Diane Beaver

Our New Teachers about Rule of Law

The Gray Lady is dedicating space this week to reflections on Gitmo. In addition to a debate on it (more on that tomorrow), it offered Lakhdar Boumediene and Murat Kurnaz space to tell their stories, albeit in the opinion section.

Both men told of their terrible treatment.

But both also discussed what they learned about American rule of law by being falsely imprisoned for years.

Boumediene describing losing faith in American justice, which not even the knowledge that the case bearing his name is taught in American law schools has yet returned, given the number of men who remain unjustly imprisoned.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal.

[snip]

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice. [my emphasis]

Kurnaz describes watching Germans, upon his return, teaching Americans about something once renewed in Germany by the Nuremberg trials: the rule of law.

I LEFT Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.

When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”

I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country.Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law. [my emphasis]

Gitmo has come to embody many things in this country over the last decade: Bush’s incompetence and criminality, our bigotry and inhumanity, and–as most would like to treat it now–a big political tussle between Obama and Republicans.

But at every turn–from the Bush Administration grasping claiming the piece of land existed outside the rule of law, to the corrupt legal process that created memos authorizing torture there, to Jim Haynes’ insistence that “we can’t have acquittals,” to the DC Circuit’s continued efforts to make sure detainees get no meaningful review of their detention–Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.

In this country, we have mostly ignored that lesson of Gitmo (not liking what it says about us, I guess). But it’s a lesson our former captives know well.

Jonathan Fredman on Approvals

As you probably recall, there was a Counter Resistance Strategy Meeting at Gitmo on October 2, 2002 (the minutes for it start on page 219 of this PDF). At the meeting, Jonathan Fredman, then the Counterterrorism Center’s top lawyer, famously said, "If the detainee dies, you’re doing it wrong."

More interesting (for my present purposes, anyway) are his comments about how the CIA got approval for torture. First, he claims that the US did not sign Article 16 of the Convention Against Torture because the 8th Amendment covers that already.

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

It’s a bizarre argument to make, not just because it’s false, but because at other times the CIA and DOJ rationalized ignoring Article 16, they focused on the 5th Amendment, not the 8th.

Later, Fredman has a conversation about what approval process DOD might use to be able to use torture.

[GTMO Interrogation Control Element (ICE) Chief Dave] Becker: Would we get blanket approval or would it be case by case?

Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through the DOJ.

[Director for Intelligence (J-2)] LTC Phifer: Who approves ours? The CG? SOUTCOM CG?

Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.

Phifer: Can we get DOJ opinion about these topics on paper?

LTC Diane Beaver: Will it go from DOJ to DOD?

Phifer: Can we get to see a CIA request to use advanced aggressive techniques?

Fredman: Yes, but we can’t provide you with a copy. 

As you know, I’ve been tracking the way that Jim Haynes and David Addington parsed answers about when they saw the Bybee Two memo, describing the torture techniques approved for Abu Zubaydah; Addington even seemed to be dodging questions about whether or not he showed anyone at Gitmo the memo. And this exchange seems to suggest CTC was willing to share its DOJ backup with Gitmo officers.

Mind you, this meeting took place a week after Addington and Haynes went on their Gitmo field trip and the context seems to suggest that Phifer, at least, has not seen the Bybee Two memo. Continue reading

The Logic Behind the Script “The Removal of Clothing Is Not Nudity”

Watching the lawyers who established the torture regime a few weeks ago was particularly stunning in one respect. Jim Haynes, Dougie Feith, Jane Dalton, Diane Beaver–all of them at some point in the hearings repeated the non-sensical claim, "the removal of clothing is not nudity" (or naked).

In this video, for example, Jerrold Nadler asks Dougie Feith,

Nadler: How could you force someone to be naked and undergo a twenty hour interrogation?

Feith: It doesn’t say naked. It doesn’t say naked. This is why the words…

Nadler: Removal of clothing doesn’t mean naked?

Feith: Removal of clothing is different from naked.

Haynes repeated the mantra in his testimony before the Senate Armed Services Committee.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

Jane Dalton explained that in context (remember, she’s talking about a two page memo with no footnotes) the removal of clothing is not nudity.

Dalton: If conducted with oversight. In context in which discussed. Removal of clothing not nudity, working dogs not dogs unmuzzled and snarling, stress limited to standing for four hours. When you put them together, those techniques could be consistent with domestic and intl law.

And Claire McCaskill gave Jane Dalton and Diane Beaver a short reading lesson.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

mcCaskill Within our military. It happened/

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word all. If I saw removal of clothing and I was trying to get info, how would anyone know?

