canarypapers

Posts Tagged ‘majid khan

The Art of Trying Terrorist Suspects (without really trying)

leave a comment »

UPDATE: I stand corrected. When I wrote the post, below, I predicted that the plans to try terrorist suspects in federal courts would be aborted once the left and right had finished their political theater (one side pretending to aspire to justice, while the other lobs their usual “soft-on-terror” accusations plus a heapin’ helping of fearful predictions of danger should the trials be allowed to take place), the end result being that — to the blame of no one — justice could continue to be deferred. I now see that, in one fell swoop, the debate over the trials — as well as the debate over the closing of Guantanamo — has instead been neatly suffocated by the recent underpants fire on Northwest Airlines Flight 253.

Until the following questions have been openly asked and comprehensively answered (sans any bogus excuses about state secrets and/or blame games and attacks against those who would deign ask such questions) concerning the incidents surrounding this purported terrorist plot, it would be difficult to conclude this to be anything but a different brand of political theater, designed to do exactly what it will — derail plans to close Guantanamo and put an end to this nonsense about due process of law:

  1. Who was the well-dressed Indian man described in this CNN interview, who allegedly assisted Umar Farouk Abdul Mutallab in boarding the plane without a passport?
  2. What was the identity and purpose of the man aboard Flight 253 (described in the same interview, above) who oddly, to the notice of at least one passenger, began videotaping the flight hours before the underpants incident and, during the fire, was the only one standing up, as he intently filmed the incident?
  3. On whose say-so was Umar Farouk Abdul Mutallab working for al Qaeda?
  4. On whose say-so did al Qaeda claim responsibility for this plot?

Because, if the only authorities for answering questions #3 and #4 are either IntelCenter or SITE (the official Bush-Cheney Ministries of Propaganda, aka “terrorist monitoring firms,” run by the supreme Reichsministers of Propaganda, Rita Katz and Ben N. Venzke, who have been responsible for most, if not all of the ludicrously fraudulent al Qaeda and bin Laden tapes released since 9-11), then that’s evidence enough that — 2008 election results notwithstanding — that wascally wat Cheney is still at the helm.

Flying to the Sabbath on a Broomstick

From the vantage point of our comfy armchairs, it’s difficult to imagine what crimes any one of us might confess under the duress of “enhanced interrogation.” To what would you confess if someone stormed into your living room and shoved a loaded gun into your mouth? Or, more true to life, if you were stripped naked and hung by your wrists from the ceiling until you fell unconscious from the pain? Or had an electric prod shoved up your rectum?

What if someone threatened to do these things to your child? To what would you confess? Malfeasance? Petty larceny? Murder? Flying to the Sabbath on a broomstick? Plots to blow up bridges?

We are all witches as soon as we are tortured. — Jesuit priest Von Spee, denouncing confessions by torture, from his  1627 book, “Cautio Criminalis,”

water-torture-damhoudere-15561

"The Water Torture" 16th century woodcut by Joos de Damhouder, illustrating how to interrogate witch suspects under torture

As could be predicted, the announcement of the Khalid Sheikh Mohammed tral instantaneously split America down the middle. On the right are the godly, law-abiding, pro-Americans. On the left are the godless, terrorist-appeasing anti-Americans. Before we get too far into this argument, let’s get one thing straight: The reason the folk on the right object to Khalid Sheikh Mohammed’s trial is because they don’t trust the American judicial system.

The folk on the right don’t trust our constitution, and they don’t want to hear a bunch of liberal, tree-hugging crap about habeas corpus, due process and international treaties. (God help the folk on the right, should they ever find themselves on the wrong side of the legal system to which they aspire). What they want is 100% assurance that the accused will be convicted. Period. The finer points of law — such as evidence of guilt — have become moot. After all, there are some crimes so horrible, that the mere accusation is enough to taint a person with guilt. Coddling such people with attorneys and due process of law is an affront to real justice.

To these folk, real justice is what you do with the raw anger in your gut — not this fancy-pants, Harvard Law school mumbo jumbo designed to mollycoddle evil. Real justice is Biblical: an eye for an eye, a tooth for a tooth, a hand for a hand, and so on. This is why the folk on the right are still on board with the same administration that, for 8 years, blatantly spat on the U.S. Constitution, the Bill of Rights and the Geneva Conventions and, instead, resorted to torturing people to exact punishment and extract evidence — even as we’ve known for centuries that people will say anything to make the torture stop:

Such confessions do not arise out of the clear blue. Here’s how it works:

The interrogators accuse the detainee of a crime, supplying him/her with the details of the alleged crime (e.g. kissing the anus of a demon or plotting  to blow something up). The detainee is then — over a period of minutes, hours, days, weeks, months and/or years — beaten, cut, sliced, subjected to electric shock, freezing cold, left naked and forced to stay awake for days on end, hung from the ceiling by his wrists, starved, suffocated, water-tortured, and/or threatened with rape or death to himself, his wife or his children (who may, indeed, be heard screaming in an adjoining room) and otherwise tortured, threatened, humiliated and terrorized until he confesses to the crime(s). Next, the interrogators demand the names of his co-conspirators — supplying the detainee with the names and specifics of their alleged crimes (e.g. supplying broomsticks or bombs to other witches). He is then tortured until he tells the interrogators what they want to hear. New arrests follow. The accused co-conspirators are likewise tortured into confessing crimes and fingering still more co-conspirators. New arrests follow….

