Monday, December 20, 2010

Each Passing Day The Decency And Rationality Of This Nation Are Being Called Into Question

Each Passing Day The Decency And Rationality Of This Nation Are Being Called Into Question.

By Kim Sengupta, Defence Correspondent

The harsh prison detention conditions endured by Bradley Manning – the US soldier who is alleged to have supplied classified government documents to WikiLeaks – have emerged.

For the last seven months, Private Manning, 23, has been kept in a cell six feet wide and 12 feet long, in solitary confinement at a maximum security military jail at Quantico, Virginia.
Lieutenant Colonel David Coombes, the lawyer defending him, pointed out that his client, who faces a 52-year sentence if convicted, is still being held on "Prevention of Injury Watch" for those deemed to be at risk of self-harm.

Friends of Private Manning say that this has become a means by the authorities to pressurize him into giving evidence against Julian Assange, the founder of WikiLeaks.

A typical day for Private Manning begins with being woken at 5am in the cell, which has a drinking fountain and a toilet. He is then allowed to put on his clothes, which he surrendered on going to bed the night before.

Under the rules, Private Manning is not allowed to sleep at any time between 5am and 8pm; if he does so, he is made to sit up or stand by the guards. He is allowed just one hour of exercise a day, even then not in the fresh air, but an empty room where he can walk in figures of eight. Any attempt by him to keep himself busy by, for example, doing press-ups, or sit-ups, is forbidden.

He is not allowed to associate with his fellow inmates and has never seen them, although he does occasionally hear their voices.

Private Manning is allowed to watch local television channels, for up to three hours on weekdays; sometimes more at weekends. But he does not have access to wider news coverage. He is allowed one book and one magazine at a time, from an approved list of 15, and is allowed approved visitors at prescribed times. Lt Col Coombes said the guards have, at all times, behaved correctly towards Private Manning. But, under the regulations, their conversations with him must be minimal.

The guards have to check every five minutes that Private Manning is ok, and he has to verbally confirm that he is alright. The same checks are continued during the night, and, if the guards cannot see Private Manning because he has pulled a blanket over his head (he is allowed blankets but not sheets or pillows) then they wake him up.

When Mr. Assange was released from British custody on bail last week, awaiting extradition to Sweden to answer allegations of sexual assault, he vowed to continue leaking classified documents on WikiLeaks.

Bradley Manning, the alleged WikiLeaks leaker, is about to come out fighting.
A spokesman for Manning’s legal defense fund tells The Daily Beast that the 22-year-old Army intelligence specialist has finally chosen a civilian lawyer to represent him against charges he illegally provided a huge library of classified military documents and videos to WikiLeaks earlier this year.

“My understanding is that Manning’s appointed military defense attorneys were trying to pressure him into taking a deal, but he wasn’t interested,” said Jeff Paterson.
After weeks of public silence, the spokesman said, Manning is determined to fight criminal charges that could send him to prison for decades.

“My understanding is that Manning’s appointed military defense attorneys were trying to pressure him into taking a deal, but he wasn’t interested,” said Jeff Paterson, project director of Courage to Resist, a California-based war-resisters group that has been working with WikiLeaks to raise money for Manning’s defense.

“Our expectation is that he’s going to fight the charges,” Paterson said.

A Defense Department spokesman had no immediate comment Monday on Manning’s defense plans. Manning’s military lawyers in Iraq have declined repeated requests for interviews.
Courage to Resist, which is being actively supported by the filmmaker Michael Moore in organizing the legal defense fund, says that it has raised about $50,000 for Manning, an amount that it expects WikiLeaks roughly to match.

Paterson confirmed a report in the Associated Press that the civilian defense lawyer is David Coombs of Providence, Rhode Island. Coombs is best known for defending Army Sgt. Hasan Akbar, charged in a deadly 2003 attack on fellow U.S. military members in Kuwait. Akbar is awaiting execution for murdering two officers.

Paterson said Coombs had already talked with Manning by telephone, and that the lawyer will oversee a defense team that will also include uniformed military counsel.

