NEW YORK (IPS/GIN) – After a three-year investigation, President Barack Obama’s mantra–“look forward and not backwards”–appears to have trumped the rule of law as a special prosecutor declined to pursue criminal charges against the Central Intelligence Agency operatives involved in the destruction of video recordings of interrogations of “war on terror” suspects.

The human rights community and many legal scholars from both ends of the political spectrum are up in arms about the decision. And they were further angered by the remarks made by former president George W. Bush during recent television and radio interviews promoting his new memoir, “Decision Points.”

For example, Bush admitted to Matt Lauer of NBC’s “Today” program that he authorized the use of waterboarding on two CIA prisoners. He said further that the technique was legal and that he would make the same decision again.

Mr. Lauer then asked him, “Why is water boarding legal, in your opinion?”

Mr. Bush responded: “Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.”

Michael Ratner, president of the Center for Constitutional Rights, spoke to IPS with a hint of despair. “The failure of DOJ (The Department of Justice) to bring criminal charges against the CIA officials who destroyed the tapes of the water boarding of detainees is another awful decision insuring that the torture conspirators, including President Bush, will not be held accountable for their crimes–at least not by the Obama administration,” he said.

“One hope remains,” Mr. Ratner added, “International justice against the torture conspirators that is currently being pursued in the Spanish courts by the Center for Constitutional Rights and others. If I were former President Bush, my next vacation would not be a visit to the Prado.”

Chris Anders, a senior attorney with the American Civil Liberties Union, said, “I find Bush’s remarks about water boarding (in the Lauer interview) more important than the narrow issue of the destroyed CIA tapes. That’s because he confessed to war crimes.”

“Everything in our legal history makes water boarding a crime,” Mr. Anders said. “Bush said he authorized it. What he should know about the rule of law is that no one is above it. Yet Bush doesn’t seem in the least concerned about the consequences of what he is confessing to.”

Criticism of both the special prosecutor’s decision and of Bush’s remarks appeared to come from both the left and the right of the political spectrum.

A well-known conservative lawyer, Bruce Fein, who was a senior attorney in the Department of Justice under President Ronald Reagan, told IPS, “Obama decided against prosecution for the same reason he has desisted from prosecuting former President Bush and former VP Cheney despite confessing to authorizing water boarding: political inconvenience or popular opinion.”

Professor Jordan J. Paust of the Law Center at the University of Houston, author of “Beyond the Law The Bush Administration’s Unlawful Responses in the ‘War’ on Terror,” noted that 29 U.S. legal cases and seven U.S. Department of State Country Reports on Human Rights criticizing the records of other nations affirm that water boarding is “torture,” or at the very least “cruel” and “inhumane.”

Chip Pitts, a lecturer of Law at Stanford University Law School, said, “The crisis of accountability in America is starkly highlighted by the former president’s public confession of recourse to torture and war crimes.”

“But that should not detract attention from the complicity of the current administration, which has resorted to secrecy and backroom deals that blatantly ignore laws–like the Convention Against Torture, in this case–and the administration’s duty to ‘faithfully execute the laws,’ ” he said.

Leon E. Panetta, the CIA director, said in a statement that the CIA was “pleased with the decision” not to bring charges against agency officers involved in destroying the tapes, and that the agency would continue to cooperate with other aspects of the Justice Department’s investigation.

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NEW YORK (IPS/GIN) – A clear majority of U.S. voters–61 percent–would choose a punishment other than death for murder if given a choice, the Death Penalty Information Center said as it released the results of “one of the most comprehensive studies ever conducted” of U.S. citizens’ views on capital punishment.

In a national poll of 1,500 registered voters conducted by Lake Research Partners, alternative punishments to execution included life with no possibility of parole and with restitution to the victim’s family (39 percent), life with no possibility of parole (13 percent), or life with the possibility of parole (nine percent).

The researchers said Nov. 16 that the survey “shows growing support for alternatives to the death penalty compared with previous polls.”

The research shows that in states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62 percent) said either it would make no difference (38 percent) or they would be more likely to vote for such a representative (24 percent).

“For decades, politicians have equated being tough on crime with support for the death penalty, but this research suggests voters want their elected officials to be smart on crime, use tax dollars wisely, and fund the services they care about the most,” Richard Dieter, executive director of Death Penalty Information Center, told IPS during a telephone news conference.

“We see a real openness to considering life with no possibility for parole as a punishment for murder and a real awareness among Americans of the many problems with the death penalty,” said pollster Celinda Lake. “It is likely we will see Americans moving away from support for the death penalty as states and local governments grapple with tight budgets and as today’s younger voters and Latinos move into the core of the electorate.”

Since the start of 2009, many states, such as Maryland, Colorado, Connecticut, Montana, Kansas, and New Mexico considered legislation to repeal the death penalty, and it is expected that trend will continue in 2011.

Voters ranked the death penalty the lowest on a list of budget priorities and expressed strong support for replacing the death penalty with life without parole, if the money saved was used to fund crime prevention programs.

In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty, and a majority said either it would make no difference or they would be more likely to vote for such a representative. In 2011, about five states are expected to consider repeal legislation.