Our country has spent a lot of air time over the past several years, deliberating from comfy armchairs (What is torture?), debating from media roundtables (Did we torture?), engaging in parlor games (Is torture wrong?), and daintily sipping sophisms from silver spoons (When is torture justifiable?).

Aside from being immoral, inhumane, a violation of the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution (notwithstanding the legal and semantic sleights-of-hand concocted through the Bybee and Bradbury torture memos), a violation of the terms of the Third and Fourth Geneva Conventions, a violation of the the U.N. Convention Against Torture, and in defiance of the Universal Declaration of Human Rights (in short, a violation of all international law) — torture is not only wrong and unjustifiable in all circumstances, but it goes against natural law.

Natural law? Say what?

The Martens Clause

Introduced in a preamble to the 1899 Hague Convention, the Martens Clause was intended to bridge the gap between the basic principles of humanity and the existing international treaties on armed conflict — treaties which can never be said to be complete, as they constantly evolve according to the new inventions of war. The Martens Clause provides that, just because something is not explicitly prohibited by a treaty doesn’t mean it is legal:

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”the Martens Clause, July 29, 1899 ¹

In other words — should the law fail to spell this out — we human beings are expected, during wartime, to observe the basic laws of humanity and should refrain from doing those things that are innately, universally understood to be unconscionable.

Not exactly a law, but a guiding principle or aspiration, the Martens Clause has long been the topic of debate, interpretation, re-interpretation and, at times, dismissed as irrelevent. The International Law Commission interprets the Martens Clause as such: “[it] provides that even in cases not covered by specific international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” ¹

One notable example of the importance of the Martens Clause was the Nuremberg trials, conducted at a time when international laws and treaties had yet to catch up with the inventions of that particular war. According to Rupert Ticehurst, Lecturer in Law at King’s College School of Law, London:

…. the judgment of the Nuremberg Tribunal, which to a great extent relied on natural law to determine the culpability of the Nazi high command, confirmed the continuing validity of natural law as a basis for international law in the twentieth century.

“In contrast to positive law,” writes Ticehurst, “natural law is universal, binding all people and all States. It is therefore a non-consensual law based upon the notion of the prevalence of right and justice.¹

Whether or not this should apply to the current war — fka “the war on terror” — doesn’t appear to be a topic of debate. But it should be. We should be asking ourselves:

Are all prisoners entitled to the principles of humanity and the dictates of the public conscience? Or just certain ones? And if we classify our prisoners as “enemy combatants” and “detainees” can we ignore all the laws governing prisoners of war and, instead, indefinitely imprison them — never charging them with a crime, yet barring all avenues for release; forever denying them access to an attorney, formal charges, the right to testify and present evidence?

Equally important: Is a man still considered innocent until proven guilty? And do confessions extracted under torture and/or the threat of harm to one’s family constitute evidence?

Or have we human being finally discovered that one special exception that nullifies all known laws and codes of human conduct? Have we finally discovered that there is, indeed, a class of human beings who — regardless of their innocence or guilt — are exempt from equal protection under the law? Have we become so divine in our wisdom, that we can now dispense with such quaint notions as the law of the land and, instead, allow our most primal responses to fear to serve as the foundation for justice in America?

Enter King George

The reasons why the Bush-Cheney Administration chose to crush both the spirit and letter of both international treaties and U.S. constitutional law — and, with them, the most basic principles of humanity — are still up for debate. But the end result was this: they polluted the entire judicial process.

Having broken all known laws regarding the treatment of prisoners of war and criminal suspects, it then became necessary for the Bush Administration to rewrite, reinterpret and, alternately, nullify our 225-year old Constitution and Bill of Rights, so as to legalize torture and crimes against humanity. And to ensure that no one tried to stop them, they waged a campaign of fear, bolstered by the timely releases of scary, albeit fraudulent, audios and videos disseminated by their paid propaganda hacks at SITE and IntelCenter. And to discredit constitutionally-minded lawmakers and scholars, they accused them of being elitist and “soft on terror.” And to discredit a skeptical public, they branded anyone who disagreed with their agenda as either a terrorist appeaser or a conspiracy theorist. And to ensure that the eyes of the world would never know the details of their crimes, they slapped labels such as “state secrets” and “national security” onto the sloppy paper trail left in their wake.