Paterson said that Manning has also begun to receive visitors, including a close friend from Boston who met with the young soldier last weekend at the brig at the Marine base in Quantico, Virginia, where Manning has been held for the last several weeks. According to Paterson, the friend found Manning in reasonably good spirits.

“We got a sense that he was actually in pretty good physical and mental condition, considering the fact that he’s facing decades in prison,” Paterson said.

Manning’s state of mind and his plans for defending himself against the criminal charges have been a mystery since his arrest in June in Iraq on suspicion of leaking the material to WikiLeaks. He was held for several weeks in Kuwait before his transfer late last month to Quantico.
Manning is suspected of leaking a huge library of material to WikiLeaks earlier this year, including 90,000 classified military reports from the war on Afghanistan that began appearing on the WikiLeaks website in July.


Prospect of WikiLeaks Dump Poses Problems for Regulators


“Tens of thousands of its internal documents will be exposed on with no polite requests for executives’ response or other forewarnings.”

That was according to Forbes magazine, which interviewed Julian Assange, the founder of WikiLeaks, last month. The excerpt sparked a global cacophony of speculation that a bank — perhaps Bank of America — may be the next target of the inscrutable “high-tech terrorist.” (Such was Vice President Joseph R. Biden’s description of Mr. Assange over the weekend.)
And just Monday, Mr. Assange told a reporter from The Times of London that he had enough material to make bosses of a major bank resign.

You’d think that bank executives would be quaking in their Gucci loafers.

But guess who may be even more nervous about the possible data dump?

Regulators in Washington.

It seems the prospect of gigabytes of e-mail and other documents from financial institutions can be viewed one of two ways: as a treasure trove for regulators to scrutinize — or as an embarrassment for the United States government, which has spent millions of dollars investigating Wall Street in the last two years without a scalp to show for it.

Inside the Securities and Exchange Commission, the organization is bracing for a public outcry, according to people who have recently spoken with some high-ranking officials about the prospect of a WikiLeaks release of bank documents.

“The S.E.C. could be on the horns of a dilemma,” said Mark C. Zauderer, a veteran corporate litigator at Flemming Zulack Williamson Zauderer.

A spokesman for the S.E.C. declined to comment.

Of course, no one knows what information Mr. Assange actually has or how damaging it could be to any financial firm. In truth, it is hard to believe any e-mails could be that shocking. The scuttlebutt is that WikiLeaks will reveal documents in which bankers discussed how they duped a client, how they dressed up their numbers or even how they tried to pull one over on regulators. Sadly, perhaps cynically, that’s almost to be expected.

The big surprise would be that such chicanery was documented, in black and white, and that regulators hadn’t found it yet — or worse, they had found it and did nothing about it.
Indeed, legal experts say that if evidence emerged of shady dealings, the biggest problem regulators may face would be explaining to the public why they had not brought charges against a bank.

“The public will often look at the information out of context and not understand,” said Robert A. Mintz, a former federal prosecutor who is now a partner at McCarter & English.
Another difficult issue for regulators will be what to do if damning information is released. Can the S.E.C. or the Justice Department use WikiLeaks as a source to build a case?
Eric H. Holder Jr., the United States attorney general, has said his department is investigating WikiLeaks’s earlier release of classified cables from the State Department as a potential criminal act.

“To the extent that we can find anybody who was involved in the breaking of American law, who put at risk the assets and the people I have described, they will be held responsible; they will be held accountable,” Mr. Holder said at a news conference.

Legally, the government is allowed to use any publicly available information — as long as the government wasn’t involved in illegally obtaining the information itself. So prosecutors could potentially use any WikiLeaks information to subpoena bank documents and build a case around them.

“It’s the theory of the fruit of the poisonous tree,” said Jay Fahy, a former federal prosecutor who now specializes in white-collar crime at the law firm Fahy Choi.

Mr. Assange, too, faces his own legal risk, one that so far has gone unspoken: bank confidentiality laws. In many cases, it is a crime to disclose the private account information of individuals, said Mr. Fahy.

