New Grand Jury Investigation on Torture, or DoJ Smokescreen?

Cross-posted at Firedoglake/MyFDL

News certainly travels fast, sometimes. While it took the U.S. government two years to reply to a request by a Spanish judge regarding whether or not the U.S. has instigated any investigations or proceedings against six high-level Bush administration figures named in a complaint by the Association for the Dignity of Spanish Prisoners (see PDF), and it took another three weeks to get the response distributed to the parties involved, and yet another three weeks to have the news of this response released to the world at large, it took less than 24 hours to learn that the entire case was dismissed by the Spanish judge on Wednesday.

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of "bad apple" abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations -- except one (if it is one).

The letter rogatory to the Spanish court refers to "pending federal investigations by the United States Attorneys' Office for the Eastern District of Virginia" on "various allegations of abuse of detainees." (p. 3-4 of letter) In addition the letter refers to "pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy". Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia "Pending" Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, "There is nothing further I can provide to you on this matter beyond what is in the document."

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham's review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, "several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next."

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, "The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture..." (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, "The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action."

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of "professional misconduct," only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of "bad apples" in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won't fundamentally change, as high officials, such as those identified in the Spanish case -- David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo -- are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Right-Wing Pursues Spanish Judge Who Investigated Pinochet, Bush Torture, Franco-Era Killings

Cross-posted from Firedoglake

An appeal to the Spanish Supreme Court by National Court judge Baltasar Garzón was denied last month, and in May he must appear before the Supreme Court itself. The charges? That Garzón violated his jurisdictional authority by investigating mass murder that took place under the rule of fascist dictator Francisco Franco. In Spain, judges have investigatory and prosecutorial powers that judges do not have in the United States.

Judge Garzón is most famously known for his ordering the arrest of former Chilean dictator Augusto Pinochet in London in 1998. Ultimately, the United Kingdom did not turn Pinochet over to Spain to be tried for crimes against humanity, and he was released on so-called medical grounds. Ultimately, Pinochet was indicted in Chile for tax fraud and forgery and died under suspended house arrest.

The Spanish judge, who sought Pinochet under international legal principles of universal jurisdiction, also “filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina’s 1976-1983 dictatorship.” In the United States, in 2009, Judge Garzón was in the news for his attempt to indict six Bush-era officials for creating the legal framework for torture, namely John Yoo, Jay Bybee, David Addington, Alberto Gonzales, Douglas Feith, and William Haynes, II.

But Garzón’s current problems date back to a case from last year, when the right-wing group, Manos Limpias (“Clean Hands”) brought charges against him. They contended that Garzón was violating the terms of a 1975 amnesty law passed after Franco died. But many human rights groups contest the legality of that law, and Garzón himself has declared that it did not — indeed, could not — cover crimes against humanity, which are subject to prosecution under universal jurisdiction.

Investigating Mass Murder and Torture

According to an article in Times Online:

The case centres on an investigation into the disappearance of at least 100,000 people during the Spanish Civil War and Franco’s dictatorship. Judge Garzón issued an unprecedented order [in 2008] to exhume from 25 mass graves the bodies of people who were shot by firing squad or murdered on the orders of kangaroo courts.

The judge began the controversial legal action last year at the request of families of the missing. He alleged that the killings of thousands of civilians were carried out systematically by Franco and his political allies. He accused the dictator, 44 army officers and members of the Falange fascist party of crimes against humanity.

Spain’s conservative Popular Party and the Roman Catholic Church were dismayed by Garzón’s actions. Buy the judge did not act purely on his own initiative. According to the UK Guardian, in a story at the time:

The judge’s investigation stems from around 1,200 petitions from families and associations asking for information on those who “disappeared” between July 1936 and November 1975, when Franco’s soldiers often dispatched dissidents during a paseo, a “stroll” that ended with a bullet in the head and an unmarked grave.

