The Rag Blog

An American military lawyer and veteran of dozens of secret Guantanamo tribunals has made a devastating attack on the legal process for determining whether Guantanamo prisoners are “enemy combatants”.

The whistleblower, an army major inside the military court system which the United States has established at Guantanamo Bay, has described the detention of one prisoner, a hospital administrator from Sudan, as “unconscionable”.

His critique will be the centrepiece of a hearing on 5 December before the US Supreme Court when another attempt is made to shut the prison down. So nervous is the Bush administration of the latest attack – and another Supreme Court ruling against it – that it is preparing a whole new system of military courts to deal with those still imprisoned.

The whistleblower’s testimony is the most serious attack to date on the military panels, which were meant to give a fig-leaf of legitimacy to the interrogation and detention policies at Naval Base at Guantanamo Bay. The major has taken part in 49 status review panels.

“It’s a kangaroo court system and completely corrupt,” said Michael Ratner, the president of the Centre for Constitutional Rights, which is co-ordinating investigations and appeals lawsuits against the government by some 1,000 lawyers. “Stalin had show trials, but at Guantanamo they are not even show trials because it all takes place in secret.”

Combatant Status Review Tribunals were held for 558 detainees at the Guantanamo in 2004 and 2005. All but 38 detainees were determined to be “enemy combatants” who could be held indefinitely without charges. Detainees were not represented by a lawyer and had no access to evidence. The only witnesses they could call were other so-called “enemy combatants”.

The army major has said that in the rare circumstances in which it was decided that the detainees were no longer enemy combatants, senior commanders ordered another panel to reverse the decision. The major also described “acrimony” during a “heated conference” call from Admiral McGarragh, who reports to the Secretary of the US Navy, when a the panel refused to describe several Uighur detainees as enemy combatants. Senior military commanders wanted to know why some panels considering the same evidence would come to different findings on the Uighurs, members of a Muslim minority in China.

When the whistleblower suggested over the phone that inconsistent results were “good for the system … and would show that the system was working correctly”, Admiral McGarragh, he said, had no response. The latest criticism emerged when lawyers investigating the case of a Sudanese hospital administrator, Adel Hamad, who has been held for five years, came across a “stunning” sworn statement from a member of the military panel. The officer they interviewed was so frightened of retaliation from the military that they would not allow their name to be used in the statement, nor to reveal whether the person was a man or woman.

Two other military lawyers have also gone public. In June, Army Lt-Col Stephen Abraham, a 26-year veteran in US military intelligence, became the first insider to publicly fault the proceedings. In May last year, Lt-Com Matthew Diaz was sentenced to six months in prison and dismissed from the military after he sent the names of all 551 men at the prison to a human rights group.

MoD begins study amid fears that up to 20,000 soldiers may be affected

The Ministry of Defence is conducting a major study into brain injury in troops returning from Iraq and Afghanistan amid fears that thousands of soldiers may have suffered damage after being exposed to high-velocity explosions.

The US army says as many as 20% of its soldiers and marines have suffered “mild traumatic brain injury” (mTBI) from blows to the head or shockwaves caused by explosions. The condition, which can lead to memory loss, depression and anxiety, has been designated as one of four “signature injuries” of the Iraq conflict by the US department of defence, which is introducing a large-scale screening programme for troops returning from the frontline.

Defence officials were reluctant to extrapolate directly from the US experience, arguing that the science is still inconclusive and that the US and UK experience in Iraq and Afghanistan has been different. But the Guardian has learned that the government has put in place a series of measures – including a comprehensive screening process – to deal with what could be a 20-fold increase in troops with mTBI. If the most alarming US predictions are accurate, as many as 20,000 UK troops could be at risk.

Kit Malia, a cognitive rehabilitation therapist who will oversee the programme to treat TBI at Headley Court military rehabilitation centre in Surrey, said: “I think the issue is that we don’t know whether the Americans are correct. But if the American figures are correct, this is massive. Absolutely massive.”

Surgeon commodore Lionel Jarvis, director of medical policy at the MoD, said the UK is doing all it can to improve diagnosis and treatment of the condition and is “running very, very much in parallel” with the US. He added: “The only significant difference is that there is a much higher political profile on this in the US.”

He said the MoD had drawn up a list of measures to help deal with mTBI that included circulating information to all ranks in the field on what symptoms to look out for; plans to screen all service personnel when they return from combat; a four-stage treatment programme at Headley Court; and research into body armour to improve protection for the brain.

Liam Fox, the Conservative defence spokesman, said: “It is a dereliction of duty, a failure of duty of care. They are already well behind the US in terms of identifying this disease. We have to ask again why should US troops be getting better care than British troops?”

