March 12, 2007
There's a new sheriff in town--and it's
neither the U.S. nor a U.S.-sponsored surrogate "invited"
by the U.S. It's another of those pesky international conventions
the administration loves to hate and refuses to join--but still
cannot stop from taking effect. Fifteen years in the making,
the pact outlaws state terrorism of a type frequently practiced
by the United States: "extraordinary rendition."
On this topic, February was
a month of unwelcome revelations (from the administration's perspective)
and long overdue (from the people's perspective) media attention
on the policies and programs the White House created and justified
for incarcerating "known" or suspected terrorists in
the extensive acknowledged and unacknowledged Defense Department
and CIA prison systems created nearly 5 years ago.
This is an interesting juxtaposition
of dates. Work on the treaty started some nine years before 9/11.
This suggests at least two possibilities: the French (the chief
UN Security Council sponsor of the treaty) were prescient about
the flow of events to come, or they were aware that some governments
(e.g., the United States), unknown to their people, were systematically
and on a large scale violating (or at least were preparing to
violate) fundamental human rights of individuals alleged to pose
a dire threat to a country's "national security."
We may never know just how
extensive these prison systems were prior to 9/11 anymore than
after that date. Some numbers but few exact locations have come
to light because of the abuses perpetrated in Guantanamo Bay,
Abu Ghraib, the CIA's 14 (or more) "black sites" in
Europe and other locations abroad. There are also a few U.S.
legal residents and even citizens that have been incarcerated
for aiding and abetting or providing "material support"
for terror activities. Nonetheless, enough is known to suggest
that the Bush administration has gravely over-reached itself
in its claims that it is only exercising the inherent "right
of self-defense" which absolves it of all counterclaims
that its actions constitute international crimes. What does the
record of the last few months show?
Exposing
Overreach Abroad
The 2007 record chronologically
opens on January 31 when German prosecutors issued warrants for
13 CIA agents suspected of engineering the "extraordinary
rendition" of Khaled al-Masri, a German citizen of Lebanese
heritage, who was "disappeared" at the Serbian-Macedonian
border in December 2003. Khaled says he was flown to a CIA prison
in Afghanistan where he says--as do many others who were caught
up in the CIA's global "black prison" complex--that
he suffered abusive treatment for a number of months before being
turned over to Lebanese security personnel.
As February opened, in Brussels,
the European Parliament approved the findings of an internal
European Union investigation ordered by the Council of Europe
into the complicity of European nations in the CIA's "extraordinary
rendition" program in violation of EU policy--citing Britain,
Germany, and Italy in particular but also noting that others
knew of but ignored CIA flights carrying drugged and kidnapped
victims such as al-Masri through their national airspace.
While these two threads evolved,
Italian courts were proceeding with preliminary enquiries in
a criminal complaint against 26 CIA agents (in absentia)
and five Italian security agents (present in court) accused of
kidnapping and transporting from Milan to Cairo the Egyptian
cleric and U.S. terror "suspect" Osama Mustafa Hassan
Nasr (also known as Abu Omar). Nasr, who entered Italy seeking
asylum, claims in an eleven-page letter that he was tortured
repeatedly by Egyptian security personnel.
By February's midpoint, the
Swiss government (the Federal Council) had given a green light
to the country's courts to begin criminal prosecution of anyone
involved in transporting Nasr through Swiss air space. (Allegedly,
the CIA flew Nasr from Aviano Airbase in Italy to Ramstein Airbase
in Germany and thence to Egypt.)
Three weeks later, on March
6, Representative Ed Markey (MA) introduced "reciprocal"
legislation intended to halt arbitrary kidnappings by the CIA.
Entitled the "Torture Outsourcing Prevention Act,"
the legislation (H.R. 1352) "prohibits the return or other
transfer of persons by the United States, for the purpose of
detention, interrogation, trial, or otherwise, to countries where
torture or other inhuman treatment of prisons occurs."
And to ensure no misunderstandings
occur as to who is covered by the proposed legislation, it singles
out "the intelligence communitythe Departments of State,
Defense, Homeland Security, and Justice, the United States Secret
Service, the United States Marshals Service, and any other law
enforcement, national security, intelligence, or homeland security
agency that imprisons, detains, or transfers prisoners or detainees."
Countering
Overreach At Home
Although their majorities in
both Houses of Congress empowered Democrats to set the legislative
agenda in the 110th Congress, they seemed less than decisive
in demanding an accounting for alleged illegal acts. For example,
on February 16, Representative David Wu (OR) introduced H.R.
1189, the Habeas Corpus Preservation Act. This bill, consisting
of one operative paragraph of 52 words, reads:
Nothing in the Military Commissions
Act of 2006 or any amendment made by that Act shall affect the
right of any resident of the United States of America to habeas
corpus. The preceding sentence shall be construed in accordance
with the 5th and 14th Amendments to the Constitution of the United
States.
