Secrecy, Torture & Human Rights: US War Crimes, European Complicity, and International Law

As human rights, anti-war and solidarity activists confront the challenges of the new millennium; among the most important tasks will be to shine the light of transparency on the hidden activities of powerful states and their international allies, most especially the activities of their military and secret intelligence agencies. Such light is essential for revealing to the world the continuous assaults on human life and dignity by the powerful, revelations that are critical if we are to defend the unalienable rights enshrined in international law, treaties and Constitutions; rights broken on a daily basis by the US imperial state and its European allies, in its various wars, declared and undeclared; and this despite their being signatories to many of the most critical conventions on human rights and international humanitarian law, most especially the UN Convention Against Torture and the Geneva Conventions.

As I noted in a previous article, an important light on these matters is shed by Adam Liptak's piece in the New York Times, "Obama Administration Weighs in on State Secrets, Raising Concern on the Left," (August 4, 2009). This piece revealed the Obama administration's Supreme Court filing last year in which it defended the State Secrets privilege. The Obama administration, like that of the Bush White House, has regularly invoked the States Secrets privilege in cases of "National Security," astonishingly arguing that it is rooted in the US Constitution.

According to the Obama administration's brief, the decision which cited the Constitution as a basis for the State Secrets privilege was one where the US government successfully dismissed a lawsuit from Khaled el-Masi, a German citizen kidnapped and tortured by the CIA, claims later substantiated by Dick Marty of the Council of Europe's Committee on Legal Affairs and Human Rights in a series of reports published in 2006 and 2007.[1]

In these programs of extraordinary rendition/kidnapping and torture, with the cooperation of countries ranging from Poland to Italy to Romania, Ireland, Sweden and Germany, America's Bagram airbase in Afghanistan became both a center for torture and the transfer point for prisoners to Guantanamo and secret prisons throughout Europe and to torture rooms in places as far as Egypt, as well as to newly freed dungeons in the former Eastern bloc countries.

Despite Obama's promise during the Presidential campaign and after his election to end torture and respect the Geneva Conventions, the filing was done under the leadership of Obama's Solicitor General, Elena Kagan.

From Guantanamo to Bagram: US rendition and torture continues

Kagan was recently nominated to replace Justice Stevens as the new US Supreme Court Justice. In the filing, despite the outcry over the use of the State Secrets privilege in the past to cover up US practices of torture, which continue today, the Obama Justice Department officials argued that there was no need for concern. Contrary to this specious argument, international concern is valid indeed, given that the Obama administration has followed the Bush administration in its strenuous attempts to evade the US Constitution and international law, so as to be able to kidnap, imprison, torture and kill with impunity.

Specifically, the Obama administration has taken the position that its Bagram air base in Afghanistan should be just like Guantanamo, a legal black hole where the US Constitution and international law doesn't apply. In this, the Obama administration is following in the footsteps of its predecessor in seeking to thwart the July 2008 ruling of the US Supreme Court in Boumediene v. Bush. In this decision, the Supreme Court stated that Guantanamo prisoners are entitled to habeas corpus protections, ruling that denial of these rights by the Executive Branch was unconstitutional. The Bush administration reacted to this ruling, incredibly, by shipping select prisoners at Guantanamo to Bagram, as if this successfully met the conditions of the Supreme Court. This position – Bagram as the new Guantanamo, a legal black whole – has long been supported by the Obama administration, despite their pledges, yet to be fulfilled, to close Guantanamo.

In effect, the Bush and Obama administrations are denying rights conceded by King John in 1215 with the Magna Carta, which provided the basis for habeas corpus, literally meaning to produce the body, thereby allowing prisoners to have their day in court.

Less than a week ago, in a May 21, 2010 court decision, the Obama administration, again acting under Kagan in a case argued by Deputy Solicitor General Neal Kumar Katyal, successfully convinced the US Court of Appeals for the District of Columbia circuit to deny habeas corpus protections for prisoners of war held as "enemy combatants" at Afghanistan's Bagram air base. Earlier, in March 2009, a Bush appointed federal judge had rejected this argument, saying that "the rationale of Boumediene applies every bit as much to Bagram as it does to Guantanamo"; this was the case that the Obama administration successfully appealed.

