Psyche, Science, and Society

Bahrain Center for Human Rights: Members of Bahraini royal family beating & torturing political prisoners

As Obama and US allies condemn the murderous regime in Syria and bomb that in Libya, they are largely silent on the horrors being perpetrated by US allies Bahrain and Saudi Arabia in repressing the majority of the population in Bahrain. These horrors include arresting, torturing, and prosecuting medical personnel for the crime of treating nonviolent protesters against this oppressive regime. The Bahrain Center for Human Rights is asking for help in response to this disturbing report.

While it isn’t clear exactly what aid they are requesting, US citizens should demand that all military and police aid to Bahrain and Saudi Arabia cease until the repression in Bahrain ends and all foreign, including Saudi, troops are withdrawn. Of course, with a large US naval base in Bahrain, and the extent of dependence on Saudi oil, US support for these brutal dictatorships will likely continue irregardless of the degree of repression. The regime surely knows this. :

Some members of the Bahraini royal family beating & torturing political prisoners

Swedish Citizen tortured by Nasser Alkhalifa, son of King Hamad

16 August 2011

The BCHR expresses grave concern and is alarmed to learn that members of the Alkhalifa family have personally been involved in beating and torturing pro-democracy protesters. After the crackdown on the pro-democracy movement in Bahrain the Center has been receiving reports from victims that they were subjected to severe beatings and torture by people they identified as members of the Bahraini royal family. Five members of Alkhalifa have been specifically mentioned by victims, they are: Noura Alkhalifa, Khalifa Bin Ahmed Alkhalifa, Khalifa Bin Abdulla Alkhalifa and sons of the King, Khaled Bin Hamad Alkhalifa and Nasser Bin Hamad Alkhalifa. One of the victims subjected to torture by Nasser Bin Hamad Alkhalifa is Swedish citizen, Mohammed Habeeb Al-Muqdad, currently imprisoned at Al-Gurain military prison.

Detention Centers

The first victim to speak out was poet Ms Ayat Al-Qurmuzi, who was imprisoned for reading a couple of anti-government poems during the pearl roundabout peaceful protest. Ayat was arrested by masked civilians and blindfolded, after her release she spoke of being tortured by men and women. One of the women she claims tortured her was Noura Alkhalifa. Ayat gave a detailed account of what she was subjected to on the hands of Noura. Among other things Ayat said Noura cursed her, spat on her, and slapped her many times across the face. Noura threatened Ayat that her tongue would be cut off, when Ayat refused to open her mouth, Noura hit her with a broom on her mouth. Noura also spat into Ayats mouth and used electric shocks on Ayats face. As Noura Alkhaifa tortured Ayat she repeated slurs against shias and said “the people you criticize are your masters, and they will remain in power forever, whether you like it or not”.

Another victim is doctor Fatima Hajji. On the 17th of April Noura Alkhalifa and 25 masked men attacked Dr. Fatimas flat in the village of Bani Jamra and arrested her. During interrogations Noora demanded that Fatima confess, when Fatima said she had done nothing but treat patients Noura replied “If you do not confess I will have to torture you the way I tortured Doctor Ali Al-Ekri.” She added that detainees Roula Al-Saffar and Ghassan Dhaif had already confessed.

Noura started slapping and cursing Fatima continuously for about 25 minutes. Then she used a hose to beat her on her feet. When Noura Alkhalifa looked through Dr. Fatimas blackberry and saw two emails, one to Human Rights Watch about her suspension and the other about Martyr Ahmed Shams she shouted at Dr. Fatima “How dare you ruin the image of our government”, then electrocuted her on her face.

Fatima was told to confess that she had pretended to cry in front of foreign media, and that she had stolen 100 bags of blood from the blood bank and given it out to protesters to spill on themselves and pretend to be injured. She was forced to sign a confession after being threatened with rape. Fatima was also sexually harassed by men under the supervision of Noura. She was forced to stand on one leg, make animal noises, sing and dance.

Fatima Al-Bagali who is a student at the teaching college in University of Bahrain was arrested on the 9th of May 2011. She was blindfolded and taken to West Riffa detention center. Where Khalifa Bin Ahmed Alkhalifa The center director interrogated her about a speech she had given on Pearl Square, and about antigovernment comments she had made on facebook. Khalifa beat Fatima, slapping and kicking her as he said “You shia are ungrateful to your masters the Al-Khalifa”. In addition, some of the police officers threatened to rape Fatima if she dared to speak about what she had been subjected to.

Another victim also testified that he was interrogated by Khalifa Bin Ahmed AlKhalifa, who had a picture of the victim in a peaceful protest by the Ministry of Information. The victim says he was asked repeatedly about his participation in that protest, then was blindfolded, beaten and electrocuted on his genitals.