The poll dug deeply into citizens’ thinking about the death penalty and the problems they see in this punishment. For decades, elected officials have equated being tough on crime with support for the death penalty, but this research shows that capital punishment may no longer be a “third rail” of politics.

Additional key findings from the polling research include:

• Cost emerged as an important concern for a strong majority of respondents. Sixty-eight percent said cost was a very or somewhat convincing argument against the death penalty. Voters ranked emergency services, creating jobs, police and crime prevention, schools and libraries, public health care services, and roads and transportation as more important budget priorities than the death penalty. Hispanic voters were among those most willing to replace the death penalty with an alternative punishment. They responded most strongly to moral objections to the death penalty rooted in faith, as well as the argument that the death penalty is particularly unfair along racial lines.

• The poll explored the information that the public uses to make up its mind about the death penalty and the problems they see with this punishment. Some of the public’s top concerns about the death penalty were that it is applied unevenly and unfairly; it subjects victims’ families to lengthy trials and years of appeals that interfere with the healing process; and it risks executing the innocent.

• Spending millions of dollars on the death penalty, at a time when states are cutting back on services such as police forces, schools, and public health, and when life in prison would cost less, was also of concern to voters.

• Moral and religious objections to the death penalty were strong among Latino and Catholic voters.

The nationwide poll was conducted in May 2010 with a margin of error of +/- 2.5 percent.

The Death Penalty Information Center, founded in 1990, is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment.

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NEW YORK (IPS/GIN) – A new report on violent extremists in the United States finds that terrorism plots by non-Muslims greatly outnumber those attempted by Muslims, and that Muslim-American communities helped foil close to a third of Al Qaeda-related terror plots threatening the country since Sept. 11, 2001.

The report comes from the Muslim Public Affairs Council, a not-for-profit organization advocating for the civil rights of American Muslims. It consists largely of MPAC’s “Post-9/11 Terrorism Incident Database.”

Reportedly the first of its kind by a Muslim-American organization, the database tracks plots by Muslim and non-Muslim violent extremists against the United States.

The author of the report, Alejandro J. Beutel, MPAC researcher and government liaison, told IPS, “This report demonstrates the validity of two of our guiding principles.”

“The first of these is that the choice between our rights and liberties and national security is a false choice; we can have both,” he said. “The second is that law enforcement will be much more successful if it treats the American Muslim community as partners, not as adversaries.” The report found “little evidence of a rise in ideological extremism.” It concluded that those Muslims involved in 13 out of the 15 plots since Barack Obama’s election as president were engaged in ideological extremism before the vote. Of the 15, 10 were engaged in ideological extremism since 2007.

It declares that Al-Qaeda does not appear to be making new ideological gains into the American Muslim community. Instead, the data is pointing toward greater numbers of longstanding ideological extremists turning to violence.

The report asserts that Muslim communities have helped foil almost one out of every three Al-Qaeda-related terror plots threatening the U.S. since 9/11/01. It says this highlights the importance of law enforcement partnering with citizens through community-oriented policing.

The report recommended that the government expand community-oriented policing initiatives; increase support for research on combating biased policing; expand investments in better human capital acquisitions; highlight citizen contributions to national security; and reform the fusion center process to increase coordination among law enforcement communities.

The report examined the challenges posed by violent extremists in two ways. The first was by examining the quantitative and qualitative nature of terrorism trials. Second, it looked at the number of actual and attempted attacks within the United States, including a comparative analysis of incidents involving Muslim and non-Muslim perpetrators.

The report appears amidst a resurgence of anti-Muslim sentiment in the U.S. Some of this has been triggered by the proposed building of an Islamic community center two blocks from “Ground Zero,” the site where the World Trade Center once stood.

A number of individual and community groups, including some families of 9/11 victims, have blasted the project as “a celebration of Islam.” Supporters see it as a vehicle for bringing diverse faiths closer together.

In communities throughout the U.S., there have been “copycat” campaigns to thwart mosque planning or construction.

The recent midterm elections here have also provided some candidates with platforms from which to verbally attack Muslims, including Muslim-Americans. These candidates have largely been Republicans and members of the Tea Party, on the extreme right wing of the political spectrum. While a few Democrats attempted to debunk the “all Muslims are terrorists” mantra, most remained silent.

Several recent unsuccessful terrorist plots have also contributed to heightened public anxiety–and the search for scapegoats. The so-called Times Square bomber was a home-grown terrorist who admitted attending training school in Pakistan; the “underwear bomber” who attempted to bring a passenger plane down over Detriot last Christmas day was a Nigerian believed to have been trained in Yemen. Both men are Muslims.

And the successful interception of two parcel bombs shipped as cargo from Yemen further raised the public’s level of apprehension that another terrorist attack was in the making.

MPAC and similar groups are angry and disappointed at the Federal Bureau of Investigation, which has acknowledged placing “agent provocateurs” inside mosques in attempts to root out terrorists, terrorist plots, and terrorist cells.

“We feel betrayed,” said Alejandro Beutel.

There were 72 total plots by domestic non-Muslim perpetrators against the United States since 9/11/01. In comparison, there have been 37 total plots by domestic and international Muslim perpetrators since that date.

