hall Meeting on torture accountability. The Meeting was moderated by ex-Marine Josh Rushing and will be broadcast twice a day over the next several days on the Aljazeera channel on its Fault Lines show, viewable on the web; find your local times and look up Fault Lines on the schedule here.

Alternatively, the show is available on YouTube:

Part I:

Part II:
[My friend Nathaniel Raymond of Physicians for Human Rights get's the first question from the audience.]

May 30th, 2009

Iraq Death Sqads Special Report

I had previously embedded the British Channel 4 Special Report on the Shia Iraq Death Squads that were engaging ethnic cleansing of Baghdad. The video kept on being removed from sites I located. I just found that it is now available on Google Video:

May 30th, 2009

Was Mohammed Jawad only 12 when captured?

An Afghan human rights group is reporting that Guantanamo prisoner Mohammed Jawad, ho has been torture a number of times by US forces at Bagram and Guantanamo since his 2002 capture, may have been only 12 when captured and imprisoned. He still languishes in a Guantanamo cell, waiting to hear if President Obama will release him or resume his farcical war crimes trial:

Afghan was taken to Guantanamo aged 12: rights group

By Sayed Salahuddin

An Afghan who has spent over six years at the U.S. military’s Guantanamo Bay prison was only around 12 years old when he was detained, not 16 or 17 as his official record says, an Afghan rights group said on Tuesday.

Interviews with the family of Mohammed Jawad, who like many poor Afghans does not know his exact age or birthday, showed he was probably not even a teenager when he was arrested in 2002, the Afghan Independent Human Rights Commission said.

The U.S. military, however, disputed the commission’s assertion, saying its records stated that Jawad was 18 when he was transferred to the prison at a U.S. Naval base on Cuba.

“Based on a number of factors, to include a bone scan, the government has maintained that Jawad was 18 when he arrived at Guantanamo in 2003,” said Navy Commander J.D. Gordon, a Pentagon spokesman.

Jawad was picked up by Afghan police in connection with a grenade attack in Kabul in which two U.S. soldiers and their Afghan interpreter were wounded. He was transferred to U.S. custody the same day and flown to Guantanamo in early 2003.

Afghan human rights commissioner Nader Nadery said in addition to being a minor at the time of his detention, Jawad was tortured and abused by the Afghan police and while at the Guantanamo detention center.

The Commission is seeking his release and repatriation, and in the course of looking into his case found out he was probably considerably younger than his records showed.

‘TORTURED AND ABUSED’

“We asked his mother what was the big event close to his birth that you can remember, any change in the president etcetera, and she said that he was born around six months after his father’s death,” Nadery told Reuters.

“We tried to explore more when his father died, and his father died in a battle in Khost,” he said.

That fighting was in 1991, according to a petition submitted to the Afghan supreme court this month on Jawad’s behalf, aiming to force President Hamid Karzai to seek his release.

Nadry said the commission checked Jawad’s mother’s story, interviewing other relatives and officials including a soldier who commanded Jawad’s father.

Major Eric Montalvo, a Pentagon-appointed U.S. Marine Corps lawyer representing Jawad, said his client — who may still be a teenager if his mother’s dates are correct — should be released.

“We have a child of Afghanistan that was wrongfully taken from this country and he needs to be returned. He was tortured, he was abused over seven years of custody,” he told a news conference in the Afghan capital.

Nadry said the commission had raised Jawad’s case with the Afghan and U.S. governments in the past, without success.

Gordon, the Pentagon spokesman, said the military believed Jawad was aged 17 when the Kabul attack took place but was 18 by the time he arrived at Guantanamo.

Since joining with Afghan troops to oust the Taliban in 2001, the U.S. has arrested thousands of suspected Taliban and al Qaeda militants in Afghanistan. Some were then transferred to other places, including the Guantanamo Bay prison.

(Writing and additional reporting by Emma Graham-Harrison in Kabul and Andrew Gray in Washington; Editing by Sophie Hares and Sandra Maler)

May 28th, 2009

Witheld Abu Ghraib photos depict rape, Telegraph reports

The Telegraph reports what is in some of the photographs Obama is withholding.  This would match contemporaneous accounts of rape occurring inside the prison. It appears that President Obama lied when he said:

“I want to emphasise that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.”

