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TechnoratiInjustice at Guantánamo: Torture Evidence and the Military Commissions Act
The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.
That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.
The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.
In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.
A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to "shake the camera in the interrogation room" and "cause severe internal injury," the report says.
The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.
Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.
Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues.
Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.
When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are archived at http://www.marjoriecohn.com/
30 Comments so far
Show AllBut you didn't answer my question... How much blood does the US require before it satisfies it's need for revenge?
Actually Jonthenet, The Elvis this wasn't funny. It was just another attempt by a right-wing asshole to make light of a serious situation. I really have a hard time understanding people like you.
And you call me a right-winger, follow the info in your own post. Nevermind I'm a proud right-winger. You got to admit the Elvis thing was funny
Jonthenet: Who ever said I was a "Lib" dude? I'm neither liberal or conservative. I subscribe to neither philosophy. Besides, that whole "lib" thing is just an excuse for you right-wingers not to think. "Oh, he's a lib. Don't listen" Moron.
Hey Elmo- Again you "Libs" seriously do not give the US military enough credit. Only a million people we have killed, we have been there for 5 years we have got to be up to two or three million by now.
I'm with you on the official story of 9/11. There is new footage of the attacks on the WTC just released. In one picture you clearly see a picture of .... ELVIS, bigfoot is in another I've seen. A couple UFO's are in the distance.
I'm being chased by a black helicopter got to go
Jonthenet February 18th, 2008 3:15 pm
"How about Injustice in New York ,D.C. Penn. Sept 11 2001.
Trust me the scum in Gitmo no matter what was done to them had it better, Than a man jumping to his death from the 80th floor. Or the people of Flight 93 who had a long dive to there deaths."
Or how about the 1,000,000 people in Iraq murdered by the US... You Americans have had more than your fair share of blood in retribution for 9/11. Roughly 333 times more people killed on their side than your side. So 333 people for every American. Don't you think the debt is paid in full? Enough vengeance for you? How much MORE blood, how many more lives must be lost before you have your fill of vengeance?
That is of course assuming that the "official 9/11 story" is the truth... which I seriously doubt. You won't find the real 9/11 masterminds in Afghanistan, or Pakistan, or even captured and locked away at Gitmo.
How about Injustice in New York ,D.C. Penn. Sept 11 2001.
Trust me the scum in Gitmo no matter what was done to them had it better, Than a man jumping to his death from the 80th floor. Or the people of Flight 93 who had a long dive to there deaths.
Please "libs" keep taking your meds.
They got an effin Starbucks at Gitmo. Boycott Starbucks.
Tsunami wrote that Alito and Scalia are Supreme Court Judges. In fact, they are Supreme Court Justices. Tsunami also wrote that the Justice Department ought to be called the UnJustice Department. I suggest that a group of members of the Supreme Court ought to be called a lack of Justices.
Olâ Lobo Gris,
You have given a serious answer to a rhetorical question. Sunset provisions or no, if the Bush Administration fails to enforce a law, it is tantamount to its having expired. When Bush writes a signing statement saying that a law will not be enforced, it's tantamount to having the law expire when the ink dries.
>> Alito, Scalia, Mukasey, and the rest of the Justice Department, are working hard to circumvent law. It's something of a problem seeing how they're supposed to be the guardians of law.<<
May I say that ALITO and SCALIA are SUPREME COURT JUDGES. And the so-called Justice Dept. would be more truely described as the "UNJUSTICE DEPARTMENT.
#
dreamertoo February 16th, 2008 9:05 am
"The Military Commissions Act provides retroactive immunity for war crimes."
Which makes it an ex post facto law which isn't supposed to be able to be passed according to the Constitution.
Lobo Gris
The Military Commissions Act provides retroactive immunity for war crimes.
jlocke123 February 15th, 2008 11:51 am
"How long do US laws stay in effect, ten years?, five? Or are they dead as soon as the ink dries?"