There are at least five incidents of non-Muslim domestic extremists possessing or attempting to possess biological, chemical or radiological weapons. One of those occurred since Mr. Obama’s election.

No such cases involving Muslim violent extremists have been reported since 9/11/01. Evidence clearly indicates a general rise in violent extremism across ideologies.

The report says that, using Mr. Obama’s election as a base measurement, since Nov. 4, 2008 there have been 39 terror plots by non-Muslim domestic extremists.

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NEW YORK (IPS/GIN) – Lawyers for the Barack Obama administration told a federal judge that the U.S. government has authority to kill U.S. citizens whom the executive branch has unilaterally determined pose a threat to national security.

That Nov. 8 claim came in federal court in Washington, D.C. in response to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights. The two human rights legal advocacy organizations contend that the administration’s so-called “targeted killing authority” violates the constitution and international law.

“The full contours of the government’s position would allow the executive unreviewable authority to target and kill any U.S. citizen it deems a suspect of terrorism anywhere,” CCR attorney Pardiss Kebriae told IPS.

“As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States, a U.S. citizen could not challenge an impending deprivation of his life by his own government.”

“The Supreme Court has repeatedly rejected the government’s claim to an unchecked system of global detention, and the district court should similarly reject the administration’s claim here to an unchecked system of global targeted killing,” she said.

The ACLU and the CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government’s decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The lawsuit asks the court to rule that, “outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety.”

Anwar Al-Aulaqi was born in Las Cruces, New Mexico and has dual U.S. and Yemeni citizenship. He is a firebrand extremist imam who has been accused by government officials and in the press of using his sermons and the Internet to recruit jihadists. He is thought to be in hiding in Yemen.

The lawsuit also asks the court to “order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.” “If the constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state,” said Jameel Jaffer, deputy legal director of the ACLU, who presented arguments in the case.
“It’s the government’s responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution.”

The government filed a brief in the case in September, claiming that the executive’s targeted killing authority is a “political question” that should not be subject to judicial review. The government also asserted the “state secrets” privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.

On Aug, 30, 2010, the CCR and the ACLU filed suit on behalf of Nasser Al-Aulaqi against President Obama, Central Intelligence Agency Director Leon Panetta and Defense Secretary Robert Gates, challenging their decision to authorize the targeted killing of his son as a violation of the U.S. Constitution and international law.

“Targeting individuals for killing who are suspected of crimes but have not been convicted–without oversight, due process or disclosed standards for being placed on the kill list–also poses the risk that the government will erroneously target the wrong people,” the groups noted.

“Since 9/11, the U.S. government has detained thousands of men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.”

The Justice Department declined to comment on the case, which is one of two related lawsuits brought by the ACLU and the CCR.

The second is against the U.S. Treasury Department and its Office of Foreign Assets Control challenging the legality and constitutionality of the scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.

On July 16, however, the Secretary of the Treasury labeled Anwar Al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from the Office of Foreign Assets Control.

The CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Mr. Al-Aulaqi’s death, the two groups brought suit challenging the licensing scheme as applied to the representation they seek to provide.

CCR and the ACLU have not had contact with Anwar Al-Aulaqi.

The Treasury agency’s requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of an individual designated as a terrorist. The human rights groups are also challenging that law, saying it is unconstitutional. The Office of Foreign Assets Control case is currently pending in the U.S. District Court for the District of Columbia.

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NEW YORK (IPS) – The publication of a motherlode of secret field reports from the Iraq War are shining a bright light on heretofore unknown or underreported suspicions about the power of private security contractors and the abuse of Iraqi prisoners by their fellow Iraqis, often with their U.S. military counterparts “turning a blind eye.”

The release of the 392,832 documents by Wikileaks–the same website responsible for the recent release of 77,000 secret reports covering six years of the Afghanistan War–drew an immediate response from the Pentagon, as well as efforts by unfriendly nations to paint the U.S. military in the most gruesome possible light.

Geoff Morrell, the U.S. Defense Department press secretary, strongly condemned both WikiLeaks and the release of the Iraq documents.

“We deplore WikiLeaks for inducing individuals to break the law, leak classified documents and then cavalierly share that secret information with the world, including our enemies,” he said.

Iran’s Press TV declared, “Whistleblower website Wikileaks has released documents suggesting that the Pentagon instructed U.S.-led forces to ‘secretly’ torture detainees in Iraq.”

The document release also unleashed a flood of bickering among competing Iraqi politicians. For example, a senior member of the Iraqiya bloc led by former Iraqi prime minister Iyad Allawi called for an investigation into possible connections between torture operations in Iraqi prisons and Prime Minister Nuri al-Maliki.

The March 7 parliamentary elections produced a stalemate between political leaders Allawi and al-Maliki, and both are still chasing the prime minister’s job long after the election.