Such a lie is silly, as he has to know that the truth will come out in this case. Obama’s credibility is thus reduced:

Abu Ghraib abuse photos ‘show rape’

Photographs of alleged prisoner abuse which Barack Obama is attempting to censor include images of apparent rape and sexual abuse, it has emerged.

By Duncan Gardham, Security Correspondent and Paul Cruickshank

At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee.

Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube.

Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts.

Detail of the content emerged from Major General Antonio Taguba, the former army officer who conducted an inquiry into the Abu Ghraib jail in Iraq.

Allegations of rape and abuse were included in his 2004 report but the fact there were photographs was never revealed. He has now confirmed their existence in an interview with the Daily Telegraph.

The graphic nature of some of the images may explain the US President’s attempts to block the release of an estimated 2,000 photographs from prisons in Iraq and Afghanistan despite an earlier promise to allow them to be published.

Maj Gen Taguba, who retired in January 2007, said he supported the President’s decision, adding: “These pictures show torture, abuse, rape and every indecency.

“I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them, and British troops who are trying to build security in Afghanistan.

“The mere description of these pictures is horrendous enough, take my word for it.”

In April, Mr Obama’s administration said the photographs would be released and it would be “pointless to appeal” against a court judgment in favour of the American Civil Liberties Union (ACLU).

But after lobbying from senior military figures, Mr Obama changed his mind saying they could put the safety of troops at risk.

Earlier this month, he said: “The most direct consequence of releasing them, I believe, would be to inflame anti-American public opinion and to put our troops in greater danger.”

It was thought the images were similar to those leaked five years ago, which showed naked and bloody prisoners being intimidated by dogs, dragged around on a leash, piled into a human pyramid and hooded and attached to wires.

Mr Obama seemed to reinforce that view by adding: “I want to emphasise that these photos that were requested in this case are not particularly sensational, especially when compared to the painful images that we remember from Abu Ghraib.”

The latest photographs relate to 400 cases of alleged abuse between 2001 and 2005 in Abu Ghraib and six other prisons. Mr Obama said the individuals involved had been “identified, and appropriate actions” taken.

Maj Gen Taguba’s internal inquiry into the abuse at Abu Ghraib, included sworn statements by 13 detainees, which, he said in the report, he found “credible based on the clarity of their statements and supporting evidence provided by other witnesses.”

Among the graphic statements, which were later released under US freedom of information laws, is that of Kasim Mehaddi Hilas in which he says: “I saw [name of a translator] ******* a kid, his age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard screaming I climbed the door because on top it wasn’t covered and I saw [name] who was wearing the military uniform, putting his **** in the little kid’s ***…. and the female soldier was taking pictures.”

The translator was an American Egyptian who is now the subject of a civil court case in the US.

Three detainees, including the alleged victim, refer to the use of a phosphorescent tube in the sexual abuse and another to the use of wire, while the victim also refers to part of a policeman’s “stick” all of which were apparently photographed.

May 28th, 2009

George Tenet created false torture timeline as he left CIA directorr job

Emptywheel reports a discovery that former CIA Director George Tenet created false start for the torture program in a memo created as he was leaving the CIA:

[H]ere’s the parts of the second page of the memo that aren’t redacted (all the rest except the date, sender, and addressee are redacted:

3. As you know, beginning in September 2002, the Justice Department authorized CIA in its discretion, to employ on selected HVDs [Redaction ~3 lines] waterboard, [Redaction ~2 lines] CIA has reserved use of these [Redaction] techniques to elicit ongoing threat information from the most hardcore, senior terrorist figures that have been captured– men such as Khalid Sheik Muhammad, Abu Zubaydeh, [Redaction ~ 7 lines] key members of Congress have been briefed from the beginning–CIA informed the leadership of the Congressional Intelligence Committees of the existence and nature of the Program when it commenced in late 2002, in early 2003 when members of the leadership changed, and again in September 2003.

Of course, the torture program began long before September 2002, some time in March or perhaps April, as they experimented on Abu Zubaydah.

Even then they were obsessed to create legal cover.

