Photos Documenting CIA's Use of Torture May Still Exist

According to a story in the Independent, attorneys for Guantánamo detainee, Binyam Mohammed, claim that there are photographs taken by the CIA that detail horrific tortures.

Clive Stafford-Smith, the legal director of Reprieve representing Mr Mohammed, said about the evidence against his client, "Given the opportunity, we can prove that the evidence was the fruit of torture. Indeed, we can prove that a photographic record was made of this by the CIA. Through diligent investigation we know when the CIA took pictures of Mr Mohammed's brutalised genitalia, we know the identity of the CIA agents who were present including the person who took the pictures (we know both their false identities and their true names), and we know what those pictures show."

Reprieve says it will be pressing for criminal prosecutions against the CIA agents alleged to have carried out the torture.

Last week it emerged that the CIA destroyed hundreds of hours of videotapes showing the torture of detainees held by the US.

Click on the title to go to the article.

Four British Residents To Be Released From Guantanamo (Updated)

Four of the five British residents held by the US at Guantanamo Bay are to be released, the BBC has learned.
The British Government requested the release of all five men in August after previously refusing to intervene as they were not British citizens.
Jamil el-Banna, Omar Deghayes and Abdenour Samuer will come back to the UK, while Shaker Abdur-Raheem Aamer will return to his native Saudi Arabia.
(click on the title for more information from the BBC)

But my question is ... if the request was made in August why are they still there?

update: Of the four men being released only one, Jamil El Banna, was actually on the list as being cleared for transfer.

From Roger Fitch and our friends at Justinian

(Click on the title to go directly to Justinian)

