The U.S. and the Rule of Law
• The U.S. and the Rule of Law
For Your Information
One of the urgent demands of Americans and all the world's peoples is that the U.S. not stand above the rule of law. All those fighting for rights demand that the U.S. submit to the rule of law which means the U.S. must uphold the principles embodied in it and act according to them. Under George W. Bush the U.S. acted to wreck the rule of law. The illegal wars against Iraq and Afghanistan, the bombings of Pakistan, renditions, mass round-ups of "enemy combatants" inside the U.S. and outside, Guantánamo, Bagram, secret CIA prisons, "black-ops" and other pre-emptive actions trampling on sovereignty, crimes against the peace, all positioned the U.S. government above the rule of law. The peoples of the entire world reject this and they also reject the U.S. dictate that the entire world must submit to the U.S.
The urgency of the demand for the U.S. to uphold the rule of law is such that in his inaugural speech, President Barack Obama said "We reject as false the choice between our safety and our ideals. Our founding fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake." His Attorney General, Eric Holder, in testimony before Congress said, "Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools." When asked if the President had authority as commander-in-chief to call for acts of torture, Holder said, "No one is above the law."
The opposition to what the U.S. has been doing is so great, it is no accident that in his second full day in office, President Obama issued executive orders concerning the U.S. prison camp at Guantánamo and its closure. Guantánamo has been a focal point for the crimes of torture, indefinite detention without charges or trials, and military commissions that were a travesty of justice. Obama's executive orders state that the U.S. will abide by the Geneva Conventions and all international and U.S. law. Obama has called for a "prompt and thorough review" of the disposition of the prisoners held at Guantánamo. He has also called for a review of detention policy and interrogation policy. These initial steps by Obama are welcome, as everyone wants Guantánamo closed and the many prisoners guilty of no crime released as soon as possible. However, the world is watching to see what precisely Obama's order will mean in practice. The U.S. must not only say it will adhere to the rule of law, but actually do so.
In this regard, activists against torture and indefinite detention have raised concerns that Obama's executive orders still leave loopholes for both to take place, especially as concerns individuals apprehended as part of "counterterrorism operations." There are serious concerns that the U.S. Bagram prison camp in Afghanistan is not included in the orders. Bagram is now the main prison for individuals detained as "unlawful enemy combatants." It has more than 600 prisoners. Unlike Guantánamo, they have not had access to lawyers or any judicial review. Some were brought to Bagram using rendition. Many have been tortured and the International Committee of the Red Cross has condemned their conditions. Yet Bagram is absent from Obama's executive orders and administration officials said nothing would change there for at least six months. Bagram must be promptly closed. All such prisons must be closed. Geneva Conventions concerning prisoners of war and unlawful combatants must be upheld.
The concerns regarding what these executive orders will mean in practice are further underscored by statements by Attorney General Holder in his Congressional testimony. He indicated that a new Guantánamo could be established inside the U.S. Answering a question as to whether prisoners from Guantánamo brought to the U.S. would be tried in federal courts, Holder said, "I think we want to leave our options open. I don't know exactly what system we would put in place or what system we would utilize in order to try those people." He said the system would "be consistent with our values," and have "due process guarantees." Many have pointed out that the creation of a new system, by the executive branch, would necessarily create a double standard and likely be unconstitutional. Existing rule of law, including U.S. law and the Geneva Conventions provide for public trials in the federal courts, military courts where appropriate, and competent international tribunals when there is a dispute as to whether an individual is a an unlawful combatant. What then is the necessity to "leave our options open" and put in place a different system?
It is also the case that U.S. prisons are notorious for their torture. Indeed, many of the methods used at Guantánamo, like long term solitary confinement and systemic abuse and humiliation by guards, are common in U.S. prisons. The orders say nothing about eliminating torture in U.S. prisons. Now, with Holder talking about a new system the concern is that these practices will continue and be utilized in this new system. The possibility of this being the case is also brought out by U.S. plans to develop FEMA camps to hold large numbers of people in the event of a "national emergency," whether natural or man- made.
The U.S. Marxist-Leninist Organization (USMLO) joins the many organizations defending the rights of prisoners being held in the U.S. and those held worldwide. A significant part of the struggle for rule of law is that there be no double standards -- no discrimination, no arbitrary actions by government, no impunity to commit crimes.
Another issue of great concern is that all of these decisions are being taken by the president using executive orders, as George W. Bush did. Given the contradictions within the ruling circles on how to carry forward the war on terror, it is possible that Obama considers it necessary to use his prerogative of executive orders to get his agenda through without internal opposition. However, it is also the case that doing so carries on the modus operandi used by Bush. It positions the president as the one that decides which laws do and do not apply and where they apply.