The Wikileaks disclosures fall into five categories: reliance on private contractors; the so-called “surge,” the addition of 30,000 additional U.S. troops to work with willing Iraqis; the deaths of Iraqi civilians–killed mostly by other Iraqis, but also by the U.S. military; a litany of prisoner abuse by Iraqis–from which U.S. officials sometimes turned a blind eye–even more lurid than the infamous photographs of torture from Abu Ghraib prison in 2004; and the “aggressive” intervention of Iran’s military providing “weapons, training and sanctuary” to Shiite combatants.

The Wikileaks documents are sparse on information about mistreatment of prisoners in U.S.-run detention facilities, but heavy on the chilling details of abuse of Iraqis by Iraq’s own army and police.

During the period covered by the Wikileaks documents, at least six prisoners died in Iraqi custody, most of them in recent years. Hundreds of reports referenced beatings, burnings and lashings. Such treatment appeared to be considered normal by the Iraqis.

According to The New York Times, “In one case, Americans suspected Iraqi Army officers of cutting off a detainee’s fingers and burning him with acid. Two other cases produced accounts of the executions of bound detainees. And while some abuse cases were investigated by the Americans, most noted in the archive seemed to have been ignored, with the equivalent of an institutional shrug: soldiers told their officers and asked the Iraqis to investigate.”

U.S. military orders said that if U.S. personnel were not directly involved in prisoner abuse, U.S. soldiers need not take any action. This order caused U.S. forces to look the other way in cases of the abuse of Iraqis by Iraqis.

When U.S. forces discovered and reported abuse, Iraqis frequently failed to act. One report said a police chief refused to file charges “as long as the abuse produced no marks.” Another police chief told military inspectors that his officers engaged in abuse “and supported it as a method of conducting investigations.”

The Wikileaks documents also show that U.S. forces sometimes used the threat of Iraqi brutality to persuade prisoners to cooperate with interrogators.

It was not until later in the war that some of the worst examples of Iraqi abuse came to light. For example, in August 2009, an Iraqi police commando unit reported that a detainee committed suicide in its custody, but an autopsy conducted in the presence of a U.S. official “found bruises and burns on the detainee’s body as well as visible injuries to the head, arm, torso, legs, and neck.” The report stated that the police “have reportedly begun an investigation.”

And in December, 12 Iraqi soldiers, including an intelligence officer, were caught on video in Tal Afar shooting to death a prisoner whose hands were tied, The Times reports.

Wikileaks reports that, while the U.S. forces told the local Iraqi Army commander, no inquiry was begun because U.S. soldiers were not involved.

It was not unusual, however, for U.S. soldiers to intervene. One U.S. soldier heard screams in a prison cell and found two badly dehydrated detainees with bruises on their bodies. He ordered them out of Iraqi custody.

In August 2006, Wikileaks documents show, a U.S. sergeant in Ramadi walked into an Iraqi military police station and found an Iraqi lieutenant using an electrical cable to slash the bottom of a detainee’s feet. The sergeant stopped him, but later he found the same Iraqi officer whipping a detainee’s back.

The Wikileaks documents may increase the scrutiny of the role of private contractors, whose travails have been widely publicised since Blackwater (now known as Xe Services) was accused of opening fire on unarmed civilians in a crowded main square in Baghdad in 2007 and killing 17 of them.

But the Wikileaks disclosures, while reporting little that was unknown, paint a far more detailed picture of the military sea-change that defined the United States’ involvement in Iraq. The New York Times says, “The early days of the Iraq war, with all its Wild West chaos, ushered in the era of the private contractor, wearing no uniform but fighting and dying in battle, gathering and disseminating intelligence and killing presumed insurgents.”

The behavior of private security contractors in Iraq is already having serious effects on use of these same assets in Afghanistan. Abuses, including civilian deaths, have driven the Afghan government to attempt to ban most outside contractors entirely.

Numerous reports have forecast a substantial growth in the use of security contractors in Iraq as U.S. forces shrink. A July report by the Commission on Wartime Contracting, a panel established by Congress, estimated that the State Department alone would need more than double the number of contractors it had protecting the American Embassy and consulates in Iraq.

There are still more contractors than members of the military serving in Afghanistan.

WikiLeaks is an international organization that publishes anonymous submissions and leaks of otherwise unavailable documents while preserving the anonymity of sources. Its website was launched in 2006.

Related news:

“Collateral Murder” – Report on shocking footage of US military in Iraq (FCN, 04-16-2010)

Collateral Murder Website (CollateralMurder.com)

Revolting video from Iraq and what to do about it (FCN, 04-14-2010)

US mowing down of Iraqis likened to video game (PRESS TV Interview, 04-11-2010)

Hypocrisy and the end of empires (Al Jazeera, 04-14-2010)

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NEW YORK (IPS/GIN) – A plea deal for Guantanamo prisoner Omar Khadr, announced Oct. 25, ends the prospect of a trial by a military commission of a defendant who was just 15 at the time of his offence. The deal dismayed some constitutional lawyers over the precedent set for cases involving child soldiers.

Details of the plea deal are not yet fully known, but it appears that Mr. Khadr will serve an eight-year sentence, the last seven years of which will be in Canada, his home country. Most of those contacted by IPS believe the Canadian government will free him since he was a minor and should not have been tried before a military commission in the first place.

Constitutional lawyer Scott Horton, who writes for Harper’s magazine, called the plea deal “a meaningless charade.”