“That’s a violation,” Mr. Fahy said.

Still, the optics of how the government reacts to whatever WikiLeaks releases will pose a challenge.

“It puts them in a terrible bind,” said Mr. Mintz. No matter how the government reacts, “there would be an appearance of a profound inconsistency. It’s less of a legal matter than it is an appearance issue.”

NEW YORK — A nonpartisan legal think tank plans to study U.S. treatment of terrorism detainees, partly out of concern that the country's policies lack clarity and can be manipulated to permit abuse or torture in dangerous times, members of a task force appointed to conduct the study said Friday.

Eleanor J. Hill, one of three chairpersons on The Constitution Project's new panel, said events after the Sept. 11 terrorist attacks such as the abuse by American troops of inmates at Abu Ghraib prison in Iraq and complaints of detainee torture will be one focus of the study.

She said it was important in fighting terrorism to project an image of the United States that is consistent with the principles the country was founded upon so that terrorists are not viewed more favorably than Americans in some parts of the world.

"When you see stories of Abu Ghraib and stories of torture, it's not the kind of America we want the rest of the world to see and the kind of country we want to be," said Hill, who was a Department of Defense inspector general under President Bill Clinton. "America is not what terrorists say we are, an evil country to be hated."

Former FBI Director William Sessions, former Arizona U.S. Rep. Asa Hutchinson, a retired Army general and a retired appeals court judge in Washington are among 11 people selected for a task force that will meet for the first time in early January, said Virginia Sloan, a lawyer and president of The Constitution Project.

Sloan said the task force will try to reconcile the lack of clarity and consistency in U.S. detainee treatment policies to ensure public confidence in future policy decisions. Its work should produce a final report in a year to 18 months, she said.

She said the policies must be clear because civil liberties are undermined in times when national security is threatened.

"We've seen it throughout history," she said. "When there's some sort of crisis, we do curtail civil liberties."

Hutchinson, a Republican who served as Department of Homeland Security undersecretary under George W. Bush, said in an interview that he joined the panel because he was convinced the study was "something important for our national security and our war on terrorism."
He said he will want to know what policies toward detainees were in place and how they were viewed during the past three presidential administrations.

"I'm going into it with very much an open mind," Hutchinson said, calling himself an "unabashed conservative."

He said the group's work will be hampered somewhat because it will lack subpoena power and will not have access to classified materials.

Sloan said the group decided to study the issue after others tried unsuccessfully to persuade President Barack Obama or Congress to initiate their own studies.

Hill said she understood that other looming issues including the war in Afghanistan and the economy likely took precedence.

"The idea really is to move the country past this," she said. "We'll look at the facts. Were things done that shouldn't have been done and, if so, what can we do to prevent those things from happening in the future."

The task force was formed just weeks after the first Guantanamo detainee to be tried in a civilian court was acquitted in federal court in Manhattan on all but one of more than 280 charges that he took part in the al-Qaida bombings of two U.S. embassies in Africa in 1998. The twin attacks killed 224 people, including a dozen Americans.

Just before the start of Ghailani's trial, U.S. District Judge Lewis A. Kaplan excluded the prosecution's most important witness on the grounds that the government learned about him only after Ghailani was subjected to harsh interrogation tactics at a CIA-run camp overseas after his 2004 arrest.

None of the statements Ghailani made to authorities after his arrest were used at the trial.

Guantanamo Detainee Lawyers Ask Poles For Probe

12/16/10: The Miami Herald reports that lawyers for a Guantanamo terrorism suspect asked Polish authorities Thursday to open an investigation into allegations that American agents abused him at a now-shuttered secret CIA prison in Poland. Abu Zubaydah's lawyers said they want to shed light on a system of abuse by the CIA, which remains clouded in secrecy. Options for bringing such cases to US courts have been closed off in recent years, and Zubaydah's lawyers see Poland as perhaps the only country worldwide that might be willing to investigate the matter.