The Spanish magistrate also made no friends when he investigated corruption within the Popular Party, and some in Spain see this as payback. The amnesty case is just one of three court cases filed against Garzón. Just the other day, he was in court for supposedly taking a bribe.

Garzón also got heat from conservatives in the United States over his pursuit of the Bush Administration “Six”. Those charges, from last March, ultimately went nowhere. Even more, conservatives pushed through a bill in the Spanish parliament that forbid universal jurisdiction prosecutions, unless they involved Spanish citizens. But at the end of January 2010, Judge Garzón announced he would “begin an inquiry into the suspected torture and ill-treatment of detainees held at Guantanamo Bay… focused on Spanish citizen and ex-Guantanamo detainee Ahmed Abderraman Hamed,” the so-called “Spanish Taliban” (H/T various commenters at FDL). Formal criminal investigations into the same six Bush Administration figures have commenced.

As Scott Horton described it last February:

In its decision, the Spanish court concluded that the American Justice Department was not involved in any credible effort to investigate or prosecute torture cases connected with Guantánamo. It also announced that the Justice Department had defaulted in response to letters rogatory seeking clarification of issues surrounding the incidents of torture in which the Justice Department itself was directly involved. (So much for Eric Holder’s pledge of cooperation with European counterterrorism investigators.)

While the Obama administration has not commented on Garzón’s latest troubles, former Bush/Rumsfeld speech writer, and new Washington Post columnist, Marc Thiessen can barely contain his glee. “Poetic Justice,” Thiessen crowed, when the Supreme Court announced a few weeks back it would go ahead with the charges against Garzón. To the uber-conservative Thiessen, who thinks waterboarding is just fine, Baltasar Garzón is a “rogue” judge, and his legal troubles are “Good news on the international law front.” The fact that Garzón has prosecuted both Basque and Al Qaeda terrorists, that he has investigated corruption in both conservative and socialist parties, means nothing to a paid ideologue like Thiessen.

Support Grows for Spanish Judge

But not everyone feels this way. The New York Times ran an editorial last week castigating the Spanish Supreme Court’s decision — “the politically driven case… should have been thrown out of court — and the judge has the support of “government ministers, eminent judges and Pedro Almodóvar, the Oscar-winning film director.” Protesters have taken to the streets in Garzón’s support, and there have been trade union rallies.

In Argentina, Garzon supporters are taking up his crusade to get justice for the crimes of Fascist Spain, helping the man who once tried to help their country come to terms with the deaths and disappearances of the military regime that once ruled that country. According to an April 14 AP story at the Huffington Post, Argentine human rights groups will ask for their own “local judicial probe of murders and disappearances as well as alleged genocide committed during Spain’s Civil War and Gen. Francisco Franco’s long dictatorship,” relying on complaints by relatives of Spanish and Argentine victims of the 1936-1939 war, who apparently already filed their cases in Argentina’s federal court.

Progressives in the United States owe a great debt of gratitude to Judge Garzón, for standing up for what is right — accountability for torture and other war crimes, the principles of international law and universal jurisdiction — and obviously he has put his life and career on the line for these principles. We cannot be indifferent to his fate.

Update: It should be noted that Manos Limpias was joined in its complaint against Judge Garzón by the Freedom and Identity association and the ultra-right Spanish Falange. The Falange, or Spanish Fascist Party, was the only party allowed to exist in Spain during the years of Franco’s rule.

New York City Film Showing: "The Reckoning"

I'm pleased to help announce the Culture Project's second ”Blueprint For Accountability” installment. The following is adapted from the press release:

New York, NY, July 22, 2009 -- Culture Project has announced a special screening of The Reckoning: The Battle for the International Criminal Court as part of its Blueprint for Accountability series. The film will be screened Tuesday, August 4, at Judson Church, 55 Washington Square South (corner of Thompson) at 7pm, followed by a talkback exploring the struggle and necessity of holding perpetrators of crimes against humanity— however powerful or concealed they may be — accountable. Tickets are $15.

