While the Canadian government has supported many of George W. Bush's shameful policies of torture, indefinite detention, illegal surveillance, etc., a young Canadian in New York has been standing up for the rule of law - American law and international law.
For more than six years now, Jameel Jaffer has been challenging the president's penchant for operating above the law in the name of fighting terrorism.
Think of the abuse of prisoners, from Abu Ghraib and Guantánamo Bay to Afghanistan; of "extraordinary renditions" (Maher Arar) and the CIA's black sites (secret prisons on foreign soil); and some of the Orwellian manifestations of the Patriot Act (such as the FBI swooping down on libraries, book stores, universities, etc. to gather their lists of clients and slapping a gag order to prohibit the institutions from breathing a word about the visits).
Jaffer, 36, has been in the thick of these battles waged by the American Civil Liberties Union, the world's largest civil liberties organization (about 600,000 members). Of the hundreds of suits it has brought against the Bush administration, he has been at the centre of the most important ones.
Born in Kingston, he studied in Toronto at Upper Canada College, graduated from the prestigious Williams College, trained as an investment banker in Manhattan, abandoned it, did a masters at Cambridge University and went to Harvard Law School. He clerked at the U.S. Court of Appeal in New York and then with Beverley McLachlin, chief justice of the Supreme Court of Canada.
Litigating under the Freedom of Information Act, he has helped unearth about 100,000 pages of secret documents relating to interrogation and detention policies.
These disturbing autopsy reports, interrogation orders, official emails and memos have since been compiled in a book, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia University Press, 2007). The book "distills the essence of an evil that has shamed America," as one reviewer put it.
Jaffer's co-author was a fellow-attorney at the ACLU, Amrit Singh (Cambridge, Oxford and Yale Law School). She is the daughter of India's prime minister, Manmohan Singh, who works closely with Bush, while she has been a harsh critic of the president. That prompted speculation about a chill descending over a 2004 Bush-Singh meeting in New York, but she dismissed it by saying that her dad had brought her up to think independently.
Jaffer, who I met in Toronto and with whom I have since had several conversations on the phone, speaks in precise language, with the calm confidence of one who has mastered the details of his many briefs.
Take torture, the tale of which has emerged only in dribs and drabs since Abu Ghraib came to light in 2004. That was also the year when an August 2002 memo from the justice department surfaced, arguing that it's torture only if it causes the kind of pain associated with "organ failure, impairment of bodily function or even death."
Jaffer and his colleagues were recently able to pry loose two more equally revealing memos.
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One that they got last week told the CIA which interrogation methods it could use against prisoners at the black sites, including waterboarding. (The simulated drowning technique was used during the Inquisition and also during World War II by the Japanese, whom the U.S. later prosecuted).
The second memo was written, in 2003, by the infamous John Yoo, the justice department lawyer, a.k.a. Dr. Yes for endorsing torture. The memo was addressed not to the CIA but to the Pentagon (which controls Guantánamo Bay).
Jaffer: "The justice department gave interrogators a green light for torture. The abuse at Guantánamo and elsewhere was the direct result of policies endorsed by the administration's most senior officials."
This puts Abu Ghraib in the proper context.
At that time, Bush claimed the abuses were an aberration, by rogue soldiers ignoring orders. But, thanks to the diligent work of Jaffer's team and other civil libertarians, it's clear that the abuse was systemic and had already been tried out at Guantánamo. Abu Ghraib was, in fact, being Gitmo-ized when the horrible pictures were leaked.
Congress ultimately responded by restoring the Army Field Manual, which required the military to comply with the Geneva Conventions that Bush had set aside.
Last year, Bush exempted the CIA from the Congressional stricture against torture. Congress followed with another bill banning the CIA from using torture. Bush vetoed the bill last March. But he continues to deny that the CIA uses torture, the denial resting on doublespeak: The CIA uses "enhanced interrogation techniques," including waterboarding, which is not torture.
The CIA also retains its black sites. Jaffer: "Since the president announced in September 2006 that the administration would shut down the secret CIA prisons, more prisoners have been transferred from the CIA to Guantánamo ... Obviously, at least some of the secret prisons are still operating. We don't know how many prisons there are, how many prisoners they hold and what interrogation methods are being used."
Such is the record of the Bush administration related to detentions and treatment of prisoners in its custody.
It is good to know that a Canadian is exposing it, especially at a time when Prime Minister Stephen Harper finds very little wrong with it.
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