Indeed, Obama may be taking executive power a step further than Bush. He is not only indicating that he, not Congress or the Judiciary, will put in place a different system for trying individuals the president decides are "too dangerous" to release or try through already established rule of law. He is talking about a new system, in the U.S., to be decided by the president. This creates a dangerous situation indeed. The peoples are to believe that because President Obama is "good," while Bush was "bad," the decisions Obama makes will be "good." Far from it, no one, "good" or "bad" can be above the rule of law. Furthermore, any move to bring about fundamental change on how due process is to be practiced by the U.S., whether within the U.S. or abroad, must be submitted for public discussion and approval. The legal will can only enshrine the popular will if the populace is informed and permitted to develop conviction and approve the decisions.
The U.S. prison camp at Guantánamo has been a focal point for the crimes of torture, indefinite detention without charges or trials, and military commissions that were a travesty of justice. President Barack Obama has now issued executive orders calling for the closure of Guantánamo and stating that the U.S. will abide by the Geneva Conventions and all international and U.S. law concerning torture. He has so far not addressed the prison camp at the U.S. airbase in Afghanistan, Bagram. According to the U.S., the war in Afghanistan, like that in Iraq, is supposed to be over. This means all U.S. held prisoners are to be handed over to Afghan authorities — something the other NATO powers present in Afghanistan generally do within 3-4 days. The U.S. instead has held hundreds of people at Bagram, many for years, without charges.
The exact number of Bagram prisoners is unknown but estimated at more than 600, all being held indefinitely. Military personnel describe Bagram as tougher and more spartan than Guantánamo. The prisoners have fewer privileges and virtually no access to lawyers. Neither the United Nations nor any international or Afghan human rights organizations can visit Bagram detainees. The International Committee of the Red Cross (ICRC) has been the only group allowed to visit Bagram and they have condemned treatment of the detainees.
Like Guantánamo, the prison at Bagram is controlled by the United States. The nationalities of many of the detainees, why or how long they have been detained, and the circumstances of their capture are also not known. The treatment they have received and conditions of confinement at the facility have largely been kept secret.
Following the U.S. invasion in Afghanistan in October 2001, Bagram Air Base became the central clearing house for captured detainees. In February 2002, the Bush administration said the Geneva Conventions did not apply to persons detained in Bagram and Guantánamo. No proceedings were held by a "competent tribunal," as required by the Geneva Conventions, to determine the status of detainees. In 2002-2003, reports of detainee torture and abuse, including of deaths of two detainees in Bagram, were widely disseminated.
The prison population at Bagram has increased nearly six fold over the past four years, driven not just by the deepening conflict in Afghanistan but also by the fact that the Bush administration in September 2004 largely halted the movement of prisoners to Guantánamo. With Obama’s plan to increase aggression in Afghanistan, bringing 30,000 new troops into the war there, the detainee population is expected to increase even more rapidly. A new multi-million dollar prison is being built on the base is expected to open in the fall.
There is no judicial process for Bagram detainees. Afghan courts, which should have control, instead are unable to exercise jurisdiction over their own, or any other country's, nationals held by the U.S. military in Afghanistan. Before April 2008, detainees were not permitted to appear before a panel of three U.S. military officers — called an Unlawful Enemy Combatant Review Board (UECRB) — as occurred at Guantánamo. Now, according to U.S. government court filings, a UECRB reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. There is no appeal from the UECRB determination. Detainees do not question government witnesses, nor can they call their own witnesses or receive guidance from an advocate.
It is known that at least some of the detainees at Bagram were not captured in Afghanistan or on any battlefield, but were brought to Bagram from other countries through U.S. rendition. The U.S. military or intelligence agencies, like the CIA, identify the individual as “dangerous” or a “terrorism suspect,” secretly invade the country the person is in, kidnap them and disappear them into U.S. prisons like Bagram, or those of foreign countries where the U.S. has access.
On January 7, 2009, in the Federal District Court of the District of Columbia, the International Justice Network, along with law clinics at Yale and Stanford Law Schools, presented the case of four Bagram detainees they represent, that were subject to rendition by the U.S. The lawyers state that their clients were seized in Yemen, Pakistan, Thailand, and Tunisia, rendered to Bagram, and have been detained without charge for up to six years. Family members of the detainees contacted the lawyers, who have never met their clients. They argue that their clients should have the same rights as Guantánamo detainees to challenge their continued detention in federal court. (Habeas corpus rights were reaffirmed for Guantánamo detainees with the U.S. Supreme Court decision in Comedienne v. Bush in June 2008). Judge John D. Bates, hearing the case, gave the Obama administration until February 20 to "refine" the government's legal position with respect to the four men.
The Bush administration maintained that these four and all Bagram detainees are “unlawful enemy combatants” and the United States can detain them indefinitely, without charge or access to lawyers, until the end of hostilities, whenever that may be. President Obama, in issuing orders concerning Guantánamo, must of necessity now also speak to Bagram. An administration official, however, said not to expect any changes to existing policies in Afghanistan, including Bagram, for at least six months.
Eric Holder has been confirmed as Attorney General of the United State. In his testimony before the Senate Judiciary Committee he spoke to the possibility of establishing a new court system within the United States for people designated as unlawful enemy combatants.