It depends on how the bill is written. Some have sunset provisions which means the law expires at a time set by the bill.
Others have no expiration date and remain in effect until they are repealed.
Lobo Gris
The CIA destroyed the video evidence and now they are racing to destroy the rest of the "physical" evidence before Bushco leaves office to protect them from any possible war crimes trials in the future.....
and to rally blood thirsty Fox fed Conservatives into voting Republican in Nov.
Marjorie Cohn has the right prescription for this ongoing atrocity, right there in her final paragraph. I don't expect the current congress to budge one iota on any of this, however.
Maybe if there were enough Dems in Congress to have a prohibitive advantage, they could either do the right thing, finally, or expose themselves as not simply spineless, but totally in concurrence with the policies of hate and fear promulgated by Bush/Cheney. In which case, the great experiment in democracy can be officially declared dead.
I remain hopeful that Democrats won't keep failing, but I can see the end of my hope, and patience, from here.
Another item on the Dubya, Cheney, & Co. check list to transform the USA into a Fascist Third World state.
Injustice at Guantanamo! Who would have thought it? Then after Abu Graib the world knew that anything was possible, that a line had been crossed, that another Dark Age was beginning.
Bush and his deranged Neanderthal mates are pulling our world backwards, pulling us further away from any chance of achieving peace. America's contribution to peace is to set up more military bases around the world, to deploy more missiles in other countries, to spend money it doesn't have on more armaments, to invade and occupy, to threaten to use nukes.
I don't want to live in an American-inspired Dark Age!
www.dangerouscreation.com
1.
Contrary to what any Mussolini on the Supreme Court thinks (and that could include the black one) torture is the easiest world phenomenon to judge that there is.
Torture separates ALL people into two simple groups: victims and goons. As Hannah Arendt told us, it is banal. Bush, Scalia, Mukasey, Gonzalez, Romney and all the other American goons are banal.
It is time for Hollywood to start working with the public schools, showing everyplace
"Judgment at Nuremberg" starring Spencer Tracy and Marlene Dietrich.
It is time also for Argentine and Uruguayan lecturers to come to the United States and explain the unintended (or rather "unimagined") results of torture.
We need to learn, with precision, every repercussion that occurred in those two countries.
2.
The hypocrisy, as we know, includes the American press, assiduous in finding the nearest way at hand to gloss anything of substance, every time.
A CHORUS OF NUMBSKULLS: "simulated drowning, tens of thousands, simulated drowning, tens of thousands, simulated drowning, thousands, hundreds of thousands!"
A CHORUS OF SMARTER PEOPLE: "real drowning, over a million, drowning, over a million, drowning terminated before the person dies, a million, drowning terminated after the person is dead, over a million!"
Why is the second group smarter than the first? Because they are more accurate.
3.
Oh, here's a newsman, a world journalist who aspires to be an American newspaperman. His name is Scoop Miller and he really wants to know what everyone thinks, even what I think.
And so he has agreed to do an onstage demonstration of simulated drowning, in which he will play the victim, and I will play Antonin Scalia.
"Just listen, Scoop. It's easy. Put this cotton pad on your face and do as I say."
"Are you really going to pour water in my nose and mouth?"
"Of course not. I'll pour a little on your forehead, some on your chin, a bit on the side of your face, then I'll move ten feet back and tip the pitcher there, just behind your nose and mouth. The audience will never know."
"Seems kind of phoney."
"Well, you agreed to simulated drowning. You don't want real drowning, do you?"
"No."
"Okay then, send tremors through your body
when I pour, as if you're having a seizure.
Then stop shaking and die."
"Got it."
"You do? You really do? I doubt it."
4.
Yooper, we didn't see the same film. "Judgment at Nuremberg" took the subject of torture seriously, something the portion of the American populace that is goons has trouble doing.
I'm not saying you're a goon. But I think these people need to be mocked, in whatever way people can do it. And brought to account.
