Friday, January 26, 2007

Video: US indifferent to Iraqi detainee beatings

British public channel 4 aired a video which reveals deplorable but not surprising behavior by US Army trainers on patrol with Iraqi military. In a Sunni neighborhood the largely Sh'ia unit beats and roughly abuses detainees in broad dailylight, cramming them into the truck of a Humvee. The US trainers hang back and do not intervene. One shudders to think what happens in Iraqi detention facilities.

The Army claims the unit involved has since been disciplined. Needless to say this and other hard-hitting reporting from Iraq does not make it US TV screens.

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'Probable cause' for assault in Gardez

The Criminal Investigation Command of the Army has admitted that probable cause for assault in a Gardez US Special Forces compound in March 2003. The Army investigators refuse to confirm the assault investigation relates to the beating death of Afghan Army recruit, 18-year old Jamal Naseer, but the place and date correspond to his death.

The LA Times broke the story in 2004. Stories by Kevin Sack and Craig Pyes of the LA Times in September 2006 painted a grim picture of what was really happening at the Special Forces base in Gardez. Here is the latest from the LA Times:

A number of other Afghans who were taken prisoner along with Naseer have said they were severely beaten and otherwise abused while being held at the base by soldiers with the 20th Special Forces Group, an Alabama-based National Guard unit.

Concurrently, the Army investigators determined there was not probable cause to charge anyone in the separate case of an Afghan detainee who died in the custody of the same 20th Special Forces Group team, known as ODA 2021. That detainee, an unarmed woodcutter named Wakil Mohammed, was shot in the face by a soldier during a search of the village of Wazi after a fierce firefight, also in March 2003, according to Afghan witnesses interviewed by The Times.

Grey, the CID spokesman, said in an e-mailed statement that "the case involving Wazi was unfounded." That term is used, he said, "when there is not probable cause to believe that the offense occurred … considering the quality and quantity of all available evidence."

In March 2005, however, CID announced it had found probable cause in the Wazi case to recommend charges of murder against one member of the 20th Special Forces Group and of dereliction of duty against another soldier for not reporting Mohammed's death. Those referrals, known as "listings," have since been rescinded, but Grey declined to say what had changed.

Details of Mohammed's death were revealed in a two-part series about ODA 2021 that was published in The Times in September.

Grey said both investigations were closed by CID on Jan. 11. "If any new credible information becomes available, CID stands ready to reopen the investigation," he said.

The deaths of Naseer and Mohammed were never reported to higher authorities, according to both the battalion and group commanders who oversaw the 20th Group's operations in Afghanistan. That distinguished them from scores of other questionable deaths of detainees in U.S. custody in both Afghanistan and Iraq.

The Times account last fall cited numerous Afghan witnesses who saw Naseer immediately before and after his death and said he appeared to have been badly beaten. It quoted one Special Forces member as saying the team held a meeting after the detainee died to coordinate stories should an investigation arise.

"Everybody on the team had knowledge of it," the soldier said, speaking on condition of anonymity. "You just don't talk about that stuff in the Special Forces community. What happens downrange stays downrange."

Other detainees arrested with Naseer also showed signs of severe beating that were noted in local doctors' reports after their release from the base. One of those detainees was a man with one leg.

The commander of the Special Forces team at the time of both deaths was Chief Warrant Officer Kenneth C. Waller, a full-time National Guardsman who continues to work at 20th Group headquarters in Birmingham. Grey would not say whether Waller, who is now 36, is among those implicated in the CID investigation.

Officials with 20th Group said today that Waller, despite the ongoing case involving his unit, is currently deployed to East Africa, as is Col. Leonard Kiser, the 20th Group's current commanding officer. Neither was available for comment.

While the Special Forces team in Gardez consisted mostly of Alabama National Guardsmen, it also included several members from other groups.

One of them, Sgt. 1st Class Michael E. MacMillan, an intelligence analyst with the 7th Special Forces Group at Ft. Bragg, was depicted by other team members as being heavily involved in the interrogation of detainees at the base.

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Wednesday, January 24, 2007

EU report on CIA flights

An EU temporary commission convened to investigate the "extraordinary rendition" flights and their numerous stops in European countries approved the final version of its report, for eventual discussion in a plenary session of Parliament.

photo by Trevor Paglen

The report states that the governments of Poland, UK, Ireland, Portugal, Italy, Germany and six others were aware of these flights, and of their irregular and suspicious nature.

The report concluded there was not adequate evidence to support the claim that the CIA operated a secret prison in Poland. The Council of Europe has dated information about its investigations available here.

The report is likely to be endorsed by the Parliament next month.

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Saturday, January 20, 2007

Highlights from Military Commissions Manual

It is intended to ensure that alien unlawful enemy combatants who are suspected of war crimes and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people. This Manual will have an historic impact for our military and for our country.

