National Review Sinks to New Lows in Defense of Torture

Just when you thought the National Review's editors had said all they could say in defense of the Bush Administration's pro-torture policies, they go and outdo themselves. Apparently unconcerned that the U.S. Constitution in fact created three equal branches of government, the editors warn against "undue interference from Congress and the courts" in the CIA tape destruction scandal.

If there's one thing that has become clear from the ongoing revelations of torture stemming from Bush Administration policies, it's that we need more oversight of this Administration's counter-terrorism policies, not less.

President Bush Won't Give Any Opinion on Torture Tape Destruction

President Bush was asked about the destruction of the CIA torture tapes at this morning's press conference. He said that he'd "reserve judment" on the matter. At this point, is it his judgment that matters? The investigations, after all, are about potentially criminal activity within his own Administration.

President Bush said today he will reserve judgment about his administration’s destruction of CIA interrogation tapes until several inquiries are finished.

The destruction in 2005 of the tapes, showing harsh interrogation treatment of two terrorism suspects, is being investigated by the Justice Department, the CIA itself and by several congressional panels.

Bush stuck to the White House line that he personally did not know about either the existence of the tapes or their destruction until he was briefed earlier this month by CIA Director Michael Hayden.

"Sounds pretty clear to me when I say I have — the first recollection is when Mike Hayden briefed me. That’s pretty clear," Bush said.

He also said that he believed the ongoing investigations by his administration, "coupled with oversight provided by the Congress, will end up enabling us all to find out what has happened.""Until these inquiries are complete, I will be rendering no opinion from the podium," Bush said.

Another DOJ Nominee Refuses to Comment on Waterboarding

Today in the Senate, the man nominated to be Attorney General Mukasey's deputy at the Department of Justice started trying to impress his prospective boss before he'd even gotten the job. Asked if waterboarding is a form of torture, Mark Filip replied that he didn't want to "get out in front of [Attorney General Mukasey] on that question."

Another sad example of the Bush Administration's torture litmus test in action.

White House Lawyers and the CIA Tape Destruction

From today's New York Times:

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged.

Those who took part, the officials said, included Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

Hearing on CIA Tapes Set for Friday

Looks like the Courts aren't buying the Administration's argument that only the Executive Branch should be looking into the CIA's destruction of the torture tapes. Score one for checks and balances.

A federal judge on Tuesday ordered a hearing into whether the Central Intelligence Agency’s destruction of interrogation videotapes in 2005 violated his order that summer to preserve evidence in a lawsuit brought on behalf of 16 prisoners held at Guantánamo Bay, Cuba.

The hearing, set for Friday in Washington by District Judge Henry H. Kennedy Jr., will be the first public forum in which government officials submit to questioning about the tapes’ destruction in November 2005. The Justice Department has asked Congress to postpone inquiries into the matter and had opposed a court hearing, saying any such actions would interfere with a preliminary investigation by the department and the Central Intelligence Agency into whether the destruction of the tapes violated the law.

5 Myths About Torture

From the Washington Post.

5 Myths About Torture

By Darius Rejali

Sunday, December 16, 2007; B03

So the CIA did indeed torture Abu Zubaida, the first al-Qaeda terrorist suspect to be waterboarded. So says John Kiriakou, the first former CIA employee directly involved in the questioning of "high-value" al-Qaeda detainees to speak publicly. He minced no words last week in calling the CIA's "enhanced interrogation techniques" what they are.

But did they work? Torture's defenders, including the wannabe tough guys who write Fox's "24," insist that the rough stuff gets results. "It was like flipping a switch," said Kiriakou about Abu Zubaida's response to being waterboarded. But the al-Qaeda operative's confessions -- descriptions of fantastic plots from a man whom journalist Ron Suskind has reported was mentally ill -- probably didn't give the CIA any actionable intelligence. Of course, we may never know the whole truth, since the CIA destroyed the videotapes of Abu Zubaida's interrogation. But here are some other myths that are bound to come up as the debate over torture rages on.

1 Torture worked for the Gestapo.

Actually, no. Even Hitler's notorious secret police got most of its information from public tips, informers and interagency cooperation. That was still more than enough to let the Gestapo decimate anti-Nazi resistance in Austria, Czechoslovakia, Poland, Denmark, Norway, France, Russia and the concentration camps.