Legally, this proposed legislation
only reaffirms that nothing in the 2006 Military Commissions
Act (Public Law 109-366), whose provisions are directed toward
detainees being held at the U.S. Naval base at Guantanamo Bay,
Cuba, shall be construed to restrict, deny, or in any manner
diminish the rights of legal U.S. residents (as distinct from
U.S. citizens) to the protections of the two constitutional amendments
cited. But the proposal served to help resurrect the whole business
of how hundreds of detainees consigned to Guantanamo Bay were
first apprehended, treated, and brought to Cuba--including the
high-profile 14 "disappeared" that President Bush acknowledged
had been held in secret.
Six days later, in an opinion
piece for the Washington Post, Jeffrey H. Smith, a former
CIA General Counsel, called for congressional action to heavily
amend if not repeal the 2006 Military Commissions Act. Among
other provisions, this law:
- purports to strip an "unlawful
enemy combatant" of the protection of the Geneva Conventions
(albeit proclaiming that the accused is accorded treatment consonant
with Common Article 3 of the Geneva Conventions);
- denies unlawful enemy combatants
imprisoned at Guantanamo Bay, Cuba, the right to appeal to federal
district courts for a writ of habeas corpus;
- ratifies by fiat the President's
position as prosecutor-in-chief, judge, jury, and court-of-last-appeal
in determining whether a detainee is an unlawful enemy combatant
through the mechanism of the "Combatant Status Review Commission";
- circumscribes the right
of appeal to a Military Commissions Review Court and thence to
the Circuit Court of Appeals for the District of Columbia, perhaps
the most powerful of all the circuit courts since appeals against
administrative rulings by government bureaucracies fall within
its jurisdiction; and
- creates a dual set of minimum
standards for allowable interrogation techniques and general
treatment of detainees--the Army Field Manual for the military
and a separate set of rules and prohibitions for the CIA and
other non-military personnel.
Jose Padilla:
What is the Administration Hiding?
The following day, February
22, a federal district judge heard opening arguments in a competency
hearing for the "terror" suspect Jose Padilla, a U.S.
citizen held as an "enemy combatant" in a Navy brig
in South Carolina between June 2002 and November 2005. Arrested
as he entered the U.S., Padilla was declared an "enemy combatant"
by President Bush and, in an attempt to prevent a habeas corpus
proceeding in federal court, moved from federal prison to military
control, eventually being incarcerated in the military brig.
In last month's hearing, Padilla's lawyers argued that their
client was subjected to such lengthy and systematic sensory deprivation,
isolation, and other intentionally inhumane callousness while
in military custody that he could not participate in preparing
for his defense.
Unable to prevent the hearing,
prosecutors took the position that the hearing should consider
Padilla's current ability to assist in his defense. At most,
the government said, the enquiry should go back no further than
November 2005 when Padilla was transferred to the Miami Federal
Detention Center.
In the end, the judge found
Padilla competent to stand trial and reaffirmed the trial date
(April 16). Left unexplored is just why the government fought
so hard to restrict the scope of the hearing. Some suggest a
cover-up--the time frame mirrors that of the worst abuses at
Abu Ghraib, only in this instance the abuses, if any, would have
occurred on U.S. soil. Others believe that the government simply
did not want to concede anything connected with interrogation
techniques or the detention conditions. But what is perhaps more
disturbing is that after almost 3_ years, the government rescinded
Padilla's designation as an "enemy combatant," leaving
the single charge against him of conspiracy to provide material
support for Islamic extremism abroad.
One cannot say Jose Padilla
was among the "fortunate"--after all, he was held in
solitary confinement for 40 months. Yet he never became one of
the completely "disappeared" like so many tens and
hundreds of thousands in Chile during Augusto Pinoche's reign;
in Cambodia under the Khmer Rouge; in Guatemala, El Salvador,
Nicaragua, and Honduras during the 1980s; in Bosnia and Chechnya
in the 1990s; Darfur, Iraq Colombia, and myriad other locations
worldwide--and now, shamefully, the "extraordinary renditions"
of the CIA in the 2000s.
Still, the question remains:
what happened in the brig that the government is trying to conceal?
Is there some common "technique" with what the CIA
may have tolerated abroad in its "extraordinary renditions"
program?
Legal, Shadowy,
and Illegal Renditions
Now it is important to maintain
a clear distinction among extradition, rendition, and extraordinary
rendition. Extradition is an important judicial procedure by
which an individual who stands accused of a crime in one jurisdiction
but has been apprehended in another can be transferred to the
first jurisdiction for trial. But the transfer requires a hearing
before a judge in open court. A critical element of such a transfer,
should a judge find the government's case compelling or the accused
waives the right to an extradition hearing, is the "chain
of custody," both of the individual's person and all evidence
for and against the accused.
Rendition, at its foundation,
is a quasi-extradition procedure that is carried out by mutual
agreement or with the permission of governments. However, there
is no judicial proceeding and no protective chain of custody
for either the person or evidence.