Published January 18, the Manual sets pretty high expectations, and its "historic impact" is already perceptible. The Manual has ignited polemic in right-wing civil liberties circles and with Democrats in Congress alike.
(24) “Unlawful Enemy Combatant” means:
(A) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);
(B) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
(C) “Co-belligerent” means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common

The "MCA" applies "in all places", are we to take from this that the Commissions can be conducted anywhere in the world, and with a seeming universal jurisdiction against "unlawful enemy combatants":
(a) Nature of jurisdiction of military commissions.
(1) The jurisdiction of a military commission is entirely penal or disciplinary.
(2) The M.C.A. applies in all places.
(3) The jurisdiction of a military commission with respect to offenses under the M.C.A. is not affected by the place where the military commission sits. The jurisdiction of a military commission with respect to military government or the law of war is not affected by the place where the military commission sits except as otherwise expressly required by this Manual or applicable rule of international law.

After over five years of waiting "unlawful alien enemy combatants" have the right to know what they are being held for, as long as is "practicable" (whatever that means):
Rule 308. Notification to accused of charges
Upon the swearing of the charges and specifications, the accused shall be informed of the charges against him as soon as practicable. Such charges shall be in English and, if appropriate, in another language that the accused understands.

No non-US citizens may represent the accused as civilian defense counsel, and they must have security clearances at the level of "Secret":
(2) Role of detailed defense counsel when civilian counsel has been hired. When the accused has civilian defense counsel, the detailed counsel is “associate counsel” unless excused from the case (see R.M.C. 506(b)).
(3) Qualifications of civilian defense counsel. Civilian defense counsel who represent an accused in a military commission shall:
(A) Be a member of the bar of a Federal court or of the bar of the highest court of a State, the District of Columbia, or U.S. possession; and
(B) Be a United States citizen; and
(C) Not have been the subject of disqualifying action by a bar or other competent authority; and
(D) Have obtained or be eligible to obtain a security clearance at the level of Secret or higher, as required; and
(E) Have signed the agreement prescribed by the Secretary

Secrecy, all in the name of "national security" (and presumably to protect military and administration officials from embarrassment):
(f) National security privilege. Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. This rule applies to all stages of proceedings in military commissions, including the discovery phase. Pursuant to 10 U.S.C. §§ 949d(f) and 949j(c), the military judge may issue a protective order to limit the distribution or disclosure to the defense of classified evidence, including the sources, methods or
activities by which the United States acquired the evidence.
(1) To withhold disclosure of information otherwise subject to discovery under this rule, the military judge must find that the privilege is properly claimed under Mil. Comm. R. Evid. 505.
(2) Once such a finding is made, the military judge shall authorize, to the extent practicable:
(A) the deletion of specified items of classified information from documents made available to the defense;
(B) the substitution of a portion or summary of the information for such classified documents;
(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

For those whose minds have been turned to mush by years of solitary confinement and torture (i.e. José Padilla), they can take heart in this provision:
Rule 909. Capacity of the accused to stand trial by military commission
(a) In general. No person may be brought to trial by military commission if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against him or her or to conduct or cooperate intelligently in the defense of the case.

The convicted have only two years to get a new trial if new evidence is found to support their innocence:
Rule 1210. New trial
(a) In general. At any time within two years after approval by the convening authority of a military commission sentence, the accused may petition the convening authority for a new trial on the ground of newly discovered evidence or fraud on the military commission. A petition may not be submitted after the death of the accused. A petition for a new trial of the facts may not be submitted on the basis of newly discovered evidence when the accused was found guilty of the relevant offense pursuant to a guilty plea.

Statements resulting from coercion, as long as they are before December 30, 2005, the date the Detainee Treatment Act, will be admissible as evidence. Torture remains defined as by the Gonzales-Yoo definition, "severe mental or physical suffering":
Rule 304. Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.

(b) Definitions. As used in these rules:
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

See 18 U.S.C. § 2340.
(4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.

(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.

The Detainee Treatment Act, or “D.T.A.,” enacted on December 30, 2005, provides that no individual in the custody or under the physical control of the United States Government shall be subject to cruel, inhuman, or degrading treatment or punishment, as defined by reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution, regardless of the nationality or location of the individual. Therefore, the M.C.A. requires military judges in military commissions to treat allegedly coerced statements differently, depending on whether the statement was made before or after December 30, 2005. See 10 U.S.C. § 948r(c), (d). For statements made on or after that date, the military judge may admit an allegedly coerced statement only if the judge determines that the statement is reliable and possessing sufficient probative value, that the interests of justice would best be served by admitting the statement, and that the interrogation methods used to obtain the statement did not amount to cruel, inhuman, or degrading treatment or punishment prohibited by the D.T.A. If a party moves to suppress or object to the admission of a proffered statement made before December 30, 2005, the military judge may admit the statement if the judge determines that the statement is reliable and possessing sufficient probative value, and that the interests of justice would best be served by admitting the statement. In evaluating whether the statement is reliable and whether the admission of the statement is consistent with the interests of justice, the military judge may consider all relevant circumstances, including the facts and circumstances surrounding the alleged coercion, as well as whether other evidence tends to corroborate or bring into question the reliability of the proffered statement.

And finally here is the much-commented section which allows for the admission of hearsay as evidence:
Rule 802. Hearsay rule
Hearsay may be admitted on the same terms as any other form of evidence except as provided by these rules or by any Act of Congress applicable in trials by military commissions.