The actions of Katyal, who had earlier won the Hamdan v. Rumsfeld case in the Supreme Court, which ruled that President Bush's military tribunals violated domestic and international law and the US Constitution, follow that of a number of critics of the Bush administration who upon joining the Obama administration, radically reversed their earlier positions and principles.[2]

Moreover, we now know that part of US practices of torture were used to try and drum up false intelligence of links between Iraq and Al Qaeda to justify the Anglo-American invasion of Iraq, thus tying US policies of torture to its policy of aggressive war in Iraq, in violation of the UN Charter, not to mention the Nuremberg principles which ruled this the supreme international crime which embodied the accumulated evil of the whole.[3]

The strategy for using Guantanamo as a legal black hole – putting aside the earlier role of the prison for holding Haitian refugees fleeing poverty and repression discussed by Paul Farmer and others – goes back to a series of memos authored by Deputy Assistant Attorney General in Bush's Office of Legal Counsel of the Department of Justice, John Yoo. In a series of memos, Yoo and his colleagues comprising what David Luban, Professor of Law and Ethics at Georgetown University, called "the torture lawyers of Washington," argued that detainees at Guantanamo were beyond the reach of law.

The Obama administrations position in these cases thus upholds the illegal practices of imprisonment with no due process or legal protections of any kind first instituted under Bush. Moreover, it needs to be noted that the Obama administration has embraced these extreme practices despite (or because of) widespread reports that torture continues in routine fashion at various US prisons abroad, including in Iraq and at secret black sites at the prison in Bagram airbase. These illegal practices at Bagram, which continue right up to the present, have now been documented extensively in a recent May 2010 expose by BBC reporter Hilary Andersson. The existence of these separate black sites at Bagram was recently confirmed to the BBC by the International Committee of the Red Cross.

In this recent BBC report, journalist Hilary Anderson discussed the advantage the Obama administration has taken of loopholes in the revision during the Bush administration of the 2006 US Army Field Manual – notably Appendix M. By creating these pseudo-legal loopholes, the revisions ostensibly allow for the continued torture and abuse of prisoners, in violation of the Geneva Conventions.[4] Right up to the present, as the BBC revealed in its report, prisoners in Bagram are held at secret black sites with no due process and tortured, as they were under the Bush administration.

European complicity in US war crimes

Given that Afghanistan is a collective NATO project, the European signatories to NATO are all themselves implicated not only in this imperial war - replete with assassinations in Pakistan via Predator drones, with substantial civilians deaths and casualties – but also in these ongoing programs of imprisonment and torture, in stark violation of the Geneva Conventions, the UN Convention Against Torture and related international agreements. In addition, according to investigative reporter Seymour Hersh, there are widespread reports of US forces killing prisoners of war in Afghanistan in the field, also grave violations of the Geneva Conventions and international law.

Thus, coming in the aftermath of one of the most secretive administrations in US history, which knowingly misled Congress and the public so as to garner support for the US invasion of Iraq - as when Bush Administration officials falsely claimed that there was unanimity in the intelligence community that Iraq was reconstituting its nuclear program - the claims of the Obama administration that there should be no worry about its invocation of the States Secrets privilege and its argument that its claims to executive power are rooted in the US Constitution are both extraordinary and dangerous. They threaten many of the most precious aspects of the US Constitution and the Bill of Rights, most especially the free speech, public disclosure and transparency protected under the First Amendment.

As for the notion of the Obama Justice Department that there is no need for concern in regard to its invocation of the State Secrets privilege; quite the contrary is true. Here, it should be mentioned that torture and rendition/kidnapping are not the exclusive province of the US. As Perry Anderson has documented in his The New Old World (2009), European states of all political stripes have worked closely with US programs of torture, kidnapping and imprisonment, dating back to the earliest days after the terrorist attacks of September 11, 2001. Roman Polanski's recent film Ghost Writer highlighted British cooperation with US programs of rendition and torture; the account, though fictional, was based on real ongoing cooperation between the Anglo-American allies that has been extensively documented.

In fact, according to admissions by the then British Defense Secretary John Hutton as recently as February 2009, the British cooperated with US programs of extraordinary rendition, transferring prisoners from Iraq to US forces who then flew them to Bagram where they were tortured, the transfer and torture both being grave violations of the Geneva Conventions. As Perry Anderson noted in regards to Britain's Labour Party, having supported the Iraq invasion, which led to over a million deaths; how could the mandarins of British power bother to care or concern themselves about the mere torture of the living.