The Reckoning, directed by veteran filmmaker Pamela Yates, opened the Human Rights Watch festival in New York this year, and follows dynamic International Criminal Court Prosecutor Luis Moreno Ocampo and his team for 3 years across 4 continents as he issues arrest warrants for Lord’s Resistance Army leaders in Uganda, puts Congolese warlords on trial, shakes up the Colombian justice system, and charges Sudan’s President Omar al-Bashir with genocide in Darfur, challenging the UN Security Council to arrest him. The Prosecutor has a mandate but no police force. At every turn, he must pressure the international community to muster political will for the cause.

An official selection of the 2009 Sundance Film Festival, The Reckoning documents this tiny court’s struggle to change the world and forge a paradigm shift for international justice. Will the Prosecutor succeed? Do world leaders have the political will to fulfill this new Court’s mandate and ensure that justice prevails?

Variety called the film “a potent argument for the Obama administration's move from isolationism to diplomacy.” The post-performance talkback will include a focus on the United States’ role in the ICC, why it is important for the United States to join, and how we, as citizens, can pressure the administration to cooperate with the ICC. Participants include Pamela Yates, and Paul Van Zyl, co-founder of the International Center for Transitional Justice, who will moderate.

Culture Project’s screening of The Reckoning follows the groundbreaking launch of the Blueprint for Accountability series on May 31 with Rachel Maddow, Lt. General Ricardo Sanchez, Ron Suskind and Vince Warren. The evening made breaking news on major news stations including MSNBC and CNN when Lieutenant General Ricardo Sanchez, the former top coalition commander in Iraq, called for a Truth Commission - the first General from the Iraq theater to go on record to do so.

Culture Project’s Blueprint for Accountability series gathers the world’s foremost political and journalistic experts and today’s most visionary artists in the worlds of theater, music, film, dance, and literature to spotlight tangible ways to reintroduce accountability into our culture. Topics for future evenings in the series include domestic terrorism, economic injustice, human trafficking, Hurricane Katrina, and corporate media.

I'm not in New York, but if I were I would definitely try and make this film screening. I'm sure it will be a fascinating evening.

On the U.S. Duty to Prosecute War Crimes (Part I)

Oh, beat the drum slowly and play the fife lowly...

In the United States, questions around prosecution of war crimes revolve around the use of torture by Bush Administration officials, as well as the illegality of the U.S. attack on Iraq, which resulted in over a million deaths.

As regards torture, the Bush administration's head judge at Guantanamo has already admitted that torture was used at that facility, and dropped the charges against one high-profile detainee, Mohammad al-Qatani, as a result.

When it comes to the attack on Iraq, there was this report in the Guardian late last year:

Addressing the British Institute of International and Comparative Law last night, [former British senior judge, retired, Lord] Bingham said: "If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law. "For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council ..."

If you read for awhile the various blog and mainstream press opinion pieces on the issue of prosecuting American officials, you will come across a good deal of pessimism and ignorance. Some of the critics of prosecuting are well-informed, but present one-sided views of the difficulties involved in making such a prosecution. But UN officials seem to find the issue quite straightforward.

From The Jurist:

[A]ccording to a statement made by UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak in an interview Tuesday with German television program ZDF Frontal 21. Nowak said that such actions constituted a violation of the UN Convention Against Torture, to which the US is a party. Nowak noted that although evidence is available to press charges, he does not know whether US law would recognize the interrogation techniques used as forms of torture.

There are a number of instruments whereby U.S. officials are vulnerable to war crimes charges. The UN Convention Against Torture required implementing laws to be established in signatory states. Consequently, the U.S. "enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder)" (see CRS report).

Besides CAT, the U.S. has a duty to prosecute Bush administration officials, both civilian and military (and intelligence), for torture and cruel, inhuman and degrading treatment of prisoners. H/T to Charles Gittings (emphasis added):

“The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.”