Roger Fitch Esq • December 7, 2007
Our Man in Washington
”The Supreme Court Faces the Kangaroo Courts”.
That’s the headline on an article in FindLaw’s Writ by Joanne Mariner apropos the oral arguments in Boumediene/Al Odah, the blockbuster cases on detainee treatment heard on Wednesday (Dec. 5).
You can listen to tapes of the hearing (scroll down the page a bit) and Scotusblog also has links to the briefs and arguments.
The Wall Street Journal backgrounds the cases with a discussion of the 1992 US District Court ruling that the constitution applied to Haitian refugees sent to Guantanamo by Bush the Elder.
The National Law Journal also carries more.
The Al Odah case is the latest iteration of the companion case to Rasul (David Hicks) decided in 2004. David Cynamon, the lawyer representing the Al Odah petitioners (Kuwaitis), discussed the case in The Washington Post.
The Boumediene case presents quite different facts. The six Bosnian-Algerian petitioners were arrested in Bosnia, investigated and cleared by the Bosnian government and ordered released by its supreme court.
Nevertheless, the men ended up in Guantanamo. Mother Jones Magazine has more.
The US accuses the men of wanting to bomb the US embassy in Sarajevo, an act which seems unrelated to September 11 or the war in Afghanistan.
It is a connection to these, however, that the US Supreme Court in 2004 found was necessary for Congress’s “Authorisation to Use Military Force” to have any effect. Only the AUMF gives the President his authority to capture and detain.
When Rasul and Al Odah were decided in June 2004, it was assumed the detainees would proceed to have the habeas cases the Supreme Court said they could have in Washington DC.
However, the Hamdi case decided the same day suggested that something short of a DC district court might suffice to determine combat status, and so the sham Combat Status Review Tribunals were born.
The Boumediene case is about these administrative courts, never authorised by Congress, that the Pentagon set up to avoid both DC habeas hearings and existing US military law and regulations that govern the treatment of captured enemy soldiers.
Though still on the books, that body of statutory law can’t be used because it follows the Geneva Conventions and the law of war. It protects prisoners from coercive interrogation, mistreatment and substandard trials, the very things the government wants.
* * *
There are other kangaroo courts, authorised by Congress in the Military Commissions Act 2006. These are used to charge, as so-called war criminals, fighters who kill or injure Americans (e.g. Omar Khadr) or civilians who may oppose Americans and are, if anything, ordinary criminals (e.g. bin Ladin’s driver, Salim Hamdan).
The MCA has only been used once, to convict David Hicks of “material support for terrorism”.
That not one of these is a valid war crime under the Geneva Conventions is of no moment to the Bush administration.
Instead, the State Department is busy campaigning to retrospectively redefine the Conventions so as to protect US officials themselves from war crimes charges – for bringing fake, substandard “war crime” prosecutions.
Three men are facing trial in the “big” kangaroo courts, i.e. military commissions: the Canadian Khadr, the Yemeni Hamdan (who was arraigned on Wednesday Dec. 5) and an Afghan, Mohammad Jawad.
By the day of Khadr’s arraignment (Nov. 8) his US lawyers had been dismissed and the Canadian lawyers had fallen out with his military counsel.
As the judge, Army Col. Peter Brownback, noted, the arraignment was three years to the day since he had been stopped mid-hearing in David Hicks’ case by a DC District Court stay issued in Hamdan’s case.
Observers reported Khadr’s arraignment here and here.
As it turned out, the matter was adjourned without determining the jurisdictional question – whether Khadr’s alleged combatant status was unlawful – and with the revelation that the Pentagon had suddenly “discovered” potentially exculpatory evidence.
A newly disclosed order by Brownback reveals that the identities of witnesses may be kept secret from Khadr when the trial takes place.
Finding this out was not easy. In line with the Bush administration’s general policy that what you don’t know can’t hurt us, the Pentagon has been refusing to inform the media or public about Guantanamo “legal” developments.
Under the old “presidential” military commissions, the motions and orders were promptly posted on the internet, where they can still be read.
Now, however, the government prefers private email transmissions to court filings. And they send blind copies to whomever they please, including presumably the White House.
This lack of access to filings in the military commissions was the subject of a complaint by the major news organisations, leading to the release of 694 pages of emails, motions and orders in the Khadr case, and the transcript of the November arraignment.
In his response earlier this year to the government’s motion for reconsideration of dismissal, Brownback seemed to imply the relevance of Geneva Convention standards in determining who is an “Unlawful Enemy Combatant”.
However, an order disclosed in the new Khadr documents contains this alarming statement:
“The parties are advised that matters presented, both factual and legal, concerning the issue of designation as an UEC, must be focused specifically on whether or not the accused meets the definition of UEC as established by the MCA (10 USC 948a(1))... Other matters which might affect jurisdiction (i.e., international law, constitutional law, criminal law) will not be heard in conjunction with this threshold or initial determination of jurisdiction.”
Brownback may simply be following the appeal decision in the Court of Military Commission Review, but the judge has been making other, troubling, statements.
For instance, he doesn’t think that the Supreme Court, in the Hamdan case, found the MCs to be “illegal” for failing to meet Geneva standards, and he believes Al Qaeda is a group dedicated to the spread of Islam.
After the Khadr adjournment, the Pentagon threw caution to the wind and leaked a captured video to CBS’s 60 Minutes.
This video is claimed to show Khadr making bombs and would have been proffered at his hearing.
* * *
The Pentagon’s underhanded behaviour only drives more whistleblowing from within by both defence counsel, e.g. Lt. Col. Colby Vokey (pic) and prosecutors, e.g. Lt. Col. V. Stuart Couch.
Col. Couch, now an appellate judge of the Navy-Marine Corps Court of Criminal Appeals, was invited to testify to Congress about his experience, but was forbidden to do so by the Pentagon General Counsel, William Haynes. So much for judicial independence.
Meanwhile, another Guantanamo whistleblower, Lt. Col. Stephen Abraham, has filed an affidavit in the Hamad case elaborating on the failures of Combat Status Review Tribunals.
Historian Andy Worthington (pic) provides some comments on Abraham’s latest revelations.
November also saw the leak of the Guantanamo Standard Operating Procedures Manual.
It authorises unlawful behaviour – some of it previously denied – e.g. not allowing Red Cross access.
Leading psychologists were quick to note the unethical practices required of their profession.
* * *
In the end, even Guantanamo is too temperate for this government. Something more rigorous is required.
According to reports reaching the well-informed Scott Horton, “the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year”.

CIA Covers Their Tracks by Destroying Torture Tapes

According to the New York Times the CIA purposely destroyed video evidence of harsh-technique (torture) interrogations.

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.

C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Mr. Zubaydah.

“This is a matter that should have been briefed to the full Intelligence Committee at the time,” an official with the House Intelligence Committee said. “This does not appear to have been done.

Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005.

“The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice.

“No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings,” he said.

Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with Al Qaeda leaders, said he had heard nothing about any tapes being destroyed.

If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.

John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 and is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties.

“If anybody at the C.I.A. hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute,” he said.

Is the CIA above American Law? How many laws has this administration broken in the name of the "war on terror." Do we really want American government agencies torturing people and then destroying the evidence? When will someone be held accountable?

To read the full article click on the title.

2004 Standard Operating Procedures Leaked

My deepest thanks to the individual that is leaking the Guantanamo Standard Operating Procedures... and please keep the leaks coming.... My thanks also extend to the good folks at the Guantanamo testimonials project for their hard work in analyzing these lengthy documents. Click on the title above to see the low-lights of the 2004 manual. According to Almerindo Ojeda (from the testimonials project) "the picture they paint is even worse than the one painted by the 2003 SOPs leaked last month." (you can also view the analysis they performed on the 2003 SOP at that same site.)

TRANSCRIPT FROM TODAY'S ARGUMENT

If you don't want to listen to the 1 1/2 hour taped argument you can click on the title and go straight to the transcript.

THE ARGUMENT

I just finished listening to the argument before the Supreme Court... and it was pretty amazing. The primary question before the court is whether or not the Detainee Treatment Act (DTA) is an adequate substitution for the writ of habeas corpus...(is the DTA the same as being able to go before a judge and make the government tell you why you are being held and charge you with something or let you go...)
The rebuttal by Seth Waxman said it all.... one of the many inadequacies under the DTA is that the prisoner is not allowed to know who the witnesses are . In one case however the name of the main witness/evidence against the prisoner was disclosed... a man the government claimed was a close friend of the prisoner and who was part of al-Queda and who supposedly blew himself up as part of a terrorist plot. The prisoner stated when he heard that persons name that he never knew that the man was part of al-queda. After the prisoner became represented by an attorney the attorney did research on the supposed al-queda friend... turns out he wasn't a terrorist, wasn't self detonated... and was alive, well, and working in Dresden Germany... Under the DTA the prisoner never would have been allowed to discover or challenge the governments story tying him to al-Queda....

supreme court argument

Click on the title to hear this mornings oral argument before the U.S. Supreme Court regarding the Constitutionality of the Military Commissions Act.... the outrageous law passed by our Republican Congress in October 2006.... just before they were thrown out of office.
This is the law that abolished the writ of habeas corpus for the Guantanamo detainees and all non-citizens.... and perhaps even citizens....

Washington Post Story Illustrates Injustice at Guantánamo

According to a recently released and well timed report in light of todays supreme court hearings, Murat Kurnaz, a combatant that was among the first to be brought to Gitmo, was considered innocent almost from the time he was picked up by the U.S.

A German intelligence officer said at the time (back in 2002) that the, "USA considers Murat Kurnaz's innocence to be proven," and "He is to be released in approximately six to eight weeks." Years later Kurnaz was still at Gitmo.

The process is "fundamentally corrupted," said Baher Azmy, a professor at Seton Hall Law School who represents Kurnaz. "All of this just reveals that they had the wrong person and they knew it."

He added: "His entire file reveals he has no connection with terrorism. None. Confronted with this uncomfortable fact, the military panel makes up evidence" to justify its claim that only real terrorists are incarcerated at Guantanamo Bay.

German and American intelligence officers interviewed Kurnaz in September 2002, records show. They jointly concluded that nothing was linking the man from Bremen to terrorist cells or enemy fighters and that he should be freed. In a memo dated May 19, 2003, the commanding general of the Criminal Investigation Task Force, a Pentagon intelligence unit that interrogates detainees and collects evidence about them, wrote that "CITF is not aware of evidence that Kurnaz was or is a member of al-Qaeda. CITF is not aware of any evidence that Kurnaz may have aided or abetted, or conspired to commit acts of terrorism."

In spite of this the government made up charges to claim that Kurnaz should be detained. They wrongly claimed that he knew someone involved with a suicide bombing and decided to keep him. Is it legal in our country to hold someone indefinitely because they know someone involved in a crime? Is this the American justice system that we want?