03/30/10: Truthout reports that attorneys defending Abu Zubaydah, a Guantanamo prisoner designated as the first "high-value" detainee by the Bush administration, have finally gained access to three volumes of diaries he wrote while he was in the custody of the CIA and brutally tortured by agency interrogators and contractors at a secret "black site" prison. HT to the Lift. The BBC reports that a former CIA agent says that Abu Zubaydah was waterboarded by the CIA in May or June 2002. The date was provided by former CIA officer John Kiriakou. The practice was sanctioned in written memos by Bush administration lawyers in August 2002.

06/17/09: The Intelligence Daily reports that two weeks before US and Pakistani intelligence agents captured Abu Zubaydah, an alleged top al-Qaeda official, in Pakistan in March 2002 and whisked him off to a secret CIA "black site" prison in Thailand where he was brutally tortured, the Department of Justice prepared a legal memorandum for George W. Bush stating he could ignore a law that prohibited the transfer of prisoners to countries that engage in torture.

04/28/09: The New York Times reports that ABC's 2007 interview of former CIA officer John Kiriakou had a large impact on the torture debate, despite Kiriakou's claims being unverified. Kiriakou participated in the capture of the suspected terrorist Abu Zubaydah and said that waterboarding worked on Zubaydah and yielded results very quickly, which has been contradicted by a recently released OLC memo. Kiriakou's claims quickly ricocheted around the media, despite being unverified and despite his lack of firsthand knowledge about the waterboarding.

04/27/09: The Philadelphia Inquirer has an opinion piece by Jon B. Eisenberg who argues that the recent release of the Department of Justice's "torture memos" is a good occasion to revisit the account of the Nazi Adolf Eichmann's trial. The CIA wanted assurance that the techniques would not violate laws against torture in interrogating Abu Zubaydah. Bybee provided that assurance in a chillingly detached memo.  Arendt's account of the Eichmann trial was the same: "such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together which, perhaps, are inherent in man."

04/23/09: The New York Times features an opinion piece by a former FBI agent involved in the interrogations who writes that, "There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process."

04/21/09:  The Washington Post features an opinion piece by Marc Thiessen in which he argues that enhanced interrogation methods were successful in uncovering and preventing other Al Qaeda terrorist attacks.  Thiessen further argues that the interrogations of Khalid Sheik Mohammed and Abu Zubaydah were effective and helped intelligence officers learn not only about Al Qaeda's organizational attributes and terrorist plans but also about its philosophies regarding resistance to interrogation and how to manipulate them.

09/25/08: The New York Times reports that according to newly released documents, senior Bush administration officials played a central role in deliberations during the spring of 2002 about whether the CIA could employ harsh techniques to interrogate an Al Qaeda operative, Abu Zubaydah.

Washington D.C. (December 17, 2010) –As the nation struggles with long-term unemployment at rates not seen in generations, contracted credit and the hoarding of public dollars by the banks, Congressman Kucinich (D-OH) today introduced a dramatic new proposal to establish fiscal integrity, reassert Congressional sovereignty and regain control of monetary policy from private banks. The National Emergency Employment Defense Act of 2010 would allow the federal government to directly fund badly-needed infrastructure repairs and fund education systems nationwide by spending money into circulation without increasing the national debt. The bill would end the current practice of fractional reserve lending, whereby the economy depends upon private financial institutions to lend money into circulation. Congressman Kucinich

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While watching Meet the Press late last month, I became interested in learning a bit more about one guest, Allen West, U.S. Representative-elect for Florida's 22nd congressional district. West, a retired U.S. Army Lieutenant Colonel was introduced as a veteran of both Gulf wars. A quick internet check confirmed my recollection: this was indeed the Lieutenant Colonel West at the center of a detainee abuse issue that I have always considered much more instructive for the average soldier than the much more highly visible abuse issues related to the "War on Terror." In an effort to obtain information related to a suspected ambush of members of his unit in Iraq, West threatened an Iraqi detainee with his 9mm service pistol, and fired a round off to make his point. According to one summary of the incident:
While serving in Taji, Iraq, on August 20, 2003, as commander of the 2d Battalion, 20th Field Artillery Regiment, Lieutenant Colonel West was in charge of an interrogation of a civilian Iraqi police officer who was suspected of having pertinent information regarding attacks on American soldiers in the area. Interrogators had learned that the detainee had information about a planned ambush. When the interrogators were unable to extract the needed important information for some time, LTC West was asked to come try to obtain the important information. As the detainee continued to hold back the information, LTC West fired his pistol past the detainee's head into a clearing barrel, frightening (but not physically harming) the detainee and getting him to finally give the information. According to Lt. Col. West's sworn statement, the detainee informed West that:

"[The attack] was to occur Friday morning in Saba al Boor vicinity of the police station by positioned snipers supposedly being brought in from Fallujah. [The detainee] was to ID my vehicle and myself for these rooftop firers. We took this information and the following day established flask CPs and used AH-64s overhead. There was no attack and no further attacks have emanated from the town since the apprehension of [the detainee] and his named associates."

At least one man was apprehended as a result of the information obtained through the detainee's interrogation. His home was searched, but no plans for attacks on Americans or weapons were found. Colonel West testified that he did not know whether "any corroboration" of a plot was ever found, adding: "At the time I had to base my decision on the intelligence I received. It's possible that I was wrong about [the detainee,] Mr. Hamoodi."

West, who at the time was just short of having 22 years of service, was charged with violating articles 128 (assault) and 134 (general article) of the Uniform Code of Military Justice. West was processed through an Article 32 hearing in November 2003, where he admitted wrongdoing, was fined $5,000 . He then submitted his retirement paperwork and was allowed to retire with full benefits in the summer of 2004.

At a hearing, West was asked by his defense attorney if he would do it again. "If it's about the lives of my men and their safety, I'd go through hell with a gasoline can," he said. Apparently not knowing West's gun was aimed into a barrel, "Hamoodi cracked and gave information about the planned ambush on West's convoy, thwarting the attack." West said there were no further ambushes on U.S. forces in Taji until he was relieved of his leadership post on October 4." After West's retirement was brought to public attention the next fall, he received over two thousand letters and e-mails from the American public offering him moral support. In addition, a letter in West's support and signed by ninety-five members of Congress was drafted to the Secretary of the Army. [citations omitted]

Well, I guess the moral support translated nicely on Election Day! I don't think that is much of a surprise - I doubt many voters believe that threatening a "bad guy" to save the good guys is really all that problematic. Indeed, West's campaign produced a video that paints him as a hero deserving of great admiration for his commitment to his subordinates. I don't think anyone can question that latter point. West's motivation certainly seems to have been to protect his force. And this is why I think West's story is so instructive.

This incident brings into sharp focus the reality of imposing absolute constraints on the treatment of captured or detained opponents during armed hostilities, and how those constraints are often perceived as conflicting with the duty of combat leaders to do whatever they can to protect their own. Let me be clear - there is nothing about this incident that makes me question the validity of these constraints. To the contrary, I believe what I taught for years as a JAG - that compliance with these constraints in the most difficult situations is a true mark of distinction for a military unit, and especially the commanders who lead those units. What so interesting about West's conduct, and important about this incident, is how it, and the sympathy he received (which obviously included that of many voters), raises the question of why a commander in his situation should be expected to embrace these constraints?

For me, the answer cannot be the risk of disciplinary sanction for non-compliance. That risk will rarely trump the instinct of commanders like West to use coercion to obtain information they believe is needed to protect their troops. I have always believed that informing soldiers that battlefield misconduct could result in criminal sanction has minimal deterrent effect. Faced with situations of extremis, it is simply human nature to prioritize the immediate need over a potential future consequence. A commander of West's level of experience and education undoubtedly knew his conduct could result in disciplinary action (indeed, West seemed to have been fully cognizant that he was assuming risk of disciplinary and possibly criminal sanction for his conduct); knowledge that obviously did not deter him from firing his pistol over the detainees head. Instead, the answer to why these constraints must be respected lies in the military logic that informed the development of these rules. If soldiers can come to understand that logic, then compliance suddenly can be reconciled with duty, the duty of all soldiers to sacrifice at the micro level in order to contribute to macro level success.