Holder confirmed that the prison camp at the U.S. base at Guantánamo in Cuba would be closed. He also indicated that the Barack Obama presidency would continue to indefinitely detain people without trial that the government considers “dangerous.” Responding to a question about the existing military commissions he said:
“I don't think that the military commissions that we now have in place have all of the due process requirements that I would like to see contained in them. We have to come up with a system that will deal with those three categories of people that I described — that I believe are contained at Guantánamo. Those who I think we can safely repatriate to other countries, those who we can try, and then deal with those who, perhaps, are too dangerous but nevertheless cannot be tried.
“In trying to deal with those detainees who we will try, I think we have to examine what tools will be available to us, what forums will be available to us — Article three [federal] courts, military courts, the possibilities exists, I suppose, that we could use military commissions. But they would have to be, I think, substantially revamped to provide the due process rights that I think are consistent with who we are as Americans.”
Holder elaborated further on this possibility of a new judicial system that will be put in place. Senator Feinstein asked about prisoners from Guantánamo coming to the United States and being tried here:
Feinstein: “You would assume they would fall under regular federal law. Do you agree with that?”
Holder: “I think we want to leave our options open. I don't know exactly what system we would put in place or what system we would utilize in order to try those people… But the one thing I can assure you and the American people and, frankly, the world is that whatever system we use, it will be consistent with our values. It will be a system that has due process guarantees. It will be seen as fair.”
He went on to explain that the country is at war, that the war on terror will continue for a long period and that there are people in the U.S. and outside that the government determines pose a danger and must be detained: “How do we deal in an appropriate way with somebody who we know is a danger to this country, and yet be true to our values, and, in that battle for the hearts and minds [of Muslims] that I discussed, make it appear that we're treating this person sworn to harm us, treat that person in a fair way, in a way that frankly they would not treat us?…And how we resolve that issue, that particular issue, I think will say more about us as a nation than almost anything.”
He added, “At the end of the day, if we have a basis to determine that a person is dangerous, and we have evidence that would demonstrate that that person is dangerous, I don't think that, given the Supreme Court decision in Hamdi, and the responsibility that I have as attorney of the United States, should I be confirmed, for the safety of this nation, that that is a person who we can release. […] We want to make sure that we are fair in making a determination that somebody is dangerous, and then having periodic reviews to make sure that that person remains dangerous. I think if you do that, we are within our rights and within the law to detain that person.”
In a friend of the court brief filed January 27, scheduled for filing later today, the Constitution Project, the Cato Institute, and the Rutherford Institute urge the U.S. Supreme Court to strike down the indefinite military detention without trial of legal U.S. resident Ali Saleh Kahlah al-Marri, which is before the High Court in al-Marri v. Spagone.
Sharon Bradford Franklin, Senior Counsel at the Constitution Project, said: "The power that the Bush administration claimed in indefinitely holding Mr. al-Marri in military custody would allow any administration to hold an American citizen in a military brig without filing criminal charges. This poses a grave threat to our constitutional system of checks and balances and to the rights of all Americans. The Obama administration should renounce this unconstitutional policy and either criminally prosecute or release Mr. al-Marri. If it declines to do so, the Supreme Court should strike down Mr. al-Marri's indefinite detention as unconstitutional."
The amicus brief argues that the Supreme Court should rule in favor of al-Marri on the grounds that the executive branch's actions violate the Constitution's separation of powers. It rejects claims that Congress authorized domestic military detention or that Article II of the Constitution grants the president "inherent power" to authorize such acts. It also asserts that upholding this detention power would undermine our criminal justice system by creating an incentive for the executive branch to rely on military detention without the need to prove criminal charges.
The Constitution Project, an independent bipartisan think tank, the Cato Institute, a non-profit public policy research foundation, and the Rutherford Institute, a non-profit conservative legal organization, each promote constitutional safeguards and defend civil liberties.
The government arrested al-Marri, a legal U.S. resident, at his home in Peoria, Illinois, and later placed him in military detention in South Carolina. Al-Marri has been held for the past five years on the Bush administration's declaration that he is an "enemy combatant." President Obama ordered an interagency review of al-Marri's detention, and Acting U.S. Solicitor General Edwin Kneedler successfully sought a 30-day extension to allow the new administration to conduct this review before filing the government's brief. Argument is expected to take place during the court session scheduled to begin on April 20, 2009.
The amicus brief is available online. To speak with our attorney on this case, Sharon Bradford Franklin, please contact Daniel Schuman at firstname.lastname@example.org, call 202-580-6922 or visit our website: www.constitutionproject.org
While applauding President Barack Obama's recent executive orders banning torture and other harsh interrogation practices, medical authorities are calling attention to a little-reported section of the Army's Field Manual on Interrogation that they say still allows the use of tactics that can constitute torture or cruel, inhuman or degrading treatment under U.S. and international law.
The suspect section of the Manual is known as Annex M, which allows the use of sleep deprivation, sensory deprivation, and isolation, termed "separation" in the Manual. Obama's executive orders directed all government agencies, including the Central Intelligence Agency (CIA), to follow the manual for interrogations.