Yes, the Gestapo did torture people for intelligence, especially in its later years. But this reflected not torture's efficacy but the loss of many seasoned professionals to World War II, increasingly desperate competition for intelligence among Gestapo units and an influx of less disciplined younger members. (Why do serious, tedious police work when you have a uniform and a whip?) It's surprising how unsuccessful the Gestapo's brutal efforts were. They failed to break senior leaders of the French, Danish, Polish and German resistance. I've spent more than a decade collecting all the cases of Gestapo torture "successes" in multiple languages; the number is small and the results pathetic, especially compared with the devastating effects of public cooperation and informers.

2 Everyone talks sooner or later under torture.

Actually, it's surprisingly hard to get anything under torture, true or false. For example, between 1500 and 1750, French prosecutors tried to torture confessions out of 785 individuals. Torture was legal back then, and the records document such practices as the bone-crushing use of splints, pumping stomachs with water until they swelled and pouring boiling oil on the feet. But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse (an exceptional high). Most of the time, the torturers were unable to get any statement whatsoever.

And such examples could be multiplied. The Japanese fascists, no strangers to torture, said it best in their field manual, which was found in Burma during World War II: They described torture as the clumsiest possible method for gathering intelligence. Like most sensible torturers, they preferred using torture for intimidation, not information.

3 People will say anything under torture.

Well, no, although this is a favorite chestnut of torture's foes. Think about it: Sure, someone would lie under torture, but wouldn't they also lie if they were being interrogated without coercion?

In fact, the problem of torture does not stem from the prisoner who has information; it stems from the prisoner who doesn't. Such a person is also likely to lie, to say anything, often convincingly. The torture of the informed may generate no more lies than normal interrogation, but the torture of the ignorant and innocent overwhelms investigators with misleading information. In these cases, nothing is indeed preferable to anything. Anything needs to be verified, and the CIA's own 1963 interrogation manual explains that "a time-consuming delay results" -- hardly useful when every moment matters.

Intelligence gathering is especially vulnerable to this problem. When police officers torture, they know what the crime is, and all they want is the confession. When intelligence officers torture, they must gather information about what they don't know.

4 Most people can tell when someone is lying under torture.

Actually, no -- and we know quite a bit about this. For about 40 years, psychologists have been testing police officers as well as normal people to see if they can spot lies, and the results aren't encouraging. Ordinary folk have an accuracy rate of about 57 percent, which is pretty poor considering that 50 percent is the flip of a coin. Likewise, the cops' accuracy rates fall between 45 percent and 65 percent -- that is, sometimes less accurate than a coin toss.

Why does this matter? Because even if a torturer breaks a person, the torturer has to recognize it, and most of the time they can't. Torturers assume too much and reject what doesn't fit their assumptions. For instance, Sheila Cassidy, a British physician, cracked under electric-shock torture by the Chilean secret service in the 1970s and identified priests who had helped the country's socialist opposition. But her devout interrogators couldn't believe that priests would ever help the socialists, so they tortured her for another week until they finally became convinced. By that time, she was so damaged that she couldn't remember the location of the safe house.

In fact, most torturers are nowhere near as well trained for interrogation as police are. Torturers are usually chosen because they've endured hardship and pain, fought with courage, kept secrets, held the right beliefs and earned a reputation as trustworthy and loyal. They often rely on folklore about what lying behavior looks like -- shifty eyes, sweaty palms and so on. And, not surprisingly, they make a lot of mistakes.

5 You can train people to resist torture.

Supposedly, this is why we can't know what the CIA's "enhanced
interrogation techniques" are: If Washington admits that it waterboards suspected terrorists, al-Qaeda will set up "waterboarding-resistance camps" across the world. Be that as it may, the truth is that no training will help the bad guys.

Simply put, nothing predicts the outcome of one's resistance to pain better than one's own personality. Against some personalities, nothing works; against others, practically anything does. Studies of hundreds of detainees who broke under Soviet and Chinese torture, including Army-funded studies of U.S. prisoners of war, conclude that during, before and after torture, each prisoner displayed strengths and weaknesses dependent on his or her own character. The CIA's own "Human Resources Exploitation Manual" from 1983 and its so-called Kubark manual from 1963 agree. In all matters relating to pain, says Kubark, the "individual remains the determinant."