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

The issue seems clear. But opponents of prosecution, or sometimes just political pessimists who deem themselves "realists," cite the issue of prosecutorial discretion, believing there is no provision within, for instance, the CAT treaty, that requires prosecution. U.S. prosecutors are free to use their discretion in selecting whom they investigate and charge. This is not entirely wrong, although this passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment, puts the issue of prosecutorial discretion into greater legal context (H/T Kevin Jon Heller -- emphases added):

Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture. The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only. In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment. The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture. If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

As a matter of principle, the duty to prosecute is well established in international law. Ironically, it was the United States, along with its World War II allies, that pushed to establish this principle.

From University of Queensland Law Journal re "The United Nations and International Criminal Law" (emphases added):

In the NurembergTrial of the Major War Criminals, the International Military Tribunal held that ‘international law imposes duties and liabilities upon individuals as well as states’ and that ‘individuals can be punished for violations of international law.’[33] The Tribunal went on to proclaim:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The Nuremberg Tribunal even went so far as to hold that the doctrine of nullim crimen sine iure must not be allowed to stand in the way of bringing persons to justice for acts which they must have known amounted to criminal conduct under international law:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.

The next period will determine whether the U.S. will continue to alibi U.S. war criminals. The calls for some kind of investigatory commission should not be definitively ruled out, but any decision on such must follow a determination of whether to prosecute Bush, Cheney, Rumsfeld, Addington, Yoo, Rice, Haynes, and all the gang for crimes against humanity. To fail to do so, especially for lame excuses such as prosecutorial discretion, is in itself a crime and a violation of treaty obligations. Any use of "Truth" or "Truth and Reconciliation" commissions as a way to bypass the necessary prosecutions, as some fear is the plan of establishment Democratic Party liberals, should be opposed.

As Glenn Greenwald put it so well in an article last month:

The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke ("we were dealing with real threats; there were 'exceptional circumstances' that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on").

International treaties which the U.S. signs and ratifies aren't cute little left-wing platitudes for tying the hands of America. They're binding law according to the explicit mandates of Article VI of our Constitution. Thus, there simply is no way to (a) argue against investigations and prosecutions for Bush officials and simultaneously (b) claim with a straight face to believe in the rule of law, that no one is above the law, and that the U.S. should adhere to the same rules and values it attempts to impose on the rest of the world.

For more on this issue, please click here to read Part II, which looks at relevant Supreme Court decisions, and the intervention of the notorious John Yoo into the treaty issue.

More Confusion on Renditions: The Role of Ostensibly Liberal Bloggers

There's a lot of smoke spewing up from the bits and pieces of Bush's leftover torture program, as the Obama administration is trying to refashion policies around apprehension, detention and interrogation of prisoners in what used to be called (or still is) the "Global War on Terror."

The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.

While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.

But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.

These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.

In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.

According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).

Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.

"Expert" Opinions and the Rendition Question

Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.

There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.

When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.

What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:

Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European States often granted asylum to fugitives from other States, with the result that "a sovereign could enforce the return of fugitives only by force of arms . . . . Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974)

If you are enforcing your New World Order, I suppose you don't care about friendly cooperation between states. But how would Americans react if Afghanis kidnapped Bush or Cheney for crimes and brought them back to Afghanistan for trial, or even more to the point, delivered them over to the North Koreans for interrogation? Or how about Cubans kidnapping Luis Posada Carriles, who bombed Cubana flight 455 in September 1976 (with CIA foreknowledge, by the way), and today resides in the U.S.? Why not just junk all treaties and let the rule of might makes right the ultimate arbiter?

When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: " `Can you imagine us going into Paris and seizing some person we regard as a terrorist . . .? [H]ow would we feel if some foreign nation--let us take the United Kingdom--came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, . . . because we refused through the normal channels of international, legal communications, to extradite that individual?' " Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985).