5.
The Supreme Court, fully robed, stands on the stage of a school auditorium in Peoria, Illinois. Seven of the justices are silent. Two speak.
Benito: The demonstration you have just seen showed that waterboarding is simulated drowning, with an emphasis on the word "simulated."
Clarence: I wanted to pour the water in the guy's mouth and nose, but you wouldn't let me.
Benito: You see, audience, how we fooled you through a trick of perspective. Yooper, the victim, was between us and you at all times. Sometimes Clarence and I were ten feet behind Yooper, as we both poured, sometimes twenty feet or even twenty-five feet. BUT IT LOOKED AS IF WE WERE EMPTYING OUR TWO PITCHERS DIRECTLY INTO YOOPER'S NOSE AND MOUTH.
Yooper (the volunteer victim from the audience): I still didn't like it.
Benito: Simulated drowning is dissimilar from real drowning.
Yooper: My brother was swimming in a quarry and went under three times. The lifeguards saved him with artificial respiration. But that was real drowning, wasn't it?
Someone from the audience: YOU JUST DON'T LIKE PRESIDENT BUSH!
6.
"YOU JUST DON'T LIKE PRESIDENT BUSH!" That is the mantra of the new Goon Party, comprised of one third of the people in the United States.
They are neurotic and paranoid but above all sadistic, with their vengeance aimed indiscriminately at themselves, progressives, the world, and the United States.
Although they held greater power until recently, they only now are being understood, as the vast support for torture in this country becomes more apparent.
Some criticism of these people is unkind, as it must be:
"How we have behaved (The U.S.) in our treatment of "terrorist" prisoners is so
shameful and so awful that like so many OTHER abominations of the Bush
administration, it has rendered many of us speechless. Disgustingly so. With no
excuse except the numbing knowledge that the majority of Americans appear to be
stupid beyond measure (for electing George Bush) and this is how Democracy becomes
as inferior as any other system: when the voters are uneducated fools."
Reflecting on the Torturers R' Us Shops set up by this Administration
Where does Bush find all the sociopaths to do the torturing; i.e. those who admit they would never want to be subject to "enhanced interrogation" themselves, but seek opportunities to inflict torture others? Does the scum of the earth simply tend to gravitate toward him like the Nazis did toward Hitler or does he have an in-Human Resources manager who actively recruits them? Are the Torquemadas he hires formally taught to be that way or are they born depraved? Are they mostly self described Christians or atheists? What went wrong in their upbringing and how were they unable to develop or unable to keep a moral code? Are they sickos who relish the sense of power that bringing pain to others apparently can supply or is it the addictive oxytocins or dorphamines or other brain jollies they get out of it? Are they paranoid schizophrenias assuming everyone they torture must deserve it? Are they closet sadists? Or, are they just utterly delusional, thinking what they are doing is somehow actually saving civilization?
"The Constitution is not a done deal. It exists when it is practiced. It's dead when it is not. It dies when Congress falls over itself to legalize what the President has done illegally and in secret. It dies when the public flips the channel to watch a 'reality show' instead of finding out more about what Bush has done..."
unkanny:
Un(kannily) accurrate and concise.
Kudos and Thanks
Guantanamo became US territory by way of a permanent lease under the 1903 Cuban-American Treaty, which settled Cuba's position in the international system after the Spanish-American War. This was reaffirmed in a 1934 treaty that increased the rent. Castro's regime cashed only one rent check, owing to the confusion in 1959, but not since. Legally, the status of Guantanamo has been very useful for the Bush administration -- it's Cuba, but America, but not really.
> Torture has been illegal...
Getting around torture is easy. You just call it something else. Do it somewhere else (lack of jurisdiction). Have someone else do it. The Justice Department is filled with smart people working hard to get around the law by any means possible. If it's illegal for the armed forces to do it, simply have the CIA do it. If the CIA won't, create a new group to do it. I wouldn't be surprised if Blackwater tortures in Iraq. They have legal immunity.