The thing that's most clear from torture-victim studies is that you can't train for the ordeal. There is no secret knowledge out there about how to resist torture. Yes, there are manuals, such as the IRA's "Green Book," the anti-Soviet "Manual for Psychiatry for Dissidents" and "Torture and the Interrogation Experience," an Iranian guerrilla manual from the 1970s. But none of these volumes contains specific techniques of resistance, just general encouragement to hang tough. Even al-Qaeda's vaunted terrorist-training manual offers no tips about how to resist torture, and al-Qaeda was no stranger to the brutal methods of the Saudi police .And yet these myths persist. "The larger problem here, I think," one active CIA officer observed in 2005, "is that this kind of stuff just makes people feel better, even if it doesn't work."

House Passes Bill Applying Army Field Manual Standards to the CIA

Today, the U.S. House of Representatives passed the Intelligence Auhorization bill which includes a provision applying the Army Field Manual standards of interrogations to the CIA and its contractors. If this bill passes the Senate and is signed by the President, the United States will have one single standard of humane treatment for detainees in our custody -- a crucial step toward putting an end to the torture and official cruelty that have besmirched our county's honor for the past several years.

Here's Congressman Steny Hoyer's statement on the floor before the bill passed.

Ladies and gentlemen, I want to ask unanimous consent to include in the record at this time a letter. The letter is signed by, and I will not take the time to read all of the generals, but there are four four-star generals A four star general is as high as you can go in the armed forces of the United States except when we are in a world war in which we accord a five star.

There are many lieutenant generals, admirals, vice admirals, brigadier generals, major generals all of whom are concerned about defeating terrorism. And this is what they say: “As retired military leaders of the U.S. Armed Forces, we write to express” on December 12, 2007, just a few days ago, “we write to express our strong support for Section 327 of the Conference Report on the Intelligence Authorization Act for Fiscal Year 2008.” And then this paragraph and I ask all of my colleagues on both side of the aisle to listen to this paragraph from those who have worn the uniform of the United States of America, who have themselves before they became generals, fought in the battles that America has sent them to. Have fought for the freedom of this country and confronted the terrorist of their day and today. Hear this paragraph from those who have been at war and who want to protect their troops, our troops, American men and women.

They say this: “we believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans.” That is the critical point. We are a nation that believes in the premise of doing unto others what we would have them do to us. Our enemies do not accept that premise. Our enemies do not accept that value. Our enemies are different than we are. We must not become – not become what we confront. The techniques permitted by the Army field manual, as I say, is endorsed by all these generals.

Armed Forces Journal Slams Giuliani and Mukasey for Their Support of Waterboarding

The Armed Forces Journal slams Rudy Giuliani and Attorney General Mukasey for their support of the torture technique known as "waterboarding."

TO RUDY GIULIANI AND ATTORNEY GENERAL NOMINEE MICHAEL MUKASEY

For their tacit support of waterboarding. In an interview, Giuliani was asked for his views on using “enhanced interrogation techniques,” including waterboarding. He responded that in a hypothetical scenario that assumed an attack, “I would tell the people who had to do the interrogation to use every method they can think of.” Prompted again on the specific use of waterboarding, he repeated “every method they could think of.” Mukasey said he found waterboarding to be “repugnant,” but he wouldn’t answer whether it amounted to torture.

Let AFJ be crystal clear on a subject where these men are opaque: Waterboarding is a torture technique that has its history rooted in the Spanish Inquisition. In 1947, the U.S. prosecuted a Japanese military officer for carrying out a form of waterboarding on a U.S. civilian during World War II.

Waterboarding inflicts on its victims the terror of imminent death. And as with all torture techniques, it is, therefore, an inherently flawed method for gaining reliable information. In short, it doesn’t work. That blunt truth means all U.S. leaders, present and future, should be clear on the issue.

