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Editor, The Konformist
The CIA, the MCA, and Detainee Abuse
By JOANNE MARINER
Wednesday, Nov. 08, 2006
The Bush Administration recently admitted that, over the past
several years, the CIA has run a system of secret overseas prisons.
It is believed that more than 100 terrorism suspects have been held
in this covert system, at one point or another, over the last five
With the Supreme Court's landmark decision in the case of Hamdan v.
Rumsfeld this June, the illegality of the CIA detention program
became unmistakably clear. The Court ruled that al Qaeda suspects
were protected by Common Article 3 of the Geneva Conventions, the
protections of which do not allow the "disappearance" and torture of
The Hamdan decision reportedly scared CIA and high-level
Administration officials, who feared possible criminal prosecution.
It was one of the main factors leading to the Administration's
recent decision to announce the suspension of the CIA detention
program and the transfer of 14 CIA detainees to Guantanamo.
And it was the existence of the CIA program, not the need to
prosecute terrorists (who, after all, have been successfully
prosecuted in the federal courts for decades) that lies behind the
recent passage of the Military Commissions Act of 2006 (MCA).
"Disappearance" and Torture of CIA Detainees
Detainees held in CIA facilities were effectively "disappeared." The
International Committee of the Red Cross (ICRC) had no access to
them; neither did any court or other independent monitoring
authority, and their families had no idea where they were or even
whether they were dead or alive.
According to the testimony of former detainees, as well as numerous
intelligence sources, the detainees in the program were subject to
serious abuses. In a recent book, author Ron Suskind claimed that
CIA personnel threatened Khalid Sheikh Mohammed, thought to be the
architect of the 9/11 attacks, by telling him they would harm his
seven- and nine-year-old children. The United States had sunk,
Suskind said, "into the darkest of ethical abysses."
The CIA also subjected Mohammed and a number of others to water-
boarding, a form of torture that makes the victim feel like he is
While CIA director Porter Goss last year defended water-boarding as
a "professional interrogation technique," few outside observers
agree. Indeed, more than 100 law professors sent a letter to
Attorney General Alberto Gonzalez earlier this year stating
unequivocally that waterboarding constitutes torture, a felony
punishable under U.S. law.
Column continues below ?
According to former CIA detainee Khalid el-Masri, the CIA also beat
detainees, hung them up by their arms, stuffed them into suitcases
so that they felt they were suffocating, and kept them for long
periods of time in the dark.
Speaking on national television in early September, President Bush
gave a full-throated defense of the CIA program, and of the so-
called "alternative procedures" that the CIA had used to extract
information from detainees. Despite the euphemisms Bush employed,
his speech amounted to thinly-veiled justification of torture
and "disappearance." (We heard more of the same, put even more
bluntly, when Vice-President Dick Cheney said two weeks ago that
subjecting prisoners to a "dunk in water" is a "no-brainer" if it
Bush also used his speech to unveil the Administration's proposed
military commissions bill. The bill, which passed in late September
in marginally improved form, contains a number of provisions that
were crafted with the CIA detention program specifically in mind.
The CIA's Wish List
The MCA is a long and complex law with an array of interlocking
provisions, but its concern for protecting the CIA program shows up
in three main areas.
First, the MCA amends the War Crimes Act to decriminalize certain
past abuses against detainees. The goal here was to immunize the CIA
from domestic prosecution for the crimes it committed in
interrogating the prisoners in its custody.
Second, the law allows military commission defendants to be tried
and executed on the basis of coerced testimony, hearsay, and
classified evidence that they have no meaningful way to confront.
These provisions make it very likely that defendants will be
prosecuted on the basis of statements taken from detainees
previously held in the CIA program. And, although the law bars the
admission of evidence obtained under torture, one can be certain
that the Administration will continue to argue that water-boarding
and other "alternative techniques" are not torturous.
Already, a precedent for this approach exists in the administrative
tribunals used on Guantanamo to assess whether a detainee is an
enemy combatant. It has been reported that testimony obtained from
CIA detainees, as well as from Guantanamo detainees who have been
abused, has been widely used as the basis for these tribunals'
Third, the MCA contains several provisions that are meant to bar the
public from ever hearing direct testimony about the CIA's abusive
methods. These provisions allow the government to protect
the "sources, methods or activities by which the United States
acquired evidence" if those practices are classified. Because the
government has said that all "alternative" interrogation procedures
are classified?indeed, in a recent court filing in a case filed on
behalf of one of the former CIA detainees, it said that they
are "Top Secret," the government's highest classification level?
these provisions are likely to prevent military commission
defendants from publicly revealing any information about their
torture or mistreatment.