The mTBI injury can occur when a soldier gets a blow on the head or is in close proximity to an explosion. The increased use of improvised explosive devices (IEDS) – roadside bombs – in Iraq and Afghanistan means more troops are at risk than in previous conflicts, and experts say that even the most advanced helmets cannot protect the brain from the shock waves.

A US neurologist and former doctor at the US department of veterans affairs, P Steven Macedo, said: “The enemy combatants are not trying to put missiles or bullets into our troops – they are trying to blow up their vehicles with IEDs. But the vehicles and the men wear heavy armour so what goes through them in many cases is the blast wave and we are beginning to see the impact this is having on the neurological make-up of our troops. This is the first war since the first world war where the major cause of injuries is blasts.”

Advances in brain scanning have revealed that soldiers can sustain bruising and blood clots on the brain, even if there is no visible injury. If the condition is not diagnosed it can lead to long-term problems – from depression and anxiety to violence and relationship break-up.

Tens of thousands of people have taken part in demonstrations against the war in Iraq in cities across the US.

Rallies took place in a dozen cities, with the biggest crowds gathering in New York, Chicago and San Francisco.

They were timed to coincide with the fifth anniversary of a vote by the US Senate to authorise the Iraq invasion.

Those taking part, who included relatives of servicemen fighting in Iraq, urged the US congress to cut off funding for the war.

The ‘national day of action’ was called by the United for Peace and Justice coalition.

Silence for dead

Mike Carano, who organised a march in Ohio, told Reuters news agency: “This is across-the-country sentiment about ending the occupation, redirecting funds for needs in this country, our attempt to get Congress to stand up and have its prerogative to cut funding, to take charge.”

One of the national co-ordinators of the protests, Leslie Kielsen, told Reuters that the “half a trillion” dollars spent on the war was money that could have been used for education, social housing and to feed the hungry.

In New York participants gathered in Union Square, before marching on to Foley Square, which is close to many of the city’s largest courthouses and government offices.

A two minute silence was held to honour those killed in the violence which has blighted Iraq since the 2003 US-led invasion.

WASHINGTON — The Kuwaiti contractor that’s building the new U.S. Embassy in Baghdad — behind schedule and plagued by allegations of shoddy construction and safety flaws — is still winning lucrative new contracts to build U.S. diplomatic installations overseas.

Late last month, First Kuwaiti General Trading & Contracting Co. was part of a team that won a $122 million State Department contract to build a U.S. consulate in Jeddah, Saudi Arabia, according to contract documents.

That’s one of at least three State Department jobs, in addition to the Baghdad project, that First Kuwaiti won in association with a U.S. firm, Grunley Walsh LLC of Rockville, Md.

Since 2006, by operating as a subcontractor to Grunley Walsh, First Kuwaiti has won contracts for work on a new U.S. Embassy in Libreville, Gabon; on a consulate in Surabaya, Indonesia; and on the Jeddah project.

Such partnerships are increasingly common as foreign companies try to win shares of embassy construction contracts that are worth hundreds of millions of dollars each year under the State Department’s aggressive building program. Under a 1986 law, only U.S. firms can bid on embassy construction.

But industry analysts said that First Kuwaiti appears to be the financial muscle behind the partnership with Grunley Walsh. Lebanese businessman Wadih al Absi founded the company in 1996. News reports and Middle East experts say that Absi is a supporter of Lebanese Christian politician Michel Aoun, an ally of Syria and the Iranian-backed Islamic militant group Hezbollah.

First Kuwaiti, which has hired a public relations firm, Saylor Co., declined to comment. Bassem Soueidan, Grunley Walsh’s operations manager, didn’t return repeated phone calls seeking comment.

“There’s always a concern about a foreign firm trying to use an allegiance with a U.S. firm to get a foothold in,” said Marco Giamberardino of the Associated General Contractors of America.

The awards to Grunley Walsh and First Kuwaiti over the past 13 months have sparked criticism from State Department officials and First Kuwaiti’s competitors in light of the problems that have delayed the opening of the $740 million Baghdad embassy complex.

The problems include a fire sprinkler system that failed when it was tested in August, electrical problems in a camp intended to house embassy guards and allegations of abuse of foreign workers. First Kuwaiti has denied the abuse allegations, but the Justice Department is investigating.

McClatchy Newspapers reported last week that some aspects of the embassy’s construction are now the subject of a Justice Department criminal investigation.

Secretary of State Condoleezza Rice told the House Foreign Affairs Committee on Wednesday that “some flaws in construction” had delayed the Baghdad embassy’s opening. “We are going to open as soon as possible,” she said, without offering a firm date.

The head of the State Department building program, retired Army Maj. Gen. Charles E. Williams, assured Congress in late July that the Baghdad embassy would be ready “in September as planned at the budget.”