But Physicians for Human Rights (PHR), a Nobel laureate not-for-profit organization, is calling on the task force appointed by the president to review U.S. interrogation and transfer policies to revoke the Appendix and consult with human rights organizations as part of the review process.
John Bradshaw, director of PHR's office in Washington, told IPS, "The technique of separation allowed by Appendix M sounds innocuous, but in reality it allows the use of sleep deprivation, sensory deprivation and isolation."
"Particularly when used in combination, these techniques amount to psychological torture. The Obama administration must close this loophole in the Army Field Manual by eliminating Appendix M, which leaves the door open to torture," he said.
Legal experts agree. Marjorie Cohn, president of the National Lawyers Guild, told IPS, "President Obama's announcement that the United States will not engage in torture is commendable. But cruel, inhuman or degrading treatment or punishment also violate U.S. law, as specified by three treaties we have ratified."
"The new administration should not use the Army Field Manual as the gold standard for interrogations since Appendix M sanctions techniques, including isolation and prolonged sleep deprivation, that amount to cruel, inhuman or degrading treatment," she said.
PHR also called on President Obama and Congress to "immediately authorize a non-partisan commission to investigate the authorization, legal justification, and implementation of the Bush administration's regime of psychological and physical torture."
It added that "any accountability mechanism must include a subgroup tasked with investigating the participation of health professionals in detainee abuse."
PHR also urged Obama to end the use of Behavioral Science Consultants (BSCs) in interrogations. "The continued use of BSCs violates medical ethics and subverts the traditions of the healing professions. Any procedures currently in place involving health professionals in interrogations which violate medical ethics should be prohibited," said PHR'S Chief Executive Officer Frank Donaghue.
"The past administration's weaponization of the health professions to inflict harm on detainees constitutes a war crime unto itself," said Donaghue. He added, "Despite all that has been disclosed so far about abuses committed by health professionals, many questions remain, chief among which is whether there will be any accountability for gross violations of medical ethics and the law."
"The desire to turn the page on the past seven years of detainee abuse and torture by U.S. forces is understandable," Donaghue said. But he noted that "President Obama, Congress and the health professions will not have fulfilled their obligation to the Constitution and medical ethics if we settle only for reform without accountability."
Other health professionals are taking similar positions. One of the most outspoken, psychologist Dr. Jeffrey Kaye, points out that the AFM's Appendix M "continues to allow use of isolation (called 'separation') on so-called 'unlawful enemy combatants'."
He told IPS, "After the Abu Ghraib scandal exploded, the U.S. government wanted to hide or forbid all types of treatment that became notorious due to press exposure, including the revelations around waterboarding. They pared down their torture program to the model laid down by the CIA's Kubark manual of the early 1960s."
"They twisted the meaning of the Geneva Conventions at their will, in order to implement this program of coercive interrogation, using the Army Field Manual and Appendix M as their primary device," Kaye said.
He added, "This program relies on the production of psychological regression by using a combination of solitary confinement, fatigue, sleep deprivation, sensory deprivation, and feelings of fear to produce dependency upon the interrogator. These techniques, allowed by the Army Field Manual, and implemented with the assistance of doctors and behavioral health specialists, like psychologists, are totally antithetical to existing law, and amount to torture and/or cruel, inhumane treatment of prisoners."
Kaye contends that, "In many senses, isolation is the essence of U.S. detainee abuse. All else follows. Isolation can cause serious mental deterioration in many individuals."
He adds that "This deterioration can occur within days, well under the 30-day initial period allowed by Appendix M. This 30 days can be followed by additional periods, if the proper approval is obtained."
While ostensibly banning it, the AFM also allows sensory deprivation, he says. "As a last resort, when physical separation of detainees is not feasible, goggles or blindfolds and earmuffs may be utilized as a field expedient method to generate a perception of separation."
In the Bush administration's only admission that it inflicted torture on a prisoner, a senior Pentagon official recently disclosed to the Washington Post that a combination of permissible techniques used on a Guantánamo detainee, plus the intensity and duration of these techniques, seriously endangered the health of a prisoner and constituted torture. She declined to refer him to Guantánamo Military Commission authorities for trial.
During the Bush administration, a number of leading medical organizations called on the president to end the participation of health care professionals in detainee interrogations. The American Medical Association (AMA) adopted a resolution opposing "participation by physicians in the torture or inhuman treatment or punishment of individuals in relation to detention and imprisonment."
Similar positions have been adopted by other organizations, including the American Psychiatric Association, the American Psychological Association, and the American Nurses Association.
However, there is ample evidence that some military medical personnel have participated in torture and abuse of detainees. Reports indicate, for example, that so-called Behavioral Science Consultation Teams - known as "biscuit" teams - included medical personnel who were aware of prisoner abuse but failed to report or properly document it; that interrogators were given access to detainees' confidential medical records; that health professionals participated directly in the development and implementation of abusive interrogation plans; and that doctors, other medical personnel, and "biscuit" teams of psychiatrists and psychologists may have facilitated abuse by giving interrogators information about detainees' mental health and vulnerabilities.