The Congressional Research Service, which produces material so that Congress can understand important legislative issues, has made it clear that its own analysis of rendition was about extrajudicial seizures. So did Amnesty International in a document on "'Rendition' and secret detention.' I think AI really described the salient problems I have with rendition, whether it's rendition to torture or not (assuming one can really determine what will happen to a prisoner who has been kidnapped and delivered to a foreign, or even domestic, penal or governmental or intelligence agency). I will quote it here somewhat at length (emphases added):

Amnesty International uses the term "rendition" to refer to a variety of practices by the US authorities involving transfers of individuals from one country to another, without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring "war on terror" detainees into the custody of other states, assuming custody of individuals from foreign authorities and abducting suspects on foreign soil.

The practice of transferring a detainee from US custody to the custody of a foreign state is usually called "extraordinary rendition" in the USA, and appears to have been carried out by the Central Intelligence Agency (CIA) since 1995....

Some victims of "rendition" have later turned up in official US detention centres, such as Guantánamo Bay. Others have simply "disappeared" after being arrested by US agents or turned over to US custody.

It has been reported that the CIA, often using covert aircraft leased by front companies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these individuals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation and that detainees have been threatened by US interrogators that they will be sent to such states.

It has also been reported that victims of "rendition" transferred to US custody from other countries have been held in US-run secret detention centres outside US territory (sometimes called "black sites")....

The US administration has acknowledged it uses "rendition", maintaining that the practice is aimed at transferring "war on terror" detainees from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these transfers are carried out in accordance with US law and treaty obligations....

Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.

Do you hear that, Scott Horton? Under international law. If you want more detailed legal discussion, please see Matteo M. Winkler's article, When ‘Extraordinary’ Means Illegal: International law and the European Reactions to the United States Rendition Program, Section 3.1 - Can Abduction Be Justified? (Yale Law School Student Scholarship Series, Paper 46). Also see Justice Stevens' dissent in U.S. v. Alvarez Machain, as well as F.A. Mann, "Reflections on the Prosecution of Persons Abducted in Breach of International Law", in International Law at a Time of Perplexity, 1988, Martinus Nijhoff Publishers:

A State which authorizes the abduction of a person from the territory of another sovereign State is guilty of a violation of public international law. This principle is supported by considerable State practice, numerous decisions of municipal courts, and a large body of doctrinal opinion. Its basis is the incontrovertible rule that exercise of physical force by one State without the latter's consent constitutes an excess of international jurisdiction or a violation of the 'principle of respect, which is guaranteed by not only Article 2 of the Charter of the United Nations and other texts, because these merely respond to firmly established and longstanding tenets of customary international law.'

But let us now return to Amnesty International's discussion:

Moreover, most victims of "rendition" were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. Many victims of "rendition" have been or continue to be held in prolonged arbitrary detention and they have been or continue to be subjected to enforced disappearance. All of the victims of "rendition" Amnesty International has interviewed have also said they were subjected to torture and other ill-treatment.

"Rendition" usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of "rendition" have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country.

"Rendition" is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.

We are left with this quandry: why the wide gulf of opinions on rendition? Horton and others can point to ill-informed bloggers, constructing strawmen which they can then easily tear down, all the better to strut their expertise before the admiring crowd. But you won't see them tearing down Amnesty International or Reprieve, who totally oppose all renditions as ignoble and illegal acts of extrajudicial power and injustice. That might alienate some of their readers, who then might investigate for themselves.

What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?

The Eichmann Case

Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):

The election of Arturo Frondizi as president of Argentina in February 1958 was welcome news to both the Israeli embassy in Buenos Aires and the leaders of the local Jewish community. And he had not lived in the presidential palace for long before their expectations appeared to have been justified. The Jews of Argentina felt a growing sense of security and well-being, and relations between Jerusalem and Buenos Aires grew closer. The kidnapping of Adolf Eichmann in May 1960, however, interrupted this idyll, precipitating a crisis that nearly severed the ties between the two countries and threatened Argentine Jews' sense of personal security. The Argentine Jewish community, which was then just marking the hundredth anniversary of its existence, became the target of a wave of antisemitic terror and nationalist attacks that sought to cast doubt on Jewish citizens' loyalty to the Argentine republic.