Williams’ sympathizers say he’s overhauled a lethargic building program that built an average of one embassy a year and has delivered more than a dozen annually. Critics say his zeal for on-time and on-budget projects has created new problems.

Rice is expected to be grilled Thursday by members of the House Oversight and Government Reform Committee about the embassy construction, oversight of Blackwater and other private security contractors in Iraq, and Iraqi government corruption.

James F. Archibald III, an attorney who represented Alabama-based Caddell Construction Co. in challenging the award of the contract for the U.S. Embassy in Djibouti to a subsidiary of a Dutch firm, said other foreign companies are using American partners to bid on State Department contracts.

The Government Accountability Office ruled for Caddell, but a federal claims court judge overturned the ruling in August.

After the ruling, Grunley Walsh and First Kuwaiti continued to bid on the Jeddah contract and others.

According to documents posted on the Internet, the former head of U.S. operations for First Kuwaiti, Robert Farah, has been negotiating to purchase Grunley Walsh’s international operations, including the embassy construction work.

In a letter dated Dec. 22, 2006, an attorney for Farah said that Farah intended to purchase a renamed firm called Grunley Walsh International LLC, including its contracts in Indonesia, Gabon and at the U.S. Embassy in New Delhi, India. The letter, to an official of the Defense Security Service, which oversees security clearances for contractors, was first posted on the Web site of independent journalist David Phinney.

BAGHDAD, 25 October 2007 (IRIN) – Iraqi NGOs have raised concerns about the condition of children in local prisons, saying they are abused and tortured during interrogation.

“Children are being treated as adults in Iraqi prisons and our investigations have shown that they are being abused and tortured,” said Khalid Rabia’a, a spokesman for the Prisoners’ Association for Justice (PAJ).

“Our investigation started after families brought their five sons to our organisation looking for psychological help for their children who were recently released from prison, and what we found out was shocking,” Rabia’a added.

According to Rabia’a, child prisoners between 13 and 17 are being accused of supporting insurgents and militias. Most were detained during Iraqi army military operations in the Baghdad neighbourhoods of Adhamiya, Latifiya, Alawi, Doura and Hay al-Adel.

“The five children showed signs of torture all over their bodies. Three had marks of cigarettes burns over their legs and one couldn’t speak as the shock sessions affected his conversation,” Rabia’a said. “It is against international law that protects children and we call for interventions in all Iraqi prisons to save the lives of these children.”

The Ministry of Interior denied the accusations, saying children and youth taken for interrogation are released after a maximum of 48 hours without being abused or tortured. A campaign against child abuse is being launched in Baghdad with the support of Iraq’s Vice-President Tarek al-Hashimy.

“Iraq respects human rights conduct for children and adults and our prisons aren’t used for torture. Earlier scandals were reported and those responsible were punished. The accusations are wrong and they cannot prove it,” Lt Col Ali Khalid Hussein, senior official at the Ministry of Interior, told IRIN.

However, another senior official from the ministry, who requested anonymity and who has been supplying the NGO with daily updates, told IRIN that every Iraqi prison is holding at least 20 children and they are all suffering abuse.

Rabia’a said the NGO had informants in many Iraqi prisons but since they did not want to be named, they could not go to court and prove the abuses were taking place.

On September 23rd, Marco Tulio Portela Ramirez, a union organizer, was gunned down outside his home as he prepared to go to work at the Bandegua banana plantation, a subsidiary of Del Monte Fresh Produce.

The production of bananas in Guatemala takes place in large monoculture plantations where labor conditions are very poor. Workers receive low wages which often don’t cover the basic needs of their families and endure long 12-hour work days and exposure to dangerous chemicals. Furthermore, employees lack the freedom to organize independent trade unions and negotiate agreements with their employers in order to improve these working conditions. Those who have tried to organize have come under attack from both transnational banana companies and independent banana producers. Illegal firings, plantation closures, temporary contracts, civil law suits, trumped up criminal charges, and violence targeting union leaders have all become commonplace. So far in 2007, four unionists have been assassinated in Guatemala and no charges have been made against the guilty parties.

According to the International Confederation of Free Trade Unions (ICFTU), the Guatemalan Constitution recognizes workers’ freedom of association and states that all workers retain the right to form and join trade unions. Workers have the right to organize and bargain collectively under the condition that 25% of the total workers are in agreement and possess the right to strike provided that 50% support the strike.

The Constitution also provides for a judicial system to rule specifically on violations of the Labor Code. Unfortunately, the labor courts in Guatemala are overrun with backlogged cases that can drag on for years. Even when they issue rulings, the courts have insufficient power to ensure that their decisions are respected. Consequently, employers tend to dismiss the Labor Code and are rarely held accountable for illegal firings, negligent work conditions and violence against union organizers.

