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Torture News Roundup: Panetta’s Move-On Torture Plan

Scott Horton’s article, Licensed to Kill, discusses Panetta’s memo for subordinates and Congress of his move-on plan, which includes generalized “immunity” that may cover executive-level officials, including some now advising Panetta. The plan includes shutting down the CIA black sites, which is good, but as the CIA has already destroyed evidence of torture, will any evidence at these sites be preserved?

Other torture news includes:  Prisoners can not judicially enforce Geneva rights due to MCA; torture lawyer Bybee admits DOJ work shoddy; a court reinstated a Guantánamo defense lawyer fired by the Pentagon; Obama opposes habeas rights for Bagram prisoners because it may interfere with Afghanistan war, and a judge blasted Bush DOJ for hiding evidence that key witness used to build case against prisoners is mentally ill.

Bloggers Against Torture Listserve

I just created a google listserve called Bloggers Against Torture or BAT!

I am a member of DK environmentalists, which is a listserve of eco diarists at DK. When we post an eco diary, we send out an email to the members, which are now over 2,000. In truth, the eco listserve needs some tweaking as only a handful actually rec diaries or post comments when they get the emails. But, it does enable eco diarists to keep up with eco diaries posted by just checking your email!

BAT can be a way for us to inform each other about diaries we post and to have discussions about subjects or issues as they arise.

We may want to change the name, that’s fine. But, just thought I would get the ball rolling on this.

This is the group statement, which again can be rewritten but is limited to the number of characters presented here:

We oppose torture and cruel, inhuman & degrading treatment of all persons, whether they be prisoners at Guantanamo, Bagram or CIA black sites; immigrants; civilians, or prisoners in civilian prison systems. Most members support investigation & prosecution of Bush officials for war crimes & torture.

This should be the link to click to join.

[email protected]

Well, not sure if that is correct link or not.

This is the Bloggers Against Torture webpage.…

Help! Not sure what to do next to make this operational!!!

Torture News Roundup: A Woman Tortured?

Top Story

  • Female prisoner at Bagram:  In an interview, Binyam Mohamed revealed that there was a female prisoner  when he was imprisoned at Bagram in June 2004 for around 3-4 months:

    1.  He saw a female prisoner wearing a shirt with the number 650 at Bagram prison.

    2.   The guards frightened the male prisoners into not talking with the woman prisoner for fear that the prisoners “would know who she was.”

    3.  In terms of how this woman may have been tortured, Binyam knew that the woman was kept in isolation and he “could tell that she was severely disturbed.”

    4.  Binyam heard that she had children, but did not see the children at Bagram.

    5.  The woman was from Pakistan and she had studied or lived in America.

9/11 Report Facts Obtained From Tortured Prisoners

Today, most people know that the US tortured prisoners at Guantánamo and CIA black sites.  Experts have been clear that torture does not produce reliable information. The response is often yeah, torture is the only way to save Americans from a mushroom cloud tomorrow. Cripes, it works for Jack Bauer!  

Even if you believe torture is permissible for national security reasons, is torture an acceptable method for a Congressionally-established commission to obtain facts? News reports indicate that 25% of the information about the 9/11 attacks came from prisoners who were tortured. The 9/11 Commission was responsible for providing a complete accounting of the attacks, including “recommendations designed to guard against future attacks.” Just how safe is America when it is relying upon recommendations based upon facts obtained by torture?  

Ending MTR Mining With Change That Works

Mountaintop removal mining dumps tons of waste into streams and eco systems that are literally killed by suffocation. Mining companies claim their euphemistic “valley fills” are an industry necessity because it would be too expensive to pay for waste disposal. If Congress outlaws “valley fills,” it would help stop MTR mining, which causes massive environmental disasters and violates human rights.

A clear definition of “fill material,” which affects what can be discharged into our waters, can be used to stop “valley fills”. The government admitted that the Corps’ definition prohibited valley fills. The EPA later adopted a definition to allow valley fills. The inconsistency and confusion between these two rules was seized as cover to issue permits for valley fills. After environmental groups obtained injunctive relief against MTR mining based on the Corps’ definition, Bush changed the law. Bush’s definition of fill material is based on the EPA rule. The problem with HR 1310 is that it is based on the same rule used by the EPA and Bush. Instead of clarity, we have muddy waters ripe for more years of litigation delaying the end of MTR.