In another case, three of the activists arrested and sentenced for attempting to overthrow the regime also reported that they had been beaten by members of the royal family. The first, Abdulla Isa Al-Mahroos, said he was beaten by Nasser Bin hamad Alkhalifa, and that Nassar forced him to open his mouth then spat in his mouth. Al-Mahroos was also beaten by Head of the Security Apparatus Khalifa Bin Abdulla Alkhalifa. Who kicked him repeatedly in the stomach and ordered the prison guards to walk over his stomach which caused internal bleeding in the abdomen. Afterwhich Al-Mahroos was transferred to the military hospital where he had two surgeries.

The second is Swedish citizen Mohammed Habib Al-Muqdad, who was detained in an underground prison in the National Security Apparatus in the Fort. Al-Muqdad recalls that while being tortured suddenly everybody was silent. He heard his torturers say “your majesty” someone asked him “do you know who I am?” When Al-Muqdad said no, his blindfold was removed and the man infront of him said “I’m Prince Nasser Bin Hamad Al-Khalifa. When you protested outside our castle in Safriya, only a wall separated us”. Then Nasser asked Al-Muqdad what chants he had said that day at the protest. When Almuqdad said “Down Down Hamad” Nasser slapped Al-Muqdad who fell to the ground, then with the help of torturers beat him severely.

There is a wealth of evidence confirming that, at the very least, the government and the ruling establishment had knowledge and condoned the actions of the security forces. The most notable example of this is the actions and speeches of Nasser Al Khalifa , the son of the reigning monarch. In a public forum, on state television, Nasser Al Khalifa threatened retribution to all those involved in the protests regardless of their position in society and their profession. In a telling final statement, Nasser Al Khalifa noted that, as an island state, those involved in the protests in Bahrain had “nowhere to escape too”. If any doubt could be attributed to his unequivocal assertions, such doubt would be obliterated by the actions of the government and the personal actions of Nasser Al Khalifa. Within a few hours of this statement, the systematic targeting of athletes involved in the protests commenced. To compound this, Nasser himself became personally involved in the torture.

Mohammed Hassan Jawad (64 yrs old) was blindfolded and handcuffed when Nasser Bin Hamad asked him “do you know who I am, its Nasser with you” Then the son of the king started interrogating Mr. Jawad about the Safriya protest and accusing him of organizing the protest. To force him to confess, Nasser beat Mr. Jawad with a hose on his head until he fell to the ground. Then Nasser started kicking him mostly on his back, while swearing at shia clerics and imams.

Al-Safriya checkpoint

Different victims beaten at tha Al-Safriya checkpoint (close to the palace of the king) gave their testimonies but asked we do not share their names out of fear for their safety. The first is a bus driver who was driving high school students when he was stopped under gun point by the Bahraini army at the checkpoint. He was shocked when Nasser Bin Hamad, son of the King, came wearing a military uniform and started beating him. The victim says Nasser never used his hands but kicked him, in sensitive areas, in his head and chest, and mostly on his face until he started bleeding. When soldiers told Nasser that they would beat him, Nasser replied “No leave him to me”. After severe beating the victim was arrested for two weeks until the marks on his body faded.

The second victim was stopped at the same checkpoint, where Khaled Bin Hamad, son of King Hamad, ordered him to get out of his car and lie down on the ground. Khaled ordered that the victims car and phone get searched. When an anti government message was found on his phone, Khaled started kicking the victim. The beating continued for two hours and a half, by Khaled and other soldiers with him, until the victims nose and mouth bled. The victim was then forced to kiss Khaleds shoes. While beating the victim Khaled asked him how many times he had been to Pearl Square and swore at shia, and their leaders. This victim was detained for 2 months with no charges or trial.

In the third case at Al-Safriya checkpoint, an older man with two sons were stopped. The older man was told to put his head down in respect to the “Sheikh” (member of royal family), his sons were dragged out of the car and thrown on the ground infront of Khaled Bin Hamad Alkhalifa. Khaled was wearing a military uniform, and started beating the two boys using his gun. Khaled asked the boys about a sticker on their car which read “Sunni and Shia are brothers” he made them read it out loud then said “We are not brothers, all shia are homosexuals.” The boys said they were beaten severely by Khaled and Saudi soldiers. When a Saudi soldier called the victims “dogs”, Khaled said “These are not dogs, they’re pigs. At least our dogs are loyal”.

These are a few of the reports brought to the BCHR about torture and mistreatment by members of the royal family. Many other victims came forward but were afraid they would be targeted if they spoke out and asked us not to include their accounts in our report. Putting members of the royal family in the positions of torturers and interrogators will only lead to more mistrust and anger towards the monarchy. The BCHR also observes that most of the victims tortured or beaten by members of the royal family, were subjected to insults directed towards one sect of the population.

The BCHR demands an investigation into the crimes of the five members of the the royal family mentioned in this report and that all those responsible for mistreating and torturing prisoners be brought to justice.