Former Director of the Defense Intelligence Agency: Torture Produces Unreliable Information

Lieutenant General Harry E. Soyster, USA (Ret.), the Director of the Defense Intelligence Agency from 1988 to 1991, weighs in on last night's ABC interview in which former agent John Kiriakou contended that the waterboarding of a detainee produced valuable intelligence. According to Soyster, the effectiveness of torture isn't so clear:

"Experienced military and intelligence professionals know that torture, in addition to being illegal and immoral, is an unreliable means of extracting information from prisoners. Much is being made of former CIA official John Kiriakou's statement that waterboarding "broke" a high-value terrorist involved in the 9/11 plot. There are always those who, whether out of fear or inexperience, rush to push the panic button instead of relying on what we know works best and most reliably in these situations. I would caution those who would rely on this example. It is far from clear that the information obtained from this prisoner through illegal means could not have been obtained through lawful methods. The FBI was getting good intelligence from this prisoner before the CIA took over. And there are numerous examples of cases where relying on information obtained through torture has disastrous consequences. The reality is that use of torture produces inconsistent results that are an unreliable basis for action and policy. The overwhelming consensus of intelligence professionals is that torture produces unreliable information. And the overwhelming consensus of senior military leaders is that resort to torture is dishonorable. Use of such primitive methods actually puts our own troops and our nation at risk."

Why A Stand Against Torture Must Start at the Top

From last night's ABC interview with a former CIA officer on the torture of an al-Qaeda suspect in U.S. custody.

BRIAN ROSS: And did you know the CIA officers feel without a doubt you had the legal right to do what you were doing?

JOHN: Absolutely. Absolutely. I remember - I remember being told when - the President signed the - the authorities that they had been approved - not just by the National Security Counsel, but by the - but by the Justice Department as well, I remember people being surprised that the authorities were granted.

Washington Post: Ending Torture a "Defining Issue" in the Presidential Campaign

Here's today's Washington Post editorial on the importance of the issue of ending torture in the presidential campaign. It's worth reading in full. For more information on the Iowa meeting with retired military leaders and presidential candidates referenced in the article, go here.

'A Defining Issue 'The presidential candidates fall into two distinct groups on the question of torture.

Monday, December 10, 2007; A18

FOR MOST of this year there has been a stark divide in the presidential campaign on the subject of torture. The candidates have repeatedly been asked whether they would subject suspected terrorists to waterboarding, an ancient torture technique that was prosecuted as a crime by the United States for more than 100 years before the Bush administration adopted it for use on captured al-Qaeda leaders. The Democratic candidates have ruled it out, while most of the Republicans have either hinted that they would allow it or refused to respond. The noble exception has been Sen. John McCain (R-Ariz.), the only candidate ever to experience torture, who has spoken repeatedly and with great eloquence about the harm it causes to American interests.

Now a second Republican candidate has broken with the Bush administration's shameful record. After meeting in Iowa last week with a group of former senior military officers who oppose torture, Mike Huckabee told reporters that waterboarding is torture and that "torture should not be the policy of the United States of America." Although interrogations of enemy detainees should be "thorough," Mr. Huckabee said, "when we go to the point of violating our own moral code, then instead of advancing our country, its safety and our security, we in fact jeopardize it."

It's a measure of how far President Bush has departed from fundamental American values that Mr. Huckabee's statement would be at all remarkable. Yet it immediately placed him at odds with Rudolph W. Giuliani and Mitt Romney, both of whom have said they oppose torture while refusing to condemn, in practice, common methods of illegal abuse. Mr. Giuliani has been positively enthusiastic in his endorsement of "intensive questioning" and sleep deprivation -- which was the torture most commonly employed in Soviet gulags. Last May he said would tell interrogators to use "every method they can think of," including waterboarding, if he believed a prisoner had vital information.

At least Mr. Giuliani has the courage of his convictions. Asked about waterboarding at the last Republican debate, Mr. Romney ducked and dodged, saying that "as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use." That drew an immediate response from Mr. McCain, who said he was "astonished" that "anyone could believe that's not torture."

"My friends, this is what America is all about," Mr. McCain said. "This is a defining issue and clearly, we should be able, if we want to be commander in chief of the U.S. armed forces, to take a definite and positive position on, and that is, we will never allow torture to take place in the United States of America."

Mr. McCain has taken a stand, and now so has Mr. Huckabee. That leaves Mr. Giuliani and Mr. Romney on the wrong side of an issue that should indeed be fundamental to the choice of the next president.