The decision-making on transferring prisoners from occupied Anglo-American territories is particularly instructive here. Take for example the actions of the former US head of the Office of Legal Counsel in Bush's Department of Justice, Jack Goldsmith. Goldsmith, despite some strong stands against some of the OLC's most extreme policies, became an integral part of the "torture lawyers of Washington" under the Bush Adminsitration exactly by facilitating such processes of kidnapping/rendition from Iraq during the ongoing US occupation. In March of 2004 Goldsmith drafted a memo on Article 49 of the Fourth Geneva Convention that radically departed from the actual thrust of the Treaty. Article 49 states clearly that:

"Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."

Goldsmith's memo somehow interpreted this as allowing for transfers of "illegal aliens in Iraq," according to David Luban. As Luban notes,

"It's a little hard to believe that the drafters of Article 49 were oblivious to the Nazi's studied policy of using immigration law to facilitate the deportation of Jews to Auschwitz... Goldsmith's argument would have legalized the deportation of Anne Frank.[5]

The need for public concern over Kagan's appointment

The lessons of recent Anglo-American imperial adventures and associated practices of aggressive war and torture, much of them supported (often in secret) by states throughout Europe, deserve greater attention as the human rights movement faces some of the most urgent challenges of the 21st century. As one of the twentieth centuries leading democratic theorists, the Italian liberal socialist Norberto Bobbio, never tired of pointing out, the "hidden powers" of states are among the most dangerous of threats to peace, democracy and human rights.

In response to these events, there ought to be an international outcry against US practices of kidnapping, torture and aggressive war past and present, as well as the secret collusion in these activities by European states.

Moreover, we must aggressively question and challenge the Solicitor General and presumptive Supreme Court nominee, Elena Kagan, in regards to her filing on the State Secrets privilege and argument that this is rooted in the Constitution. We should also express outrage that Kagan, on behalf of the Obama administration, used a case of a German citizen kidnapped and tortured by the CIA to defend this most unconstitutional and dangerous of Executive powers, which serve to ensure that US program of torture and violation of the Geneva Conventions and other international treaties will continue in secret.

Only by tirelessly working to restore the Constitutional balance essential for peace and the health of democratic Republics, will we have a chance to overcome the powerful structural forces underlying US militarism, ongoing US programs of torture and the support of these policies by America's European allies, and work instead for the solidarity, human rights and dignity – including based on international law - for which so many have struggled and died. Only by exposing these assaults on human rights and dignity, rights protected by international law, will we be able to reverse these practices and build a world in which human dignity is upheld for all to see, rather than assaulted in secret, away from the eyes of the public.

Note: Thanks to Tom Dobrzeniecki for helpful suggestions. The issues raised here are discussed in greater detail in my chapter in the forthcoming book from Seven Stories Press, "The Torturer in the Mirror", with contributions by Ramsey Clark and Haifa Zangana, and a related piece in Marjorie Cohn, ed., forthcoming, "The United States and Torture", New York University Press. An earlier version of this piece, "Secrecy, the Republic, and the Supreme Court," was recently posted on the TNI website.

[1] http://assembly.coe.int/committeeDocs/2007/Emarty_20070608_noEmbargo.pdf

[2] For the ruling see http://pacer.cadc.uscourts.gov/common/opinions/201005/09-5265-1245894.pdf

[3] See Noam Chomsky, "The Torture Memos," Chapter 11 in "Hopes and Prospects", Haymarket Books, 2010, on the Senate Foreign Relations Committee/Levin report and attempts by the Bush administration to use torture to provide "intelligence" linking Iraq and Al Qaeda as part of its public relations campaign in preparation for the invasion of Iraq; the quote, from legal expert Glenn Greenwald, is from p. 263.

[4] See http://www.bbc.co.uk/iplayer/console/b00sbckp

[5] The quotes from Luban are all from his "Legal Ethics & Human Dignity", 2007, pp. 185-186. The chapter has an extended discussion of Goldsmith's tenure at the OLC. See also Tom Reifer, "Review of David Luban, Legal Ethics and Human Dignity", Cambridge University Press, 2007, Law & Society Review, Volume 43, Number 2, June 2009, pp. 449-451.