 

2 comments August 19th, 2011

UN official critical of US refusal to allow Bradley Maning visit

As Glenn Greenwald points out, today one can go to the British newspaper the Guardian to learn that UN Special Rapporteur on Torture is vigorously protesting the US violation of its own rules in denying the Rapporteur an unmonitored visit with Bradley Manning. In this way, as in so many others, the US under Obama resembles the various authoritarian governments around the world:

Bradley Manning case sparks UN criticism of US government
UN torture representative suggests White House stalling his private meeting with American soldier

By Ewen MacAskill

A senior United Nations representative on torture, Juan Mendez, issued a rare reprimand to the US government on Monday for failing to allow him to meet in private Bradley Manning, the American soldier held in a military prison accused of being the WikiLeaks source. It is the kind of censure that the UN normally reserves for authoritarian regimes around the world.

Mendez, the UN special rapporteur on torture, said: “I am deeply disappointed and frustrated by the prevarication of the US government with regard to my attempts to visit Mr Manning.”

Manning’s supporters claim that the US is being vindictive in its treatment of Manning, who is held at the Marine base at Quantico, Virginia, in conditions they describe as inhumane.

Mendez, who has been investigating complaints about his treatment since before Christmas, said the US department of defence would not allow him to make an “official” visit, only a “private” one. An “official” visit would mean he meets Manning without a guard present. A “private” visit means with a guard and anything the prisoner says could be used in the planned court-martial.

Mendez pointed out that his mandate was to conduct unmonitored visits, and that had been the practice in at least 18 countries over the last six years.

“Since December 2010, I have been engaging the US government on visiting Mr Manning, at the invitation of his counsel, to determine his condition,” Mendez said. “Unfortunately, the US government has not been receptive to a confidential meeting with Mr Manning.”

He added: “I have since last year on several occasions raised serious concern about the conditions of detention of Mr Manning, who since his arrest in May 2010, has been confined to his cell for 23 hours a day at the Marine Corps Brig, Quantico, Virginia. I have also urged the authorities to ensure his physical and mental integrity.”

He had been due to issue his statement on Friday but delayed it until after a meeting the same day with representatives of the US defence and state departments to ask them to reconsider their decision to deny him unfettered access. The officials confirmed that Manning could ask to see Mendez if he wished and, in that case, the US government would have no objection to a “private visit”, Mendez said.Mendez, an Argentinian, took over the job last year for a six-year term. Before that, he worked for the UN as a specialist in genocide.

He said: “My request for a private, confidential and unsupervised interview with Manning is not onerous: for my part, a monitored conversation would not comply with the practices that my mandate applies in every country and detention centre visited.”

Mendez made it clear he expected more from the US. “The United States of America has a key role in setting examples on issues concerning my mandate as special rapporteur on torture, which makes it a vital partner for engagement.”

In spite of the government decision, he would still meet Manning if the detainee wished, while continuing to insist on an interview without witnesses.

David Coombs, Manning’s lawyer, in a blogpost on his website, said he had been trying to organise visits by Mendez and others, including the Democratic Congressman Dennis Kucinich. “Despite multiple inquires from the defence and the interested parties, the Quantico brig and the government have denied the requests for an ‘official visit’,” he said.

April 11th, 2011

Torture investigation opened, in Poland

As the Obama administration continues its so far successful efforts to prevent any accountability for torture by US officials, the struggle is moving elsewhere. Yesterday brought news that an attorney for  Abd al-Rahim al-Nashiri — who has alleged torture at the CIA’s hands in a Polish secret prison — was enouraging the Polish proecutor to investigate:

A human rights organization and lawyers for a Saudi man accused in the 2000 bombing of the USS Cole demanded Tuesday that Polish prosecutors investigate the terror suspect’s detention and treatment at a CIA prison once housed in Poland.

Abd al-Rahim al-Nashiri is the first detainee subjected to the CIA’s detention and interrogation program who has taken legal action in Poland, said Amrit Singh, a senior legal officer for the Open Society Justice Initiative.

Mikolaj Pietrzak, an attorney who represents al-Nashiri in Poland, told The Associated Press he filed the petition Tuesday with prosecutors in Warsaw.

Unlike in the US, in Poland there is an active investigation into torture collusion by Polish officials:

Prosecutor Jerzy Mierzewski in Warsaw said Pietrzak’s petition would likely be wrapped into his office’s overall probe.

“It does not require the opening of a separate investigation,” he said, adding that he still had to study the documents.

The prosecutors are investigating possible abuse of power by Polish public officials in connection with the closed CIA black site near the secluded Szymany airport in northeast Poland. Flight logs trace several landings of planes linked to the CIA there. Prosecutors have been looking into the site since 2008 but have not yet filed charges.