Since 9/11, there has been
a significant increase in what are nothing more than U.S.-directed
abductions of individuals in foreign countries, with or without
the consent, let alone the knowledge, of the government on whose
territory the kidnapping occurs. (Lacking permission of the foreign
government makes a difference only in terms of that country's
laws, not international law.) What is as worrying as the increased
use of this tactic is the greater tolerance for and justification
of its use against "terrorists" by apologists for centralized
government power. In this context, extraordinary rendition becomes
a "time-honored" practice for seizing and transporting
a terror suspect without following normal extradition agreements
or treaties.
Once pulled into this highly
secretive system that remains unaccountable to any national or
international body other than itself, the "victim"
is simply "lost" to the world. And with every person
swept up and "lost" in this extra-judicial process,
lost also are the rule of law, human rights, and civil liberties--principles
that inspired enough British colonists in 1775 to take up arms
against a king when "the people" thought they could
not obtain redress of their grievances by any other means.
Regaining
and Retaining Constitutional Rights
Considering the above, it seems
more and more likely that the opening three words of the U.S.
Constitution--"We the people"--are no accident. They
are and were intended by the drafters of the Constitution to
be an unambiguous statement of the source of power by which a
new social compact and form of governance came into being. They
represent repudiation of the practice of that era by which the
ruling monarch could and did assert powers through proclamation.
And to reinforce the people's power, the Constitution's last
two amendments in the Bill of Rights reserved unenumerated rights
"to the people" and all undelegated powers "to
the states or to the people" (Amendments IX and X to the
U.S. Constitution).
The key to safeguarding the
"power of the people" against the tendency of governmental
"mission creep" lies in giving effect to the prohibitions
on governmental activities by a watchful citizenry. In the U.S.
Constitution, accountability of power is achieved through the
First Amendment which reads, in part, "Congress shall make
no lawabridgingthe right of the people peaceably to assemble,
and to petition the government for a redress of grievances."
This is both a right and a
responsibility, ones that too many Americans have simply abdicated
to Washington's siren song of "security" since 9/11.
Yet it is precisely at such times that the people should be demanding
an accounting, a full disclosure of the purported threat and
the proposed response. For more than five years, Congress has
been a willing accomplice of the administration by enacting legislation
that has infringed on every category of rights--enumerated, unenumerated,
and undelegated--the Constitution gives or leaves "to the
people." An accounting is also due on congressional attempts,
in the 2006 Military Commissions Act, to exclude the right of
Guantanamo Bay detainees to petition federal district courts
for a writ of habeas corpus and on why Congress ceded
so abjectly to the White House its constitutional responsibilities
in the conduct of foreign policy, war, and peace.
Similarly, "We the people"
need to direct the power of the First Amendment's "right
of redress" to the White House. The whole point of the War
of Independence in terms of the social compact and the restrictions
on the authority to govern was to prevent the centralization
in a single person or branch of government both the right and
the means to arbitrarily impose restrictions on the rights of
the people.
It is not an exaggeration to
suggest that, from the very beginning of the Republic, the tendency
for government to re-centralize power has been at work. And while
much of the mischief has been the result of executive overreach,
much harm has also accrued by Congress' abdication to the president
of its responsibilities.
No longer, it seems, can "We
the people" await elections every two or four years to obtain
redress of grievances. Too much can happen too quickly that becomes
almost impossible to reverse. We have a right and responsibility
to future generations to demand an accounting for what has been
done and continues to be done in the name of "We the people."
The International
Convention Against Renditions
Most welcome in this struggle
against over-centralization of power with the accompanying hubris
that so often justifies law-breaking by government entities is
the advent of a new international treaty banning the practice
of "disappearing." The International Convention
for the Protection of All Persons from Enforced Disappearance,
adopted by the UN General Assembly just before the end of 2006,
defines "enforced disappearance" as the
arrest, detention, abduction
or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such
a person outside the protection of the law.
The treaty further outlaws
undeclared secret detention facilities and empowers families
to demand information about the fate of missing relatives and
to pursue reparations against state violators.
The treaty opened for signature
February 6, 2007 in Paris. Fifty-seven countries signed. Among
those not signing were the UK, Germany, Italy, and Spain--all
implicated in the Council of Europe investigation into the secret
CIA rendition and prison system operating around the world since
at least 9/11. The U.S., of course, also refused to sign, with
a State Department representative commenting only that the treaty
"did not meet our expectations."
Conclusion
The International Convention
for the Protection of All Persons from Enforced Disappearance
is but another instance in which a significant number of countries
are not waiting for the people of the "world's greatest
democracy" to wake up to the fact that they are sacrificing
liberty for a sense of false security. These are extraordinary
times, as the Bush administration often declares. But extraordinary
times demand extraordinary vigilance against extraordinary efforts
by government to accumulate power.
The international community
has seen the danger; the U.S. courts have seen the danger. Now
"We the People" must do our part and demand the administration
both sign the International Convention and roll-back the Military
Commissions Act of 2006.
Col. Dan Smith is a military affairs analyst for
Foreign Policy In Focus ,
a retired U.S. Army colonel, and a senior fellow on military
affairs at the Friends Committee on National Legislation. Email
at dan@fcnl.org.