Nor will the defendants' attorneys be able to report these abuses on
their behalf. Attorneys who represent Guantanamo detainees are
required to sign agreements that restrict their ability to speak
publicly. They must turn over all their notes and documents before
they leave Guantanamo, and they can only speak about the information
they have obtained from their clients after it undergoes
Only if the information is declassified can it be disseminated. But
rest assured, information about CIA abuses will not be declassified.
Moreover, with the new group of just-transferred CIA detainees, the
Administration has already indicated in court filings that it wants
to tighten the existing rules.
Crime and Cover-up
Everyone knows that after the crime, comes the cover-up. In this
case, the government is not only taking aggressive steps to prevent
its crimes from coming to light, it has also tried to ensure that
when and if these crimes come to public attention, the perpetrators
are protected from punishment.
Joanne Mariner is a human rights attorney. Her previous columns on
the detainee cases and the "war on terrorism" are available in
OUR LONG NATIONAL NIGHTMARE HAS JUST BEGUN
By Ted Rall
Wed Nov 8, 2006
Like Cornered Rats, GOP Losers More Dangerous Than Ever
NEW YORK--"My fellow Americans," assured incoming president Gerald
Ford hours after the Watergate scandals forced Richard Nixon to
resign, "our long national nightmare is over."
I'm tempted, in the aftermath of the widest and most stunning
electoral repudiation of Republicanism since Watergate, to mark the
Democratic recapture of governorships, the House of Representatives
(and probably the Senate) as the beginning of the end of Bush's
fascism lite, and thus a long overdue vindication of what I've been
saying about him since his December 2000 coup d'état.
Back in 2001 and 2002, state-controlled media called me radical.
Now, with most Americans seeing things my way, I'm mainstream. Yet
I'm more scared now.
"Iraq," I wrote a week before the 2003 invasion, "will probably be
Bush's Waterloo." And so it has been: Exit polls found voters more
motivated by opposition to the war than any other issue. "There was
general revulsion in the country, particularly among Democrats and
independents, against the conduct of the war in Iraq," said pollster
John Zogby. "This was, at the grass roots, a referendum against the
war and the president. For Republicans, there was significant
disappointment about opportunities lost through enormous budget
deficits, threats to civil liberties, a failed social agenda, and
the war." Although Democrats failed to nationalize the election,
Iraq succeeded: a pitiful seven percent of respondents to the latest
Gallup survey still want to "stay the course."
A White House controlled by an unpopular, highly partisan lame duck,
a rival party majority without enough votes in Congress to override
his veto, and the early start of a highly anticipated 2008
presidential campaign add up to one likely result: gridlock. Bush's
legislative and military agendas are dead. But our long national
nightmare has just begun.
A Frightening New Security State
We'll be cleaning up Bush's mess long after his scheduled abdication
on January 20, 2009. But the trillions of dollars in national debt
he has run up and his two losing wars will drain our economy for
decades to come. We've provoked a new generation of terrorists. Yet
even more damaging and nearly impossible to unravel will be the
threats to Americans posed by the neofascist national security
apparatus the Bushists will leave behind--unless they use it to
remain in power.
Shortly after 9/11 Bush began the first of a long series of power
grabs that have transformed him from the leader of a country
beholden to its people to an authoritarian despot. He signed a
secret executive order granting himself the right to declare anyone
in the world, including a U.S. citizen, an "enemy combatant"--
without proof--and order him assassinated. Violating federal law and
privacy rights, Bush authorized the NSA to listen to our phone calls
and read our e-mail. FBI, CIA and HomeSec goons "disappeared"
thousands of people into a horrible new matrix of concentration
camps and secret prisons.
On October 17, 2006 Bush signed the Military Commissions Act. The
new law, scarcely mentioned in the media, is breathtaking for the
breadth of its attack on basic rights. Under the MCA either the
president or the secretary of defense may declare you an "enemy
combatant"--as usual, without proof. Under that designation you may
be jailed, without the right to an attorney, for the rest of your
life. You can even be tortured. Your U.S. citizenship can't protect
you. And it's all "legal."