Polish media have reported that prosecutors are considering war crimes charges against former President Aleksander Kwasniewski and two other officials in connection with the CIA prison site. Kwasniewski, Poland’s president from 1995-2005, has said he was unaware of the CIA prison.

This morning the AP reports that an investigation has been opened:

A Polish prosecutor says his office has opened an investigation into whether a Saudi man accused in the 2000 bombing of the USS Cole was mistreated in a prison that the CIA allegedly ran in Poland.

[...]

Mierzewski says Polish prosecutors will decide ”one by one” on al-Nashiri’s requests for many witnesses to be questioned.

September 22nd, 2010

Horton: Court joins conspiracy to obstruct justice

Scott Horton weighs in on the 9th Circuit Court of Appeals granting of absolute immunity for kidnapping to torture:

State Secrecy and Official Criminality

By Scott Horton

The Ninth Circuit Court of Appeals split down the middle in finding (PDF) that the Justice Department was entitled to halt a civil lawsuit between private parties because of the threat that the suit would expose state secrets. By the margin of a single vote, it reversed the decision of a panel of the same court (PDF) holding that the doctrine could only be applied to individual pieces of evidence, not to entire lawsuits.

The case, Mohamed v. Jeppesen Dataplan, involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, inbriefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world—the Court of Appeal in London–had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.

The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamedcase. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion—or even in most of the press accounts about it.

Both the New York Times and the Los Angeles Times have called the Department on its acts of constitutional treachery. From the West Coast:

The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.

From New York:

The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.” All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

The majority opinion is so thoroughly unconvincing that the court makes a pathetic plea to other branches of the government to do what is properly its function: fixing the claims of torture victims and awarding them damages.

By signing the Convention Against Torture, the United States made an unequivocal commitment to the international community to compensate those who are tortured by its agents. The Ninth Circuit has made a liar out of Uncle Sam and a mockery of its duty to uphold the law proscribing torture.

September 13th, 2010

NYT: Torture Is a Crime, Not a Secret

The New York Times has editorialized on yesterday’s outrageous appeals court decision throwing out a lawsuit againt the CIA’s torture flight contractor due to “state secrets.” In this odious decision the court agreed with the Obama administration that those tortured due to US government actions should have no legal recourse. With that position, and other recent decisions and Obama administration positions, the US has joined some of the most autocratic and despicable governments.

Torture Is a Crime, Not a Secret

Five men who say the Bush administration sent them to other countries to be tortured had a chance to be the first ones to have torture claims heard in court. But because the Obama administration decided to adopt the Bush administration’s claim that hearing the case would divulge state secrets, the men’s lawsuit was tossed out on Wednesday by the full United States Court of Appeals for the Ninth Circuit. The decision diminishes any hope that this odious practice will finally receive the legal label it deserves: a violation of international law.

The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan, that the plaintiffs said had arranged the rendition flights that took them to Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed, had his bones broken in Morocco, where security agents also cut his skin with a scalpel and poured a stinging liquid into his wounds.

But the merits of the case were never considered because the Bush administration argued that even discussing the matter in court would violate the state secrets privilege. Barack Obama told voters in 2008 that he opposed the government cult of secrecy, but once he became president, his Justice Department also argued that the case should be dismissed on secrecy grounds.

The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and overturn a decision to let it proceed that was made by a panel of three circuit judges last year. The majority said it reached its decision reluctantly and was not trying to send a signal that secrecy could be used regularly to dismiss lawsuits. But even though it is public knowledge that Jeppesen arranged the torture flights, the majority said any effort by the company to defend itself would pose “an unacceptable risk of disclosure of state secrets.”

That notion was demolished by the five-judge minority that dissented from the ruling, pointing out that the plaintiffs were never even given a chance to make their case in court using nonsecret evidence, including a sworn statement by a former Jeppesen employee about the company’s role in what he called “the torture flights.” The case should have been sent back to the district court to examine which evidence was truly secret; now it will have to be appealed to a Supreme Court that is unlikely to be sympathetic to the plaintiffs.

The state secrets doctrine is so blinding and powerful that it should be invoked only when the most grave national security matters are at stake — nuclear weapons details, for example, or the identity of covert agents. It should not be used to defend against allegations that if true, as the dissenting judges wrote, would be “gross violations of the norms of international law.”

All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

Alas, the Obama administration believes that all too many government horrors are secrets to be protected at all costs.

September 9th, 2010

Former South African Chief Justice calls for investigating torture psychologists; denounces APA complicity

the former Chief Justice of the South African Supreme Court discussed psychologist involvement in torture and APA complicity in a London lecture Friday. According to this account, he appears to have advocated British prosecution of the torture psychologists under universal jurisdiction. Here is an account from a Guardian blog post:

Torture inquiry should look beyond role of usual suspects
Apartheid-era South Africa shows inquiry into complicity in torture should extend to those who developed interrogation techniques

By Afua Hirsch

Earlier this year, parliament’s joint committee on human rights described the case for an independent inquiry into allegations of complicity in torture as “irresistible”, based on evidence it had seen about the role of MI6/MI5 and intelligence officials.