The M.C.A. recognizes that hearsay evidence shall be admitted on the same terms as other evidence because many witnesses in a military commission prosecution are likely to be foreign nationals who are not amenable to process, and other witnesses may be unavailable because of military necessity, incarceration, injury, or death. Because hearsay is admissible on the same terms as other evidence, the proponent still has the burden of demonstrating that the evidence is admissible under Mil. Comm. R. Evid. 401 and 403.


Monday, January 15, 2007

Beyond Guantanamo

We are glad to see that the anniversary of the opening of Guantanamo has mobilized people around the world to protest.

As the world focuses its energies on Guantanamo, points out spy novelist Frederick Forsyth, the US still has a free hand to kidnap people across the world, through its "extraordinary rendition", and increase secrecy of its various other hidden facilities across the globe, including those in Afghanistan.

President Bush claimed last year that the US has shut down its "secret prisons", but this is an absurd claim, given that the very nature of a "secret" prison does not allow for checking or confirmation. And what is to stop the US from opening newer, more secret prisons, and using this "closure" as a ruse?

How will the public ever really know what happened, for example, in the "Salt Pit" secret prison in Afghanistan, or on Diego Garcia, the small island atoll in the middle of the Indian Ocean owned by the British?

In order to shed more light on these issues, we would like to draw attention to two projects:

Cage Prisoner's latest work on compiling a list of secret facilities across the world. Their preliminary report details over 120 secret detention facilities. The list includes every continent minus Australia. The map is basic but gives an idea of the extent of the network of secrecy.

Artist/Geographer Trevor Paglen's projects related to militarism, secrecy and specifically rendition are exceptional. After getting an MFA, he enrolled in a Geography PhD at UC-Berkeley, where he has compiled a fascinating body of "surveillance" of the US government's secret military activities. First he began using spectral photography to take legal landscape photos remote North American military bases. His newest projects are related to the extraordinary rendition activities of the CIA. In one installation he calls "Missing Persons" he has put together a list of bogus signatures signed by fake companies the CIA created to transport kidnapped prisoners.

He was also involved in the project called "CIA Rendition Flights 2001-2006", which consisted of a gigantic billboard-sized mapping of all of the kidnapping by the CIA since the "War on Terror" "began" in 2001.

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Friday, January 12, 2007

18 year sentence for Iraq detainee murders

In what is one of the longest sentences handed down for abuses/homicides in Iraq and Afghanistan, a military tribunal in Kentucky decided that Spc. William Hunsaker should serve 18 years in prison for the murder of three Iraqi detainees in Thar Thar in May 2006. Three restrained, cuffed men were shot in the head at the canal in Thar Thar, Samarra Iraq on May 9. Four members of the 101st airborne division faced charges for these murders, and after pressure by prosecutors, one by one they broke their pact to cover-up the killings.

Hunsaker pleaded guilty to murder, attempted murder and obstruction of justice to military prosecutors.

He accused his superior, Sgt Raymond Girouard, who awaits trial, with ordering the executions. Some reports claim that commanding officers gave a "kill all military-age men" order that day in May 2006. One of these is Colonel Michael Steele who is known for his connection to the infamous Black Hawk Down incident in Mogadishu in 1991.

Another Sergeant Lemuel Lemus is implicated in the cover-up of the killings but has not been charged.

According to a New York Times article of July 2006:

For more than a month after the killings, Sgt. Lemuel Lemus stuck to his story. ‘Proper escalation of force was used,’ he told an investigator, describing how members of his unit shot and killed three Iraqi prisoners who had lashed out at their captors and tried to escape after a raid northwest of Baghdad on May 9. Then, on June 15, Sergeant Lemus offered a new and much darker account.

In a lengthy sworn statement, he said he had witnessed a deliberate plot by his fellow soldiers to kill the three handcuffed Iraqis and a cover-up in which one soldier cut another to bolster their story. The squad leader threatened to kill anyone who talked. Later, one guilt-stricken soldier complained of nightmares and ‘couldn’t stop talking’ about what happened, Sergeant Lemus said.

[…] When investigators asked why he did not try to stop the other soldiers from carrying out the killings, Sergeant Lemus - who has not been charged in the case - said simply that he was afraid of being called a coward. He stayed quiet, he said, because of 'peer pressure, and I have to be loyal to the squad.'

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Thursday, January 04, 2007

The Irony

The New York Times' John Burns rightly proclaimed the events of the last couple of days in Iraq, the lynching-like hanging of Saddam Hussein, "Shakespearian."

The ultimate irony to me is that those being "blamed" with the ethical violations of filming the event and making sectarian jeers at Mr Hussein in his last moments are the lowly guards.

A la Abu Ghraib, the grunts take the blame for the utter lack of judgement and misfunctioning of their government from the top down.

Apparently there were roughly 15 people viewing the moment. Two were VIPs or "government officials", according to media reports, the only to be allowed to carry cel phones. So the VIPs were the only with the opportunity to film this. According to the Guardian:
Sami al-Askeri, a Shiite lawmaker who also advises al-Maliki, said two "Justice Ministry guards were being questioned. The investigation committee is interrogating the men. If it is found that any official was involved he will face legal measures.''

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