Son of Guantanamo

Legal, diplomatic, religious and human rights authorities are struggling to be heard on what many consider to be the "Son of Guantánamo" -- a secret prison in Afghanistan where the U.S. military is said to have been holding some 500 "enemy combatants" for as long as three or four years without access to lawyers.

  The existence of the prison, located at Bagram airbase near Kabul, was reported last week by The New York Times. But the story was quickly relegated to back pages by the revelation that Dubai Ports World (DPW), a company owned by the government of the United Arab Emirates, was about to take over the management of as many as six major U.S. seaports.

  On the Bagram prison issue, the views of David Cole, one of America’s foremost authorities on constitutional law, are typical of reactions obtained by us. Cole, a professor at Georgetown University law school in Washington, said, “The Bagram story raises serious questions about the Bush administration's unwillingness to be bound by law.  The administration chose Guantanamo in the first place because it thought it was a law-free zone.  Now that the Supreme Court has said that the administration is actually accountable to legal limits at Guantanamo, it is turning to other avenues to avoid accountability.  The only real solution is to conform its conduct to the law, not to continue to evade legal responsibility for its actions.”

  Times reporters Tim Golden and Eric Schmitt, who broke the Bagram story, wrote, “Some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.”

  They added, “Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the international Red Cross and refuses to make public the names of those held there…From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its Cuban counterpart. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.”

  The Times reported that the detainee population at Bagram rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part the result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights under United States law.

  Bagram has often been described by the U.S. military as a temporary “screening center” from which some detainees would be released and others transferred to Guantanamo Bay, Cuba. But as Guantanamo became a lightning rod for worldwide criticism of Bush Administration detention policies, transfers to Cuba were cancelled.

  William Rugh, retired U.S. ambassador to Yemen and the United Arab Emirates, told us that, while he has “no idea if the report is correct,” he believes that “all prisoners held by the United States, whether in Guantanamo or elsewhere, ought to be brought promptly to trial of some kind and afforded the right to be represented by an attorney. If the U.S. government persuades the judge that material evidence to be presented at the trial is legitimately classified, the trial could be closed to the public but there should be a trial.”

  The views of the U.S. human rights community were typified by Deborah Pearlstein, Director of the U.S. Law and Security Program for Human Rights First, a major advocacy group. She told us, “Apart from the ongoing harms to human rights, one of the most remarkable features of the U.S. detentions at Bagram and elsewhere is that four and a half years after September 11, the Administration continues to hold nearly 15,000 detainees worldwide without rights recognized under any domestic or international legal regime, and without a plan for how it might begin detaining people legally in what the Administration now calls the ‘long war’ going forward.”

  And Amnesty International USA told us, “Because of on-going and unresolved reports of torture and ill-treatment at Bagram Air Base, we continue to assert the necessity for open and honest investigations of all prisoner abuse cases and renovations of current prison facilities.  We are concerned about reports that the base has been expanding in its current form, primarily because practices of secrecy such as the restriction of access to the International Committee of the Red Cross and the denial of detainee's rights are still known to be prevalent there.”

  Noah S. Leavitt, an attorney who has worked with the International Law Commission of the United Nations in Geneva and the International Court of Justice in The Hague, took issue with the U.S. military's chief spokesman in Afghanistan, who is quoted as saying the U.S. is “providing the best possible living conditions and medical care in accordance with the principles of the Geneva Convention.”

  That statement, Leavitt charged, “highlights the Administration's ignorance of or cavalier attitude toward long-established international law.”

  He added, “The world will always be in catch-up mode when it comes to investigating, discovering and challenging the many ways the Bush Administration has undermined international legal norms. Just as they did for Guantanamo, concerned lawyers, journalists and researchers will have to figure out how to gain access to Bagram in order to bring the harsh treatment of the prisoners to the attention of the U.S. judicial system and the international community before any improvements are seen.”

  Leaders of the religious community have also weighed in on the Bagram issue. George Hunsinger, McCord professor of theology at Princeton Theological Seminary and coordinator of Church Folks for a Better America, told us, “America must lead by example. If we continue to shame our country through secret prisons, torture and abuse, the world will no longer look to us as a beacon of hope, but as a dungeon of despair.  The only way to defeat terrorism is by upholding our ideals not by trampling on them.”