May 27th, 2009

“Prolonged Detention”: Dangerous beyond a reasonable doubt

In a lengthy piece on Huffington Post, David Bromwich dissects President Obama’s disturbing speech this week on national security:

Let us say it: something is seriously wrong in this administration — though we are not yet in a position to judge the cause. We do not know who the lawyers are that gave Barack Obama advice that goes against a long career of ostensible commitments. And it is too early yet to say at what point a new president, confused by the depth of his burdens and uncertain how much he believes any more of what he used to say, becomes instead a man we are compelled to see as lacking in convictions. It cannot be a virtue that he sheds the Constitution with a gentler demeanor than George W. Bush….

A misjudged statesmanship has allowed Obama to think himself magnanimous when he declines to expose the wrongs he has come to know. The way to right a wrong is not to install a somewhat reformed version of the wrong. People, by that means, may be spared embarrassment, but their instinct for truth will be corrupted. It is a false prudence that supposes justice can come from a compromise between a lawful and a lawless regime. On the contrary, the less you tell of the truth, the more prone your listeners will be to commit the next barbarous act that is proposed to them under the cover of a national emergency or a necessary war.

Bromwitch points out the true horror of Obama’s “prolonged detention” proposal, which undoes every principle of justice:

President Obama committed himself, in this speech, to hold in indefinite captivity persons the United States does not charge with specific acts, and whom it does not mean to bring to trial. The only reason for such indefinite detention can be that we do not know who the prisoners are, exactly, and therefore do not know what the charges would be; or that we know we have given the prisoners cause to resent us, after their capture if not before. This points to a darker category: persons whom we cannot bring to trial because all of the evidence against them was obtained under torture. These people either are abused but guilty or, if originally innocent, may reliably be supposed full of hatred toward the people and country that did such things to them.

This last is the fifth of Obama’s five categories: “those who cannot be prosecuted yet who pose a clear danger to the American people.” What species of twilight creature is alluded to here? Someone, it seems, whom we know to be certainly dangerous to the American people but about the danger of whom we cannot possibly open evidence at a trial, or even venture to make specific charges.

Insight into this category or prisoners may be gained from William Glaberson’s May 23 article in the New York Times on President Obama’s detention plan.

“Some proponents of an indefinite detention system,” writes Glaberson, “argue that Guantanamo’s remaining 240 detainees include cold-blooded jihadists and perhaps some so warped by their experience in custody that no president would be willing to free them.” Note the words so warped by their experience of custody. So once we have ruined them body and soul, with or without tenable initial grounds of suspicion, we grant ourselves the right to go on harming them forever. Set free, they would wreak too sure a vengeance or stand as too glaring a testimony against us. Note well: it is worse, in some ways, to have been innocent than to have been guilty at Guantanamo. The guilty man can at least stand trial. Regarding the innocent, our own guilt is so complete that to prevent its effects we must keep him in prison indefinitely. Thus we compound our crimes before trying the persons we think we can succeed in convicting as war criminals.

Once we start imprisoning people without trial, the list of potential suspects will become ever longer. Imagine if Johnson’s FBI or Nixon’s Watergate team had had this power. Can we really believe that the government will always restrain itself? Such belief flies in the face of everything we know about human nature and political power. The thousnads upon thousands on the government’s terrorist watch list are all potential subjects of “prolonged detention” for the safety of the state. Can we really assume that some President won’t take that power and use it? For the idea id to imprison forever people who cannot be brought to trial. That is, people against whom there is no reliable evidence that can convict them of a crime beyond a reasonable doubt.

It is beyond a reasonable doubt that a proposal for “prolonged detention” is a dagger at the heart of freedom.

May 25th, 2009

Spain copies US practice of universal jurisdiction

The Washington Post reports on the trend of Spanish justices to investigate human rights abuses elsewhere, including torture by the Bush administration, under universal jurisdiction. As usual with the MSM, the key information — that countries unhappy with Spain’s investigations, such as the US and Israel, themselves support universal jurisdiction when convenient — is hidden in the final paragraphs:

Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

They do not even mention the Bush administration’s successful prosecution of Liberian Chuckie Taylor [Son of then-President Charles Taylor] for torture in US courts. At the time of the conviction, an FBI official asserted universal jurisdiction over torture:

“This sentence sends a resounding message that torture will not be tolerated here at home or by U.S. nationals abroad,” said Executive Assistant Director Arthur M. Cummings II, of the FBI National Security Division. “The FBI and our law enforcement partners will continue to investigate such acts wherever they occur.”