Thus, the "appropriate rendition" by one party causes untold suffering and unforeseen political consequences for a vulnerable population. One wonders if Horton knows also that both the West Germans and the U.S. knew the location of Eichmann for two years before the Israeli kidnapping and did nothing to induce Argentina to arrest or otherwise extradite the man.

Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?

The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

I'm not saying that Eichmann shouldn't have been tried, nor that he didn't receive justice. But that's poetic or moral justice... not law. My problem with the use of kidnapping by states is a simple one. Who decides when a person is beyond the legal pale? Who makes the justice? Who decides that abduction is acceptable? How will our civilization rule itself, by the law of talion, or the law of due process?

Meanwhile, back at Gitmo... Hey, where's the files?

If there were no better evidence of Bush administration and Defense Department malfeasance, then the fact the the files on the prisoners at Guantanamo are, according to this latest Washington Post story, "in disarray" would seal the case.

According to the article, "incoming [Obama] legal and national security officials [were] barred until the inauguration from examining classified material on the detainees." Why? No one could say exactly, but there was this:

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

What was going on at Guantanamo? Was it really even a detention center? Even a lousy county jailhouse keeps better records than this:

In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."

He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."

What kinds of information was the CIA and defense intelligence agencies unwilling to share? After years and years of detention, much of it in isolation and subject to various torture techniques, including possible drug administration, what kind of valuable intelligence was really available anyway? Suspicions among some that Guantanamo was really a vast experiment, or a giant laboratory for psychological torture research, such as occurred during the MKULTRA CIA program of the 1950s and 1960s starts to seem like something more than irresponsible speculation.

Although the article doesn't mention it, who can read of such disarray, such misplacement and scattering of documents and not think that what we are seeing is the aftermath of one giant document purge and shred-fest?

Those investigating committees and prosecution grand juries better get underway quickly, before all the relevant evidence is destroyed about whatever did happen at Guantanamo.

And then there's a little fact like chain of evidence, access to documents, etc.

Why take a year to dispose of the prisoners' fate? Why not free all the Gitmo prisoners now? Their rights have been trampled upon, and many tortured. There is no way to guarantee there has been no evidence tampering. There is no way we can now believe anything the government has to say about any of these prisoners.

I don't expect any such large-scale release. I'm not sure what I expect anymore. But the news has some other items of very important interest. There was this, from the United Nations:

Manfred Nowak, the United Nations Special Rapporteur on Torture, told a German television network that Bush and Cheney should be brought to trial for the torture of prisoners at Guantánamo Bay.

Manfred Nowak says prosecution is legally required, because the U.S. has ratified the UN convention on torture. Last month, a bipartisan Senate report accused Rumsfeld and other top Bush administration officials of direct responsibility for abuse and torture at Guantánamo and other U.S. prisons.

And this from Jordan Praust, a contributing editor at the Jurist:

International laws that President Obama must faithfully execute during an armed conflict include common Article 3 of the Geneva Conventions as well as all other treaty-based and customary laws of war, the Convention Against Torture, the International Covenant on Civil and Political Rights (which also prohibits torture and cruel, inhuman, and degrading treatment in all circumstances, including in times of relative peace), and related customary international laws. President Obama’s executive order to replace unlawful authorizations and orders during the Bush Administration with the requirement that such laws be faithfully executed by all U.S. nationals and certain other persons covered by the Order is the constitutionally proper and necessary response.