  Meanwhile, in a related development, a new round of reviews of the Guantánamo Bay detainees is set to begin, but attorneys say the U.S. government is flouting military and international law by preventing any meaningful consideration of proposed evidence and denying information to the detainees' lawyers.  Experts from the Center for Constitutional Rights (CCR), which is currently overseeing 450 pro-bono attorneys representing the detainees, expressed “outrage about this violation of due process” and pointed to a new federal court decision vindicating their calls for transparent and fair hearings.

  Last week, a U.S. District Judge ordered the Defense Department to release the names of hundreds of Guantanamo detainees and uncensored transcripts of their hearings by March 3.The CCR called the ruling “a major blow to the government's attempts to maintain total secrecy over its detainment process”.  The Pentagon has said it will comply.

  It is difficult to know whether the Bush Administration’s penchant for shooting itself in the feet is the result of incompetence or arrogance. After Abu Ghraib and Guantanamo, the Pentagon should have learned that getting out ahead of bad news is far better than waiting for its inevitable disclosure by the press. That’s Public Relations 101! --posted March 2, 2006

What To Do With The Gitmo Prisoners?

  Foreign policy and human rights experts appear to agree with a soon-to-be-released United Nations report calling on the U.S. to shut down its detention facility at Guantanamo Bay, Cuba – but most believe that simply closing it misses a larger point: What to do with the prisoners?

  And many of those interviewed by us are fearful that the George W. Bush administration will use the source of the report – the admittedly flawed United Nations Human Rights Commission -- to discredit its findings.

  Currently in draft but expected to be released shortly, the report found that U.S. treatment of Guantanamo detainees violates their rights to physical and mental health and, in some cases, constitutes torture. It urges the U.S. to close the facility and bring the captives to trial on U.S. territory, charging that Washington's justification for the continued detention is a distortion of international law.

  Compiled by five U.N. envoys who interviewed former prisoners, detainees' lawyers and families, and U.S. officials, the report is the result of an 18-month investigation ordered by the Commission.

  The human rights body has been widely criticized because its 53 members include representatives of countries with questionable human rights records. These include Azerbaijan, China, Cuba, Egypt, Saudi Arabia, and Zimbabwe. The U.S. has been among U.N. member states attempting to reform the Commission, denying membership to countries that are known to commit human rights abuses.

  While the U.N. team was refused access to prisoners at Guantanamo Bay – and did not visit the facility for that reason – it concluded that the violent force-feeding of hunger strikers, incidents of excessive violence used in transporting prisoners and combinations of interrogation techniques "must be assessed as amounting to torture" — are likely to stoke U.S. and international criticism of the prison.”

  "We very, very carefully considered all of the arguments posed by the U.S.       government," said Manfred Nowak, the U.N. special rapporteur on torture and one of the envoys. "There are no conclusions that are easily drawn. But we concluded that the situation in several areas violates international law and conventions on human rights and torture."

  Prof. Nowak, a member of the International Commission of Jurists, is Professor of Constitutional Law and Human Rights at the University of Vienna and Director of the Ludwig Boltzmann Institute of Human Rights (BIM). Since 1996, he has served as Judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo.

  Human rights and legal advocates hope the U.N.'s conclusions will add weight to similar findings by rights groups and the European Parliament.

  Prof. Erwin Chemerinsky of the Duke University Law School shares that hope. He told us, “I believe that the existence of the prison in Guantanamo and the treatment of the detainees there violates international law.  However, if the base at Guantanamo should be closed, it is essential that something worse not replace it.  For example, it would be much worse if the prisoners are then transferred to prisons in foreign countries beyond American courts' jurisdiction.”

  This view was echoed by Gabor Rona, International Legal Director of Human Rights First (HRF), a New York-based advocacy group. He told us, “Whether or not Guantanamo stays open or is closed addresses only one symptom of a larger question: What will happen to the detainees? If closure means the U.S. is going to open up its legal environment to respect international human rights norms not only at GITMO but in all its detention facilities worldwide, that would be a step forward. If closing GITMO simply means shipping the detainees off to other places and fates where their rights continue to be violated, that would be no step at all. The U.S. needs to live up to its obligations under both U.S. and international law.”

  Barbara J. Olshansky, Director Counsel of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights (CCR), told us, “With each day (GITMO) remains open, it presents a very ugly picture to the world of the U.S. decision to cast aside the rule of law and trample the most fundamental human rights.”