Campaign Update: Momentum Against Torture Grows

It's been an encouraging couple of weeks in our efforts to put ending torture front and center in the presidential election.

This past weekend, Human Rights First hosted a meeting in Des Moines, Iowa with over a dozen retired admirals and generals and seven of the presidential candidates to discuss the importance of putting an end to policies that authorize torture and abuse. Check out yesterday's op-ed in Stars and Stripes to read why the meeting's co-chairs, General Joseph P. Hoar and General David M. Maddox, were motivated to take action against torture and abuse.

We celebrated even more momentum last Wednesday when the CNN/YouTube debate featured a question from a Seattle student who wanted to know where the candidates stood on waterboarding. Two of the candidates, Mitt Romney and John McCain, responded. See what they had to say.

It's because of supporters like you that the candidates are responding. Special thanks to Bart of Canandaigua, N.Y., who submitted his own video question for the YouTube debate! When people like you stand up and demand answers, we get moments like this. Thank you.
We're seeing positive results – candidates are talking about this important issue – but our work is hardly done. We need a pledge from all the candidates to stand against torture. We already have 30,000 Americans demanding it.

Our message is strong – you can make it even stronger. Ask your friends and family to sign our petition calling for a President who will not allow torture to happen again in America's name.

CIA Destroys Evidence of Torture

Just out from the New York Times:

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

Let's see if I have this right: President Bush says that the CIA's "enhanced" interrogation program isn't torture. However, if people could see what the CIA was in fact doing it would open the door for the criminal prosecution of those conducting the "enhanced" interrogations and incite the rest of the world against us. Make sense?

Here's HRF's Washington Director Elisa Massimino's take:

“At the same time Congress was passing laws to reinforce the ban on torture and other inhuman treatment of prisoners, it appears the CIA was destroying evidence of its own use of these illegal methods. Can there be a more telling admission that the CIA knew what it was doing was wrong?”

“Congress should demand that CIA director Hayden explain what appears to be, at minimum, an obstruction of Congress’s legitimate oversight function and should demand – by subpeona if necessary – any evidence of CIA prisoner abuse that has not yet been destroyed. It’s also past time for Congress to ensure that the CIA abides by laws prohibiting cruel treatment by restricting all U.S. interrogators to standards used by the military.”

Report from Guantanamo

Here's Sahr MuhammedAlly's report from Guantanamo where she is observing the Hamdan proceedings.

Access to KSM Denied for Hamdan Military Commission Hearing, but Defense Allowed to Call Some Witnesses

Guantánamo Naval Base, Wednesday, December 5, 2007: A hearing began today to determine whether Salim Ahmed Hamdan is an “unlawful enemy combatant.” By the time this hearing finishes this presumably will be the first time a Military Commission will actually determine whether any Guantánamo detainee is in fact an unlawful enemy combatant subject to the Military Commissions Act (MCA).

We heard oral arguments today on the defense’s motion for a Geneva Convention “Article 5” hearing. The defense also moved to compel production of several witnesses for the MCA jurisdictional hearing to determine whether Hamdan is an “unlawful enemy combatant.”

According to the Bush Administration unlawful enemy combatants are fighters who don’t follow the international laws of war. Or people far from any battlefield who somehow support fighters who don’t follow the international laws of war. Or of course, as is alleged of Hamdan, one of their drivers.

Before the hearing began Hamdan – wearing white robes and black and white checked jacket – walked into the military commission courtroom flanked by two military Joint Task Force (JTF) guards and followed by Navy Captain Keith Allred, the Military Commission judge for these proceedings. In all there were about 40 people in the courtroom, including guards, Colonel David Morris, Chief Prosecutor of the Military Commissions, 5 NGO observers, U.N. Special Rapporteur for Counterterrorism and Human Rights Martin Schenin, and media representatives. The hearing was delayed several times by apparent audio equipment problems that ultimately prevented observers from hearing the Arabic translation, the accuracy of which has been a problem in the past.

Article 5 Hearing Motion

Navy Lieutenant Brian Mizer, Hamdan’s defense counsel, argued that Hamdan is entitled under the Geneva Convention Relative to the Treatment of Prisoners of War (PoWs) to an Article 5 hearing. Hamdan was captured in November 2001 on the Afghanistan “battlefield” at a time when the Geneva Conventions were clearly applicable to the conflict between the United States and Afghanistan. The defense argued that Hamdan is entitled to treatment as a PoW rather than being subject to the MCA at all.