It is impossible to convince commanders like West that compliance with these constraints will always produce tactical level benefit for them or their units. Incidents like West's serve as a reminder that it is almost inevitable soldiers and their commanders at all levels routinely confront opportunities to obtain tactical advantage by transgressing these constraints. It is therefore essential to convince these individuals that absolute prohibitions imposed on them by the law of armed conflict reflect the reasoned judgment of military commanders through the ages that tactical constraint ultimately contributes to strategic level success.

When I used to teach these rules to soldiers and commanders, it always amazed me that emphasis of this linkage was not the norm. Emphasizing the macro gain from micro sacrifice is a concept that naturally resonates with members of the armed forces. Indeed, accepting risk in order to contribute to mission accomplishment is the very essence of military duty. Few commanders in West's position would balk at an order that jeopardized members of their unit in order to set the conditions for an operational or strategic success. Imagine a commander sitting in a mission brief being told "your unit must capture that bridge in order to ensure the offensive progresses on schedule, but it will be a tough fight and you should expect heavy casualties." Now try and imagine that same commander balking at the mission and responding, "there is no way I am going to risk my soldiers to capture that bridge!" An inconceivable hypothetical, and for good reason. Every member of the military knows that duty involves accepting risk for the greater good.

Veterans of Operation Iraqi Freedom, like veterans of past wars, were reminded why the rules of war must be understood within this context. Incidents of detainee abuse frustrated their efforts to achieve operational and strategic success by undermining their credibility with the local population and subjecting their conduct to often unjustified scrutiny. Many also believe these incidents contributed to the recruiting efforts of the enemy, thereby aggravating an already volatile threat environment. Veterans of earlier wars learned this same lesson in other contexts. When General Eisenhower announced to his forces that Germans had murdered approximately 100 US prisoners of war in a field in Malmady during the Battle of the Bulge, resolve in the face of the German onslaught stiffened, contributing to the greatest German defeat in the European Theater; knowledge of Japanese abuse of British captives contributed to the fierce British and Indian resistance to the Japanese offensive against India at Imphal. British determination to "fight to the last man" was so widespread that at the battle of Kohima the several British General Officers manned the fox holes alongside their Privates in a battle so close that each side was lobbing hand grenades across a tennis court. The British prevailed and the Japanese offensive reached its high water mark.

The law of armed conflict has become a ubiquitous component of contemporary international legal discourse, and a critical aspect of national security decision-making. However, Lieutenant Colonel West's conduct is a reminder that at its core, the law remains a critical check on the brutality of war, reflecting a carefully tailored balance between the power to inflict harm and the constraints imposed upon that power. These constraints find their origins, however, not only in humanity but also in military logic. Indeed, in many instances humanity is a gratuitous beneficiary of that logic. Understanding how compliance with these constraints contributes to mission accomplishment - even when the cost may be high at the tactical level - is essential for ensuring soldiers understand why the LOAC often asks to do what seems utterly inconsistent with self-preservation. Achieving this understanding is certainly a challenge, but a challenge that disciplined professional warriors are uniquely capable of accepting.

I suspect the Congressman Elect understands this, and would not counsel future military leaders to follow his example. But I wonder what message his subordinates took away from the event, and his subsequent political success? He may feel that he did what was necessary, but that is a dangerous path to go down, and one the law of armed conflict foreclosed long ago. Necessity is an important concept on the battlefield, but cannot and does not justify violation of absolute protections - like the protection of detainees from cruel, inhuman, or degrading treatment. This is the real lesson to learn from Lieutenant Colonel West, a lesson that is manifest in the hundreds if not thousands of command counterparts to him that chose the path of compliance, accomplished their missions, and contributed to the strategic objectives of the nation.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.

Suggested citation: Geoffrey Corn, Is All Fair in War? Congressman-Elect West and the Limits of Military Necessity, JURIST - Forum, Dec. 14, 2010,
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