The government has indicated its agreement last week, waiting only a week in office before announcing an inquiry into the intelligence services’ role in the torture of terrorist suspects. The promise of new scrutiny has rightly attracted praise. But facilitating torture takes more than the complicity of law enforcement and intelligence officials. It also requires the involvement of others and the institutions that support them.

Much has been said about the role of lawyers in facilitating so-called “enhanced interrogation techniques”, used to extract information from terrorist suspects. The US justice department legal advisers, we now know, rewrote the definition of torture, so that only physical pain equivalent to organ failure or death, and mental pain causing significant psychological harm over long periods, were deemed illegal – a clear departure from international law.

But the professionals who developed the “interrogation techniques” themselves were, in fact, psychologists. And they too need to be held to account.

This was the thrust of a speech last week by Justice Arthur Chaskalson, a former chief justice of South Africa and member of Nelson Mandela’s 1963 defence team, to the Institute of Psychoanalysis in London. “Psychologists developed and recommended what are euphemistically called ‘enhanced interrogation techniques’ to be used against resistant detainees; a more appropriate name for this would be psychological torture,” he said.

Chaskalson drew on his experience of apartheid-era South Africa to highlight the danger of complicity by professionals in acts that were clearly wrong, citing the doctors responsible for the medical supervision of activist Steve Biko when the activist died in police custody, or the courts which sided systematically with the police when detainees were tortured and held incommunicado in solitary confinement.

Similarly, he argued, the American Psychological Association sanctioned its members’ participation in the design and implementation of torture, and amended its ethical code to allow military psychologists to carry out orders, even if they were contrary to recognised medical ethics. This institutional failure is a serious failing in itself. But the individuals who followed the tide should also be held to account. As Chaskalson pointed out, it was established during the trials of Nazi war criminals at Nuremberg that “the question is not whether there was an order, but whether a moral choice was in fact possible”.

There have already been calls from organisations like Physicians for Human Rights for a full investigation into the role of health professionals in torture, opening up the possibility of criminal prosecution if necessary. Although there is no evidence British psychologists took part, others could still be prosecuted here under universal jurisdiction, which allows UK courts to prosecute perpetrators of torture wherever it occurred.

Chaskalson’s view is that the lesson of history in apartheid South Africa and elsewhere is that holding professionals to account is key to deterring future transgressions from legal and moral standards on an institutional scale. So if the illegal acts of the Bush era are really to be consigned to history, then future inquiries may need to go further than simply examining the role of secret service and intelligence officials.

[Irrelevant material deleted.]

May 23rd, 2010

Horton: What happens when everyone has killer drones?

Scott Horton raises important questions about what kind of world the US is creating with its use of drones for targeted assassinations:

The Trouble with Drones

By Scott Horton

Dean Harold Koh recently offered a spirited defense of the Obama Administration’s heavy reliance on predator drones in the course of speech at the American Society of International Law. “There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict,” he said. “Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.” Koh’s legal analysis is certainly correct as a matter of traditional law-of-war doctrine, particularly as understood in the United States. Moreover, he’s to be congratulated for directly addressing the legal questions surrounding drone warfare. The U.S. government has been quiet on this topic for too long, apparently as part of a strategy to keep the use of drones secret. But drone warfare is America’s worst-kept secret. The use of drones is too public, too obvious, and too essential a part of the current military effort to justify the policy silence. In fact, it’s time for a more rigorous debate about drones and the issues they raise.

While I don’t disagree with any of Koh’s comments on drones, I am concerned that he goes after straw men and neglects the big legal policy issues I see. In my view, there are two major problems with Obama-era drone warfare, which in general looks like Bush-era drone warfare on steroids.

First, as applied on the battlefield along the historic Durand Line, the current campaign can’t be reconciled with the agreed premises for the separation of military and intelligence community activities in the National Security Act of 1947. That marked the launching point for the CIA, and it proceeded from the recognition that the agency should be an essentially civilian operation. It would have the right to use lethal force in certain settings, of course, and it would even have limited paramilitary capabilities, but its essential function would be intelligence gathering and analysis, and it would be distinguished from military operations, which would be in the hands of the Department of Defense. The current drone-warfare program marks the first time in U.S. history that a state-of-the-art, cutting-edge weapons system has been placed in the hands of the CIA, marking the continued evolution of the CIA as a paramilitary force with advanced tactical weaponry. Moreover, this occurred without the sort of rigorous policy discussion involving Congress and the entire national-security community that should have occurred.

