August 26, 2004

Rampant Hostage-Taking in Iraq

Phil Carter highlights a very important fact coming out of the newly-released Abu Ghraib reports. It's something we knew from sporadic, if widespread, reports. Women and children were taken hostage by the U.S. military:

These two reports will get all the publicity, but it's two lesser-known studies that should trouble Americans even more. The first report, authored by the Center for Army Lessons Learned at Fort Leavenworth in May 2004, indicates that several American units in Iraq detained wives and children of insurgents in an attempt to make the insurgents turn themselves in or talk while in custody. According to a study by U.S. Army Maj. Christopher Varhola (one of the report's authors), it was also common practice for Americans to "collectively detain ... all males in a given area or village for up to several weeks or months." The collective and family detentions served to "alienate much of the population," Varhola concluded. Such collective detentions played a major role in inflating the Abu Ghraib prison population, to the point where the Red Cross reported that 70 percent to 90 percent of detainees were "arrested by mistake." (Lt. Col. Barry Johnson, an Army spokesman in Baghdad, said there is currently no policy endorsing such detentions, and such past detentions fell outside the bounds of standard operating procedure. But Johnson said such detentions could still occur where family members were personally connected to insurgency activities, and commanders decided it was necessary to detain them.)

And, of course, all this constitutes a war crime under pretty much any existing international legal structure you pick governing rules of warfare:

Where international law speaks to these issues, it is generally quite clear. The 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War flatly prohibits the practice of detaining insurgent family members to get intelligence. Article 31 of that treaty prohibits "physical or moral coercion" to obtain information from citizens of an occupied state; taking someone's wife and children hostage certainly qualifies as moral coercion. Likewise, Article 33 proscribes the use of collective punishment, and Article 34 states plainly that "[t]he taking of hostages is prohibited." Similarly, international law and U.S. law clearly prohibit torture, whether for intelligence purposes or not. The U.N. Convention Against Torture makes such acts an international crime, and Section 2340A of the federal criminal code outlaws the practice as well.

I don't know if one needs to explain how incredibly wrong-headed this policy is even on pragmatic grounds -- let alone the blatant immorality and the illegality of the practice. Let's just say people don't like their children being imprisoned in a place like Abu Ghraib and might hold a grudge for a long, long time. Is that too hard to comprehend?

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July 21, 2004

Micronesia, We Hardly Know You

One more General Assembly resolution where the United States is joined by Marshall Islands, Micronesia and Palau against practically the whole rest of the world (this time around Australia, and Israel, also voted with the U.S.).

Well, I finally got curious. Who are these countries and why are they voting with the United States so consistently? Turns out that they are former colonies of the United States, formerly known collectively as the "Trust Territory of the Pacific Islands" and they continue to be heavily dependent on U.S. aid and house U.S. military bases.

Micronesia was under Japanese control until World War II when it became a U.S. colony, formally achieving semi-independence only in 1986. The islands were colonized by Germany before World War I and by Spain before 1889. Currently it has a "Compact of Free Association" with the United States and is heavily dependent on U.S. aid. According to CIA factbook, its annual GDP of $240 million is supplemented by an additional $100 million dollars in aid. There is also a U.S. military base in these islands of about 100,000 mostly subsistence farmers and fishers.

It's basically the same story for Palau and the Marshall Islands. Palau is the smallest of the bunch, population 19,000, and it became "independent" only in 1994. Marshall Islands is right next to Micronesia with about 50,000 people. Perhaps the most striking encapsulation of where it stands is in the global pecking order is the fact its atolls were used for nuclear testing by the United States between 1947 and 1962. All these islands were also ravaged by bombing by both sides, U.S. and Japan, during World War II.

Stephen Shalom had a good article last year in Znet summarizing a history of U.S. isolation in the General Assembly. The pattern is so clear that it's hard to comment much about it.

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June 30, 2004

Supreme Court Decisions are Generally Favorable to the Administration

The decisions of the Supreme Court regarding various cases involving Guantanamo detainees or American citizens designated as "enemy combatants" have been portrayed as victory agains the Bush administration's attempts to decimate civil liberties. Many commentators have praised the Court, one called it a "mortal blow to the President's vision of limitless power"-- and newspapers headlines ranged from "Wartime President Is Again Outflanked" to "Supreme Court Deals Blow to War on Terror"

My read is that's all wishful thinking by a press and a punditry that is now riding on a "Bush is sinking" meme, partly helped by Fahreneit 911's success.

