Monday, November 07, 2005

B. Foley: GITMO -- Torture is US

Friends:
Foley correctly points out: Americans like thinking they're the world's nicest, most democratic people, but they'll abandon that warm and fuzzy feeling if being nice and democratic will increase their risk of being blown up by terrorists.

This indicates that if most Americans understood that the war on terror is totally bogus, that the US govt planned and executed 911, they would pay more attention to the GITMO and torture horrors.

But more realistically, it would also help if the media did more to point out that (as even the New Yorker noticed some months ago) not ONE terror cell has been located in this country. The implication is that the FBI and security agency terror budgets are not only a waste of many billions, but are being used to jail, harrass, torture, and deport only innocent people.

See also the very good NYT editorial below on torture. They start off by saying that US torture policy is "maddening." This indicates that they acknowledge that we are living in a fascist dictatorship, meaning that there is no force or agency or due process in this country that can stand up to the will of the White House.
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http://www.counterpunch.org/foley11022005.html

November 2, 2005

The Denial of Basic Legal and Human Rights
Why Most Americans Don't Care About Gitmo (and Why They Should)
By BRIAN J. FOLEY

For almost four years, Americans collectively have ho-hummed news about the prisoners caged at the US Naval Base at Guantanamo Bay, Cuba (GTMO). Torture? Big deal. Hunger strike? What hunger strike? -- most people don't even know about it. So it's no surprise that Americans don't care that the tribunals that determine whether the prisoners are "enemy combatants," and the tribunals that will try some of them for particular crimes, all deny prisoners the full set of procedural rights that US and international law offer.

Americans' indifference comes in large part because the arguments that denying process to "enemy combatants" is bad policy and illegal have failed to appeal to the public's self-interest.

For example, most of the policy arguments against this lack of process have been the following: (1) Giving process to these prisoners is just the right thing to do morally. (2) Our failure to do so shows we're hypocritical. US leaders have been extolling American democracy over other forms of government because it purportedly preserves individual rights and freedoms; the separate-and-unequal justice system at GTMO undercuts such claims. (3) Our denying process to these prisoners will cause other countries to deny process to our soldiers if they are captured. (4) We should accord process because one of us might be jailed by mistake, and we would like fair process to protect us.

These arguments are all valid. However, the problem is that they are either sentimental or unrealistic--and most Americans sense that. Americans like thinking they're the world's nicest, most democratic people, but they'll abandon that warm and fuzzy feeling if being nice and democratic will increase their risk of being blown up by terrorists. Americans don't worry about being hypocrites, because "everything changed" after 9/11; we're fighting a "different kind of war," and history will judge us as prudent, they believe. Most Americans know that our soldiers probably won't be captured: enemies are barely able to kill our troops, much less capture them. And as we saw with Jessica Lynch, we can just go rescue them anyway. Moreover, what country would dare mistreat US troops and incur our (perhaps nuclear-tipped) wrath? As for the classic argument that we need rigorous legal process in case we're arrested by mistake, well, most Americans know that it's highly unlikely they themselves will ever be caged at GTMO: most Americans aren't radical Muslims.

The legal arguments against GTMO (that the US is violating US and/or international law) haven't interested the public, either. The arguments are too technical, and the number and length of court opinions, of differing opinions by judges, and the number of scholarly articles and op eds on this issue let Americans think the arguments on both sides are plausible. There has been no sweeping, landmark Supreme Court decision thoroughly vindicating one side or the other. Instead, courts are considering whether the US can, legally, deny a certain level of process in general; whether specific processes are permissible; and which procedural safeguards, if any, are required. Every lower court ruling will be appealed to the Supreme Court, and the meaning of the Supreme Court's decisions will be debated in subsequent cases. Settling this area of law will take years. Ultimately, it's not clear to most Americans that the US isn't following the law at GTMO. Indeed, if torture seems justifiable, then denying various courtroom procedures can seem justifiable, too.

The argument that the US should "follow the law" (and set an example for the rest of the world) is sentimental, too. Our leaders can act with impunity. No one can stop the US from doing whatever it wants to do, and why lead by example when we can force other countries to do what we want them to do?

GTMO appears to reflect what most Americans want: to be safe from terrorism. Most Americans believe that the lax rules for GTMO tribunals are necessary to convict terrorists. If we used our regular court system, the terrorists would not be convicted, because the evidence we have against them doesn't meet the necessary high standards. If a terrorist walks free, he's a ticking time bomb.

The survival instinct trumps sentimentality.

But the belief that lax court rules can protect the public from terrorism is wrong. The most powerful argument for giving prisoners at GTMO more legal process is that the weak rules there now can't protect us from terrorism. Weak standards cannot help us determine, reliably, if the people we've locked up or released are the right people, because the rules rely on notoriously unreliable forms of evidence: hearsay, coerced confessions, and evidence kept secret from the accused. Garbage in, garbage out.

Also, the lax rules give no incentive to the FBI, CIA, military, and police to conduct serious investigations. Why bother, when they can "win" a case at the tribunal by pounding a "confession" out of a prisoner? In this way, we'll fail to develop the anti-terrorism investigative abilities we need to thwart terrorism. As time goes by, we'll become weaker rather than stronger; like unused muscles, our skills will atrophy. In a few years, we might lack any meaningful anti-terror investigative abilities at all. We might merely have goon squads who beat "confessions" out of people.