Del Monte, the third largest producer of bananas, is owned and controlled by the Chilean-based IAT Group (based in the United Arab Emirates), which maintains its headquarters in Miami, Florida. As of 2005, Del Monte controlled about 15% of the world banana trade. Along with the other major banana producers like Chiquita and Dole, they yield a great deal of power in Latin America and can sell bananas to the northern markets at an extremely cut-rate price. According to a French research institute CIRAD, “only 12% of the final retail price stays in the producing countries. An even smaller proportion goes to small farmers (5-7%) or to plantation workers (1-3%)”. The rest is profit in the pockets of the CEO’s and investors.

Bandegua, the Guatemalan subsidiary of Del Monte, is one of many companies with a long history of targeting trade unionists. In 1999, Bandegua dismissed 900 workers who were involved in the Banana Workers Union of Izabal (SITRABI), the oldest and one of the most powerful unions in Guatemala. On October 13th of that year, a heavily armed attack was led against the union organizers who were planning a massive protest in response to the dismissals. Consequently, seven members of SITRABI fled to the US to defend their lives and pursued a case against Bandegua. As a response, the US government placed Guatemala’s trade benefits on probation until Guatemalan courts convicted the criminals. Unfortunately, due to the sustained violence in Guatemala, the seven organizers continue to live in the US.

On March 7th, 2000, The International Union of Food and Agriculture Workers (UIF) signed an agreement with Del Monte Fresh Produce, which set up local negotiations between Bandegua and SITRABI and committed the company to respecting minimum labor standards. The new agreement ensured that all 900 workers who were illegally fired be allowed to return to their jobs and explicitly stated that all workers had the right to join SITRABI.

Although all parties signed the agreement, acts of violence and intimidation continue. In November of 2006, Cesar Humberto Guerra, the Labor and Conflicts Secretary of SITRABI, was followed by three armed men while driving through the Chicasaw banana plantations in a vehicle owned by SITRABI. The men fired their guns in the air and threw a stone at the windshield of the car.

In July, 2007, military officers forcibly entered a SITRABI union meeting demanding to know the identity of the union’s leaders, the size of its membership and the nature of its occupation. In response, SITRABI filed complaints with the Public Ministry and the Ministry of Defense in Guatemala, who promised there would be an “internal investigation.” According to a statement by the Solidarity Center from September 18, “Military officers had been disciplined by the Ministry of Defense in response to SITRABI complaints about the unlawful entry.”

Five days later, as Marco Tulio Portela Ramirez prepared to go to work at the Bandegua banana plantation, he was brutally gunned down in front of his house by armed, masked men carrying high caliber weapons. Marco was the Secretary of Culture and Sport at SITRABI and his brother, Noé Ramirez, is the General Secretary. According to STITCH, a nationwide group of women organizing for social justice, SITRABI strongly believes that this killing is directly related to their fight to end the intimidation and harassment of the union.

In his statement on September 30th, Noé Ramirez declared, “At the wake and burial of my brother’s mortal remains, I saw how hundreds of workers who were there with us cried at the loss of a fellow unionist, but also how we all committed ourselves to continue forward with our struggle, refusing to be silenced, because we are not alone: we are supported by allies all over the world….I would like to ask you all to keep pressuring the government and the rest of the Guatemalan authorities so that they will immediately investigate and solve Marco Tulio’s murder, and punish both the material and intellectual perpetrators of this crime and their accomplices.”

In response to this assassination, Solidarity Center Executive Director Ellie Larson said, “The systematic attacks on SITRABI constitute backsliding on worker rights enforcement in Guatemala. No worker should lose his life for exercising a fundamental right to participate in a union. Together we must break down the wall of impunity and rebuild respect for worker and human rights.”

This is John Pilger’s address to a London meeting, ‘Freedom Writ Large’, organized by PEN and the Writers Network of Burma, on October 25.

10/27/07 “ICH’ — — Thank you PEN for asking me to speak at this very important meeting tonight. I join you in paying tribute to Burma’s writers, whose struggle is almost beyond our imagination. They remind us, once again, of the sheer power of words. I think of the poets Aung Than and Zeya Aung. I think of U Win Tin, a journalist, who makes ink out of brick powder on the walls of his prison cell and writes with a pen made from a bamboo mat – at the age of 77. These are the bravest of the brave.

And what honor they bring to humanity with their struggle; and what shame they bring to those whose hypocrisy and silence helps to feed the monster that rules Burma.

I had planned tonight to read from my last interview with Aung San Suu Kyi, but I decided not to – because of something Suu Kyi said to me when I last spoke to her. “Be careful of media fashion,” she said. “The media like this sentimental version of life that reduces everything down to personality. Too often this can be a distraction.”

I thought about that, and how typically self effacing she was, and how right she was.