Tthe Constitution is not a done deal. It exists when it is practiced. It's dead when it is not. It dies when Congress falls over itself to legalize what the President has done illegally and in secret. It dies when the public flips the channel to watch a 'reality show' instead of finding out more about what Bush has done. Alito, Scalia, Mukasey, and the rest of the Justice Department, are working hard to circumvent law. It's something of a problem seeing how they're supposed to be the guardians of law.
Again, let's reframe: WATER TORTURE or DROWNING TORTURE.
Waterboarding sounds too much like part of my Hawaiian vacation package - "we feature surfboarding, bodyboarding and waterboarding."
Once reframed to reflect reality and truth, Senate questions will sound like this: "Mr. Mukasey, if someone performed Water Torture on you, would you consider it torture?"
The common opinion that I see on these so-called progressive sites is that the democrats just lack the guts or the fortitude to stand up to the Republicans and the Bush Administration, thereby they get bullied into going along with what Bush wants. Perhaps that's not entirely accurate though. Perhaps, and I'm just speculating here, the Democrats WANT the same thing as the Republicans. They're into creating the fascist police-state just as much as the Republicans are. It's like a 2-headed coin. Doesn't matter which side it lands on, the result is the same.
There's probably a few principled democrats around, but they are vastly overshadowed by the Republican-lite democrats. Cuz really... who are the Democrats but the privileged 'elite' just like the Republicans. Hell, just watch the SOTU 2008 speech and see Bush flirting and praising Pelosi. That speaks volumes.
Twister22 Said: "Guantanamo is in Cuba.. I wonder why the Cubans haven't been able to get rid of this prison camp on their land in all this time. Does Cuba use it for their own purposes as well?"
No, I seriously doubt that the Cubans are working with the Americans at Guantanamo. The ONLY way that Cuba could rid itself of the boil that is Guantanamo is by attacking it... and that would be suicide. That would give Bush the green light for a full scale "shock and awe" on the island. If the USSR was still around and allies with Cuba, perhaps it would be possible to evict the Americans, but that's no longer the case. Therefore, it's unfortunate, but the Cubans have to tolerate having the American dogs on their island.
Too bad the Dems did not repeal the MCA - let alone even raise the issue after they became the majority.
The last line trumps an otherwise good piece. Bush did not "ram through" this piece of unconstitutional legislation that also violates numerous international laws and treaties.
The large Democratic minority, primarily out of fear of being called "soft on terrorism" tripped over itself to help him, slathering like like a bunch of hungry puppies for pats on the head from their owner.
Cohn, a lawyer who is an expert in constitutional law, knows this. The Dems (as the Republicans before them did) could have used any one of numerous congressional rules and parliamentary procedures to stop this legislation -- or any other. They simply lacked the guts to do so: or are ideological right-wingers or simply bought off.
The more liberals continue to distort the attack on the US Constitution and the rule of law as a Republican or Bush problem, the more quickly our nation will devolve from being a chaotic police state into a full-blown totalitarian monster.
It's sad to see the head of an organization that has a long and courageous history resort to the old whine: 'the Republicans did it."
"… a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual"
This is interesting. Torture has been illegal (according to law and treaty) in the US for decades. I wasn't aware that US laws normally had an expiry date and needed to be renewed.
If that is all it is, congress better get on to renewing the laws against robbery before there are a rash of (legal) bank robberies.
How long do US laws stay in effect, ten years?, five? Or are they dead as soon as the ink dries?
http://www.informationclearinghouse.info/article15881.htm
There's a video from Moazzam Begg who was "detained" at Guantanamo. That's about all the evidence I need.
Guantanamo is in Cuba.. I wonder why the Cubans haven't been able to get rid of this prison camp on their land in all this time. Does Cuba use it for their own purposes as well?