  She added, “Guantánamo has become the symbol for our country’s decision to deny human dignity. At the same time, however, we remain very concerned about the actions the U.S. might take if it were to close the base.  It has taken a great deal of effort to ensure that detainees are not transferred to indefinite detention or to detention under torture from Guantánamo.  For the many detainees who do not have this judicial protection in place (because until very recently we did not have identifying information for them and/or authorization to represent them) we have no way of ensuring that the men are not rendered to indefinite detention or torture either in their countries of birth or some third country. “

  Prof. Jonathan Turley of Georgetown University and a widely recognized authority on U.S. Constitutional and international law, told us, “Closing Gitmo would be a welcomed change.  However, it will mean little if the underlying abuses continue at a dozen less visible locations.  The problem is the underlying legal claims of the President and the continued failure of the government to comply with domestic and international law. The most important recommendation is that these individuals be given legitimate trials in federal court rather than the meaningless proceedings held at GITMO.  The current proceedings have little resemblance to legal hearings.  They are controlled by rules written by government prosecutors to guarantee conviction and stand as a fundamental affront to the most basic notions of the rule of law.”

  Yale Richmond, a veteran of 30 years in the U.S. Foreign Service, believes that “As long as (GITMO) remains open, it will be used against us. Better to close it.” But, he told us, “That raises the question of whether the prisoners should be tried in US courts, and what Rumsfeld, Cheney, and Bush (in that order) would say if some of them were found ‘not guilty’."

    Christopher J. Roederer, Associate Professor of Law at the Florida Coastal School of Law, told us, “I do think that GITMO should be closed, or fully opened up to full inspection and access. The main problem with the report in my view is that there was no visit and no access to the prisoners – but whose fault is that? Did we accept Saddam’s assurances that there were no WMDs on his say-so? Did we not hold his lack of full cooperation against him?”

  Experts we interviewed think there is a good possibility that the Bush Administration will try to use the troubled composition of the U.N. Human Rights Commission to discredit or dismiss the findings of the report.

  Patricia Kushlis, a retired U.S. Information Agency officer and a specialist in international politics, public diplomacy and national security, told us, “I suspect the Administration will try to use this as a rationale for questioning the report's veracity, or at least credibility.  Whether it will stick, or not, is another question.”

  Prof. Roederer told us, “I only think it hurts as a rhetorical matter. It may work rhetorically to defend our actions by pointing back at our accusers as coming from ‘bad’ places, but that retort misses the point of the allegation. If the merits disclose violations it is no answer to say that other states are violating human rights or even that members of the Committee are focusing on the U.S. to move the spotlight off of their own countries. The charge is still left intact - two or more wrongs do not make a right.”

  CCR’s Olshansky said, “Although the full membership of the U.N. Human Rights Commission includes states with less than ideal human rights records, the report that we have seen is being issued by unimpeachable sources”. She noted that the five individuals who prepared the report are the “foremost authorities” on the issues addressed in the report.  “They have no role or responsibility for the actions of their home governments.” 

  Gabor Rona of HRF agrees. He told us, “ The people who researched and wrote this report are among the world’s most distinguished human rights scholars. They are independent of the countries that are members of the Human Rights Commission. The Bush Administration should consider their findings carefully and not respond by attempting to shoot the messenger.”

  In November, the Bush administration offered three of the five members of the U.N. team the same tour of the prison given to journalists and members of Congress. But it refused to give the envoys access to prisoners, and for this reason the U.N. group declined the visit.

  The report focuses on the U.S. government's legal basis for the detentions as described in its formal response to the U.N. inquiry: "The law of war allows the United States — and any other country engaged in combat — to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment, but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States."

  But the U.N. team concluded that there had been insufficient due process to determine whether the more than 750 people who had been detained at Guantanamo Bay since January 2002 were "enemy combatants," and determined that the primary purpose of their confinement was for interrogation, not to prevent them from taking up arms. The U.S. has released or transferred       more than 260 detainees from Guantanamo Bay.

  It also rejected the premise that "the war on terrorism" exempted the U.S. from international conventions on torture and civil and political rights.

  The report said the simultaneous use of several interrogation techniques — prolonged solitary confinement, exposure to extreme temperatures, noise and light; forced shaving and other techniques that exploit religious beliefs or cause intimidation and humiliation — constituted inhumane treatment and, in some cases, reached the threshold of torture.