In my view, the greatest distraction is the hypocrisy of those political figures in the democratic West, who claim to support the Burmese liberation struggle. Laura Bush and Condoleezza Rice come to mind. “The United States,” said Rice, “is determined to keep an international focus on the travesty that is taking place in Burma.”

What she is less keen to keep a focus on is that the huge American company, Chevron, on whose board of directors she sat, is part of a consortium with the junta and the French company, Total, that operates in Burma’s offshore oil fields. The gas from these fields is exported through a pipeline that was built with forced labor and whose construction involved Halliburton, of which Vice President Cheney was Chief Executive.

For many years, the Foreign Office in London promoted business as usual in Burma. When I interviewed Suu Kyi I read her a Foreign Office press release that said, “Through commercial contacts with democratic nations such as Britain, the Burmese people will gain experience of democratic principles.”

She smiled sardonically and said, “Not a bit of it.”

In Britain, the official public relations line has changed, but the substance of compliance and collusion has not. British tour firms – like Orient Express and Asean Explorer – are able to make a handsome profit on the suffering of the Burmese people. Aquatic – a sort of mini Halliburton – has its snout in the same trough, together with Rolls Royce and all those posh companies that make a nice earner from Burmese teak.

When the last month’s uprising broke out, Gordon Brown referred to the sanctity of what he called “universal principles of human rights”. He has said something similar a letter sent to this meeting tonight. It is his theme of distraction. I urge you not be distracted.

When did Brown or Blair ever use their close connections with business – their platforms at the CBI and in the City London – to name and shame these companies that make money on the back of the Burmese people? When did a British prime minister call for the European Union to plug the loopholes of arms supply to Burma, stopping, for example, the Italians from supplying military equipment? The reason no doubt is that the British government is itself one of the world’s leading arms suppliers, especially to regimes at war. Tonight (October 25) the Brown government has approved the latest American prelude to its attack on Iran and the ensuing horror and bloodshed.

When did a British prime minister call on its ally and client, Israel, to end its long and sinister relationship with the Burmese junta. Or does Israel’s immunity and impunity also cover its supply of weapons technology to Burma and its reported training of the junta’s most feared internal security thugs? Of course, that is not unusual. The Australian government – so vocal lately in its condemnation of the junta – has not stopped the Australian Federal Police from training Burma’s internal security forces in at the Australian-funded Center for Law Enforcement Cooperation in Indonesia.

10/26/07 “ICH” — – It was a case of mistaken identity. It could have happened to any one of us.

And yet, in 2007 it is hard for us to imagine the ongoing nightmare endured by Khaled El-Masri, the German citizen whose story helped to expose the ugly underbelly of the US-led global war on terror. On October 9th, Masri’s last hope at getting justice in the US was dashed when the Supreme Court declined to review the lower court rulings dismissing his case based on the government’s assertion that to give Masri his day in court would require the disclosure of state secrets and thus harm US national security.

His Kafkaesque plight brings to mind the inquisitorial “justice” meted out by totalitarian regimes. That the High Court refused to hear his case without comment is all too fitting for the silence and secrecy Masri encountered in his search for answers in the US. Now, Masri must turn to the European Court of Justice in the hopes that Europe will afford him the justice he was denied in America. Since the US is not a signatory to the European Convention on Human Rights, Masri should bring suit against Germany for its complicity in his mistreatment in order to obtain an adjudication affirming the mistreatment he received at the hands of US agents.

The Supreme Court decision, which the New York Times called a “Supreme Disgrace,” in essence accepted the Bush administration’s contention that the judiciary must ‘trust us’ that allowing Masri’s case to proceed would harm national security. But the constitutional rule of law is based on distrust, not trust. That is why, recognizing as axiomatic that ‘Power corrupts, and absolute power corrupts absolutely,’ the Constitution established a system of checks and balances by means of a separation of powers aimed at accountability. By rubber-stamping claims of executive privilege, the judiciary shirks its constitutional duty, and thus fails us all.

Masri’s story has been one of the most widely reported cases of so-called ‘extraordinary rendition’, the practice of secretly abducting suspected terrorists and indefinitely detaining them, often in countries known to torture prisoners. On December 6, 2005 Masri filed a lawsuit in US federal court against former CIA director George Tenet, and others, alleging that the defendants, acting as agents of the US government, kidnapped, wrongfully imprisoned, abused and tortured him. The 44-year-old married father of five alleges that on December 31, 2003 he was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to US agents, then beaten, drugged, and taken to a secret prison in Afghanistan, where he was interrogated in a cruel and inhuman manner. His allegations have been investigated and substantiated by the German state prosecutor and the Council of Europe, the continent’s human rights watchdog.