The International Committee of the Red Cross described what it observed at the U.S. military detention center at Guantánamo Bay, Cuba, in June 2004 as a "flagrant violation of medical ethics."
Torture Common at Louisiana Prison
The torture of prisoners in US custody is not only found in military prisons in Iraq, Afghanistan and Guantánamo. If President Obama is serious about ending U.S. support for torture, he can start here in Louisiana.
The Louisiana State Penitentiary at Angola is already notorious for a range of offenses, including keeping former Black Panthers Herman Wallace and Albert Woodfox, part of the Angola Three, in solitary for more than 36 years. A recent petition for administrative remedies filed by Herman Wallace states, "If Guantánamo Bay has been a national embarrassment and symbol of the U.S. government's relation to charges, trials and torture, then what is being done to the Angola 3 is what we are to expect if we fail to act quickly. The government tries out its torture techniques on prisoners in the U.S. — just far enough to see how society will react. It doesn't take long before they unleash their techniques on society as a whole."
Herman Wallace and Albert Woodfox, two of Angola’s political prisoners have become the primary example of one form of abuse common at Angola — the use of solitary confinement as punishment for political views. The two have now each spent more than 36 years in solitary, despite the fact that a judge recently overturned Woodfox's conviction (prison authorities continue to hold Woodfox and have announced plans to retry him). Woodfox and Wallace — who together with former prisoner King Wilkerson are known as the Angola Three — have filed a civil suit against Angola, arguing that their confinement has violated both their 8th amendment rights against cruel and unusual punishment and 4th amendment right to due process.
Recent statements by Angola warden Burl Cain make clear that Woodfox and Wallace are being punished for their political views. At a recent deposition, attorneys for Woodfox asked Cain, "Lets just for the sake of argument assume, if you can, that he is not guilty of the murder of Brent Miller." Cain responded, "Okay. I would still keep him in (solitary) I still know that he is still trying to practice Black Pantherism, and I still would not want him walking around my prison because he would organize the young new inmates. I would have me all kind of problems, more than I could stand, and I would have the blacks chasing after them...He has to stay in a cell while he's at Angola."
In addition to Cain's comments, Louisiana Attorney General James "Buddy" Caldwell has said the case against the Angola Three is personal to him. Statements like this indicate that this vigilante attitude not only pervades New Orleans' criminal justice system, but that the problem comes from the very top.
Death Penalty Trial Also Reveals Abuse
A death penalty trial in St. Francisville, Louisiana has further exposed widespread and systemic abuse at Angola. Even in the context of eight years of the Bush administration, the actions documented at the Louisiana State Penitentiary at Angola stands out both for its brutality and for the significant evidence that it was condoned and encouraged from the very top of the chain of command.
In a remarkable hearing that explored torture practices at Angola, twenty-five inmates testified last summer to facing overwhelming violence in the aftermath of an escape attempt at the prison nearly a decade ago. These twenty-five inmates — who were not involved in the escape attempt — testified to being kicked, punched, beaten with batons and with fists, stepped on, left naked in a freezing cell, and threatened that they would be killed. Guards threatened to sexually assault the prisoners with batons. They were forced to urinate and defecate on themselves. They were bloodied, had teeth knocked out, were beaten until they lost control of bodily functions, and beaten until they signed statements or confessions presented to them by prison officials. One inmate had a broken jaw, and another was placed in solitary confinement for eight years.
While prison officials deny the policy of abuse, the range of prisoners who gave statements, in addition to medical records and other evidence introduced at the trial, present a powerful argument that abuse is a standard policy at the prison. Several of the prisoners received $7,000 when the state agreed to settle, without admitting liability, two civil rights lawsuits filed by 13 inmates. The inmates will have to spend that money behind bars — more than 90 percent of Angola's prisoners are expected to die behind its walls.
During the attempted escape at Angola, in which one guard was killed and two were taken hostage, a team of officers — including Angola warden Burl Cain — rushed in and began shooting, killing one inmate, Joel Durham, and wounding another, David Mathis.
The prison has no official guidelines for what should happen during escape attempts or other crises, a policy that seems designed to encourage the violent treatment documented in this case. Richard Stalder, at that time the secretary of the Louisiana Department of Public Safety and Corrections, was also at the prison at the time. Yet despite — or because of — the presence of the prison warden and head of corrections for the state, guards were given a free hand to engage in violent retribution. Cain later told a reporter after the shooting that Angola's policy was not to negotiate, saying, ''That's a message all the inmates know. They just forgot it. And now they know it again.''
Five prisoners — including Mathis — were charged with murder, and currently are on trial, facing the death penalty — partially based on testimony from other inmates that was obtained through beatings and torture. They are known as the Angola Five.
The St. Francisville hearing was requested by Mathis' defense counsel to demonstrate that, in the climate of violence and abuse, inmates were forced to sign statements through torture, and therefore those statements should be inadmissible. District Twenty Judge George H. Ware Jr. ruled that the documented torture and abuse was not relevant. However, the actions documented in the hearing not only raise strong doubts about the cases against the Angola Five, but it also shows that violence against inmates has become standard procedure at the prison.