And a Justice Department — yes, the same Justice Department that legitimated torture by US officials — asserted the gravity of the crime of torture, when committed by those out of favor in Washington:

A recent Justice Department court filing describes torture – which the U.S. has been accused of in the war on terror – as a flagrant and pernicious abuse of power and authority” that warrants severe punishment of Taylor. “It undermines respect for and trust in authority, government and a rule of law,” wrote Assistant U.S. Attorney Caroline Heck Miller in last week’s filing. “The gravity of the offense of torture is beyond dispute.

If we had a real independent press in this country, the article on Spain would have been headlined “Spain copies US practice, without hypocrisy!” But American exceptionalism insists that other countries don’t copy US practice, but, rather, do as they are told by the US.

May 24th, 2009

Greenwald: Understanding “prolonged detention”

I am still in shock that, having defeated Bush-Cheney, we’re now facing an immense threat of indefinite detention without trial, a.k.a. tyranny. And Obama’s soaring rhetoric will almost certainly get this by a Democratic congress. Glenn Greenwald explains:

Facts and myths about Obama’s preventive detention proposal

By Glenn Greenwald

In the wake of Obama’s speech yesterday, there are vast numbers of new converts who now support indefinite “preventive detention.”  It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of “preventive detention” and Obama’s related detention proposals (military commissions).  I’ll have a podcast discussion on this topic a little bit later today with the ACLU’s Ben Wizner, which I’ll add below, but until then, here are some facts and other points worth noting:

(1) What does “preventive detention” allow?

It’s important to be clear about what “preventive detention” authorizes.  It does not merely allow the U.S. Government to imprison people alleged to have committed Terrorist acts yet who are unable to be convicted in a civilian court proceeding.  That class is merely a subset, perhaps a small subset, of who the Government can detain.  Far more significant, “preventive detention” allows indefinite imprisonment not based on proven crimes or past violations of law, but of those deemed generally “dangerous” by the Government for various reasons (such as, as Obama put it yesterday, they “expressed their allegiance to Osama bin Laden” or “otherwise made it clear that they want to kill Americans”).  That’s what “preventive” means:  imprisoning people because the Government claims they are likely to engage in violent acts in the future because they are alleged to be “combatants.”

Once known, the details of the proposal could — and likely will — make this even more extreme by extending the “preventive detention” power beyond a handful of Guantanamo detainees to anyone, anywhere in the world, alleged to be a “combatant.”  After all, once you accept the rationale on which this proposal is based — namely, that the U.S. Government must, in order to keep us safe, preventively detain “dangerous” people even when they can’t prove they violated any laws — there’s no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly “dangerous” combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S.

(2) Are defenders of Obama’s proposals being consistent?

During the Bush years, it was common for Democrats to try to convince conservatives to oppose Bush’s executive power expansions by asking them:  ”Do you really want these powers to be exercised by Hillary Clinton or some liberal President?”

Following that logic, for any Democrat/progressive/liberal/Obama supporter who wants to defend Obama’s proposal of “preventive detention,” shouldn’t you first ask yourself three simple questions:

(a) what would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?;

(b) when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it, and when right-wing groups such as Heritage Foundation were alone in urging a preventive detention law in 2004, did I support them?; and

(c) even if I’m comfortable with Obama having this new power because I trust him not to abuse it, am I comfortable with future Presidents — including Republicans — having the power of indefinite “preventive detention”?

(3) Questions for defenders of Obama’s proposal:

There are many claims being made by defenders of Obama’s proposals which seem quite contradictory and/or without any apparent basis, and I’ve been searching for a defender of those proposals to address these questions:

Bush supporters have long claimed — and many Obama supporters are now insisting as well — that there are hard-core terrorists who cannot be convicted in our civilian courts.  For anyone making that claim, what is the basis for believing that? In the Bush era, the Government has repeatedly been able to convict alleged Al Qaeda and Taliban members in civilian courts, including several (Ali al-Marri, Jose Padilla, John Walker Lindh) who were tortured and others (Zacharais Moussaoui, Padilla) where evidence against them was obtained by extreme coercion.  What convinced you to believe that genuine terrorists can’t be convicted in our justice system?