There are two further aggravating considerations. The first is that the claims of secrecy surrounding these operations are risible. For all its problems, Pakistan is a democratic state with an active press. You cannot operate a program that rains death from the sky in such an environment without detection; it’s simply too public. Moreover, the drone wars are attracting media attention around the world precisely because they are viewed as the harbinger of a new kind of warfare. There is an entirely justifiable sense that we are watching the future of warfare unfold in the skies over the Afghanistan-Pakistan border area. Keeping the rationale and rules for this program in the dark is therefore a self-defeating proposition.

Next, the CIA is itself a civilian agency, not a military force accorded privileged combatant status under the Geneva Conventions. Moreover, the drone program has been developed, rolled out and implemented with exceptionally heavy reliance on civilian contractors. Not only did contractors design and fabricate the drones, they also play the key operational role in maintaining the drones, in arming and piloting them. The finger behind the trigger that releases death on the villages of North Waziristan is likely as not that of a civilian contractor. Moreover, the United States is now relying heavily on at least six private security contracting firms to do on-the-ground work in the Afghanistan-Pakistan border area, much of it inside of Pakistan’s Northwest Frontier Province. These civilian contractors are collecting information used to guide the predator drones to their strikes; they serve as the “eyes” of the predator drone force. They are usurping a traditional core military reconaissance function.

All of this is occurring at the same time that the United States, as a matter of legal policy, denounces prisoners taken in the current hostilities as “unlawful” or “unprivileged” combatants and presses charges against them for using lethal force. But private security contractors and CIA operatives are every bit as “unlawful” and “unprivileged” under the laws of war. America’s posture on this issue is shamefully hypocritical, and needlessly so. American law and doctrine provide the correct answers. They just need to be remembered. Indeed, the segregation between intelligence and military functions envisioned in 1947 was driven by precisely this policy concern about training to and compliance with the laws of armed conflict, a fact that seems now largely forgotten. The CIA should not be running predator drone strikes in a combat theater, and civilian contractors need to be removed from the operation of drones outfitted with lethal weaponry. The current operations constitute a serious distortion of existing command-and-control doctrines surrounding military weapons systems. As a weapons system, the drones must be committed to the uniformed military, which should use the drones following well-established protocols covering military operations.

My second major concern goes to the power of example that the United States is now setting with respect to the use of drones away from an acknowledged battlefield, especially in connection with targeted killings. No weapons system remains indefinitely the province of a single power. Drone technology is particularly striking in this regard, because it is not really all that sophisticated. It seems clear that other powers have this technology–Israel and Iran have each been reported to be working with it, Russia and China could obviously do so easily if they desired, and the same is probably true for Britain, France, and Germany, not to mention Japan and Taiwan, where many of the cutting-edge breakthroughs in robotics actually occur. The way America uses this technology is therefore effectively setting the rules for others. Put another way, if it’s lawful for America to employ a drone to take out an enemy in the desert of Yemen, on the coast of Somalia, in a village in Sudan or Mauretania, then it would be just as lawful for Russia, or China–or, for that matter, for Israel or Iran. What kind of world is this choice then creating? Doesn’t it invariably lead us closer to the situation in which a targeted killing will be carried out in a major metropolis of Europe or East Asia, or even the United States? And doesn’t that move us in the direction of a dark and increasingly lawless world?

This is not idle speculation. The choices the United States has made are being studied very closely in capitals around the world. In Russia, for instance, national-security analysts have noted the American drone strikes with a measure of approbation, because they see such strikes as justifying lethal countermeasures of their own against perceived terrorist enemies. A number of enemies of the Russian government who were critical of policies or actions connected with the Second Chechen War have recently met violent death, often after Russian authorities linked them to Chechen terrorist groups. The Polonium poisoning of Aleksandr Litvinenko in London, for instance, or the assassination of Umar Israilov in Vienna, which Austrian prosecutors linked earlier this week to a Putin-protégé, the president of Chechnya, are two examples that suggest that Europe may have been cleared as a theater for targeted killings by a great power. The 2004 killing of former Chechen President Zelimkhan in Qatar is an example of another Russian targeted killing in the Gulf. The recent likely Israeli assassination of Mahmoud al-Mabhouh in Dubai is another instance. Targeted killings of this sort have always been with us, of course, but with the Bush-era “War on Terror” they are making a strong comeback and are gaining in claims of legitimacy and legality. The drone technology promises to take targeted killings to a whole new level.

My point here is a simple one. The United States cannot assume exclusivity in this technology, and how it uses the technology will guide others. The United States has to decide now whether it wants to legitimize a broader right of sovereign states to assassinate their enemies using drones. The consequence of such a step to the world as a whole will be severe. This also points to the danger of the United States using drones for targeted killings and keeping silent about the process, which invites the view that the practice involves an arbitrary and capricious use of power. If the United States elects to continue on its current path, it also owes the world a clear accounting for its use of drones as a vehicle for targeted killings. What rules has it adopted to guide its decisions? What evidence does it have showing that the victim was a legitimate target? And when does it agree that other states could make similar use of this technology? The United States has a choice between continuing the go-it-alone posture of the past years or assuming a mantle of leadership, under which it recognizes that its own conduct will set the standards for others.

