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Roger Fitch Esq
12 September, 2006  
Our Man in Washington

Nicely timed for the run-up to the mid-terms the real Worst of the Worst have been removed from “black hole” CIA prisons and sent to Guantanamo … Bush confirms that the CIA will continue with Geneva banned torture … The administration’s election strategy is built around the new Military Commissions Bill, which many Republican senators find unpalatable


imageThis week our Great Decider revealed that he had transferred a few of the actual “worst of the worst” to military custody at Guantanamo. He was even able to pronounce their names: Khalid Sheikh Mohammed, Abu Zubaydah (seen here), Ramzi bin al Shibh, etc.

There are 14, including, apparently, the 9/11 masterminds. Others of the anonymous “disappeared” remain in (shudder) CIA custody in unknown offshore prisons.

The list only includes those still among the living after CIA “interviews” – to use a delicate euphemism once employed by Australia’s ex-Defence Minister, now UN Ambassador, Robert Hill.

Indeed, the Decider boasted that the CIA had used “an alternative set of procedures” to elicit useful information and make us safe. Once again, Mr Bush artlessly provided evidence of his wilful non-compliance with Common Article 3 of the Geneva Conventions, even after the Supreme Court pointed out that such violations are per se criminal offences under the US War Crimes Act. He might as well have called them “torturees”.

A blurb for the “High Value Terrorist Detainee Program” was simultaneously released by the Director of National Intelligence, which described abundant violations of the Law of War, and only served to further incriminate the government.

It’s all OK: “The Department of Justice has reviewed procedures proposed by the CIA on more than one occasion and determined them to be lawful.” I fear Bush intends to take the lawyers with him.

At least we know why Dick Cheney’s Halliburton has been building a new $30 million prison at Gitmo at a time when the “Commander-in-Chief” was claiming that he wanted to close the prison.

The decision to domesticate real (as opposed to notional) terrorists will bring a collective sigh of relief to the countries identified as having operated the offshore prisons for the Bush administration. The Council of Europe, in its report on rendition, suspected two Eastern European countries.

The Washington Post says there are eight naughty nations but refuses to tell us who they are; they promised Bush they wouldn’t tell! Somehow, the government’s confirmation of its secret prisons doesn’t release the Post from a sacred oath. Not in an election year.

Suffice it to say that the transfers to Guantanamo may smooth the entry of Romania into the European Union, and take some of the heat off EU member Poland, often accused of being too tight with the US. As well, a nameless North African nation can now use its superb interrogation facilities for soon-to-be-released African detainees.

There may be relief, too, among CIA operatives facing war crimes accusations. Not only are they out of the loop on interrogations of the Worst of the Worst, but if they should get back into the loop, they and the military will be protected from war crimes charges under the US War Crimes Act.

How so? By impunity provisions added by the Bush administration to its new military commissions Bill, of which more in a minute.

As Jonathan Hafetz of NYU’s Brennan Center notes:

“By narrowing the [War Crimes] Act to conduct permitted under the federal anti-torture statute … the effect would be to green light the CIA’s continued use of such ‘enhanced interrogation techniques’ as threats of violence to detainees and their families, prolonged sleep deprivation, hypothermia, and possibly even water-boarding.”

Balkinization’s Marty Lederman is calling these provisions the Cruel Treatment and Torture Authorization Act.

The Bush administration has at least acquiesced in a revised Army Field Manual that specifically makes the water torture illegal. It already was, of course.

Yes, the Army – not the CIA – has agreed to quit waterboarding, although you won’t be punished for doing it. What has caused this back-flip, when we still have Alberto “Torture-Guy” Gonzales as Attorney General? In appearances before Congress, he continues to imply that torture is a valuable tool in the “war on terror”.

A new directive for a “Detainee Program”, issued by the Army Secretary, promises restraint by the military, although such practices as “false flagging” (interrogators pretend to be from another country, eg Egypt) and perpetual solitary confinement (“separation”) remain and are blessed.

In fact, according to The New York Times, “Many of the harsh (sic) interrogation techniques repudiated by the Pentagon [on September 6] would be made lawful by legislation put forward the same day by the Bush Administration” in its military commission Bill.

Apparently no such restrictions will apply to the CIA, and George Bush has acknowledged that the CIA’s “program” will continue. So really the only thing new is the transfer of real terrorists to Guantanamo.

imageIt must be the recent Supreme Court decision in Hamdan that has sent the Bush Gang scrambling, so perhaps one of the three branches of government still works. It was a close call. The vote in Hamdan was 5-3, and if Chief Justice Roberts had participated, it would have been 5-4. Hence the alarm this week when Justice Kennedy, 70, (pic) had a stent placed near his heart. His replacement by a Bush-man or woman could undo the Hamdan precedent.

In the meanwhile, there have been developments in the debate about revised (i.e., legal) military commission procedures. For one thing, Republican senators are not accepting the administration’s draft Bill. The Washington Post has more.

Even less accepting are the lawyers at the National Institute for Military Justice. Here is their latest draft proposal.

Military lawyers have long been at loggerheads with Cheney, our de facto President – indeed, as long ago as 1991. The Boston Globe has the story.

Also from NIMJ, a copy of the existing US regulations setting out what the US requires in the way of legal rights for US troops bailed-up overseas has been uncovered.

I’m thinking of sending a copy to Phil Ruddock and directing him particularly to these provisions:

(a) Criminal statute alleged to be violated must set forth specific and definite standards of guilt.
(b) Accused shall not be prosecuted under an ex post facto law.
(c) Accused shall not be punished by bills of attainder.
(d) Accused must be informed of the nature and cause of the accusation and have a reasonable time to prepare a defense.
(e) Accused is entitled to have the assistance of defense counsel.
(f) Accused is entitled to be present at the trial.
(g) Accused is entitled to be confronted with hostile witnesses.
(h) Accused is entitled to have compulsory process for obtaining favourable witnesses.
(i) Use of evidence against the accused obtained through unreasonable search or seizure or other illegal means is prohibited.
(j) Burden of proof is on the government in all criminal trials.
(k) Accused is entitled to be tried by an impartial court.
(l) Accused may not be compelled to be a witness against him or herself; and shall be protected from the use of a confession obtained by torture, threats, violence, or the exertion of any improper influence.
(m) Accused shall not be subjected to cruel and unusual punishment.
(n) Accused is entitled to be tried without unreasonable (prejudicial) delay.
(o) Accused is entitled to a competent interpreter when the accused does not understand the language in which the trial is conducted and does not have counsel proficient in the language both of the court and of the accused.
(p) Accused is entitled to a public trial.
(q) Accused may not be subjected to consecutive trials for the same offense that are so vexatious as to indicate fundamental unfairness.

That’s what the US government expects for Americans in trouble overseas.

Says it all, doesn’t it?