After the Supreme Court ruled in 2004 that Guantanamo Bay prisoners could not be held indefinitely without fact-finding by an objective tribunal, the Pentagon hastily assembled panels of field-grade officers to serve as Combatant Status Review Tribunals. Since they began, the panels have overwhelmingly supported continued detention of those at Guantanamo Bay, ruling that 534 detainees were "enemy combatants," while only 38 were not.

Clearly the review process at Guantanámo is flawed and biased. If these detainees are ever going to get a fair trial the supreme court will have to act today and make it clear that the executive branch is not above the laws of our constitution and our country.

To read the entire article click on the title.

Guantánamo Book Club II

From our friend Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon here is some suggested reading to better understand the argument that will take place before the Supreme Court later this morning...

For the current list you can click on the title.

For the previous list you can click here.

From Talking Points Memo- 2004 Gitmo manual leaked

Today's Must Read (click on title to go to site)
By Spencer Ackerman - December 4, 2007, 8:55AM
Score another one for Wikileaks. This morning -- thanks to a source known only as "Peryton" -- the open-source website for whistleblower documents published the 2004 manual for U.S. military detention operations at Guantanamo Bay. You can read it, with commentary, here.
Last month, Wikileaks published the 2003 edition of the manual. Among other controversial provisions, the manual instructed officials to hide certain detainees from the International Committee of the Red Cross, a practice that the military repeatedly denied was in existence at Guantanamo. Spokespeople for the U.S. military's Southern Command, which oversees Guantanamo Bay, said the manual was outdated and assured that some instructions that violated the Geneva Conventions were no longer in effect.
It's unclear so far what portions of the 2004 manual remain in place. (Maybe Peryton will enlighten us in the future.) The Washington Post's Josh White quotes Guantanamo Bay spokesman as saying that "things have changed dramatically" at the camp since 2004. But Wikileaks finds that, in key areas, the 2004 manual didn't change so much from 2003:
Systematic denial of Red Cross access to prisoners remains. The use of dogs remains. Segregation and isolation are still used routinely and systematically – including an initial period of at least 4 weeks "to enhance and exploit the disorientation and disorganization felt by a newly arrived detainee", only terminated at the behest of interrogators. Both manuals assert that detainees will be treated in accordance with the "spirit" of the Geneva conventions "to the degree consistent with military needs", but never assert that the conventions are actually being followed at Guantanamo. Put into practice, neither manual complies with the Geneva conventions.
So is the past prologue? We'll find out. For now, though, dig into the 2004 manual and let us know in comments what you think is most significant.

Denmark Declines to take Detainees

According to the Associated Press, Denmark has decided to pass on accepting Guantánamo detainees that the U.S. has cleared for release, citing security concerns. It is hard to be too upset with Denmark when we are unwilling to take these same detainees ourselves....but on the other hand the Danes are part of the "coalition of the willing"... I guess the willingness only goes so far.

So the men continue to sit... indefinitely... in the cruelest of conditions... and once again their only hope seems to be our Supreme Court. Chances are the Court will champion their cause once more...only to be ignored by the administration again.

I don't blame Denmark for saying no... but sooner or later some country... somewhere... must help these men...the world cannot sit back and let these men continue to be punished because of the arrogance of the US government.