In January 2006 HomeSec awarded a $385 million contract to Kellogg,
Brown and Root, the subsidiary of Halliburton Co., to
build "temporary detention and processing capabilities"--internment
camps--"in the event of an emergency influx of immigrants into the
U.S., or to support the rapid development of new programs."
The question, asks Progressive magazine editor Ruth Conniff, "is
what is the government planning to do with mass roundups of people?"
After all, Bush and other Republican leaders have spent five years
calling Democrats and others who disagree with them traitors and
terrorists. Following so much hateful rhetoric, you can't blame
liberals for wondering whether they too are about to be
declared "enemy combatants." They're not paranoid; they're just
And Now, Martial Law
About a week ago some left-wing bloggers began circulating rumors
that Bush had secretly signed something called the "John Warner
Defense Authorization Act of 2007" that "allows the president to
declare a 'public emergency' and station troops anywhere in America
and take control of state-based National Guard units without the
consent of the governor or local authorities, in order to 'suppress
public disorder.'" I couldn't find the text of the law at the time,
formerly H.R. 5122, or a reliable media account, so I decided not to
report on it.
I can now confirm the bloggers' account. Bush signed the JWDAA hours
after the MCA, in a furtive closed-door White House ceremony. There
is, buried deep down in Title V, Subtitle B, Part II, Section 525(a)
of the JWDAA, a coup. The Bush Administration has quietly stolen the
National Guard away from the states.
Here's the relevant section of Public Law 109-364:
"The [military] Secretary [of the Army, Navy or Air Force] concerned
may order a member of a reserve component under the Secretary's
jurisdiction to active duty...The training or duty ordered to be
performed...may include...support of operations or missions
undertaken by the member's unit at the request of the President or
Secretary of Defense."
The National Guard, used to maintain order during natural disasters
and civil disturbances and the sole vehicle available under U.S. law
to enforce a declaration of martial law, has previously been
controlled by state governors. They have now been stripped of that
control. Thanks to the JWDAA, Bush or Rumsfeld can now deploy
National Guardsmen in American cities without obtaining permission
from state governors.
Section 526 of the Warner Act goes further still. It states that
the "Governor of a State...with the consent of the [military]
Secretary concerned, may order a member of the National Guard to
perform Active Guard and Reserve duty..." The key word is "may." A
governor can no longer deploy the Guard in his or her state without
first getting Rumsfeld's permission.
Patrick Leahy (D-VT) sounded the alarm during senatorial debate, but
U.S. state-controlled media ignored him. The Warner Act, he
said, "includes language that subverts solid, longstanding posse
comitatus statutes that limit the military's involvement in law
enforcement, thereby making it easier for the President to declare
martial law...We fail our Constitution, neglecting the rights of the
states, when we make it easier for the president to declare martial
law and trample on local and state sovereignty."
Only one governor, Kathleen Blanco of Louisiana, made a fuss over
the Warner Act. A spokesman for the National Governors Association
requested a wimpy "clarification" concerning what circumstances
might prompt Bush to impose martial law. As far as I can determine
this column marks the first time the JWDAA has been mentioned in the
Now the dark men who engineered America's post-9/11 police state
have watched the public reject their policies. The incoming
Democratic majority Congress will be able to hold hearings and
launch investigations that could lead to their indictments and
removal from office. John Dingell, the liberal incoming chairman of
the Commerce Committee did nothing to dissuade GOP fears of "a
blizzard of subpoenas": "As the Lord High Executioner said in 'The
Mikado,'" Dingell recently joked, "I have a little list."
A year of crisis commences.
As ugly secrets surface, Bushists will turn desperate. Democracy has
failed their grand schemes; token resignations like Rumsfeld's come
too little, too late. Only tyranny can save their skins. Will the
beleaguered neocons led by Cheney and Bush, cornered like rats,
unleash their brand-new police state on their political opponents?
Or will they tough it out and suck up the fines and prison sentences
to come? The next year or two could go either way.
The nightmare is not over.
(Ted Rall is the author of the new book "Silk Road to Ruin: Is
Central Asia the New Middle East?," an in-depth prose and graphic
novel analysis of America's next big foreign policy challenge.)