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ISR Issue 61, SeptemberOctober 2008
Bipartisan road to the dark side
Democrats are complicit in the Bush administration’s attack on human rights and civil liberties.
AT THE beginning of August, the first war crimes prosecution against a foreign national by the U.S. since the Nuremburg trials at the end of the Second World War came to an end with Salim Hamdan being convicted of providing “material support for terrorism.” The trial, held before a military tribunal at Guantánamo Bay, was an embarrassment. The Military Commissions Act—passed by wide margins in both houses of Congress in October 2006—permitted the tribunal to allow hearsay as evidence and to deny the defendant basic constitutional protections, including the right against self-incrimination.
Worse, although the tribunal was supposedly not allowed to use testimony obtained by torture, it was permitted to use “coerced testimony,” provided the presiding judge ruled it to be “reliable” and “in the interests of justice.” Before the proceedings began, the trial judge, Navy captain Keith Allred, admitted that Hamdan had been the victim of “various types of coercive treatment,” and he ruled out statements that Hamdan made during two interrogations in Afghanistan, because of the abusive treatment he had received. In one of them, the interrogators “repeatedly tied him up, put a bag over his head and knocked him to the ground.” But Allred permitted other statements Hamdan made in Afghanistan and after his transfer to Guantánamo, even though there was overwhelming evidence that these were also extracted in “highly coercive environments and conditions.”
A psychological examination of Hamdan conducted before the trial revealed that, as a result of prolonged solitary confinement, he “met diagnostic criteria for Post Traumatic Stress Disorder and Major Depression” and was suffering from “nightmares, intrusive thoughts, memories and images, amnesia for details of traumatic events, lack of future orientation, anxiety, irritability, insomnia, poor concentration and memory, exaggerated startle responses and hypervigilance.” During his interrogations at Guantánamo, Hamdan was sexually humiliated and repeatedly moved from one cell to another for fifty days in order to prevent him from sleeping for more than short periods.
Amazingly, however, despite the rigged proceedings, the jury of six military officers rejected the government’s main charge that Hamdan was a top-level al-Qaeda operative who helped plan the 9/11 attacks, and accepted the fact that he was merely one of several hired drivers used by Osama bin Laden, who had no knowledge that the attacks were going to take place. One juror later told the Associated Press (AP) that Hamdan, who testified that he stayed in the job because he needed it to support his family, “was just misled and the victim of circumstance.” According to the juror, “it was generally our opinion that he made some bad mistakes in his life that led him down a path that turned out to be a bad one. Once he was in it, I don’t see that it was that easy to get out.”
The fact that the U.S. government chose to prosecute such a minor figure as a war criminal revealed the petty vindictiveness of the whole proceedings. As one of Hamdan’s lawyers, Joseph McMillan, pointed out, the charge of providing “material support” could be leveled at thousands of people, including “the butcher, the baker and the candlestick maker.” If the man who drove bin Laden’s car is guilty, why not the person who changed its oil or replaced its spark plugs? It never crossed anyone’s mind at Nuremburg that Adolf Hitler’s driver should be charged with war crimes.
The jury seems to have understood this, because it handed down a relatively minor sentence that would permit Hamdan to be released by the end of the year. But for the Bush administration the proceedings were “heads we win, tails you lose.” Even if Hamdan had been found not guilty on all counts, it reserves the right to continue holding him as an “enemy combatant” for the duration of the “war on terror”—in other words, potentially decades. “After all the effort that we put in to get somebody a fair trial … and then to say no matter what we did it didn’t matter—I don’t see that as a positive step,” said the juror interviewed by the AP.
The Hamdan trial is just the tip of the iceberg of the Bush administration’s attacks on human rights and civil liberties. In her recent book The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, New Yorker journalist Jane Mayer reveals the huge extent of the abuses. “I want to be absolutely clear with our people and the world, the United States does not torture,” George Bush told the nation in September 2006. “It’s against our laws and it’s against our values.” But last year, a secret report from the Red Cross concluded that interrogation methods used by the CIA, including waterboarding, are “categorically” torture, and that the treatment of numerous prisoners “constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.”
Mayer discloses that in 2002, a CIA analyst warned the Bush administration that as many as a third of the hundreds of detainees at Guantánamo Bay may have been imprisoned by mistake. But David Addington, then Dick Cheney’s legal counsel (and now his chief of staff), dismissed the report: “The president has determined that they are ALL enemy combatants. We are not going to revisit it.” Mayer notes, however, that “the top military commander at Guantánamo at the time, Major Gen. Michael Dunlavey, not only agreed with the [CIA] assessment but suggested that an even higher percentage of detentions—up to half—were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda.”