  Prof. Nowak also said the U.N. team was "particularly concerned" about the force-feeding of hunger strikers through nasal tubes that detainees said were brutally inserted and removed, causing intense pain, bleeding and vomiting. --posted Feb. 17, 2006

Rising Above Principle

  There is much to commend this Jeffersonian construct – notwithstanding that it often chooses to ignore the many roles small government simply cannot play in modern society and the many benefits we all receive from big government.

  But I am struck by the eagerness of at least one faction of American conservatism is to ‘rise above principle’ when they find it convenient.

  Nowhere is this hypocrisy more naked than in the cheerleading of the religious right for the Bush Administration’s Faith-Based Initiative.

  For those who may have been tuned to another channel for the past five years, the Faith-Based Initiative is a program President George W. Bush set up in 2001 to provide Federal grants to religiously affiliated charities. Since that time, these charities have received millions of dollars in taxpayer funding from Federal departments and agencies.

  I have had the opportunity to witness the work of some of these faith-based charities firsthand, and it has been outstanding. Catholic Charities, for example, carries out a multitude of tasks under contract to the U.S. Agency for International Development in some of the most inhospitable venues in the developing world. Other religiously-affiliated groups will be remembered for their splendid performance in providing help to victims of the tsunami.

  The work of the overwhelming majority of these and many other similar groups is not about religion or political philosophy. It is about providing food and shelter, or introducing best practices in agriculture, education and public health, or organizing micro-credit programs for the “least of these’.

  So what’s the problem?

  First, some of these charities have abused their missions by proselytizing. They have used cataclysmic disasters to spread their personal Gospels. For example, more than a few distributed copies of the King James Bible and Jesus T-shirts to tsunami survivors in predominantly Muslim communities. Others have received grants to conduct clearly evangelical programs for prison inmates in the U.S.

  Second, some religious charities have been involved in reproductive health programs – and have slavishly toed the Bush ‘abstinence only’ line in providing family planning counseling to women.

  But, beyond doubt, the biggest problem with the Faith-Based Initiative is that it allows fund recipients to practice clearly unlawful discrimination in their hiring practices. The Bush plan says if you’re, say, a Baptist organization, it’s OK for you to hire only Baptists, or if your organization is Christian, you can reject employment applications from Jews.

  That’s why the Bush Administration has never been able to get the Faith-Based Initiative though Congress, and the President had to launch it by Executive Order.

  The question Congress has been unable to answer is: If the aim of a government-funded charity is not proselytizing, what difference should it make if I’m a Muslim working for a Christian organization?

  Religiously-affiliated charities ought to stop and reflect on what they’re getting from the government – and what they’re giving up in the process.

  Money is what they’re getting. But a conservative tenet every bit as central as small government is community support. Private, individual philanthropy has a long and rich tradition in American culture. Many church-related groups don’t need public funding. And those that are not running mega-churches or multi-million dollar televangelist enterprises should be looking to their own communities for support.

  What these groups are giving up by accepting Federal funds is even more important: Their credibility to speak out on issues that may be unpopular, but that cry out for public dialogue. While they may be comfortable with the values of the Bush Administration today, Bush is not our last president.

  What reminded me of this issue is Taylor Branch’s splendid book, “At Canaan's Edge: America in the King Years, 1965-68”, about Martin Luther King. Branch reminds readers that MLK always had one foot in the Scriptures and the other foot in the Constitution, and never confused the two.

  The religious right ought to ask itself if America would ever have had a Civil Rights movement if Dr. King and his allies had been on the government payroll. It was the separation of church and state – not its amalgamation – that empowered that movement to speak truth to power.

  Which is exactly what the religious community is uniquely qualified to be doing. --Posted Feb. 12, 2006

WHY SHOULD WE BE SURPRISED?

  But we shouldn’t be all that surprised. The Middle East is chockablock with Holocaust-deniers and Holocaust-minimizers. And it is not only the so-called Arab Street that has been infected. The disease has spread to many members of the Arab intelligentsia and to some of the area’s privileged elite.

  I learned just how deeply embedded this attitude is during a conversation I had with members of my staff when I was managing a U.S. aid program in Egypt a few years ago.