Justice For Guantanamo Prisoner: Take Action

As explained in this diary, the Obama DOJ is delaying  habeas corpus for Mohammed Jawad, a 22-year old Afghan national captured as a teenager 6 years ago & imprisoned at Guantánamo. The Obama DOJ decided to not modify Bush’s motion to dismiss or hold in abeyance until after a military trial. Only Obama has halted all military proceedings, which may not recommence for at least 120 days.

Jawad is a good case for Obama to start distancing himself from Bush.  There is no allegation that Jawad is a member of al-Qaeda or the Taliban, that he committed terrorism or ever had critical intelligence.  This is the “first war crimes trial against a child soldier (pdf file) in the history of the civilized world.”  Yet, a military judge has already tossed the “torture-tainted evidence against Jawad” in a case of regular criminal justice crimes, like attempted murder.  

Obama Delays Habeas of Tortured Guantánamo Prisoner

Last year, in Boumediene v. Bush, the US Supreme Court held that foreign prisoners at Guantánamo have a constitutional “privilege of habeas corpus to challenge the legality of their detention” promptly. Guantánamo prisoner Mohammed Jawad filed a habeas corpus petition (pdf file). The Bush DOJ filed a motion to dismiss or hold in abeyance, claiming no right to habeas until after a military commission trial. The Obama DOJ adopted the Bush pleading, and despite repeated inquiries from Jawad’s lawyers, do not wish to modify Bush’s legal arguments.  While adopting Bush’s pleadings, it appears that Obama really seeks to delay habeas proceedings until status determinations are completed before his 120-day deadline. However, even if true, the effect of Obama’s actions is a de facto granting of holding habeas in abeyance, not in deference to the now terminated military proceedings argued by Bush, but until the status determinations have been completed.

Why I deleted Jawad Diary

In the Jawad case, bush team filed a motion to stay habeas shortly before Obama was sworn in as president.

The ACLU, defense counsel for Jawad, filed its response on in mid February or this month.

There were two reasons i thought that the Obama DOJ had once again accepted or adopted Bush’s position on this issue.

(1)  The ACLU issued a press release saying that despite Obama’s EO stopping military commission proceedings, “the government is moving forward.” I interpreted government as Obama not bush, given the earlier reference to Obama  in the same sentence:

ACLU Opposes Justice Department Efforts To Throw Out Case Challenging Illegal Detention Of Guantánamo Prisoner Mohammed Jawad (2/18/2009)

Despite President Obama’s executive order halting military commission proceedings, the government is moving forward with a last-minute effort by the Bush administration to deny Jawad his right to challenge his detention in federal court until after the commissions case against him is complete.…

(2)  In the ACLU brief filed in February 2009 or same date as the press release, the ACLU says it asked the government to withdraw its motion, but the government refused, saying that it was still working out the process for these cases. I interpreted this as obama DOJ because Bush is gone. (footnote  8)

“Mr. Jawad’s counsel have twice asked the government to withdraw the Motion.  The government’s lawyers have refused.  As the basis for their refusal, counsel for the government cite “the process of assessing how it should proceed in these cases.”  Email Exchange, Frakt

Decl. Ex. D.  But that is not the basis for the government’s Motion before this Court, and the government has not moved to modify the Motion.  The Court should not entertain this post-hoc justification if it is raised by the government.  Cf. Goldring v. District of Columbia, 416 F.3d 70,

77 n.4 (D.C.Cir. 2005) (argument raised for first time in reply brief is untimely (citation omitted)); Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003) (same).  In any event, there is no justification for additional delay.  While the new administration may have the best intentions in reviewing Guantanamo detentions and seeking to avoid the many and grievous mistakes of its predecessor, the law applicable to the government’s alleged basis for Mr.

