Sunday, September 23, 2007



According to Disney, i.e. the US ABC, the CIA will abandon its controversial practice of waterboarding.

Of course, this “enhanced interrogation technique” – known throughout history as water torture – has only been used on “suspected terrorists” and “enemy combatants”.

Still, it was heart-warming to learn that its use will no longer be official policy of the United States government.

Revealingly, the news reports say that the practice has now been removed from a presidential edict, or bushwah of 2002, when our Dear Leader “authorised” it.

That’s interesting, as it would appear to be a per se indictable war crime. However, we shouldn’t be surprised. A couple of years ago, University of Houston law prof Jordan Paust wrote what now seems a prophetic article on such illegal orders of the Bush administration.

So it seems the CIA will now cease waterboarding, perhaps as a gesture of goodwill. Yet, as Yale prof Jack Balkin pointed out last year:

“Even if waterboarding were not ‘torture’, as defined in the law, it would still violate at least three legal prohibitions, even when conducted by the CIA.”

Other techniques, also crimes, continue.

As Balkin noted, it has always been against US law to assault people on US premises, under the federal assault statute (18 USC 113), “which provides that simple assaults, or assaults by striking or beating, are misdemeanours if they occur ‘within the special maritime and territorial jurisdiction of the United States’.” That includes:

“The premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership.”

The description would seem to cover the borrowed torture dungeon in Poland where it is said that the “architect of 9/11”, Khalid Sheik Mohammed (pic), was submerged into submission.

Then there is Common Article Three of the Geneva Conventions, which prohibits all “cruel treatment and torture”.

How about the Detainee Treatment Act? The McCain Amendment prohibits cruel, inhuman and degrading treatment including, Jack Balkin says, all conduct that would “shock the conscience” under the Due Process Clause to the US constitution.

Tellingly, that vital fifth vote on the Supreme Court, Justice Anthony Kennedy (seen here), includes within that, “torture or its close equivalents.”

Finally, waterboarding is torture prohibited by the federal torture statute (18 USC 2340-2340A). Although the DoJ’s Office of Legal Counsel seems to have disagreed, Balkin argues that:

“Waterboarding is perhaps the classic, paradigmatic technique of acknowledged torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge.”

After Vice President Cheney explicitly backed waterboarding last year, Human Rights Watch pointed out that, before Bush, the US government had always considered waterboarding to be torture and a war crime. According to HRW:

“As early as 1901, a US court martial sentenced Major Edwin Glenn to 10 years of hard labour for subjecting a suspected insurgent in the Philippines to the ‘water cure.’ After World War II, US military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A US army officer was court-martialled in February 1968 for helping to waterboard a prisoner in Vietnam.”

It’s unclear whether ending water cures will aid the pending Senate confirmation of the torture-endorsing CIA lawyer, John Rizzo.

He wants to be the CIA’s General Counsel but some senators have vowed to block him due to his view that the infamous 2002 torture memorandum of the Justice Department was “reasonable”.

Meanwhile, another “enemy combatant”, one Inayatullah, has been sent to Guantanamo, presumably from a CIA black site.

Although he arrived with a confession in hand, there has been no indication whether he received the water treatment. If he did, history may record he was one of the last.

* * *

In any case, what is the cruel treatment of “terrorists” and “enemy combatants”, compared to the everyday abuse of pro bono Guantanamo lawyers?

Consider the Case of the Planted Pants. Just this month, the Pentagon accused a distinguished Guantanamo Bar Association member, Clive Stafford Smith (pic), of trafficking in underpants and Speedos at Gitmo.

Fellow GBA lawyer Candace Gorman has copies of the letters ‘twixt Clive and the hapless Staff Judge Advocate who made the demeaning inquiry.

In an answer heavy with irony, Stafford Smith was able to “briefly respond” to the hurtful allegations of jocks-and-Speedo smuggling, but wouldn’t “allow the issue of the underwear to drop”.

He noted that his own research had revealed the popularity of the implicated brand, Under Armour, among US troops – the likely source for the contraband. He also disavowed the Reprieve lawyers having stripped down in jail to provide unapproved underwear to their clients.

It’s all part of the job for Gitmo lawyers. The government has had military personnel pose as lawyers in efforts to extract information from detainees.

The Pentagon has warned detainees that because their lawyers are Jewish (many are), they can’t be trusted; darkly hinted that their lawyers are homosexual; claimed that the defence lawyers really work for the government; and so on.

The military has seized lawyers’ papers on the pretext that they carry coded messages. Lawyers returning from Guantanamo have even been searched in Florida when deplaning. Is it, perhaps, to confirm underwear is being worn?

Obstruction, delays, insults, humiliation and degradation: the members of the GBA have come to expect it.

* * *

The misadventures of Guantanamo lawyers such as Candace Gorman and Clive Stafford Smith are being collected on a website of the University of California-Davis.

However, at the new UC-Irvine law school, the appointment of a dean, the distinguished legal scholar Erwin Chemerinsky, was withdrawn due to his controversial support of lost causes, including Guantanamo detainees.

The affair caused outrage throughout the legal establishment and attracted the criticism of The New York Times before the “too-liberal” professor was re-hired as dean.

* * *

Ironically, Professor Chemerinsky’s criticism of Alberto Gonzales figured in the UC-Irvine fallout. Now, Gonzales is gone and Bush has nominated as attorney general the retired judge Michael Mukasey (pic).

As a US District Judge in New York, Mukasey was involved in the early stages of Jose Padilla’s “enemy combatant” interlude. Curiously, Mukasey agreed with the novel and fanciful “EC” designation of an American citizen on American soil, while breaking with the government on the denial of counsel.

In a Salon piece, lawyer-blogger Glenn Greenwald claims Mukasey showed considerable independence from the Bush administration in Padilla’s case and The Washington Post noted Mukasey’s alleged testy relationship with the Department of Justice.

Unlike the Post, The New York Times doesn’t think it’s a great idea to have a president running around declaring Americans to be “enemy combatants”, and so has reservations about Michael Mukasey.

In the meantime, it’s been disclosed that the White House doesn’t really need placemen at DoJ, as there are now 417 White House officials authorised to talk to 30 Justice Department officials about pending cases. As one story put it:

During the Clinton administration, there were just four people in the White House – the President, the Vice President, the White House Counsel, and the Deputy White House Counsel – who could participate in discussions with the Justice Department ‘regarding pending criminal investigations and criminal cases’. There were just three Justice Department officials authorized to talk with the White House. This arrangement was intended to restrict political interference in the administration of justice.

* * *

The mystery of where George W. Bush derives his power to issue Royal Proclamations has been partly solved.

This month Mr Bush observed the 6th anniversary of the September 11th attacks by declaring a National Emergency (the dreaded “terrorist threat”) for the 7th year in a row.

That serves to activate his alleged powers to issue bushwahs such as the one on Lebanon I reported in my last post.