Bushies may hope for just such a feeling in the country, come November. What better to get out their voters who appear to be somewhat upset about Iraq, the deficit, the economy...

It appears to me that most of the country is fairly decided on who they are going to vote for, with perhaps 10 percent up for grabs -- and that 10 percent will most likely be influenced by factors outside each of the campaigns such as the war in Iraq or the economy. In such an environment, the magic word is turnout. Remember, millions of eligible voters do not vote and it may well be that this election will go to the party whose base is most afraid of the other guy taking over. In such an environment, appearing to be on the verge of losing is not that bad.

Going back to the Supreme Court decision, I recognize that the some limitations have been finally placed on the royalist interpretation of the constitution but things are really bad if this is what we cheer now. The court allowed the category of enemy combatants, recognized that they may be held without charges, and also allowed that non-citizens could be held without charges in various sites of dubious jurisdictionality.

What's the victory? The detainees have some access to the courts to challenge their indefinite detention. Not full access, mind you, and they certainly do not have the usual rights of criminal defendants in regular federal courts. However, the wheels of justice may now grind for them, however slowly and however unfairly weighed against them -- imagine trying to prove your innocence while in solitary confinement for perhaps years under harsh conditions. (Here's the story of a Purna Raj Bajracharya, a Nepalese man who was held without charges for three months in "special detention" which meant solitary confinement, even after his arresting officer realized it had all been a mistake and tried to get him released. He was finally deported, much to his relief.)

And while those wheel slowly grind, wars will be waged and elections will come and go -- and sometimes get stolen. It will be just like the Weapons of Mass Destruction story. Oops, we might have been mistaken, the administration now says after Iraq's invaded, occupied and CIA-asset Ayad Allawi is appointed the prime minister. Facts coming out ex-post-war may help discredit the administration but by then what's done is done. What counts would be to have the facts publicly and widely available while there is time to stop a course of events that may well prove very hard to reverse -- and it may be impossible to undo the damage caused by then. (Of course, we knew Bush was lying in the run-up to the war but facts then just couldn't make it through the media filters of the time. Now that it doesn't matter that much, our courageous reporters are a bit better in reporting yesterday's lies.)

If you want to go through the cases to understand what I'm arguing here, here's some more detailed analysis by Elaine Cassel, who also has an upcoming book titled War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights.

Posted by zeynep at 02:36 AM | Comments (1) | TrackBack

June 18, 2004

Crime and Punishment

You might have already heard that a contractor employed by the CIA, David Passaro, has been indicted for “brutally” beating Abdul Wali over the course of two days in the Asadabad Base in Afhanistan. Abdul Wali died after those days of beating but somehow Aschroft’s DOJ did not find enough evidence to press those charges. But still, he is being charged in U.S. courts with potentially serious consequences. This is quite a development, and the first instance of a civilian being tried for their conduct within the scope of the “war on terror” against a non-U.S. national

But here’s the most interesting thing from the justice department press release, noticed by Phil Carter of Intel-Dump.

The USA PATRIOT Act of 2001 gives the United States jurisdiction in the Passaro case. In the wake of Sept. 11, 2001, the PATRIOT Act expanded the law enforcement powers of the United States and eased the challenges of prosecuting crimes and terrorist attacks abroad. Section 804 of the Act, later codified as 18 USC Section 7(9), provides jurisdiction over crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government, such as the Asadabad Base.

Here’s what this all means -- again mostly paraphrased from Phil Carter’s blog.

Sec. 804 of the USA PATRIOT amends 18 U.S.C. 7, the "special maritime and territorial jurisdiction" statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. The definition of “special maritime and territorial jurisdiction” is really important in determining where federal laws do and don’t apply -- and it’s one of the central wrangling points in the case before the Supreme Court regarding the Guantanamo detainees’ access to courts.

Here's the relevant text of 18 U.S.C. 7:

Section 7. Special maritime and territorial jurisdiction of the United States defined

The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes:

(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act -

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts.

What this all means is that, according to the Patriot Act, federal criminal law now applies to all the premises of U.S. government missions -- diplomatic, consular, military and other. Which, of course, Abu Ghraib clearly is.