“My best guess is this: before the end of 2012, Khadr will be home in Canada, and in very short order, he will be a free man,” Mr. Horton told IPS. “This is because, as the Canadian courts have already recognized, the entire process at Guantánamo is illegitimate and it furnishes no basis upon which a person can be imprisoned, not even on a ludicrous and highly coerced guilty plea.”

The benefit to the U.S., he said, is that “the U.S. is saved the spectacle of a trial which would have been a publicity nightmare of the highest order. Khadr gets to go home and probably to go free before too long. And the prosecutors get just one thing: a number of gullible reporters who misunderstand what is going on, and report it as a complete victory for them.”

Mr. Khadr pled guilty to five charges, including murder, for throwing a grenade that killed a U.S. soldier during a fierce firefight at an Al-Qaeda compound in Afghanistan in 2002. He was 15-years-old at the time of the incident.

Mr. Khadr’s defense team says he was pushed into fighting the U.S. by his father, said to be a close associate of Osama bin Laden.

Mr. Khadr, now 24, also admitted planting improvised explosive devices and receiving weapons training from Al-Qaeda. His defense lawyers say that because Mr. Khadr was a child when the offenses occurred, he should not be tried for war crimes.

David Frakt, who is widely known for his 2008 defense of Guantanamo detainee Mohammed Jawad, who, like Mr. Khadr, was facing charges for events alleged to have taken place when he was a minor, agrees.

He told IPS, “The conviction of this child soldier for non-existent war crimes is a disgraceful travesty and a stain on America’s reputation. Although the plea bargain has saved the administration from the unseemly spectacle of a trial, the United States will still go down in history as the first civilized nation to prosecute a child soldier as a war criminal.”

He added, “That this happened on President (Barack) Obama’s watch is beyond disappointing, and exposes the extreme hypocrisy of the administration’s claims of devotion to the rule of law and adherence to the laws of armed conflict.”

Mr. Frakt, now a professor at Barry University law school, told IPS he believes that the officers on the military commission jury are capable of rendering a fair verdict and sentence.

But, he added, “The way that the Military Commissions Act is written, and the way it has been interpreted by the Department of Defense and by Khadr’s trial judge, would have virtually guaranteed conviction on most, if not all, of the charges, potentially subjecting Khadr to a very lengthy sentence.”

“Given the unreasonableness of both the U.S. and Canadian governments’ posture toward Mr. Khadr, his lawyers are probably wise to advise him to take this deal. At least he now has a chance to get out of confinement while he is still relatively young and lead some semblance of a normal life.”

Chip Pitts, a lecturer at Stanford Law School, told IPS, “This plea bargain shouldn’t be taken as indication of the legitimacy of the irredeemably tainted military commissions; it was precisely their illegitimacy and one-sidedness that led Canadian citizen Omar Khadr, a juvenile at the time of arrest who was brought into the horror of war by his father and had maintained his innocence of the murder charges until the last minute, to finally succumb to the pressure of a potential life sentence and agree to a plea bargain (including to novel ‘war crimes’ not recognized as such at the time).”

Mr. Pitts said the plea deal “will return him to Canada and freedom much earlier.”

But, he added, “The precedent set–of extracting a plea by threatening a child soldier with harsh charges and an unfair trial, instead of undertaking the rehabilitation contemplated by international treaties — is a notable setback for international human rights law.”

“How is this different from Uganda’s bringing treason charges in 2002 against child soldiers from the Lord’s Resistance Army, or the DRC’s military court prosecutions against child soldiers? The implications, especially for child victims of war and legal treatment of children with still-developing brains, are disturbing.”

Jonathan Hafetz, a professor at the Seton Hall Law School, joined others in questioning the legitimacy of the military commissions.

He told IPS, “Khadr’s case, which underscored the gross mistreatment of prisoners in U.S. custody and the extent the U.S. government would go to hide it, reminds us that military commissions will continue to spark controversy and lack legitimacy as long as they continue. Khadr’s plea may help bring the debacle to an end in his case, but it provides another example of how military commissions are designed to deny justice, not to deliver it.”

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NEW YORK (IPS/GIN) – The U.S. Supreme Court has agreed to hear former Attorney General John Ashcroft’s appeal of a lower court decision, which ruled that he could be held responsible for the wrongful detention of a U.S. citizen.

The American Civil Liberties Union brought the case against Mr. Ashcroft in 2005 on behalf of Abdullah Al-Kidd, who they say was improperly arrested in 2003 as a material witness in the terrorism trial of Same Omar al-Hussein and detained for 16 days under prison-like conditions.

Mr. Al-Kidd was eventually released under restrictions that included confining his travel to four states, surrendering his passport and reporting to probation officers. He was subjected to these conditions for more than a year and, despite having been arrested as a material witness, was never asked to testify, or charged with a crime.

A material witness in U.S. law is a person with information alleged to be material concerning a criminal proceeding. Prior to 9/11, the material witness law was used sparingly to ensure witnesses would be available to testify in criminal cases.

After 9/11, the ACLU charges that Mr. Ashcroft “retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom it lacked probable cause to charge with a crime.”