Jawad’s detention has not changed, nor have the facts in his case.  There is no other historical context of which counsel are aware in which the executive branch took upon itself-and asked the judiciary to approve-the authority to declare a constitutional “time out” to decide how the executive wished to proceed, whether with a civilian criminal trial, a military trial or some unspecified third option, while it continued to detain prisoners.  To permit this kind of delay

would, effectively, permit the government to detain by fiat, not by law, and thus evade the Suspension Clause.”

Someone raised a question in the DK posting comments of how did we know this was the position of the Obama DOJ accepting once again the Bush position stated in papers filed by Bush.

I said i would doublecheck, intending to dig out from my notes the links i had for media articles on this case. What i found is the media articles were just reposting the ACLU press release.

Thus, I did not have the confirmation i thought i had, and so i deleted the diary.

I will be calling the ACLU tomorrow and hopefully i can reach one of the attorneys on this case to confirm.

When i do, i will repost.

sorry, for posting and deleting here too.


Obama Defers Habeas, Defends Bush’s MCA

Last year, in Boumediene v. Bush, the US Supreme Court held that foreign prisoners at Guantánamo have a constitutional “privilege of habeas corpus to challenge the legality of their detention” promptly. Guantánamo prisoners, like Mohammed Jawad, filed a habeas corpus petition (pdf file) to challenge their imprisonment. Now, the Obama Justice Dept. wants to impose another requirement of no habeas corpus relief until after a military commission trial. In fact, our government says no harm in delay? Guantánamo prisoner Binyam Mohamed is now being released to Britain. He was “beaten by US guards right up to the point of his departure”. Medical examinations last week revealed he has suffered many injuries, including organ damage, bruising, stomach problems and severe damage to ligaments.  

Obama DOJ Advocates Immunity From Civil Torture Litigation

I listened to the oral arguments of the Jeppesen civil lawsuit seeking damages from an aircraft company for its role in the rendition & torture of 5 suspected terrorists. It was shocking to hear that Obama wants to continue Bush’s policy to elevate state secrets from an evidentiary privilege to blanket immunity. Under this view, the subject matter of a lawsuit is grounds for dismissal even if the plaintiff does not need any classified evidence to prove its case. This is not the standard created by the US Supreme Court, the law governing criminal litigation or the proposed law for civil litigation. The judges also seemed surprised:  2 of the 3 judges asked the DOJ lawyer if he was “representing” the “thoroughly vetted” positions of the Obama administration.  Some Democrats reacted by introducing a bill today to require judges to determine “whether a blanket claim of secrecy by the government is necessary to protect national security.”  (h/t Meteor Blades)

Torture Liability for Rendition Aircraft Company

On Monday, the Obama administration may answer some lingering questions about the parameters of our torture policies now that Bush is history. Oral argument is scheduled to address whether Boeing subsidiary Jeppesen Dataplan can face trial on civil liability for torture based on its role in extraordinary rendition flights (pdf file).  Five men claiming that they were tortured by the US alleged that Jeppesen transported the rendered prisoners to countries known for torture or to CIA black site prisons. A federal district court dismissed the lawsuit when Bush invoked the state secrets privilege. The issue is now on appeal before the 9th Circuit. This is not an either/or issue: The courts have authority to protect our national security, promote governmental transparency and redress harms to torture victims.  

Obama’s Answer For FISA & Torture Litigation

As Dick and George slithered out of DC, a number of lawsuits that were filed by victims of their criminal acts involving FISA, torture and rendition have now been inherited by President Obama.  Bush routinely dismissed these cases by claiming his version of state secrets privilege on unilateral steroids.  The megamedia have reported that the Obama Justice Dept. has indicated in pleadings that it will also invoke the state secrets privilege.  However, there is an alternative which could protect legitimate governmental prerogatives, a victim’s right of redress for harms perpetrated by government officials and society’s right for a transparent government that sustains the rule of law.  The alternative is for Obama to adopt the state secrets standards that govern criminal prosecutions as his guidelines for use in civil litigation until Congress adopts the State Secrets Protection Act that was defeated last year amidst Bush’s veto threats. These guidelines are consistent with Supreme Court precedent that has rarely been correctly utilized.

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