I’ll discuss this in at greater length in another blog – Allred deferred ruling on the motion – but will now turn to the request for “high value” detainee (this term even has its own acronym down here – HVD) and other witnesses.

Defense Motion for Production of Witnesses

Thus began a fascinating exchange between the prosecution and defense on the defense request for production of witnesses for the MCA jurisdictional hearing. On November 15, the defense submitted to the prosecution a list of 9 witnesses they wished to call for purposes of presenting evidence on jurisdiction issues. (Defense counsel had been ordered to produce a witness list by November 28.) The witnesses requested were:

Professor Brian Williams

Five Guantánamo detainees: Khalid Sheikh Mohammed (KSM); Ramzi bin al-Shib; Abu Faraj al-Libi; Abdul Rahim al-Sharqawi (a Yemini or Saudi national known as “Riyadh the facilitator” and thought to have been rendered to Jordon until flown to Guantanamo in September 2004; and Said Boujaadia (a Moroccan detainee I’ll say a bit more about below)

Two of Hamdan’s brothers-in-law: Nasser al-Bahri (whom the defense requested for purposes of testifying about Hamdan during the period of 1995-1999); and Muhammed Ali Qassim al-Qala’a

Hamdan’s wife, Umat Al-Subur Ali Qassim al-Qala’a

The prosecution, upon receipt last month of the defense request for these witnesses, denied the defense’s request in its entirety without explanation. The defense thus on December 4 filed a motion with the Military Commission to compel production of witnesses.

At today’s hearing the prosecution agreed to allow Professor Williams to testify but raised objections to all the other witnesses. Assistant U.S. Attorney John Murphy argued that the defense’s reasons for wanting the witnesses were “speculative” and therefore the witnesses were not “relevant and necessary” under Rule 703 of the Rules of Military Commission (RMC). As for Hamdan’s wife, al-Bahri, and al-Sharqawi (a Guantánamo detainee) the prosecution suggested the defense consider submitting “stipulated statements” instead of requiring production of the witnesses in court “because we want to provide the court with helpful information . . . we have an obligation to provide exculpatory and inculpatory information.”

High-Value Detainees

The prosecution also argued that producing the Guantánamo detainee witnesses will “virtually open up access to every detainee here and everywhere else.” Three of the detainees – KSM, al-Libi, and al-Shib – are HVDs, and Murphy argued that there is very limited access to them, including by other government entities. Army Lieutenant Colonel William Britt added that none of the lawyers have been “read into” the “special access program” and that even he as the Military Commission’s Deputy Chief Prosecutor does not have access to the HVDs.

As Professor Charles Swift of Emory Law School – who as Navy Lieutenant Commander Swift successfully represented Hamdan before the Supreme Court in the case that resulted in the Court’s 2006 decision striking down the previous military commission regime – began arguing for defense access to the HVDs, the prosecution objected to his statement based on “national security privilege.” Judge Allred initially ordered counsel to hold off discussing the HVDs until closed session. In the end, however, the HVD discussion was held in open session because defense counsel relied on statements from the unclassified portion of the HVD CSRT in support of their reasons to have these detainees produced.

Lieutenant Mizer explained that the testimony of the 3 HVDs is needed because as senior members of al-Qaeda they should know (if anyone does) whether Hamdan is a member of al-Qaeda, whether he is a combatant, and whether he participated in planning and executing any acts that violated the laws of war. Hamdan has admitted to being Osama bin Laden’s driver but not a member of al-Qaeda, and “you’re not an alien unlawful enemy combatant if you are a driver or just a farmer working on one of Mr. bin Laden’s farms,” argued Mizer.

Specifically, the defense argued that their CSRT transcripts indicated that KSM could testify as to whom is a member of the al-Qaeda military committee, and that al-Libi could testify whether he ever screened Hamdan to serve as a fighter for al-Qaeda. Hence, their testimony seemingly would indeed be “relevant and necessary” to the Commission’s jurisdiction. Lieutenant Colonel Britt, however, argued that the prosecution was “not prepared to go to trial” on these issues yet and for the purposes of jurisdiction the access to HVDs is not necessary.