What should ultimately follow is presidential execution of treaty-based and customary international legal obligations to either initiate prosecution of or to extradite all persons who are reasonably accused of having authorized, ordered, abetted, or perpetrated war crimes and/or crimes against humanity. For example, Article 146 of the 1949 Geneva Civilian Convention expressly and unavoidably requires that all Parties “search for persons alleged to have committed, or to have ordered to be committed, ... grave breaches [of the Convention] and shall bring such persons, regardless of their nationality, before its own courts” for “effective penal sanctions” or, “if it prefers, ... hand such persons over for trial to another High Contracting Party.” The obligation is absolute and applies with respect to alleged perpetrators of any status. As a party to the Geneva Conventions, the United States must either initiate prosecution or extradite to another state or, today, render an accused to the International Criminal Court. “Grave breaches” of the Convention include “torture or inhuman treatment” and transfer of a non-prisoner of war from occupied territory. Similarly, Article 7, paragraph 1, of the Convention Against Torture expressly and unavoidably requires that a Party to the treaty “under whose jurisdiction a person alleged to have committed ... [for example, torture or “complicity or participation in torture”] is found, shall ... if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” There are no other alternatives.

The criminals are busily trying to cover their tracks. They should be arrested as soon as possible, and that means Rumsfeld, Bush, Cheney, relevant personnel at DoD Office of Legal Counsel, relevant personnel at Joint Personnel Recovery Agency and SERE, and at CIA and DIA. Those who have left their jobs since the crimes were committed should be given an offer to surrender themselves.

And someone is going to have to put together the Augean stable that is the mess of documentation at Guantanamo.

Cheat Sheet for Eric Holder: Torture and Jus Cogens

News item today:

(Reuters) - President-elect Barack Obama on Monday named former deputy attorney general Eric Holder as his choice to be Attorney General, the top U.S. law enforcement official.

The following can be bookmarked by Holder and his new team. No thanks necessary; just use it.

The video is of testimony by Marjorie Cohn of the National Lawyers Guild before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee in May, 2008. An adapted transcript can be read in full here.

The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution....

n Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States.

The U.S. Army Field Manual's provisions governing intelligence interrogations prohibit the "use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." Brainwashing, mental torture, or any other form of mental coercion, including the use of drugs, are also prohibited. Military personnel who mistreat prisoners can be prosecuted by court-martial under provisions of the Uniform Code of Military Justice. These include conspiracy, cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault.

In Filartiga v. Peña-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit court has reaffirmed that torture violates universal and customary international law. In the Paquete Habana, the Supreme Court held that customary international law is part of U.S. law.

Under Article 53 of the Vienna Convention, a jus cogens norm is:

"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
Link

In Al-Adsani v. United Kingdom, the European Court of Human Rights ruled unamimously that "the prohibition of torture has achieved the status of a peremptory norm in international law," that is, a jus cogens. (See Al-Adsani v. United Kingdom (No.2) (35763/97) European Court of Human Rights 21 November 2001 para 61. -- Note, the ruling was disappointing in other ways, as not allowing that States were subject under this jus cogens re torture to civil prosecution. The vote was narrow, and few would consider the matter settled.)

There have been other serious international decisions made concerning enforcement of the jus cogens crimes, such as the war crimes committed during the Yugoslavian conflict of the early 1990s. An ad hoc tribunal was established by the United Nations in 1993, and set up at The Hague. Theodor Meron was a U.S. judge elected to the court who served from 2001 to 2007. The U.S. cannot argue it is against such a tribunal. NATO has, by its own account, "provided the finance to set up the Tribunal... are amongst the majority financiers."

The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[10] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."[11] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[12]

#10 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#11 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#12 Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)
Link

There is far more than probable cause to prosecute major figures of the Bush Administration, the Pentagon, and the CIA (and possibly DIA) for crimes against humanity, such as starting an aggressive war, and implementation of torture and abusive, inhumane treatment of prisoners. There is ample legal precedent to charge these individuals. If we do not do it, it should be undertaken by another willing nation.

Use the above information wisely, Mr. Holder. The nation awaits justice. The world awaits justice. In the age of the Internet, there is no hiding from responsibility. You know what you have to do. Political expediency will be no excuse to forego the necessary prosecutions.

Addentum: A tardy H/T to Uncle $cam for the link to Ms. Cohn's video testimony!