For those asserting that there are dangerous people who have not yet been given any trial and who Obama can’t possibly release, how do you know they are “dangerous” if they haven’t been tried? Is the Government’s accusation enough for you to assume it’s true?

Above all:  for those justifying Obama’s use of military commissions by arguing that some terrorists can’t be convicted in civilian courts because the evidence against them is “tainted” because it was obtained by Bush’s torture, Obama himself claimed just yesterday that his military commissions also won’t allow such evidence (“We will no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods”).  How does our civilian court’s refusal to consider evidence obtained by torture demonstrate the need for Obama’s military commissions if, as Obama himself claims, Obama’s military commissions also won’t consider evidence obtained by torture?

Finally, don’t virtually all progressives and Democrats argue that torture produces unreliable evidence?  If it’s really true (as Obama defenders claim) that the evidence we have against these detainees was obtained by torture and is therefore inadmissible in real courts, do you really think such unreliable evidence — evidence we obtained by torture — should be the basis for concluding that someone is so “dangerous” that they belong in prison indefinitely with no trial?  If you don’t trust evidence obtained by torture, why do you trust it to justify holding someone forever, with no trial, as “dangerous”?

(4) Do other countries have indefinite preventive detention?

Obama yesterday suggested that other countries have turned to “preventive detention” and that his proposal therefore isn’t radical (“other countries have grappled with this question; now, so must we”).  Is that true?

In June of last year, there was a tumultuous political debate in Britain that sheds ample light on this question.  In the era of IRA bombings, the British Parliament passed a law allowing the Government to preventively detain terrorist suspects for 14 days — and then either have to charge them or release them.  In 2006, Prime Minister Tony Blair — citing the London subway attacks and the need to “intervene early before a terrorist cell has the opportunity to achieve its goals” — wanted to increase the preventive detention period to 90 days, but MPs from his own party and across the political spectrum overwhelmingly opposed this, and ultimately increased it only to 28 days.

In June of last year, Prime Minister Gordon Brown sought an expansion of this preventive detention authority to 42 days — a mere two weeks more. Reacting to that extremely modest increase, a major political rebellion erupted, with large numbers of Brown’s own Labour Party joining with Tories to vehemently oppose it as a major threat to liberty.  Ultimately, Brown’s 42-day scheme barely passed the House of Commons. As former Prime Minister John Major put it in opposing the expansion to 42 days:

It is hard to justify: pre-charge detention in Canada is 24 hours; South Africa, Germany, New Zealand and America 48 hours; Russia 5 days; and Turkey 7½ days.

By rather stark and extreme contrast, Obama is seeking preventive detention powers that are indefinite – meaning without any end, potentially permanent.  There’s no time limit on the “preventive detention.”  Compare that power to the proposal that caused such a political storm in Britain and what these other governments are empowered to do.  The suggestion that indefinite preventive detention without charges is some sort of common or traditional scheme is clearly false.

(5) Is this comparable to traditional POW detentions?

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it’s normal for ”Prisoners of War” to be held without trials, that argument was deeply misleading.  And it’s no less misleading when made now by Obama supporters.  That comparison is patently inappropriate for two reasons:  (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this “war” will not be over for decades, if ever, which means — unlike for traditional POWs, who are released once the war is over — these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional “POWs” are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting.  The potential for error and abuse in deciding who was a “combatant” was thus minimal.  By contrast, many of the people we accuse in the ”war on terror” of being “combatants” aren’t anywhere near a “battlefield,” aren’t part of any army, aren’t wearing any uniforms, etc.  Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being “the worst of the worst” yet ended up being released because they did absolutely nothing wrong.  Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high?  For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now?  Here is what Anne-Marie Slaughter — now Obama’s Director of Policy Planning for the State Department — said about Bush’s “POW” comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they’ve always been used to try spies that we find behind enemy lines. It’s normally a situation, you’re on the battlefield, you find an enemy spy behind your lines. You can’t ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That’s not this situation. It’s not remotely like it.

As for duration, the U.S. government has repeatedly said that this “war” is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that “unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end” and that we’ll still be fighting this “war” ”a year from now, five years from now, and — in all probability — 10 years from now.”  No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage.  That’s why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

(6) Is it “due process” when the Government can guarantee it always wins?