Which means all contractors working there are subject to federal criminal law if the DOJ wishes to go after them.

The other way to go after contractors using U.S. laws would be the Military Extraterritorial Jurisdiction Act [MEJA] of 2000, which extends federal criminal jurisdiction to DOD employees who are not subject to the Uniform Code of Military Justice, such as soldiers are, if the conduct by the individual would “constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged within the special maritime and territorial jurisdiction of the United States.” The main shortcoming, of course, is that it only covers DOD contractors. Phil Carter says the Abu Ghraib interrogators were on an Interior Department contractor seconded over to the Army so it’s possible MEJA doesn’t apply. But, hey, one needs MEJA only outside the “special maritime and territorial jurisdiction” of the United States -- which, as we just saw, the Patriot act apparently redefines to include U.S. military premises abroad. So they don’t need to stretch limited MEJA to charge these people.

I understand this sounds like lots of legal gobbledygook intended to fry the small potatoes. I wholeheartedly agree that this thing should go up as high up the chain of command as those torture memos. Still, I think deterrence has to be a combination of institutional safeguards and individual culpability. As responsible and guilty Bush et al might be, it’s almost always the sergeants and the lower ranking soldiers and contractors who end up carrying out these acts. The more they understand they will be held responsible -- and in fact scapegoated and hung out to try by their superiors -- the more they may reason, correctly, that the legal, smart and the moral thing to do overlaps over the long term. I mean, in some sense this is all PR but CIA employees, who were told in earlier memos that torture was okay, may be less than thrilled especially with Passaro looking possibly at 40 years:

"We take allegations of wrongdoing very seriously, and it's important to bear in mind that the C.I.A. immediately reported these allegations to the agency's inspector general and the Department of Justice," said an agency spokeswoman, Anya Guilsher. "While we cannot comment on the specifics of this case, given that it is currently before the court, the agency does not support or condone unlawful activities of any sort and has an obligation to report possible violations of the law to the appropriate authorities, which was done promptly in this case."


Here are the two really bad things about it. One is that the current state of events still shields torturers and killers from Iraqi or international law. That is unacceptable, we would not accept it here. And as I posted about recently, Bush’s legal team believes non-citizens even suspected --let alone definitely guilty-- of murder don’t have the right to a translator or access to their consulate, let alone due process.

It also brings crimes committed against U.S. nationals in U.S. military premises abroad under U.S. federal criminal jurisdiction. It’s a double double-standard. We won’t let Iraq try people who wrong Iraqis in Iraq; however, we claim the right to try Iraqis --or anyone-- who wrongs U.S. nationals in a U.S. base in Iraq or anywhere in the world.

Posted by zeynep at 01:59 AM | Comments (7) | TrackBack

June 16, 2004

Lone Star Justice

Ye Gods!

The current White House chief legal counsel Alberto Gonzales, who had been widely rumored to be the next Supreme Court Nominee before authoring the latest memos arguing the president was not bound by international or domestic law, had opined in the past that the State of Texas was not bound by international treaties signed by the United States.

There goes a few hundred years of precedent along with the United States constitution, but, hey, we got to execute a Mexican national who did not speak English and who signed a murder confession thinking it was an immigration document, without a translator or lawyer present:

On June 16, 1997, [Alberto] Gonzales first showcased his proclivity for torturing international law when he sent a letter to the U.S. State Department in which he argued that, "Since the State of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach … occurred in connection with the arrest and conviction" of a Mexican national. Or, put another way, he asserted that an international treaty just didn't apply to Texas.

The Mexican in question, Irineo Tristan Montoya, was a fisherman convicted of brutally stabbing and murdering John Kilheffer in Brownsville, Texas, in 1985. Tristan, who insisted he was innocent, was executed two days after Gonzales sent his memo to State, despite protests from the Mexican government. Mexico alleged that Texas had violated Tristan's rights under the Vienna Convention because it had failed to inform the Mexican consulate at the time of his arrest.

The Vienna Convention, ratified by the Senate in 1969, was designed to ensure that foreign nationals accused of a crime are given access to legal counsel by a representative from their home country. In the absence of a lawyer and without access to Mexican authorities, Tristan, who neither spoke nor understood English, signed a confession that he later said he believed to be an immigration document.

I wondered if he found it odd that nobody asked for his passport when he left Texas for D.C.

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