The U.S. Court of Appeals for the Ninth Circuit ruled in September 2009 that the federal material witness law couldn’t be used to detain or investigate people when there is no probable cause to bring criminal charges. The ruling also held that Mr. Ashcroft does not have immunity in the case and can be held personally liable for the wrongful detention of Mr. Al-Kidd.

Mr. Ashcroft appealed that ruling to the Supreme Court, which Oct. 18 decided to review the case.

Jonathan Hafetz, a law professor at Seton Hall Law School, told IPS, “The Bush administration clearly misused the material witness statute as a pretext to detain people without charging them with a crime, rather as the law was intended–as a necessary means to obtain witness testimony. This violated the Constitution’s prohibition on imprisonment without probable cause and helped lead to the prolonged detention of individuals who had no connection to terrorism or other criminal activity.”

He added, “Thus far, the (Barack) Obama administration has sought to derail every attempt at accountability, arguing in one case after another against judicial involvement in cases of illegal detention, torture, and other mistreatment. The fact that the human rights abuses and constitutional violations did not occur on its watch does not excuse their effort to deny victims their day in court.”

Civil liberties advocates note that since the terrorist attacks of Sep. 11, 2001, the U.S. has used the material witness statute to detain at least 70 men living in the United States–all but one of them Muslim and 64 of Middle Eastern or South Asian descent–without charge for indefinite periods of time, often under the rubric of securing grand jury testimony.

After at least a year of joint research, the ACLU and Human Rights Watch reported that the Ashcroft Justice Department “claimed each of the post-September 11 material witnesses had information relevant to grand jury terrorism investigations or to the trials of defendants alleged to support terrorist organizations. Yet at least 30 witnesses we know about were never brought before a grand jury or court to testify.”

Only seven were ever arrested on terrorism-related charges.

Many of the 70 material witnesses identified by the ACLU and HRW suffered imprisonment because federal investigators and attorneys relied on false, flimsy, or irrelevant information and jumped to the wrong conclusions, the groups say.

The material witnesses typically were held around-the-clock in solitary confinement and subjected to the harsh and degrading high-security conditions typically reserved for prisoners accused or convicted of the most dangerous crimes. They were taken to court in shackles and chains. In at least one case, a material witness was made to testify in shackles.

In some cases, the harsh treatment of material witnesses included verbal and even physical abuse by prison staff. The Department of Justice’s Inspector General issued a report detailing the abuse of material witnesses as well as other detainees in federal detention facilities.

Abdullah al-Kidd, born in the U.S. state of Kansas and once a star running back at the University of Idaho, spent 16 days in federal detention in three states in 2003, sometimes naked and sometimes shackled hand and foot, but was never charged with a crime.

Once known as Lavoni T. Kidd, in 1995 when he led the University of Idaho football team, the Vandals, in rushing, Mr. Kidd was on his way to Saudi Arabia to work on a doctorate in Islamic studies in March 2003 when he was arrested and handcuffed at Dulles Airport in Washington.

Mr. Kidd, who described himself in a 2004 interview as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism,” was never called to testify as a witness.

Justice Elena Kagan will recuse herself from this case because, as President Obama’s solicitor general, she took a position on it. Should her absence result in a 4-4 tie among the other justices, the opinion of the Appeals Court would prevail.

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NEW YORK (FinalCall.com) – The Federal Bureau of Investigation improperly spied on U.S. activists involved in First Amendment-protected activities and mischaracterized nonviolent civil disobedience as terrorism, which placed innocent activists on terror watch lists, the American Civil Liberties Union (ACLU) charged in response to a new report by the Justice Department’s Inspector General.

Inspector General Glenn A. Fine undertook his investigation after a Freedom of Information Act request by the ACLU uncovered evidence that “the FBI was chilling political association and improperly investigating peaceful advocacy groups,” the civil rights group said in a statement.

The Inspector General found the improper investigations were often opened based on “factually weak” or even “speculative” justifications, and were sometimes extended in duration without sufficient basis.

The IG said that the low standard for opening investigations under the 2002 Attorney General Guidelines, which required only the “possibility” of a federal crime, contributed to the problem.

“The FBI also made false and misleading statements to Congress and the American public to mute criticism over its unlawful spying activities, including a false claim that improper surveillance of a 2002 anti-war protest in Pittsburgh was related to a separate, validly approved FBI investigation,” the report alleges.

It says that this incorrect information was repeated by FBI Director Robert Mueller before Congress and in communications between the bureau and Senator Patrick Leahy, Democrat of Vermont, who is chair of the committee.

Michael German, ACLU senior policy counsel and a former FBI agent, told IPS, “Basically what the IG report shows that the FBI spied on a lot of political activists for no good reason. This wasn’t just a waste of time and resources that could have been better spent looking at real criminals and terrorists, it had real consequences for the victims, getting them placed in terrorism databases and watchlists that led to more spying and travel delays. And unfortunately in many of the cases, the IG said the FBI’s rules allowed this inappropriate spying.”

Despite the public outcry over the 2006 disclosure that federal agents had investigated dozens of domestic political advocacy groups, the FBI was motivated by concerns that members of the groups might commit crimes and was not spying on them because of their political views, the IG’s report said.