Unlike Dean Koh, I can’t embrace the introduction of this technology as something altogether fortunate and humane. As with most new weapons systems, it offers its masters new opportunities, but it also challenges them to be ethical and thoughtful about its use. And the United States is clearly falling short on this challenge.

Remarks delivered at New York University Law School Center on Law and Security’s Seventh Annual Global Security Forum, May 1, 2010.

May 3rd, 2010

Frakt: Military Commissions trial of Khadr “unfathomable” and “reprehensible”

Lt. Col. David Frakt, the former military defender of Mohammed Jawad, writes about the new Obama Military Commissions and their application to child soldier Omar Khadr. Despite improvements in the Military Commission rules, they are still a legal travesty in that they are being retroactively applied to acts that are not violations of the laws of war.

The take-home quote:

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

the entire article:

New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of War

Late Monday, on the eve of Omar Khadr’s suppression hearing, the first major military commission hearing at Guantanamo since President Obama took office, the Defense Department released the new Manual for Military Commissions. The Manual is the primary implementing regulation for the Military Commissions Act of 2009, containing detailed procedural guidance, rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in these military tribunals.

On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new Manual also contains some significant improvement over the previous version. The standards for admissibility of coerced statements and hearsay evidence, for example, now are much closer to the standards which apply in general courts-martial and federal court. There is, however, some very troubling language in the new Manual relating to the proof required to convict for certain offenses, which undermines the Obama Administration’s claims of respect for the law of war and adherence to the rule of law.

On May 21, 2009, in an important national security speech at the National Archives President Obama explained his rationale for seeking to amend the MCA and keeping military commissions available as one option for trying detainees, “[D]etainees who violate the laws of war. . .are best tried through Military Commissions. Military commissions. . . are an appropriate venue for trying detainees for violations of the laws of war.” As Assistant Attorney General David Kris explained to the Senate last July, “The President has made clear that military commissions are to be used only to prosecute law of war offenses.”

What President Obama may not have realized, or at least neglected to mention in his speech, is that very few detainees are actually suspected of violating the laws of war. Last summer, I was invited to testify before a Congressional Subcommittee considering proposals to reform the military commissions and I tried to explain this point: “The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree with that. They are a legitimate forum for law of war offenses. But what gets left out of the debate is that there are virtually no law of war offenses to be tried.” While I encouraged Congress to limit military commissions to true war crimes, I warned the lawmakers that if reformed military commissions “are limited to law of war offenses. . .there is not going to be anybody to try.”

Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like “Providing Material Support to Terrorism,” a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the new Manual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order to ensure convictions where they would otherwise be doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the President’s law of war justification for military commissions.

Under a 2003 DoD Instruction defining the crimes eligible for trial by the military commissions created by executive order of President Bush, the President attempted to create a new war offense called “murder by an unprivileged belligerent.”

The theory underling this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts – unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

In the 2006 MCA, Congress rejected the status-based crime of Murder by an Unprivileged Belligerent, replacing it with the related, but more narrowly defined, “Murder in Violation of the Law of War.” The statute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite this clear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that “Murder in Violation of the Law of War” really was just “Murder by an Unprivileged Belligerent” by another name, explicitly claiming that the mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war. Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the government’s argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the Jawad and al Bahlul cases). Congress was well aware of these rulings when it enacted the 2009 MCA — I specifically mentioned them in my testimony — but left the definition of “Murder in Violation of the Law of War” unchanged, reflecting their comfort with these judges’ interpretation of the crime.

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war. It is gratifying that DoD has finally acknowledged officially that status as an unprivileged belligerent –”merely failing to meet the requirements of privileged belligerency” — does not equate to a violation of the law of war, an argument that I made repeatedly before the commissions and in my congressional testimony. But it is deeply troubling that DoD has nevertheless opined that a non-law of war violation can still constitute murder in violation of the law of war. The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.

It is no coincidence that this provision was published on the eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.

The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration’s claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses. The Administration’s alleged devotion to transparency was also undercut by the release of the new manual. The DoD rejected the plea of the National Institute for Military Justice and other civil liberties groups for a public comment period on the draft manual and chose to publish the document as a final product. The obvious contradiction between the legislative intent and the Pentagon’s interpretation of this offense demonstrates precisely why a public comment period was needed.

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

*******

David Frakt is Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps. He previously served as lead defense counsel with the Office of Military Commissions. His views are his own and do not reflect the views of the Air Force or the Department of Defense.