It seems that Khaled El-Masri was thought to be Khalid al-Masri, the name given to the CIA by the Hamburg-based terror suspect Ramzi Binalshibh as the person who helped Mohammed Atta’s 9/11 cabal make contact with a senior Qaeda member in Germany. Likely, the CIA’s ‘enhanced interrogation techniques’ produced false ‘intelligence’ and they chased a fictive person with reckless abandon. The validity of Masri’s German passport was never checked before he was flown to Afghanistan. German Chancellor Merkel told the press that US Secretary of State Rice acknowledged to her the mistake with Masri. Rice’s staffers subsequently denied any such admission having been made. Rice, like all Bush officials, has refused to comment on Masri’s claims.

Masri’s lawsuit sought an apology and monetary compensation. US District Judge T.S. Ellis III held that Masri’s “private interests must give way to the national interest in preserving state secrets,” adding that if the allegations are true “all fair-minded people must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Indeed, there is no justice without a remedy for a legal wrong. But following the Supreme Court refusal to review his case, it is now a certainty that Masri will never obtain a remedy through the US legal system.

The Masri case reveals much of what has gone wrong in the ‘war on terror.’ The Supremes let stand the March 2nd Fourth Circuit Court of Appeals ruling which upheld Judge Ellis’ dismissal of the lawsuit because it could expose state secrets. These decisions have brought widespread disbelief, disappointment and disgust. Following the Fourth Circuit ruling, ACLU attorney Ben Wizener said: “This is doubly insulting. Everyone knows that Mr. El-Masri was a mistaken victim of the rendition program. He is now a victim of the misuse of the state-secrets privilege.”

Masri’s is not the only such case to be so dismissed. For instance, Maher Arar, the Canadian citizen taken to an Edgar Allan Poe-like secret prison in Syria, also had his case thrown out of US federal court by a state secrets ruling. The Canadian government substantiated Arar’s claims and offered an apology and compensation for its role in his ‘rendition’. Sadly, the current US administration lacks the strength to ever apologize.

The once-obscure state secrets privilege has been expanded and used ever-more since it was created in the 1953 case US v. Reynolds. Information declassified half a century later reveals that the state secrets claim in the Reynolds case was a lie – the government was seeking to hide its mistakes and protect against embarrassment, not to protect the country’s security. This revelation has fueled calls for reform by legal scholars, public interest groups and the American Bar Association. Since 1993, judges have required in-camera review of the disputed documents underlying state secrets claims in less than an eighth of cases, opting instead for blind deference.

On October 11th, the Times opined, “this administration has repeatedly relied upon [the state secrets doctrine] to avoid judicial scrutiny of its lawless action . . . courts need to apply a healthy dose of skepticism to state secrets claims.” Recently, parts of the judiciary have awakened. Federal judges have denied state secrets claims, noting that to defer to a blanket assertion of state secrets would be to abdicate their duty. On October 10th, a federal judge, citing domestic and international law prohibiting torture, barred the transfer of Guantanamo Bay inmate to Tunisia, marking the 1st time the judiciary has blocked the government transfer of a terror detainee. Perhaps this signals a new willingness to question claims of executive privilege.

As part of a community working to instill respect for the rule of law in post-communist Europe, these are challenging times. America should lead by example in assisting new democracies to root out corruption and establish transparency and accountability in governance. Yet its refusal to cooperate with German prosecutors in Masri’s case, the Canadians in Arar’s case, or the Italians in a rendition investigation there, erodes international cooperation. And revelations of secret torture memos, secret prisons, and secretive government under a novel ‘unitary executive’ theory undermine efforts advocating a rule of law agenda.

We owe Khaled El-Masri our gratitude for helping to expose human rights abuses committed in our name. By taking his claim to the European Court of Justice Masri can shed additional light on the self-defeating post-9/11 tactics employed in the US and Europe. Sunlight is the best disinfectant.

Masri was turned back at the airport without explanation when he flew to the US to appear at his first court hearing, and in the end he was denied review by the Supreme Court without comment. Mr. Masri is reportedly experiencing psychiatric problems today. Let us hope that he has the strength to continue his search for truth and fairness with the European Court of Justice. For we all have a stake in his struggle for justice.

A federal appeals court has concluded that an FBI agent must go to trial on charges he coerced a false confession out of a prime suspect in the 9/11 attacks. But the FBI still insists that its agent did nothing wrong. And the feds swayed the court to suppress that portion of a recent decision detailing how the FBI agent used the threat of torture to break an innocent man.

Abdallah Higazy, a 30-year-old Egyptian student, arrived in New York City to study engineering at the Polytechnic University in Brooklyn on August 27, 2001. A U.S. foreign-aid program reserved and paid for his room at the Millennium Hilton Hotel, next to the World Trade Center. After the first plane crashed into the World Trade Center, Higazy hot-footed it out of the hotel. After the terrorist attack, the hotel was sealed.