Said Boujaadia

Said Boujaadia, a Moroccan detainee in U.S. custody since November 2001, was actually exonerated by an Administrative Review Board (ARB) in September 2006 and then was cleared to leave Guantánamo for Morocco in February 2007. His departure, however, was put on “hold,” without explanation. When Hamdan’s defense counsel identified Boujaadia as a defense witness for Hamdan’s case, they reportedly were asked by the prosecution that they request a hold be put on Boujaadia’s release. Hamdan’s counsel, however, refused to become the instruments of keeping anyone at Guantánamo. Instead, they asked that a video deposition be held, as allowed by the RMC Rule 703, so that Boujaadia’s sworn testimony could be secured without any need to hold him subsequently at Guantánamo and with the prosecution having the opportunity to cross-examine him. This request was denied. Boujaadia’s counsel, for his part, has requested testimonial immunity under RMC Rule 704, as Boujaadia reportedly fears that should he provide exculpatory evidence for Hamdan the prosecution may take retaliatory action against him.

Judge Allred’s Ruling: No HVDs but Yes to Some Detainees, Outside Witnesses’ Physical Presence Not Compelled

Allred deferred ruling on the defense’s Article 5 hearing motion, but ruled that the prosecution still would be allowed to present evidence in support an “unlawful enemy combatant” status determination for Hamdan.

Allred also ruled on the defense’s motion to produce witnesses for jurisdiction purposes. He denied production of the 3 HVDs for the purposes of establishing jurisdiction on the basis that the motion was untimely under Rule 703, and noted that there were security obstacles to their access. Swift asked “how can one be timely when we don’t even know what the rules are for producing people on the island?” Allred made clear that his ruling was limited to production of these witnesses for the jurisdictional proceeding only, and did not preclude a later defense request for their production at trial.

Allred did order the prosecution to provide defense access to al-Sharqawi. This was greeted as big news, and after the end of the proceedings defense counsel were off in the dark of the night to meet for the first time with al-Sharqawi.

Allred excluded any testimony from one of the Hamdan brothers-in-law, al-Barri, on grounds that his testimony of Hamdan’s activities during 1995-1999 was not relevant. But the judge granted the defense motion to produce Boujaadia as a witness (but this might not mean anything unless the issue of immunity is resolved), and ruled as well that Hamdan’s wife and other brother-in-law could testify, but ordered the defense to question them via telephone instead of bringing them to Guantánamo.

Tomorrow the prosecution is expected to present for the first time in any post-MCA hearing at Guantánamo actual evidence – for an estimated 3-4 hours. Then the defense will be up.

Will President Bush Veto Another Torture Ban?

The AP reports that Congress has decided to take on the Bush Administration's authorization of CIA interrogation techniques that go beyond what the military has authorized. If this bill passes, techniques such as waterboarding would be prohibited across the board.

House and Senate negotiators working on an intelligence bill have agreed to limit CIA interrogators to techniques approved by the military, which would effectively bar them from using such harsh methods as waterboarding, congressional aides said Wednesday.

Members of the House and Senate intelligence committees decided to include the ban while working out differences in their respective bills authorizing 2008 spending for intelligence programs, according to the aides, who spoke anonymously because the negotiations were private. Details of the bill are to be made public Thursday.

That will set the stage for another veto fight with President Bush, who last summer issued an executive ordered allowing the CIA to use "enhanced interrogation techniques" that go beyond what's allowed in the 2006 Army Field Manual.

Here's HRF's Elisa Massimino's take on why a single standard for the military and the CIA is so important:

"There should be no daylight between the humane treatment standards that the military lives by and those applicable to the CIA. Experienced interrogators have repeatedly said that the Army Field Manual gives them everything they need to get actionable intelligence from dangerous prisoners."

The White House has already weighed in with a veto threat:

White House spokesman Tony Fratto issued a statement saying, “if that provision is in the bill, it would make a bad bill worse. We had a veto message on a similar provision in the House’s supplemental funding bill. The CIA program has provided valuable, actionable intelligence that has allowed us to find and capture terrorists and prevent attacks. Efforts to weaken this program are dangerous and misguided.” (Congressional Quarterly)

Senate Republicans could aslo block the bill from even reaching the President's desk.