The hearing shows a pattern of systemic abuse so open and regular, it defies the traditional excuse of bad apples. Inmate Doyle Billiot testified to being threatened with death by the guards, "What's not to be afraid of? Got all these security guards coming around you everyday looking at you sideways, crazy and stuff. Don't know what's on their mind, especially when they threaten to kill you." Another inmate, Robert Carley testified that a false confession was beaten out of him. ""I was afraid," he said. "I felt that if I didn't go in there and tell them something, I would die."
Inmate Kenneth "Geronimo" Edwards testified that the guards "beat us half to death." He also testified that guards threatened to sexually assault him with a baton. Later, Edwards says, the guards, "put me in my cell. They took all my clothes. Took my jumpsuit. Took all the sheets, everything out the cell, and put me in the cell buck-naked. It was cold in the cell. They opened the windows and turned the blowers on." At least a dozen other inmates also testified to receiving the same beatings, assault, threats of sexual violence, and "freezing treatment."
Some guards at the prison treated the abuse as a game. Inmate Brian Johns testified at the hearing that, "one of the guards was hitting us all in the head. Said he liked the sound of the drums — the drumming sound that — from hitting us in the head with the stick."
Torture Common in U.S. Prisons
The problem of abuse and torture is not limited to Louisiana State Penitentiary at Angola — similar stories can be found in prisons across the U.S. But from the abandonment of prisoners in Orleans Parish Prison during Katrina to the case of the Jena Six, Louisiana's criminal justice system, which has the highest incarceration rate in the world, often seems to be functioning under plantation-style justice. Most recently, journalist A.C. Thompson, in an investigation of post-Katrina killings, found evidence that the New Orleans police department supported vigilante attacks against Black residents of New Orleans after Katrina.
Torture and abuse is illegal under both U.S. law — including the constitutional prohibition against cruel and unusual punishment — and international treaties that the U.S. is signatory to, from the 1948 Universal Declaration of Human Rights to the International Covenant on Civil and Political Rights (ratified in 1992). Despite the laws and treaties, U.S. prison guards have rarely been held accountable to these standards. Despite the hearings, civil suits, and other documentation, the guards who performed the acts documented in the hearing on torture at Angola remain unpunished, and the system that designed it remains in place. In fact, many of the guards have been promoted, and remain in supervisory capacity over the same inmates they were documented to have beaten mercilessly. Warden Burl Cain still oversees Angola. Meanwhile, the trial of the Angola Five is moving forward, and those with the power to change the pattern of abuse at Angola remain silent. Once we say that abuse or torture is ok against prisoners, the next step is for it to be used in the wider population.
Jordan Flaherty is a journalist and activist based in New Orleans. He can be reached at email@example.com.
For Your Information
On his second full day in office, January 22, President Barack Obama issued three executive orders concerning the Guantánamo prison camp at the U.S. naval base in Guantánamo Bay, Cuba. He issued one order on "Review and Disposition of Individuals Detained" at Guantánamo and its closure; a second mandating a "Review of Detention Policy Options," and a third on "Ensuring Lawful Interrogations."
Each order establishes a Special Task Force headed by the Attorney General and housed in the Department of Justice to immediately begin the reviews on disposition of prisoners, detention policy and interrogations. Each of the three task forces also includes the Secretaries of Defense, State, and Homeland Security; the Directors of National Intelligence and the CIA; and the chairman of the Joint Chiefs of Staff. Putting the Attorney General in command represents a change from having the Secretary of Defense in charge. For the one review on detention policy options, the Attorney General and Secretary of Defense are co-chairs.
Executive Order on Review and Disposition of Guantánamo Detainees
This executive order addresses all individuals currently detained at Guantánamo that the Department of Defense has "determined to be, or treated as, enemy combatants." The order provides the finding that "Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice." It calls for the "appropriate disposition" of each prisoner to precede the closing of Guantánamo, which is to take place no later than January 22, 2010.
Obama affirms the Supreme Court ruling that "The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus," and states that most now detained have challenged the lawfulness of their detention. The findings emphasize, "It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice." It calls for the executive branch to conduct a "thorough review" of the cases of those charged before military commissions and "of the military commission process more generally."
In speaking to the disposition of prisoners the order states that by the time Guantánamo closes, "they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States." The order more specifically outlines three main categories of prisoners, those to be released, those to be tried in federal or military courts, and "other disposition" for those, as Attorney General Eric Holder put it, that cannot be tried and are "too dangerous" to release.
The Task Force is to determine "whether it is possible to transfer or release the individuals," with the State Department working with their home countries and/or third countries to "effect promptly the release or transfer of all individuals for whom release or transfer is possible."
For "Determination of Prosecution," the Task Force is to determine "whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals," in federal court. Until now the government has refused federal criminal trials or military courts for Guantánamo detainees and held the prisoners without charge. Only a handful have gone before military commissions. Those involved in defending the Guantánamo detainees, including some of the Navy's own lawyers, consider that the large majority of detainees are guilty of no crime and should be released. Even the Bush administration estimated only about 60 would be charged.