Three months later, guests were allowed to retrieve their belongings. When Higazy went to the hotel on December 17, he was arrested and accused of possessing an aviation radio. (A hotel security guard reported finding the radio in a safe in his room.) Higazy denied owning the radio. He was arrested as a material witness and locked up in solitary confinement.

Higazy wanted to clear his name so he agreed to take a polygraph test. FBI agent Michael Templeton wired him up for the test but then proceeded to browbeat him for three hours until he finally admitted to owning the radio. Higazy said the FBI agent warned him, “If you don’t cooperate with us, the FBI will … make sure Egyptian security gives your family hell.” The FBI refused to permit Higazy’s attorney, Robert Dunn, to be in the room while he was given the polygraph. After the interrogation, Higazy was “trembling and sobbing uncontrollably,” according to Dunn.

On January 11, 2002, Higazy was indicted for lying to a federal agent. U.S. Attorney Dan Himmelfarb declaimed that “the crime that was being investigated when the false statements [about the radio] were made is perhaps the most serious in the country’s history. A radio that can be used for air-to-air and air-to-ground communication is a significant part of that investigation.” The Washington Post noted that “federal officials paraded [Higazy] before the media as a terrorist.” The feds never bothered checking with the U.S. foreign-aid program to find out whether Higazy’s story about why he was staying at the hotel next to the World Trade Center was true.

The prosecutorial celebration flopped three days later when an American pilot showed up at the Millennium Hilton Hotel and asked for the aviation radio he had left in his room when the hotel was evacuated on 9/11. It soon became apparent that the hotel security guard (a former cop who had been fired by the Newark Police Department) had lied about finding the radio in Higazy’s room. The case collapsed and, a few days later, Higazy was awarded $3 for subway fare and released from jail. The FBI conducted an internal investigation and absolved Templeton of any wrongdoing.

In late 2002 Higazy sued, asserting that the FBI’s coercive interrogation violated his Fifth Amendment rights against self-incrimination. Federal judge Naomi Buchwald dismissed his case, declaring, “[Agent] Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive.” Perhaps Buchwald believed that as long as Higazy’s mother and sister were not brutalized in front of him during the interrogation, the FBI had done nothing wrong.

A federal appeals court overturned this decision on October 19, declaring that Higazy’s case deserved to go to trial. The original version of the decision detailed the tactics Templeton purportedly used to get Higazy’s confession. Two hours later, the court removed that portion of the decision from the Internet. The redacted portion of the decision (captured by bloggers before it was taken down) noted that the FBI agent admitted to knowing that Egyptian “laws are different than ours, that they are probably allowed to do things in that country … yeah, probably about torture, sure.” Thus, Templeton was aware that his threat would terrify Higazy.

The revised court decision replaced such key details with the following mundane notice: “For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.”

The FBI has long taught its agents that subjects of their investigation have “forfeited their right to the truth,” according to the ethics study guide at the FBI Academy. Perhaps, according to federal lawmen, it is a small step from lying to suspects to threatening to have their kinfolk tortured. The agency has done nothing in the nearly six years since this case began to indicate that the methods used in the Higazy case did not receive the full approval of FBI headquarters.

The initial Higazy arrest and release were landmarks showing how far feds would go to gin up evidence and headlines for the war on terror. The fact that the FBI approved of its agent’s methods — and the fact that a federal judge saw no problem with the interrogation — are further warning signs of constitutional decay. Keep your eyes on this case, because it could help determine how far feds can go to destroy innocent people.

New York, NY – October 19, 2007. Members of MDS New York were joined by students from Pratt, New School and Pace SDS in a street theatre action in NYC’s Times Square. The occasion was the second round of the Iraq Moratorium. Protesters clad as “pro-war zombies” – and the Grim Reaper – turned out on the third Friday in October, 2007 to “help” recruiters. The zombies spoke to passersby, arguing that: “It’s been a long war, business is slow for recruiters and they seem lonely – stop in and say hello.” The zombies worked a two hour shift (union rules?) – exhorting pedestrians to “support endless war”, “give war a chance”, sign up for “only two weekends a month, honest” and to remember that “violence is the answer”. The sarcasm was not lost on three recruiters who came out of their smallish office on “military island” to glare at the ghouls – the zombies agreed that this was the most annoyed they had ever seen the recruiters. Undead Nixon, who made an appearance at the event as well, encouraged the crowd to remember that death and destruction are “underrated” as he gave the hapless recruiters a big thumb’s up.

