Opinion: US war crimes exposed :

Obama refuses ‘Truth Commission’

by Daya Gamage in Washington

“It is indisputable that the United States engaged in the practice of torture and that the nation’s highest officials bore ultimate responsibility for it. The kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody,” was the determination of a bi-partisan commission that consisted of a former Republican Bush official, a Democratic Party former Congressman and other professionals in a comprehensive and extensive 600-page report released last week.

The report significantly noted that the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to “look backwards” rather than forward.

The report advocating the wisdom of appointing a commission to establish accountability of action of war crimes among which is torture that the highest officials of the Bush administration bore ultimate responsibility for states:

“In Congress, Sen. Patrick J. Leahy of Vermont introduced legislation to establish a ‘Truth Commission’ to look into the US behaviour in the years following the September 11 attacks. The concept, successful in South Africa, Guatemala and several other countries, is predicated on recognising the paramount value to a nation of an accurate accounting of its history, especially in the aftermath of an extraordinary episode or period of crisis”.

At the Guantanamo Bay prison

Since the conclusion of the 26-year war against terrorism, defeating a ruthless terrorist group in a South Asian nation, Sri Lanka in 2009, the United States advocated and later almost forced the Government of Sri Lanka to appoint a ‘Truth Commission’ which that Government appointed in the form of a Lessons Learnt and Reconciliation Commission and produced its report and recommendations. The State Department, in promoting a commission of that nature in Sri Lanka, brought South Africa as an example.

Charges of torture

The report further states: “The Task Force examined court cases in which torture was deemed to have occurred both inside and outside the country and, tellingly, in instances in which the United States has levelled the charge of torture against other governments. The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labelled for similar if not identical conduct.

“The United States has routinely and firmly condemned as torture and/or abuse many of the same techniques used by US personnel against detainees over the course of the past decade. The Department of State (DOS), in its annual US country reports on human rights practices, has characterised many of the coercive techniques used against detainees in US custody in the post–September 11 era as torture, abuse or cruel treatment.

These reports, assessing the human rights situation in 194 countries around the world, are submitted annually as required by both the Foreign Assistance Act of 1961 and the Trade Act of 1974.

“The CIA, in an internal review, acknowledged that the “[enhanced interrogation techniques] used by the [CIA] … are inconsistent with the public policy positions that the United States has taken regarding human rights.”

The Washington Think Tank Constitutional Project's blue ribbon Task Force extensively examined the Detainee Treatment since the 9/11 attacks. It is made up of former high-ranking officials with distinguished careers in the judiciary, Congress, the diplomatic service, law enforcement, the military, and other parts of the executive branch, as well as recognised experts in law, medicine and ethics. The group includes conservatives and liberals, Republicans and Democrats.

This report is the product of more than two years of research, analysis and deliberation by the Task Force members and staff. It is based on a thorough examination of available public intelligence officers, interrogators and policy-makers. It is the most comprehensive record of detainee treatment across multiple administrations and multiple geographic theatres – Iraq, Afghanistan, Guantanamo and the so-called “black sites”.

One of those who was on the Constitution Project's Task Force was Asa Hutchinson.

Two years of research

Hutchinson, who served in the Bush administration as chief of the Drug Enforcement Administration and under-secretary of the Department of Homeland Security, said he “took convincing” on the torture issue. But after the panel’s nearly two years of research, he said he had no doubts about what the United States did. “This has not been an easy inquiry for me, because I know many of the players,” Hutchinson said in an interview. He said he thought everyone involved in decisions, from Bush down, had acted in good faith, in a desperate effort to try to prevent more attacks.

“But I just think we learn from history,” Hutchinson said. “It’s incredibly important to have an accurate account not just of what happened, but of how decisions were made.” He added, “The United States has a historic and unique character, and part of that character is that we do not torture.”

The panel found that the United States violated its international legal obligations by engineering “enforced disappearances” and secret detentions.

It questions recidivism figures published by the Defense Intelligence Agency for Guantanamo detainees who have been released, saying they conflict with independent reviews. The report’s main thrust was its attempt to assess what the United States government did in the years after 2001 and how it should be judged. The CIA not only water-boarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end.

“By the end of 2002, at Bagram Air Base in Afghanistan, interrogators began routinely depriving detainees of sleep by means of shackling them to the ceiling. Secretary of Defense Donald Rumsfeld later approved interrogation techniques in Guantanamo that included sleep deprivation, stress positions, nudity, sensory deprivation, and threatening detainees with dogs. Many of the same techniques were later used in Iraq,” says the report. The Constitution Project Task Force report declared that the CIA also created its own detention and interrogation facilities – at several locations in Afghanistan, and even more secretive “black sites” in Thailand, Poland, Romania and Lithuania, where the highest value captives were interrogated. The Task Force finds that US officials involved with detention in the black sites committed acts of torture and cruel, inhuman or degrading treatment.

CIA Inspector General’s Report

Ample evidence of this treatment is found in the December 2004 CIA Inspector General’s Report on Counter-terrorism, Detention and Interrogation Activities, as well as the testimony of former detainees. The use of torture and cruel, inhuman or degrading treatment has long been considered war crimes and violations of customary international law, as well as being prohibited by the Convention Against Torture and denounced by the United States when practised by other states.