For "Determination of Other Disposition," the Task Force review is to "select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals." The Office of the President is to make all determinations concerning whether an individual is an unlawful enemy combatant and whether they are to be tried or indefinitely detained. In terms of transfer of prisoners to the United States, the order calls for the task force to "work with Congress on any legislation that may be appropriate," to enable their imprisonment at U.S. facilities.
The order also states that, "No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions." This language also reflects the Supreme Court ruling that the Geneva Conventions apply to Guantánamo prisoners. It goes against the justification used by Bush that because Guantánamo was outside of the U.S., the Constitution and other laws did not apply.
Finally, the order states that no prisoners can be charged or referred to the existing military commissions and that all proceedings "pending in the United States Court of Military Commission Review, are halted."
Overall this order calls for the closure of Guantánamo, an end to torture and that Geneva Conventions apply to everyone held by the U.S., inside or outside the country. By putting the Attorney General in command, it also appears that Obama will consider the detention of such prisoners to fall more under the authority of the Attorney General and potential commissions or a new court system he may establish. Attorney General Eric Holder indicated such a direction in his testimony before Congress. Giving the Attorney General authority could also mean that more people inside the U.S. will now be subject to detention as part of "counter terrorism" operations. The order makes clear that Obama is retaining the power to designate individuals, "captured or apprehended in connection with armed conflicts and counterterrorism operations," as illegal enemy combatants, and decide if they are to be prosecuted or indefinitely detained as part of the "war on terror."
Executive Order to Review Detention Policy
This order puts in place a Special Task Force to develop policies for detention of whoever the President designates are unlawful enemy combatants. The task force is to "conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice." It is to provide periodic preliminary reports and a full report to the president within 180 days of the order, or by July 22, 2009.
This order would appear to go against the Geneva Conventions, which already has methods and standards for determining the status of individuals captured during armed conflicts. Instead, other options are to be provided.
Executive Order Ensuring Lawful Interrogations
The purpose of this order is to "improve the effectiveness of human intelligence gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts." This executive order specifically revokes Bush Executive Order 13440 of July 20, 2007, and "all executive directives, orders, and regulations inconsistent with" Obama's new order. Executive Order 13440 stated in part, "On February 7, 2002, I [Bush] determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination. The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions."
Bush's order went on to say that a "program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that" it does not use torture, or any other acts of cruel, inhuman, or degrading treatment, or willful and outrageous acts of personal abuse done for the purpose of humiliating or acts intended to denigrate the religion, religious practices, or religious objects of the individual.
Obama's new executive order also specifically states that all executive directives, orders and regulations issued to the CIA from September 11, 2001 to January 20, 2009 inconsistent with his order are revoked.
Obama's order requires the CIA to close "as expeditiously as possible any detention facilities," and that the CIA will not operate detention facilities in the future. It also states that the International Committee of the Red Cross (ICRC) will have "timely access to, any individual detained in any armed conflict in the custody or under the effective control" of the U.S. or "detained within a facility owned, operated, or controlled" by the U.S. Both Guantánamo and the larger prison camp at the U.S. Bagram airbase in Afghanistan, were at times off-limits to the ICRC. It remains to be seen if the ICRC will now be given full access at Bagram where more than 600 prisoners have been detained.
Obama's order calls for using the Army Field Manual for interrogations, stating, "An individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3." It also states that, "unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009."
The order does not call for ending the government's program of renditions, but rather the task force is to "evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control." The focus is on rendition to torture, not the renditions themselves. As well, while calling for CIA prisons to close, the order states that it does not apply to facilities "used only to hold people on a short-term, transitory basis."
Renditions involve the CIA or other intelligence agencies or special forces secretly invading another country, kidnapping the individual branded as an unlawful enemy combatant, and disappearing them into secret prisons, usually outside the U.S. but controlled by, or with access for, U.S. intelligence forces. Use of rendition has been the source of many of the unjust actions against individuals guilty of no crime, and necessarily goes against the "international obligations" and principle of respect for sovereignty and the rights of individuals against arbitrary search and seizure by government. Torture was an additional crime.
It is also important to note that while the two other orders refer to people detained "in armed conflicts or counterterrorism operations," this order refers only to "treatment and interrogation of individuals detained in any armed conflict." This leaves open the possibility of different standards being applied to individuals detained in counterterrorism operations, such as those involving rendition and interrogation by government forces other than the CIA.
This feature of the order calling for "further guidelines" including for non-military agencies, is further brought out in the conclusion of the order stating the mission of the of the task force: "To study and evaluate whether the interrogation practices and techniques in Army Field Manual 2 22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies."
Memorandum on Detainee al-Marri Held in U.S.