Complaint Filed Against Former Defense Secretary for Torture, Abuse at Guantánamo and Abu Ghraib

Press Release: October 26, 2007, Paris, France – Today, the International Federation for Human Rights (FIDH) along with the Center for Constitutional Rights (CCR), the European Center for Constitutional and Human Rights (ECCHR), and the French League for Human Rights (LDH) filed a complaint with the Paris Prosecutor before the “Court of First Instance” (Tribunal de Grande Instance) charging former Secretary of Defense Donald Rumsfeld with ordering and authorizing torture. Rumsfeld was in Paris for a talk sponsored by Foreign Policy magazine.

“The filing of this French case against Rumsfeld demonstrates that we will not rest until those U.S. officials involved in the torture program are brought to justice. Rumsfeld must understand that he has no place to hide. A torturer is an enemy of all humankind,” said CCR President Michael Ratner.

“France is under the obligation to investigate and prosecute Rumsfeld’s accountability for crimes of torture in Guantanamo and Iraq. France has no choice but to open an investigation if an alleged torturer is on its territory. I hope that the fight against impunity will not be sacrificed in the name of politics. We call on France to refuse to be a safe haven for criminals.” said FIDH President Souhayr Belhassen.

“We want to combat impunity and therefore demand a judicial investigation and a criminal prosecution wherever there is jurisdiction over the torture incidents,” said ECCHR General Secretary Wolfgang Kaleck.

“That a criminal State representative should benefit from impunity is always unacceptable. Because the USA is the super power of the beginning of this century and, above all, because it is a democracy, the impunity of Donald Rumsfeld is even more insufferable than that of a Hissène Habré or a Radovan Karadzic”, underlined Jean-Pierre Dubois, LDH President.

The criminal complaint states that because of the failure of authorities in the United States and Iraq to launch any independent investigation into the responsibility of Rumsfeld and other high-level U.S. officials for torture despite a documented paper trail and government memos implicating them in direct as well as command responsibility for torture – and because the U.S. has refused to join the International Criminal Court – it is the legal obligation of states such as France to take up the case.

In this case, charges are brought under the 1984 Convention against Torture, ratified by both the United States and France, which has been used in France in previous torture cases.

French courts therefore have an obligation under the Convention against Torture to prosecute individuals responsible for acts of torture if they are present on French territory (1). This will be the only case filed while he is in the country, which makes the obligations to investigate and prosecute under international law extremely strong.

Rumsfeld’s presence on French territory gives French courts jurisdiction to prosecute him for having ordered and authorized torture and cruel, inhuman and degrading treatment of detainees in Guantanamo, Abu Ghraib and elsewhere.

In addition, having resigned from his position of U.S. Secretary of Defense a year ago, Rumsfeld can no longer try to claim immunity as a head of state or government official. Nor can he claim immunity as former state official, as international law does not recognize such immunity in the case of international crimes including the crime of torture.

Former U.S. Army Brigadier General Janis Karpinski, former commander of Abu Ghraib and other U.S.-run prisons in Iraq, submitted written testimony to the Paris Prosecutor for the plaintiffs’ case on Rumsfeld’s responsibility for the abuse of detainees.

This is the fifth time Rumsfeld has been charged with direct involvement in torture stemming from his role in the Bush administration’s program of torture post-9/11.

Two previous criminal complaints were filed in Germany under its universal jurisdiction statute, which allows Germany to prosecute serious international crimes regardless of where they occurred or the nationality of the perpetrators or victims. One case was filed in fall 2004 by CCR, FIDH, and Berlin attorney Wolfgang Kaleck; that case was dismissed in February 2005 in response to official pressure from the U.S., in particular from the Pentagon.

The second case was filed in fall 2006 by the same groups as well as dozens of national and international human rights groups, Nobel Peace Prize winners and the United Nations former Special Rapporteur on Torture. The 2006 complaint was presented on behalf of 12 Iraqi citizens who had been held and abused in Abu Ghraib prison in Iraq and one Saudi citizen still held at Guantánamo. This case was dismissed in April 2007, and an appeal will be filed against this decision next week.

Two other cases were filed against Rumsfeld in Argentina in 2005 and in Sweden in 2007.

The complaint and the documents attached are available on FIDH Website : here and here.

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Press contact : Karine Appy + 33 1 43 55 14 12 / + 33 1 43 55 25 18 /
+ 33 6 68 42 93 47

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(1) See articles 689 para 1 and 2 of the french Code of Criminal Procedure :
– Article 689-1) In accordance with the international Conventions quoted in the following articles, a person guilty of committing any of the offences listed by these provisions outside the territory of the Republic and who happens to be in France may be prosecuted and tried by French courts. The provisions of the present article apply to attempts to commit these offences, in every case where attempt is punishable.
– Article 689-2 For the implementation of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10th December 1984, any person guilty of torture in the sense of article 1 of the Convention may be prosecuted and tried in accordance with the provisions of article 689-1.