Another Hearing at Guantánamo, Another Day of Government Policies on Trial

HRF attorney Sahr MuhammedAlly is traveling to Guantanamo to observe the Hamdan hearing. Here's her report:

December 3, 2007: The usual reporters and non-governmental organizations are
traveling from Andrews Air Force Base to Guantánamo Bay, Cuba to observe the military commission hearing of Yemeni national Salim Ahmed Hamdan. Hamdan has
been charged with providing military support to terrorists in Afghanistan and conspiring to aid terrorism. He is accused of serving as a bodyguard and personal driver for Osama bin Ladin.

This is round two for Hamdan. Back in June, Judge Navy Captain Keith J. Allred dismissed the charges against Hamdan on jurisdictional grounds, concluding that the military had not found him to be an “unlawful enemy combatant.” A Combatant Status Review Tribunal (CSRT) had found him to be only an “enemy combatant.”

The government asked the judge to reconsider. Judge Allred obliged, noting that “the interests of justice are served by reopening the hearing” to determine whether the commission trial may get underway. The judge relied on a September 24 ruling by the Court of Military Commission Review (CMCR), created shortly after the June
ruling, which held that a military judge is authorized to decide the jurisdictional issue by deciding whether the individual’s status should be deemed “unlawful.”

As I am preparing to leave, I scan the newspapers and read about terrorism prosecutions in the civilian system underway in Florida and New York—cases involving conspiracy and material support for terrorism. Yet I am traveling to observe the prosecution of these same charges in a military court rather than the civilian court system. This is one of the many concerns regarding the policy choices made by the government in its prosecution of the “war on terror.”

GTMO: Never a Dull Moment

Events at Guantánamo continue to capture headlines. One just never knows what to expect. On November 7, we learned that the prosecution in 21-year-old Omar Khadr’s case shared exculpatory evidence with the defense only two days prior to his arraignment when, at the same time, it was Wikileaks posted a confidential 2003 Camp Delta Standard Operating Procedures (SOP), which showed that, prior to 2004, military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross (ICRC). The manual said one goal was to “exploit the disorientation and disorganization felt by a newly arrived detainee,” by preventing them access to the ICRC. Some detainees had no contact of any kind with the ICRC, not even delivery of ICRC mail. A few lucky ones were allowed unrestricted access, but others were permitted only physical exams with “no form of communication.” In 2003, the ICRC publicly criticized the indefinite detention of detainees in Guantánamo and, in a confidential report, which was later leaked, found evidence of physical and psychological mistreatment of detainees.

This past weekend we learned that the military judge in the Khadr case has prohibited defense lawyers from disclosing the identity of all prosecution witnesses to their client. This will severely hamper Khadr’s ability to adequately defend himself. Protecting the identities of some witnesses in civilian court system has been done, but not the entire list of prosecution witnesses. Moreover, despite the government’s claim that the military proceedings are open to the public, except when classified information will be presented, we are now learning that lawyers are making some critical legal arguments in e-mail exchanges with the judge outside of public scrutiny.

December 5
I wonder what is in store for us on December 5. The government may present evidence of Hamdan’s alleged activities in Afghanistan in support of his enemy
combatant designation. Almost six years later, neither the detainees nor the public have seen the primary evidence that forms the basis for detaining the 305 individuals left at Guantánamo (down from 700 plus in 2002).

December 5 is actually quite a busy day. In addition to the Hamdan hearing, the U.S. Supreme Court will hear oral arguments in Boumediene v. Bush. Boumediene challenges the constitutionality of the Military Commissions Act of 2006 (MCA), which expressly revoked the right of Guantánamo detainees to bring habeas corpus petitions. Another event of interest will be the sentencing of Jose Padilla. Padilla was held incommunicado as an enemy combatant in military custody for three and a half years before being transferred to civilian court and convicted of providing material support for terrorism. Question: if Padilla was prosecuted in the civilian court system for material support of terrorism then why isn’t Hamdan, who is charged for the same offense, also being tried in a civilian court?

So back to December 5th. We will not only see the various puzzles of the government’s prosecution in the “war on terror,” but U.S. policies post September 11 will again be on trial.