In addition to these executive orders, Obama issued a memorandum concerning Ali Saleh Kahlah al-Marri, who was detained in the U.S. and has been held in solitary confinement without charges as an "enemy combatant," for more than five years. The case directly deals with the issue, "Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an ‘enemy combatant'?" The Supreme Court has now agreed to hear the case and Obama must decide whether to pursue it or to file criminal charges or simply release him. The memorandum says that it is in "the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri's continued detention, and identify and thoroughly evaluate alternative dispositions." The Obama administration has until March to file a brief with the court on the case.
The existence of this case poses difficulties for Obama, as his executive orders take as their starting point the authority of the president to determine that individuals are unlawful enemy combatants and determine whether they will go to trial and what type of trial. Having this case, concerning someone detained inside the U.S., makes it difficult to retain this authority while also emphasizing that the U.S. will now abide by the Constitution, the Geneva Conventions and all applicable law. He may well dismiss the case so as to avoid a possible court ruling at this time against this authority.
Brennan Center for Justice is representing Ali Saleh Kahlah al-Marri in two cases involving the U.S. government. Al-Marri v. Spagone (formerly Al-Marri v. Pucciarelli), a habeas corpus action, challenges the Executive’s claim to unchecked authority to indefinitely detain a legal resident in the United States without any charge of wrongdoing. In Al-Marri v. Gates, the Brennan Center is contesting Mr. al-Marri’s treatment and conditions of confinement since he was declared an “enemy combatant” in 2003.
Al-Marri v. Spagone
In Brief – Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested in Peoria, Illinois, in 2001 as a material witness in the FBI’s investigation of 9/11. In 2002, he was charged with credit card fraud and other criminal offenses. Shortly before his criminal trial commenced in June 2003, President Bush declared him an “enemy combatant” and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Over five years later, Mr. al-Marri still remains in solitary confinement without charge.
Question Presented: Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an “enemy combatant”? This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.
The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008. The Petitioner’s brief was filed on January 21, 2009. The Government has requested and been granted a 30-day extension in responding to the Petitioner. The Government’s reply brief will be due in March 2009. On January 22, 2009, President Obama issued an executive order to review the status of Mr. al-Marri’s detention.
Ali Saleh Kahlah al-Marri is the only person still detained as an “enemy combatant” in the United States. Mr. al-Marri, a citizen of Qatar and a legal U.S. resident, has been imprisoned without a trial and without due process since he was arrested in Peoria, Illinois, in December 2001. Mr. al-Marri came to the United States with his wife and five children to obtain a masters degree at Bradley University in Peoria, Illinois. After he was arrested, he was charged with credit card fraud and other criminal offenses. Mr. al-Marri asserted his innocence and prepared to contest the charges at trial.
But, in June 2003, shortly before his trial was scheduled to commence, and on the eve of a hearing to suppress illegally seized evidence, President Bush signed a one-page order declaring Mr. al-Marri an “enemy combatant” and directing his transfer to a Navy Brig in South Carolina, where he was held incommunicado and interrogated for more than a year. At the Brig, Mr. al-Marri was subjected to torture and other cruel, inhuman, and degrading treatment. He remains in solitary confinement at the Brig under severe restrictions and has not seen his family in nearly six years, and has spoken to them only a couple of times.
Although Mr. al-Marri was arrested at his home in the middle of the United States, the Executive claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appear to have been gained through torture. Further, President Bush asserted that the Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts.
Mr. al-Marri’s case challenges the president’s assertion of unchecked executive detention power over all individuals in the United States. In the Administration’s view, the president has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it.
The Brennan Center has long argued that America’s criminal justice system can and should handle cases in which individuals are accused of terrorism. (See Secrecy Problem in Terrorism Trials.) As the Brennan Center has explained, working within our established constitutional framework—a framework that dates to the Nation’s founding more than 200 years ago—is the best way to protect both liberty and national security.
Below is the text of Geneva Conventions Common Article 3, which is common to all four Geneva Conventions. There are four such conventions, ratified in 1949 as part of the peoples’ struggle against fascism and to safeguard the rights of civilians and prisoners of war. They represent in law the spirit of the peoples that “Never Again” are the Nazi crimes to be repeated. The Geneva Conventions in their entirety are relevant to the issue of torture, prisoners of war and their treatment, “unlawful enemy combatants,” and holding such individuals indefinitely.
The four Geneva Conventions are: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War.
President Barack Obama’s recent executive orders concerning Guantánamo, torture, and interrogations all reference Common Article 3. The Geneva Convention on Prisoners of War (III) also speaks to the question of who is to be considered a prisoner of war (article 4). Article 5 states that “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” It also addresses issues of interrogation (such as Article 13, 14 and 17).
Geneva Convention Common Article Three
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
(See http://www.unhchr.ch/html/menu3/b/91.htm, for all of Geneva Convention Three on Prisoners of War)
The U.S. Constitution, Article I, section 8 states that Congress shall have the power:
To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces; […]
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Under section 9 it states that:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article II, Section 1 on the President’s powers, states:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Section 2 states:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Article Three states:
Section 1. The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. […]
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States;— between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. […]
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Among the relevant amendments from the Bill of Rights are:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.