However, the report is sharply critical of the FBI for characterizing certain nonviolent crimes related to protest activities as terrorism. And it attacked the bureau for making a series of “false and misleading statements to the public and to Congress” about its surveillance of an antiwar protest on Nov. 29, 2002.

The FBI was quick to revert to defensive mode. An FBI spokesman, Michael Kortan, told the Washington Post that the report’s most important finding was that after “an exhaustive review of hundreds of investigative decisions the FBI made after the Sep. 11 attacks,” the IG’s office “did not uncover even a single instance where the FBI targeted any group based on the exercise of a First Amendment right.”

Mr. Kortan also said that the report did not suggest “any significant modifications” of the bureau’s investigative powers.

The report involved investigations of antiwar, environmentalist and animal rights groups from the 2001 terrorist attacks through much of the administration of President George W. Bush.

In an extensive article on the report, New York Times writer Charlie Savage noted that in the case of the 2002 Pittsburgh protest, an FBI agent who attended the event detailed leafleting by people associated with the Thomas Merton Center, described in the agent’s report as a “left-wing organization” that advocated pacifism, to protest the coming Iraq war.

The account described the leaflets as making such claims as that Iraq had no weapons of mass destruction and raised questions about whether the centre was linked to Muslims.

Later, FBI director Mueller told Congress that the agent was trying to “identify an individual who happened to be, we believed, in attendance at that rally.”

But the inspector general found this story to be false: a supervisor had sent the agent to the protest as a “make-work” assignment to see if any subjects of Pittsburgh terrorism investigations “happened to show up without having any reason to think any of them would be there.”

The Times reports that the agent later told the inspector general’s office that he had gone overboard in carrying out that task because he was a recent hire, and he described the report as “atrocious” and a “horrible mistake,” saying he could “understand why people would become inflamed about it.”

Related news:

Anti-war activists targeted by FBI speak out (FCN,10-03-2010)

Government infiltration threatens rights and freedom, warn analysts (FCN, 09-21-2010)

ACLU challenges secret spying law (FCN, 04-27-2010)

Nation of Islam Targeted by Homeland Security (FCN, 12-24-2009)

Cointelpro 2009: FBI up to old dirty tricks? (FCN, 12-18-2009)

 Congress authorizes domestic spying (FCN,  08-19-2007)

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NEW YORK (IPS/GIN) – In the first ever UN-mandated self-assessment of the United States’ human rights record, the Barack Obama administration has reaffirmed its commitment to closing the detention centre at Guantanamo Bay and to fixing the country’s “broken immigration system.”

But the report also acknowledges the need for improvement in several key areas, including racial justice, women’s rights, LGBT rights and discrimination against Muslims and citizens of South Asian and Arab descent.

And civil liberties advocate groups say the report neglects to address other key areas where the U.S. has failed to meet its human rights obligations, including felon disfranchisement, inhumane prison conditions, racial disparities in the death penalty system and deaths and abuse in immigration detention.

These groups also note that the report defends the use of military commissions to try terrorism suspects. They say military commissions pose significant human and civil rights violations.

The report, delivered to the U.N. Human Rights Council in Geneva and released by the U.S. State Department, describes the “great strides” the U.S. has made toward ensuring equality of the law for all Americans. The report also acknowledges that work remains to be done.

The report was prepared following a series of consultative sessions between January and April involving federal agencies and civil society organizations, including the American Civil Liberties Union, NAACP, American Arab Anti-Discrimination Committee and Human Rights First.

Its compilation is part of the “universal periodic review” (UPR) process in which the Human Rights Council probes every UN member-state’s human rights record once every four years.

The United States’ UPR is set for Nov. 5, when administration representatives will take part in a three-hour “interactive dialogue” with council members in Geneva, based on this report as well as others submitted by UN experts and civil society groups.

A “troika” of countries, chosen by lot, will then draw up a document of recommendations arising from the dialogue session, for the full council to “adopt” on Nov. 9.

The troika overseeing the U.S. UPR comprises France, Japan and Cameroon.

Cameroon is one of 18 council members from the Organization of the Islamic Conference (OIC), a bloc which has drawn fire for an agenda at the council characterized by a strong anti-Israel bias and attempts to outlaw religious “defamation.”

The presence and conduct of countries with widely criticized human rights records was a key reason cited by the George W. Bush administration for shunning the council, but President Obama made engagement with the body a priority. The U.S. was elected to the council in May 2009.

The ACLU and another organization involved during the earlier consultations, Human Rights First, both welcomed the Aug. 27 release of the review–but with qualifications.

Jamil Dakwar, head of the ACLU’s civil rights program, told IPS, “While we welcome the Obama administration’s report and participation in this process and willingness to improve in certain areas, it is disappointing that the report neglected to address other significant problems that were raised in the consultations with civil society.”

He added, “It is time for the U.S. to match its human rights rhetoric with concrete domestic policies and actions and create a human rights culture and infrastructure that promotes American values of equality and justice for all.”