From Roger Fitch and our Friends at Justinian

Roger Fitch Esq • December 2, 2007
Our Man in Washington
It seems the Bush administration has scoured the country for useful idiots and found jobs for every one of them, especially those with law degrees.
Some of the appointees requiring Senate confirmation are so fragrant that, like the Federal Election Commission’s chipmunk-cheeked Hans von Spakovsky , they have to be placed through recess appointments.
A leading source for Bush-appointed lawyers and judges has been the Federalist Society, a right-wing alternative to the American Bar Association that grew out of sleeper cells of “conservative” law students disenchanted with their “liberal” professors.
These days, the once-scorned “Federalists” are represented at all 196 accredited US law schools, and in November the group celebrated 25-years of growing government influence (and regressive judicial activism) with a large convention. It was attended by four Supreme Court justices and the putative president of the US.
Law.com has more on the phenomenal success of the Federalist Society, which more recently has inspired the creation of a counter-organisation for “liberal” lawyers, the American Constitution Society.
The Federalist organisation has certainly helped produce loyal Bushies in record numbers, though not all of its recruits have been competent, or honest.
In any case, the Republicans have enjoyed a ready supply of corner-cutting and highly partisan lawyers since the Reagan years, according to the Nation’s Charlie Savage.
Whether lawyers or policy wonks, the same faces tend to resurface in Republican administrations with depressing regularity.
It used to be the case that compromised or discredited officials in the government, e.g. those who had been investigated for malfeasance or charged with crimes, would defer their comebacks till the next time the party was in office, by which time they would have been pardoned or forgotten.
No longer; under the Bush administration, malefactors are recycled in real time.
When Iraqi lawyers came to Washington in an effort to get Republicans to follow the rule of law in Iraq who better was there to show them around Congress than Manuel Miranda?
In a further proof that no crime or misconduct goes unrewarded in the Bush administration, Miranda, the Republican staffer who was sent off in disgrace in 2004 after he hacked the computers of Senate Democrats, has been given a job “promoting democracy” in the comically-named Office of Legislative Statecraft in Iraq.
Meanwhile, during the Thanksgiving holiday, Democrat majority leader Harry Reid had to keep the Senate in session – pro forma, anyway – just to prevent George Bush appointing unsavoury people through his famous misuse of “recess” appointments .
Law prof Marty Lederman of the Balkin Blog has more on this arcane practice.
* * *
Things seem to be happening at the Department of Justice since Michael Mukasey took over as Attorney General.
For starters, a US grand jury has been convened to examine the sins of the Blackwater mercenaries in Iraq.
Lapsed investigations have been reopened, e.g. the Inspector General’s inquiry into warrantless surveillance, and new people nominated, though loyal Bushies all for key positions.
Harper’s blogger Scott Horton has more.
Happily, Mr Mukasey seems to have acted to remove the hated US attorney in Minneapolis, Rachel Paulose .
Now that Ms Paulose is gone, there are calls for Leura Canary, the extremely partisan US Attorney in Alabama, to be replaced, as Scott Horton reports.
Meanwhile, the National Association of Former US Attorneys has met and shared horror stories about recent events at the DoJ.
* * *
In my last post I reported that former Defence Secretary Donald Rumsfeld had been hounded out of France by the process servers for human rights organisations, who laid a torture complaint against him while he was in Paris for a speech.
Unfortunately, the French foreign ministry has instructed the procureur to roll over and dismiss the charges on grounds of governmental immunity, ignoring the now-established Pinochet precedent.
But forget about Paris. Even when Bush administration officials are overseas, the US remains the leading haven for the world’s war criminals.
That’s the drift of the Department of Homeland Security’s own figures.
Curiously, these are not the people being pursued in the US courts for war crimes or terrorism. Former US Attorney Elizabeth de la Vega (pic) has described the official position taken by the Department of Justice (in a Florida case) on war crimes.
As for “successful” terrorism prosecutions in the US, the scorecard prepared by law professors David Cole and Jules Lobel makes depressing reading.

Child Soldier to be Tried Without Knowing Who His Accusers Are

According to the New York Times, Omar Ahmed Khadr, who was 15 when he was brought to Guantánamo, will not have the benefit of knowing who his accusers are. Military Prosecutors claim that there may be retaliations against the witnesses if their names are released. In an e-mail message on Oct. 9, Major Groharing, the prosecutor, described Mr. Khadr as a “trained Al Qaeda operative” who is “certainly capable of exacting revenge” on witnesses should he ever be free.

The government has been holding the detainee for almost a quarter of his life without a trial. Now when he is finally about to get his day in kangaroo court he is told that he will not be able to know who his accusers are or what methods the court has made to ensure the validity of the evidence being used against him. Where is justice? How long will this administration continue to try to destroy the basic tenets of our legal system?

Sabin Willett's op-ed in Boston Globe

The cruelty of our government is underscored by the personal stories coming from the innocent men at Guantanamo. On Wednesday the Supreme Court will hear arguments on the Constitutionality of the Military Commissions Act. May the Court move swiftly and forcefully to put this criminal administration under control ...and shut down...once and for all... the legal black hole called Guantanamo. Click on the title to read about another innocent man wrongly held without charges and without recourse....