http://www.washingtonpost.com/wp-dyn/artic...1-2004Dec4.html

The System Endures

Sunday, December 5, 2004; Page B06


SEVEN MONTHS AGO the leak of shocking photographs from the Abu Ghraib prison alerted the country to the fact that U.S. soldiers and interrogators were criminally abusing Iraqi detainees. In the weeks that followed, a still more disturbing story emerged: The torture portrayed in the photographs, while extreme and mostly unauthorized, grew out of a system of abusive treatment of prisoners established by the Bush administration after Sept. 11, 2001. Official investigations have documented the mistreatment of more than 100 detainees in Iraq, Afghanistan and elsewhere and the deaths of more than 20. In many cases these acts were committed by CIA or Army personnel who were following procedures authorized by such senior officials as Secretary of Defense Donald H. Rumsfeld, Iraq commander Lt. Gen. Ricardo S. Sanchez and White House counsel Alberto R. Gonzales. This news prompted some noisy congressional hearings; some angry lawmakers, including a few Republicans, called for reforms.

Yet the worst aspect of the Abu Ghraib scandal is this: The system survived its public exposure. The Bush administration is vigorously prosecuting the lowly reservists depicted in the Abu Ghraib photos, while brazenly defending the larger process it established for extracting intelligence from prisoners. No senior officers have acknowledged fault for authorizing harsh interrogation techniques or been held accountable by prosecutors or Congress. An official investigation into how the interrogation policies were drawn up and used, which was completed months ago, has never been released. No alteration has been made in the policies governing the system, including an extremely permissive definition of torture prepared under the direction of Mr. Gonzales, or a set of harsh techniques for interrogating prisoners approved by Mr. Rumsfeld.

Consequently it is no surprise that the International Committee of the Red Cross, which is monitoring the Guantanamo Bay prison and other U.S. detention facilities, continues to find that detainees in American custody suffer "cruel, inhumane and degrading" treatment that is "tantamount to torture." It also is no surprise that the Pentagon would reject those judgments without disputing the substance behind them. According to the New York Times, which obtained a Red Cross report from July, monitors found that prisoners were subjected to "solitary confinement, temperature extremes, use of forced positions." The Times said that some were forced to strip and then were shackled in uncomfortable positions while being exposed to loud noise or music and prolonged cold.

Such abuses are not isolated or the result of rogue behavior by guards. They are part of the standing procedure for interrogating Guantanamo prisoners, approved by Mr. Rumsfeld in April 2003. That's why the administration rejects the Red Cross charges: not because they aren't true but because President Bush and his political appointees -- as opposed to many of the professional lawyers in the military -- don't regard such tactics as improper. To back up their position, they have Mr. Gonzales, who oversaw a 2002 review that concluded that the infliction of pain short of death or organ failure, or psychological stress that did not cause permanent derangement, did not constitute torture under the treaties and federal laws that bind the U.S. government. According to the administration's reasoning, the same methods documented by the Red Cross could be properly used on Americans arrested by foreign governments, or on detainees in federal prisons.

By now it should be clear that Mr. Bush will perpetuate this systematic violation of human rights, and fundamental American values, unless checked by one of the other branches of government. The federal courts have begun to explore the handling of prisoners at Guantanamo; last week a federal judge in Washington elicited from a Pentagon official the admission that information obtained through torture could be used by the tribunals the administration has established in Guantanamo to judge whether detainees are "enemy combatants." Yet Congress has shirked its responsibility. No hearings have been held on the prisoner abuse scandal in three months; no legislation has corrected the administration's twisted interpretation of torture or the Geneva Conventions. Mr. Rumsfeld, Gen. Sanchez and Mr. Gonzales have never been required to answer for their policy decisions. As long as such passivity continues, you can expect more disturbing reviews from the Red Cross.

Hentoff weighs in.

http://www.suntimes.com/output/otherviews/cst-edt-nat05.html

Kangaroo court in Guantanamo Bay
December 5, 2004

BY NAT HENTOFF

While U.S. District Judge James Robertson irritated the White House on Feb. 9 by stopping a military tribunal at Guantanamo Bay because, he said, it was not a competent tribunal to decide the legal protections due those before it under the Geneva Convention, there is a separate set of proceedings for detainees there. The lawfulness of those proceedings is also under serious, continued question.

Recently, Jameel Jaffer, an American Civil Liberties Union lawyer, returned from observing this other series of hearings -- the Combat Status Review Tribunals, which are set up to determine whether the hundreds of detainees at Guantanamo Bay are being lawfully held.

Jaffer concluded, as have even some of the military defense lawyers who have previously submitted briefs to the Supreme Court, that they are defying a June decision by the U.S. Supreme Court that these prisoners must get due process -- in the simplest terms, basic fairness.

In the 6-3 ruling, the court wrote that these alleged unlawful enemy combatants are entitled -- ''no less than American citizens'' -- to challenge the evidence against them, among other rights.

Yet, as the New York Times' Neil Lewis noted on Nov. 1, a recent brief by the Bush administration pretends there was no such Supreme Court decision. The government stated that ''the notion that the U.S. Constitution affords due process and other rights to enemy aliens captured abroad and confined outside the sovereign territory of the United States is contrary to law and history'' -- an argument the Supreme Court smacked down.

With regard to sections of the Patriot Act and subsequent executive orders, the government has previously been charged with making up the law as it goes along. This now appears to include bypassing the Supreme Court.

As Jaffer notes, these Combat Status Review Tribunals do not ''provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it's up to the prisoner to prove that he's not.''

Moreover, the prisoners are denied access to most of the alleged evidence against them because it is classified. Most crucially, the prisoners are denied a lawyer. Instead, they are given a ''personal representative'': a military officer without legal training.

As Human Rights Watch reports from Guantanamo Bay, ''two of the three members'' of the tribunal ''have no legal training or experience,'' although their job is ''to rule on matters of law.''

James Ross, senior legal adviser for Human Rights Watch, says reasonably, ''It's astonishing that the United States would try a case of historic importance (and that can result in permanent imprisonment) with officials who are struggling to grasp basic legal concepts. Real courts with real judges should be trying these complex cases, not tribunals started from scratch.''

I hope the Supreme Court will eventually require this administration to provide real judges and real lawyers at Guantanamo Bay. But, as of this writing, the rule of law there is so bizarre that, as Jaffer points out, while ''CSRT has reviewed the cases of some 200 prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all.''

Indeed, about a third of the detainees will not attend these kangaroo courts. But they will be judged anyway, in absentia. Obviously, this counterfeit process was conceived to con the Supreme Court into believing the government was adhering to its June decision.

But on Oct. 21, in Washington, D.C., U.S. District Court Judge Colleen Kollar-Kotelly ruled that all the prisoners at Guantanamo Bay have the right -- as the Supreme Court decided in June -- to American lawyers with whom they can speak without the government listening in. So far, lawyer-client confidentiality has been almost entirely forbidden there, including with those nonlawyer ''personal representatives.''

This crude attempt by the government to skip the Supreme Court is not surprising in view of attitudes of key administration officials long before these fake proceedings at Guantanamo Bay started. Dick Cheney called the detainees ''the worst of a very bad lot . . . devoted to killing millions of Americans.''

Mr. Cheney, where is the presumption of innocence?

And Donald Rumsfeld said they were ''among the most dangerous, best-trained vicious killers on the face of the Earth.'' But the overwhelming majority have not been charged with any crime. If they're so heinous, then charging them should have been a swift, clear process.

Instead, as Jaffer says, ''Guantanamo remains a legal black hole.''