  Sitting with me in our luxurious offices overlooking the Nile on a steamy, smoggy Cairo afternoon were three of Egypt’s “best and brightest” – all from affluent families, all with master’s degrees from what is arguably the premier international educational institution in the Middle East, the American University in Cairo. These were no ordinary proxies for the Arab Street; they were Egypt’s future leaders.

  I’ve long since forgotten what aspect of geopolitics we were talking about, but the subject soon turned to Israel. All three made excellent and accurate points about that country’s deeply myopic policies vis a vis the Palestinians. Then we seemed to segue effortlessly from Israel to the Holocaust.

  “The Holocaust is mostly a myth,” declared one. “It’s an idea that’s been pushed by the Jewish lobby in America to keep U.S. support for Israel.”

  “How do you know that?” I asked.

  “Everyone who studies the truth knows it”, my staffer responded.

  ”How about all the photos of American GIs liberating the concentration camps,” I asked. “Were they faked?”

  Another staff member joined the conversation. “No, they weren’t faked, but the numbers were purposely exaggerated”, she said, adding, “The camps were there, but only a million or so were killed.”

  “Have you read Irving’s book about it?” my third colleague chimed in. “He’s a well respected historian and he proves it never happened.” He was referring, of course, to the writing of one of more outrageous Holocaust-deniers, David Irving (whose ‘history’ has been reliably refuted by virtually all reputable historians).

  Where did these exceptionally smart, exceptionally competent, thoroughly Western-oriented young people get their information? For more than a generation, their views have been fuelled by a non-stop stream of inaccurate and distorted statements by their leaders, by the “reporting” of mostly-State-owned newspapers, magazines and television channels, by uninformed teachers, and by textbooks from kindergarten through university.

  A few years ago, I wrote an article on these textbooks for The Daily Star, a highly respected newspaper based in Beirut.

  I found that in Syria, for example, school children from the fourth grade up are taught that Zionism is a form of colonialism similar to Nazism; Zionism endangers the Arab world and prevents its unification; Israel is an aggressive and expansionist enemy and is responsible for the backwardness of the Arab world; and when young readers grow up, they must engage in holy war ­ jihad ­ against Israel and seek martyrdom. The texts also underline that Arab leaders who negotiate with Israel, even in third countries, are spies and traitors and that Jews are a menace. Books containing these passages are published by the Syrian Education Ministry and are part of the official school curriculum.

  And in Saudi Arabia, texts for government-financed and private religious schools declare that God’s wisdom mandates continuing the struggle between Muslims and Jews until the Day of Judgment; Jews and Christians, as enemies of Islam, will never be pleased with Muslims, so Muslims must beware of them.

  This kind of vitriol was equaled only by the inaccurate, disrespectful and totally scurrilous caricatures used in Israeli textbooks to portray Arabs.

  And, while the authors of most Israeli textbooks were ordered to clean up their act together in recent years, far too much Arab writing on Israel and the Holocaust remains unchanged. Arab governments continue to use their control of the media and their educational systems to magnify their messages of hate -- while professing solidarity with President Bush’s “Global War on Terror” and happily accepting huge sums in American aid.

  For example, Egypt – the Middle East’s most absurd example of “pretend democracy” -- owns an evening newspaper called Al-Masaa. In a recent article titled "Israel's Lies", columnist Hisham Abd Al-Rauf wrote that there were no massacres of the Jews during World War II, and that the gas chambers were intended for disinfecting clothing. Hitler, he wrote, was not against the Jews, and had even permitted Jews to emigrate to Palestine during his first years in power.

  This kind of message is repeated on a daily basis throughout the Middle East – in schools, in newspapers, on television, in coffeehouse conversations, and in government-financed textbooks.

  So we shouldn’t really be surprised by what Iran’s new president has to say. His voice is only one added to many others. The problem is that he is the president of a proud and important country. When he calls his faithful to an “international conference on the Holocaust”, people will actually attend, speak, and be reported in the world’s press with the straight face of journalistic objectivity.

  The profound sadness of all this is that it does nothing to help anyone solve anything. It adds nothing to facilitate understanding or conversation. It is a roadmap to nowhere. It simply provides yet another convenient crutch that democracy-denying authoritarian leaders can keep using to prop themselves up.

  It may generate lots of heat, but if you’re looking for light you won’t find it here. --posted Jan. 19, 2006

BUSH, MCCAIN, TORTURE AND BEYOND