We can reverse this slide by requiring that terrorists be tried under rigorous rules of evidence and criminal procedures. That would cause our police and intelligence officials to work harder to investigate, to get solid evidence. Much would be learned about terrorists and their networks. We could also be more confident that the people released were not dangerous. (I discuss these benefits of rigorous process in a previous commentary.)

GTMO is a public safety issue. It's time for Congress to act. We should try the GTMO prisoners under the Uniform Code of Military Justice, which applies to POWs. Better, we should try the prisoners in our federal courts, where there is more process--and thus a better chance for accuracy in convictions.

When Americans understand that using stronger rules at GTMO is not about being good world citizens or being nice to prisoners, but about giving ourselves the strongest anti-terrorism tactic we can--vigorous, hard-nosed police and intelligence work--they will see the folly of maintaining our separate-and-unequal justice system. Strong procedural rules at GTMO will require our government to work for us, and the increased transparency will make our government accountable to us.

GTMO is about our own survival--something Americans of all political stripes can agree on.

BRIAN J. FOLEY is an assistant professor at Florida Coastal School of Law. Email him at brian_j_foley@yahoo.com or visit his website: www.brianjfoley.com

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New York Times lead editorial: Nov 3, 2005

US use of 'secret' prisons, abandonment of human rights, and more ...
This entry is about: Social Justice & Human Rights

The Prison Puzzle


THE NEW YORK TIMES
November 2005 Editorial

It's maddening. Why does the Bush administration keep forcing policies on the United States military that endanger Americans wearing the nation's uniform - policies that the military does not want, that do not work and that violate standards upheld by the civilized world for decades?

When the Bush administration rewrote the rules for dealing with prisoners after 9/11, needlessly scrapping the Geneva Conventions and American law, it ignored the objections of lawyers for the armed services. Now, heedless of the lessons of Abu Ghraib, the civilians are once again running over the people in uniform. Tim Golden and Eric Schmitt reported yesterday in The Times that the administration is blocking the Pentagon from adopting the language of the Geneva Conventions to set rules for handling prisoners in the so-called war on terror.

Senior military lawyers want these standards, as do some Defense and State Department officials outside the inner circle. They say the abuse and torture of prisoners has reduced America's standing with its allies and taken away its moral high ground with the rest of the world. They also know that it endangers any American soldiers who are captured.

The rigid ideologues blocking this reform say the Geneva Conventions banning inhumane treatment are too vague. Which part of no murder, torture, mutilation, cruelty or humiliation do they not understand? The restrictions are a problem only if you want to do such abhorrent things and pretend they are legal. That is why the Bush administration tossed out the rules after 9/11.

It's a terrifying thing when the people who devote their lives to protecting our national security feel that the civilians who oversee their operations are out of control. Dana Priest reports in The Washington Post that even the Central Intelligence Agency's clandestine operators are getting nervous about the network of secret prisons they have around the world - including, of all places, at a Soviet-era compound in Eastern Europe.

We're not naïve enough to believe that if the C.I.A. nabs a Qaeda operative who knows where a ticking bomb is hidden, that terrorist will emerge unbruised from his interrogation. Extraordinary circumstances are different from general policies that allow foot soldiers and even innocent bystanders to be swept up in messy, uncontrolled and probably fruitless detentions. Ms. Priest reports that of the more than 100 prisoners sent by the C.I.A. to its "black site" camps, only 30 are considered major terrorism suspects, and some have presumably been kept so long that their information is out of date. The rest have limited intelligence value, according to The Post, and many of them have been subjected to the odious United States practice of shipping prisoners to countries like Egypt, Jordan and Morocco and pretending that they won't be tortured.

Like so many of the most distressing stories these days - the outing of Valerie Wilson and questions about the intelligence on Iraq also come to mind - this one circles right back to Vice President Dick Cheney's office.

Mr. Cheney, a prime mover behind the attempts to legalize torture, is now leading a back-room fight to block a measure passed by the Senate, 90 to 9, that would impose international standards and American laws on the treatment of prisoners. Mr. Cheney wants a different version, one that would make the C.I.A.'s camps legal, although still hidden, and authorize the use of torture by intelligence agents. Mr. Bush is threatening to veto the entire military budget over this issue.

When his right-hand man, Lewis Libby, resigned after being indicted on charges relating to team Cheney's counterattack against Joseph Wilson, Mr. Cheney replaced him with David Addington, who helped draft the infamous legalized-torture memo of 2002. Mr. Addington is now blocking or weakening proposed changes to the prison policies. The Times said he had berated a Pentagon aide who had briefed him and Mr. Libby recently on the draft of the new military standards for handling prisoners. (The indictment of Mr. Libby said he had done the same thing to a C.I.A. briefer in 2003 when agency officials questioned the intelligence on Iraq.)

The Times reports that Secretary of State Condoleezza Rice and the national security adviser, Stephen Hadley, favor changing the detention policies. So we can only conclude that President Bush has decided to expend the minimal clout remaining to his beleaguered administration in a fight to put the full faith and credit of the United States behind the concept of torture. After all, the sign on Dick Cheney's door says he is the vice president.

2 Comments:

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