Continue reading

The Removal of Clothing Does Not Lead to Nudity

nudity.JPGThat’s a claim that Jim "Chevron" Haynes made yesterday in the Senate Armed Services Committee hearing on torture. In a pathetic attempt to claim that his own 2-page (with zero footnotes) recommendation and Rummy’s subsequent authorization of a number of techniques–including the use of fear and the removal of clothing–did not lead to the horrors of Abu Ghraib, Haynes actually claimed that the removal of clothing was in some way qualitatively different than nudity.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

As Claire McCaskill pointed out to Diane Beaver and Jane Dalton, if the written documentation allows the use of phobias and removal of clothing, and that written documentation doesn’t rule out the removal of all clothing, you’re going to have nudity.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

McCaskill Within our military. It happened.

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word "all"? If I saw removal of clothing and I was trying to get info, how would anyone know?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say removal of clothing. It’s not in there.

All three of these people are pretending that "everyone" involved knew there were a certain set of conditions that limited the use of phobias and removal of clothing that would somehow prevent piling detainees into heaps of naked human flesh–conditions that, unfortunately, Haynes’ two page memo failed to communicate. Continue reading

Why Drop Charges Against Al-Qahtani?

The AP reports that charges against Mohammed al-Qahtani have been dropped, suggesting that charges were dropped because he was tortured.

The Pentagon has dropped charges against a Saudi at Guantanamo who was alleged to have been the so-called "20th hijacker" in the Sept. 11 attacks, his U.S. military defense lawyer said Monday.

Mohammed al-Qahtani was one of six men charged by the military in February with murder and war crimes for their alleged roles in the 2001 attacks. Authorities say al-Qahtani missed out on taking part in the attacks because he was denied entry to the U.S. by an immigration agent.

But in reviewing the case, the convening authority for military commissions, Susan Crawford, decided to dismiss the charges against al-Qahtani and proceed with the arraignment for the other five, said Army Lt. Col. Bryan Broyles, the Saudi’s military lawyer.

[snip]

Officials previously said al-Qahtani had been subjected to a harsh interrogation authorized by former Defense Secretary Donald H. Rumsfeld.

But that’s not right. After all, the remaining 5 detainees were also tortured. Heck, the government has even admitted to water-boarding Khalid Sheikh Mohammed. But he’s still going to get a show trial.

I would suggest that two things contributed to al-Qahtani’s charges being dropped. First, the disqualification of Thomas Hartmann last week may be related. As I suggested in my post on the disqualification, Judge Allred made clear that the charges against Hamdan could go forward because those charges were finalized before Hartmann came on the scene. But the charges in which Hartmann was directly involved–notably of the group of high value detainees that until Friday included al-Qahtani–would be affected. The government is now going to have to prove that those 6 5 detainees would have been charged even without Hartmann making decisions about whether to include evidence gained by torture.

Note that Allred’s decision is dated May 9, Friday, the same day Susan Crawford decided to drop charges against al-Qahtani, so if this was a response to the Hartmann disqualification, it was a very quick response.

But there’s another reason why the charges against al-Qahtani were dropped while KSM will still be charged: evidence that the torture against al-Qahtani didn’t reveal anything. Continue reading

The Banality of Enhanced Interrogation

A number of people have pointed out the auspicious timing of Philippe Sands’ Green Light article, appearing as it did at the same time as the Torture Memo. I’m just as struck, though, by its appearance shortly after the publication of profiles of two of the women convicted for abuse at Abu Ghraib: a long Stern interview with Lynndie England and a New Yorker profile of Sabrina Harman. Within short order, then, we have profiles of three of the women who enabled torture.

Lynndie England

The England interview describes how England, who had joined the army to get out of her bleak West Virginia town, is stuck back there, unable to get a job and therefore a house of her own for her and her son (via Charles Graner).

I’m just trying to get by. Trying to find a job, trying to find a house. It’s been harder than I expected. I went to a couple of interviews, and I thought they went great. I wrote dozens of applications. Nothing came of it. I put in at Wal-Mart, at Staples. I’d do any job. But I never heard from them.

[snip]

I am starting to wonder if they realize who I am and they don’t want the publicity. I don’t want to lie. On my resume I have a brief little paragraph about what I did in the army and about being in prison and that I’m still on parole. I want to be totally honest. I have to find a job by September, that’s part of the parole regulations. If you break the rules, then they can bring you back. That would be a big deal because I don’t want to leave my son.

England stays in her home town, she explains, because only there do people support her, some agreeing they would have done as she did, follow orders.

They don’t treat me any different. I haven’t met a person yet that’s been negative to me. Not since I got home. Most of them back me up one hundred percent. They say, "What happened to you was wrong." And some even say they would have done the same thing.

[snip]

That they would have followed orders, just as I did in Abu Ghraib.

She stays in her home town, too, out of fear that elsewhere a stranger will come after her and her son.

I know more people support me here than are against me. It’s that one crazy one that you don’t know that finds out where you live and comes after you.

Continue reading

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