April 30th, 2010

Edward Horgan: Holding the Irish government accountable for aiding and abetting torture

The talks from the North Carolina conference I participated in — Weaving a Net of Accountability: Taking on extraordinary rendition at the state and regional level — are gradually appearing on the web. Here is the talk by the amazing Irish activist Edward Horgan, cofounder of ShannonWatch:

Holding the Irish government accountable for aiding and abetting torture

April 20th, 2010

Conference examines North Carolina’s role in illegal detention and torture

Durham, NC:  As President Barack Obama considers the future of U.S. detention facilities at Guantánamo Bay, Cuba, a noted legal expert and author is raising questions about the reported suicides of three prisoners there in 2006.

In a cover story for Harper’s magazine, Scott Horton, a professor of law at Columbia University and contributing editor at Harper’s Magazine, interviewed former guards who claimed that the detainees may have perished because of abusive interrogation or worse.

Horton is the keynote speaker at an April 8-9, 2010, conference at Duke University that examines U.S. accountability for torture.  Horton will speak at 7:30 pm on April 8 in Love Auditorium, on Duke’s West Campus.

“The Guantánamo ‘Suicides’:  A Camp Delta Sergeant Blows the Whistle” recounts how detainees Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi, and Yasser Talal Al-Zahrani were found hanged in their cells on June 9, 2006.  “None of the men had been charged with a crime, though all three had been engaged in hunger strikes to protest the conditions of their imprisonment,” Horton wrote.

The U.S. military initially described the deaths as planned suicides that amounted to “asymmetrical warfare” against the United States.  But four former guards interviewed by Horton said that on the night the men died, they had been transferred to a separate, secret compound nicknamed “Camp No.”  Guards told Horton they believed the men died from having “rags stuffed down their throats, and that one of them was severely bruised,” Horton wrote.

Horton’s keynote opens the conference, “Weaving a Net of Accountability: Taking on extraordinary rendition at the state and regional level.”  Bringing together legal experts, grassroots activists, students and human rights workers, the two-day event explores North Carolina’s role in torture and extraordinary rendition.  Participants will discuss setting up a grassroots “commission of inquiry” aimed at creating transparency and accountability.

Extraordinary rendition is when agents of the United States detain suspected terrorists and secretly transport them to sites where they are held for interrogation.  North Carolina plays a key role as home to Aero Contractors, headquartered at the Johnston County Airport.  The company is reported to have close ties to the Central Intelligence Agency and to have rendered dozens of prisoners to overseas sites, including Guantánamo.

In 2007, German prosecutors issued arrest warrants for 13 suspected CIA agents in connection with the rendition of a German citizen, including three pilots who work for Aero Contractors and live in North Carolina.  In a growing number of cases, detainees later released without charge report undergoing torture.  One of them, British national Bisher al-Rawi, will speak at the conference via live video link.

“With this conference, we are opening a new state-level effort that is both innovative in its thinking and complementary in its design, paralleling and supporting national and international efforts to make human rights abusers accountable,” said Robin Kirk, the executive director of the Duke Human Rights Center, a co-sponsor of the events.  “Although President Obama has formally put an end to torture, the extraordinary rendition program continues, with little oversight and no public accountability.  It is vitally important that the citizens of the state know what is done with their tax dollars and take action to insure that we no longer support activities that lead to torture.”

North Carolina Stop Torture Now (NCSTN), another co-sponsor, is one of the largest statewide organizations of Americans actively opposing torture, according to Christina Cowger, an NCSTN coordinator.  “For more than four years, we’ve been telling state and county officials they needed to look into Aero Contractors’ role in major human rights abuses.  But they’ve refused. Elsewhere in the world, there are official inquiries into the support given to the U.S. in transporting captives for torture.  Here, apparently it will have to start with a citizens’ inquiry, and we hope that will eventually persuade our government to do the right thing and investigate.”

“We hope this conference can help to begin the process to achieve an accounting of past crimes and to begin to take the steps necessary to prevent future human rights violations,” said Deborah Weissman, a University of North Carolina School of Law professor and director of the  Immigration & Human Rights Policy Clinic, another co-sponsor. “Citizens of North Carolina can contribute to promoting the rule of law and respect for human rights by demanding that both our state and the federal government comply with international obligations found in human rights instruments.”

During his visit to the Triangle, Horton is available for interviews on April 8-9.  He is also available for telephone interviews prior to his arrival for the conference.  The conference will be live-streamed via the Web on April 9, through the John Hope Franklin Center.

CONTACT: Robin Kirk, Duke Human Rights Center, (919) 668-6511 (rights@duke.edu)

Deborah Weissman, UNC-Chapel Hill School of Law, (919) 962-3564

Josh McIntyre, NC Stop Torture Now, (919) 834-4478

Christina Cowger, NC Stop Torture Now, (919) 637-7678

[Note: I will be speaking at this conference on Friday at around 2:00 on Psychology of denial and accountability: Breaking through the fog.]

April 5th, 2010