According to Mayer in an interview on Democracy Now!, “One detainee was there because he had been a teacher of somebody and given them a bad grade, and the person that he’d flunked pointed him out as a terrorist and he was rounded up.” In the same interview, Mayer re?sponded to Bush’s claim that interrogation procedures used by the CIA “were designed to be safe”:
[T]here were people killed in this program, and one of them was an Iraqi—former Iraqi military figure named Manadel al-Jamadi, who was completely healthy the night that he was picked up by the U.S. military and the CIA. By the morning...he was dead. And according to the coroner’s report, while he was being interrogated, in particular by the CIA, he was hung in a position that the coroner described as being crucified, and he suffocated. He died. He had broken ribs. He couldn’t breathe…in that position.
Mayer reports that by 2006 members of the Bush administration were seriously concerned that they might one day be prosecuted for sanctioning the CIA torture program. For that reason, they wrote into the Military Commissions Act immunity for the past use of interrogation methods that violated U.S. law. Meanwhile they had little to fear in terms of being held accountable by Congress, even after the Democrats regained the majority later that year, since key figures in the Democratic leadership were already complicit with the administration’s actions. Last year the Washington Post revealed that leading Democrats knew about waterboarding and other techniques very early on:
So was it safe? It certainly wasn’t safe for Manadel al-Jamadi. There were a number of other homicides that have been investigated by the CIA and passed on to the Justice Department for possible prosecution. Nothing has ever come of them.
For more than an hour [in September 2002], [a] bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
According to the Post there were about 30 of these private briefings, which in addition to Pelosi included Rep. Jane Harman (D-Calif.) and then-Sen. Bob Graham (D-Fla.) and Sen. John D. Rockefeller IV (D-W.Va.). “Individual lawmaker’ recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support.”
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
Leading Democrats have also been complicit with the Bush administration’s illegal program of monitoring the private telephone conversations of vast numbers of Americans. The Foreign Intelligence Surveillance Act (FISA), originally passed by Congress in 1978 in the wake of the Watergate scandal, was intended to stop the government spying on its own citizens, unless a court specifically granted a warrant. The law also specifically made it a crime for the telecom companies to participate in illegal surveillance.
But in 2001 when the National Security Agency (NSA) asked them to, in effect, spy on their customers, nearly all the major telecoms (with the exception of Qwest), eager to continue receiving government contracts worth hundreds of millions of dollars, readily agreed. Salon columnist Glenn Greenwald notes that, “Numerous key Democrats in Congress—including [Jay] Rockefeller and [Jane] Harman—were told that Bush had ordered the NSA to spy on Americans without warrants and outside of FISA. None of them did anything to stop it.” After the New York Times revealed the program’s existence in 2005, Harman even suggested that the newspaper should be criminally prosecuted for publishing its report (which it had actually delayed for a year at the request of White House officials).
Since then, the Bush administration aimed to change the law to make it easier to spy on U.S. citizens and to give immunity to the telecom companies for their past illegal actions. During the Democratic primaries, Barack Obama announced that he would personally filibuster any such bill in the U.S. Senate. But in early July, as part of his shift to the right after securing the nomination, Obama voted for a revised FISA that sailed through Congress and gave Bush everything that he wanted. “With their vote,” wrote Greenwald, “the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country.”
Bush administration surveillance of U.S. citizens goes far beyond the program exposed by the New York Times. More than 400,000 people are on the government’s no-fly list and the NSA is reported to use a state-of-the-art database system called “Main Core” to gather information on people it categorizes as security threats. Who are these people? According to a recent article in Radar magazine, “8 million Americans are now listed in Main Core as potentially suspect … [who] could be subject to everything from heightened surveillance and tracking to direct questioning and even detention.”
Spying programs at the federal level have spawned counterparts at the state and local level, which effectively treat opposition to government policies as illegitimate acts. In July, for example, the ACLU revealed that the Maryland State Police carried out clandestine surveillance of various political groups, including the anti-war group Pledge of Resistance-Baltimore and the Campaign to End the Death Penalty, for over a year from 2005 to 2006. The Washington Post reported that one long-time peace activist “was singled out by the undercover agents and entered into a ‘Washington-Baltimore High Intensity Drug Trafficking Area’ database. His entry indicates a ‘Primary Crime’ of ‘Terrorism-anti-government’ and a ‘Secondary Crime’ of ‘Terrorism-Anti-War Protesters.’”
But unlike the Congressional Democrats, activists in Maryland have launched a vigorous campaign to demand accountability and full disclosure of the extent of the monitoring. Civil liberties in the U.S. have never been the gift of political elites, but have been the result of movements from below demanding and fighting for them. It will take the reinvigoration of those movements to roll back the attacks on our rights no matter who is in the White House after November.
Phil Gasper is the editor of The Communist Manifesto: A Road Map to History’s Most Important Document (Haymarket Books, 2005) and a member of the ISR editorial board.