The ACLU said the report neglected some areas, including “inhumane prison conditions” and “racial disparities in the death penalty system.”

Tad Stahnke of Human Rights First called the administration’s participation in the UPR process “an important step in rebuilding U.S. human rights leadership.”

But he added that the organization was disappointed that the report did not reflect more serious consideration of concerns raised and recommendations made by civil society groups during the consultations.

The report highlighted extensive protections in U.S. law and practice for human rights as well as several important steps recently taken to improve human rights and U.S. adherence to international standards. including: An Executive which ended the use of secret cruel interrogation techniques and closed secret CIA prisons; continued commitment to close Guantánamo Bay; revised parole guidelines for individuals in expedited deportation proceedings found to have a credible fear of persecution or torture; and enactment of the legislation bolstering the U.S. government’s ability to prosecute hate crimes, including those motivated by animus based on sexual orientation, gender identity, or disability.

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NEW YORK (IPS/GIN) – A major human rights organization claims it has uncovered evidence indicating that the administration of former U.S. President George W. Bush conducted “illegal and unethical human experimentation” and research on detainees in CIA custody.

The group, Physicians for Human Rights (PHR), claims “the apparent experimentation and research appear to have been performed to provide legal cover for torture, as well as to help justify and shape future procedures and policies governing the use of the ‘enhanced’ interrogation techniques.”

Its new report, “Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Programme,” claims to be the first to provide evidence that CIA medical personnel engaged in the crime of illegal experimentation after 9/11, in addition to the previously disclosed crime of torture.

“This evidence indicating apparent research and experimentation on detainees opens the door to potential additional legal liability for the CIA and Bush-era officials. There is no publicly available evidence that the Department of Justice’s Office of Legal Counsel determined that the alleged experimentation and research performed on detainees was lawful, as it did with the ‘enhanced’ techniques themselves,” PHR contends.

“The CIA appears to have broken all accepted legal and ethical standards put in place since the Second World War to protect prisoners from being the subjects of experimentation,” said Frank Donaghue, PHR’s chief executive officer. “Not only are these alleged acts gross violations of human rights law, they are a grave affront to America’s core values.”

PHR is calling on President Barack Obama to direct the attorney general to investigate these allegations, and if a crime is found to have been committed, to prosecute those responsible.

Additionally, the group said, Congress must immediately amend the War Crimes Act to remove changes made to the act in 2006 by the Bush administration that allow a more permissive definition of the crime of illegal experimentation on detainees in U.S. custody. The more lenient 2006 language of the act was made retroactive to all acts committed by U.S. personnel since 1997.

“In their attempt to justify the war crime of torture, the CIA appears to have committed another alleged war crime–illegal experimentation on prisoners,” said Nathaniel A. Raymond, director of PHR’s Campaign Against Torture and lead report author. “Justice Department lawyers appear to never have assessed the lawfulness of the alleged research on detainees in CIA custody, despite how essential it appears to have been to their legal cover for torture.”

PHR says its report is relevant to present-day national security interrogations, as well as Bush-era detainee treatment policies. As recently as February 2010, President Obama’s then director of national intelligence, Admiral Dennis Blair, disclosed that the U.S. had established an elite interrogation unit that will conduct “scientific research” to improve the questioning of suspected terrorists. Admiral Blair declined to provide important details about this effort.

“If health professionals participated in unethical human subject research and experimentation they should be held to account,” said Scott A. Allen, MD, a medical advisor to Physicians for Human Rights and lead medical author of the report. “Any health professional who violates their ethical codes by employing their professional expertise to calibrate and study the infliction of harm disgraces the health profession and makes a mockery of the practice of medicine.”

Several prominent individuals and organizations in addition to PHR planned to file an early June complaint with the U.S. Department of Health and Human Services’ Office for Human Research Protections and call for an investigation of the CIA’s Office of Medical Services.

The PHR report indicates that there is evidence that health professionals engaged in research on detainees that violates the Geneva Conventions, The Common Rule, the Nuremberg Code and other international and domestic prohibitions against illegal human subject research and experimentation. Declassified government documents indicate that: Research and medical experimentation on detainees was used to measure the effects of large-volume waterboarding and adjust the procedure according to the results.

After medical monitoring and advice, the CIA experimentally added saline, in an attempt to prevent putting detainees in a coma or killing them through over-ingestion of large amounts of plain water.

Health professionals monitored sleep deprivation on more than a dozen detainees in 48-, 96- and 180-hour increments. This research was apparently used to monitor and assess the effects of varying levels of sleep deprivation to support legal definitions of torture and to plan future sleep deprivation techniques.

Health professionals appear to have analysed data, based on their observations of 25 detainees who were subjected to individual and combined applications of “enhanced” interrogation techniques, to determine whether one type of application over another would increase the subject’s “susceptibility to severe pain.”

The alleged research appears to have been undertaken only to assess the legality of the “enhanced” interrogation tactics and to guide future application of the techniques.

The “Experiments in Torture” report is the result of six months of investigation and the review of thousands of pages of government documents. PHR says it has been peer-reviewed by outside experts in the medical, biomedical and research ethics fields, legal experts, health professionals and experts in the treatment of torture survivors.

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