(Quote) US forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate US laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

The Task Force believes there was no justification for the responsible government and military leaders to have allowed those lines to be crossed. Doing so damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to US military personnel taken captive. Democracy and torture cannot peacefully coexist in the same body politic.The Task Force also believes and hopes that publicly acknowledging this grave error, however belatedly, may mitigate some of those consequences and help undo some of the damage to our reputation at home and abroad. (End Quote)

What the report notes as ‘Publicly acknowledging this grave error’ is the appointment of a ‘Truth Commission’ to establish ‘accountability’ for the ‘war crimes’ committed violating international laws.

Accountability: The report states: (Quote) Despite the president’s opposition to “looking backwards” regarding torture allegations, on August 24, 2009, Attorney General Holder announced he would open “a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations” by the CIA.

Holder appointed US Attorney John Durham, who was already investigating the CIA’s destruction of videotapes of interrogations at black sites, to conduct the review. In November 2010, Durham concluded that he would not pursue charges in connection with the destruction of the tapes. The Justice Department (DOJ) did not specify the reason for declining prosecution, but made the announcement the same week that the statute of limitations on the relevant criminal charges expired.

Treatment of detainees

In June 2011, DOJ announced the results of Durham’s preliminary review of the CIA’s treatment of detainees. It opened full criminal investigations into the deaths of two detainees in CIA custody - Gul Rahman, an Afghan killed at the Salt Pit in November 2002 and Manadel al-Jamadi, the Iraqi detainee whose corpse is shown in several of the Abu Ghraib photographs. Ninety-nine other cases of alleged detainee abuse were closed without proceeding to a full investigation.

Holder announced on August 30, 2012, that no charges would be brought for al-Jamadi’s or Rahman’s deaths because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” The Justice Department declined to elaborate further, or respond to questions.

The UN Special Rapporteur on Torture, Juan Mendez, has denounced the closure of Durham’s investigations without charges as violating the obligation under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to hold perpetrators of torture accountable.

In a number of other civil and criminal cases, the Obama administration has robustly defended the CIA’s prerogative to keep information about its treatment of detainees secret. Obama’s Department of Justice successfully argued for the dismissal of Mohamed v. Jeppesen Dataplan Inc., a suit by five rendition victims against a Boeing subsidiary that allegedly participated in flying them to torture overseas, on the basis of the state-secrets privilege. It also successfully opposed Supreme Court review of another rendition victim’s suit, Arar v. Ashcroft.

The DOJ has repeatedly and successfully argued against requiring disclosure of evidence regarding CIA rendition and torture in Freedom of Information Act (FOIA) litigation. The government’s position is that the Justice department's Office of Legal Counsel (OLC) memos released in 2009 revealed a great deal of information about the CIA’s “enhanced interrogation techniques”.

The Constitution Project's Task Force report, which can be found at http://detaineetaskforce.org/ refers to several international covenants to which the United States is a signatory.

Constitution Project's Task Force report

The report cites

(1) Common Article 3 of the Geneva Conventions which says “prohibited at any time and in any place whatsoever” for individuals no longer actively involved in hostilities, specifically including detainees. The prohibited acts include torture, outrages upon personal dignity and cruel, humiliating and degrading treatment, among others. Common Article 3 also creates an affirmative obligation that detainees “shall in all circumstances be treated humanely.”

(2) The Convention Against Torture (CAT) reflects that the ban of torture is one of the bedrock principles of international law. The prohibition of torture is absolute, without exception for war or national emergency. Detainees may not be transferred to countries where they would face a serious risk of torture, and information acquired through torture can never be used in court except as evidence against those accused of torture. Under Article 1 of CAT, torture is (1) an intentional infliction of severe pain or suffering, whether physical or mental; (2) to obtain information or a confession, to punish for an act or suspected act, to intimidate or coerce, or for discrimination of any kind; (3) when such pain or suffering is inflicted by, at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

(3) The Torture Statute is the US federal statute prohibiting acts of torture. The statute was enacted in 1994 by Congress in order to comply with CAT’s requirement to enact enabling legislation. The statute defines torture as an act committed (a) by a person acting under the color of law; (b)specifically intended to inflict severe physical or mental pain or suffering upon another person; (c) within his custody or physical control. The Torture Statute covers acts committed outside the United States; acts committed within the United States are prohibited by other federal and state laws.

(4) The War Crimes Act was passed by Congress in 1996 and criminalizes certain violations of the law of armed conflict.108 The act makes it a crime under U.S. law to violate the Geneva Conventions and other international laws of war ratified by the United States.

The WCA applies to all U.S. nationals and members of the U.S. Armed Forces. The WCA, as originally enacted, created two categories of crimes: (1) “grave breaches” of the Geneva Convention in international armed conflicts;111 and (2) any violations of Common Article 3 in other conflicts.

Two additional international law instruments reflect US commitment to the bans on torture and CID: the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

After a two-year extensive investigation and perusing the international laws and along with the US federal laws that the Constitution Project's blue ribbon Task Force on Detainee Treatment report finds that top officials of the Bush administration, and President Bush himself, were responsible for the degrading treatment of detainees after the 9/11 attacks and highlights the vitality of the appointment of a ‘Truth Commission’ to investigate and bring those responsible before justice.

The report equally points at the Obama administration of ignoring the demand for a ‘Truth Commission’ with President Obama himself declaring it is better “to look forward” than “backward”. The Asian Tribune found a very interesting comment in the media: Make your own judgement! Seems to me, one of the most abusive and barbaric regimes in the world is the one that points the finger of torture accusations at others. By projecting its own evil onto its intended targets, it then ‘gets away’ with war crime after war crime.

Courtesy: Asian Tribune