If you really think about the argument Obama made yesterday — when he described the five categories of detainees and the procedures to which each will be subjected — it becomes manifest just how profound a violation of Western conceptions of justice this is.  What Obama is saying is this:  we’ll give real trials only to those detainees we know in advance we will convict. For those we don’t think we can convict in a real court, we’ll get convictions in the military commissions I’m creating.  For those we can’t convict even in my military commissions, we’ll just imprison them anyway with no charges (“preventively detain” them).

Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process.  Those are called “show trials.”  In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict.  The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite:  in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest).  The Government picks and chooses which process you get in order to ensure that it always wins. A more warped “system of justice” is hard to imagine.

(7) Can we “be safe” by locking up all the Terrorists with no charges?

Obama stressed yesterday that the “preventive detention” system should be created only through an act of Congress with “a process of periodic review, so that any prolonged detention is carefully evaluated and justified.” That’s certainly better than what Bush did:  namely, preventively detain people with no oversight and no Congressional authorization — in violation of the law.  But as we learned with the Military Commissions Act of 2006 and the Protect America Act of 2007, the mere fact that Congress approves of a radical policy may mean that it is no longer lawless but it doesn’t make it justified.  As Professor Amann put it:  ”no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.”  Dan Froomkin said that no matter how many procedures are created, that’s “a dangerously extreme policy proposal.”

Regarding Obama’s “process” justification — and regarding Obama’s primary argument that we need to preventively detain allegedly dangerous people in order to keep us safe — Digby said it best:

We are still in a “war” against a method of violence, which means there is no possible end and which means that the government can capture and imprison anyone they determine to be “the enemy” forever.  The only thing that will change is where the prisoners are held and few little procedural tweaks to make it less capricious. (It’s nice that some sort of official committee will meet once in a while to decide if the war is over or if the prisoner is finally too old to still be a “danger to Americans.”)

There seems to be some misunderstanding about Guantanamo. Somehow people have gotten it into their heads is that it is nothing more than a symbol, which can be dealt with simply by closing the prison. That’s just not true. Guantanamo is a symbol, true, but it’s a symbol of a lawless, unconstitutional detention and interrogation system. Changing the venue doesn’t solve the problem.

I know it’s a mess, but the fact is that this isn’t really that difficult, except in the usual beltway kabuki political sense. There are literally tens of thousands of potential terrorists all over the world who could theoretically harm America. We cannot protect ourselves from that possibility by keeping the handful we have in custody locked up forever, whether in Guantanamo or some Super Max prison in the US. It’s patently absurd to obsess over these guys like it makes us even the slightest bit safer to have them under indefinite lock and key so they “can’t kill Americans.”

The mere fact that we are doing this makes us less safe because the complete lack of faith we show in our constitution and our justice systems is what fuels the idea that this country is weak and easily terrified. There is no such thing as a terrorist suspect who is too dangerous to be set free. They are a dime a dozen, they are all over the world and for every one we lock up there will be three to take his place. There is not some finite number of terrorists we can kill or capture and then the “war” will be over and the babies will always be safe. This whole concept is nonsensical.

As I said yesterday, there were some positive aspects to Obama’s speech.  His resolve to close Guantanamo in the face of all the fear-mongering, like his release of the OLC memos, is commendable.  But the fact that a Democratic President who ran on a platform of restoring America’s standing and returning to our core principles is now advocating the creation of a new system of indefinite preventive detention — something that is now sure to become a standard view of Democratic politicians and hordes of Obama supporters — is by far the most consequential event yet in the formation of Obama’s civil liberties policies.

May 23rd, 2009

Rachel Maddow on Obama “prolonged detention” proposal

Rachel Maddow takes on the profound attack on civil liberties by Barak Obama in his proposal for “prolonged detention.” It is not a middle-road by a profound attack on the very concept of freedom and the rule of law.

“This was a beautiful speech from President Obama today, with patriotic, moving, even poetic language about the rule of law and the Constitution; and one of the most radical proposals for defying the Constitution that we have ever heard made to the American people.”

We know from long experience that “prolonged detention” for the few will likely become indefinite detention for the many in not too many years. The next President Bush will have a tool of oppression that the past President Bush never thought he could get through his Republican pals in Congress.

May 23rd, 2009