And, to be sure that the voices of these prisoners would never heard — that their testimony and the lack of evidence against them would never be known — the Bush Administration concocted a brand new judicial systems for trying their torture victims.

Hence, the President’s Military Order of November 13, 2001, one of the first great assaults on democracy and the U.S. Constitution, which empowered the Department of Defense with the sole authority to try these prisoners, unencumbered by the scrutiny of the judicial branch of our government. Hence, the later Military Commissions Act of 2006 — crafted by a Republican Congress to thwart an earlier 2004 Supreme Court decision that granted habeas corpus to these detainees. Hence the Combatant Status Review Tribunals, which the Supreme Court ultimately decided in their 2008 ruling were inadequate to meet the terms of habeas corpus, since they did not allow the detainees to be represented by lawyers, gave them limited ability to present evidence on their behalf, and left no mechanism for their release, should a federal court find inadequate reason to hold them.  Hence an 8 year assault on the U.S. Constitution through a series of new-fangled systems of justice designed to forbid the accused from presenting evidence or plead a defense, with access to attorneys — if allowed at all — so limited, abridged and censored as to be little more than a token nod to procedure within a sham system of justice.

In short, these prisoners have been brought to trial before the Military Tribunals for no other reason than to be pronounced guilty. Or, as has more often been the case, to be pronounced as being inherently dangerous, sans any evidence — beyond that extracted under torture — to support this claim. In the latter scenario, these prisoners are left suspended in indefinite limbo, mired in procedural mumbo jumbo under the guise of state secrets, as part of the systemic effort to make sure that the truth about these prisoners is never heard outside the prison walls.

The beauty of these new American systems of justice is that, by invoking the “state secrets” privilege, King George and his presidential progeny have, thus far, been able to evade — in the interest of national security — judicial scrutiny and at least some of the international condemnation over our illegal detentions, extraordinary renditions and “disappearances,” prisoner abuses, torture and other war crimes.

Our Dirty Little Secret

The fact is this: Untold numbers of prisoners in Guantanamo are not being held because of they’ve committed any crime, but because of the crimes committed against them. The only way to covering up these crimes is through “indefinite detention” — by keeping these prisoners forever locked away — barring them from all legal or judicial recourse, barring the outside world from ever hearing of the torture and extraordinary rendition to which they’ve been subjected.

We in America are told that these prisoners are dangerous. And we’re told that the evidence of their dangerousness must be kept secret, else it would threaten our national security. What we haven’t been told — and what the prisoners, themelves, have yet to be told — are their charges: With what crimes exactly, are these men being charged? What are they guilty of?

The answer for many of the prisoners is this: nothing. They have not been charged with one single crime — and they never will be — because the only evidence against them is that which has been coerced through torture. And, despite years of effort and armies of investigators,  King George was never able to find any evidence to substantiate the crimes to which these tortured prisoners confessed.

Many Americans, reacting to the gut horror of the September 11th, have become hardened to the tenets of justice.  To them, the term, “due process of law,” is a dirty phrase. To them, it is still not well enough that our country has already extracted more than 100 million of pounds of flesh — collateral damage, it’s called — from the innocent Iraqi and Afghani mothers, fathers and children who have been blown to pieces by our bombs and our guns.

To them, the deaths of these innocents is a small price to pay for….. For what? What exactly do we hope to accomplish at this point, beyond saving face in Afghanistan and raising the stock market value of the defense contractors? What, exactly, do we hope to buy with the million-dollar-per-soldier bandages we are slapping on our gaping hypocrisy of a war in Afghanistan? Our real war, now, is in Pakistan — a war we carelessly blundered into existence and, in the process, created a real potential for nuclear armegeddon.

God forbid that any in this country would commit treason by asking the real question we need to be asking: What are the seeds to this whole war? Because the seeds were planted long before September 11th. At the risk of over-simplifying the issue, I would propose that, were the United States to (1) lessen its dependency on fossil fuels, and (2) discontinue its blind support, funding and arming of Israel’s campaigns of aggression and violence, and (3) stop torturing and illegally detaining people, (4) stop funding covert wars and arming proxy militias, and (5) begin honoring international treaties, that the complexion of world politics would be fundamentally changed for the better.

God forbid that anyone but a conspiracy theorist would point out that all of our wars — overt, covert and by-proxy — are in the most mineral and oil-strategic spots on the globe; or would draw a relationship between America’s sanction of Israel’s terrorism and al Qaeda terrorism; or would point out that our torture and illegal detention programs have only recruited retaliation. God forbid that any in this country would ask: 

What’s the net difference between al Qaeda retaliating for their grievances against America by plowing planes into buildings and killing nearly 3,000 innocents, and America’s retaliating for grievances against al Qaeda by plowing bombs into villages for 8 years straight — killing, perhaps, more than a million innocents?

How many pounds of flesh is enough?

King George and Lord Cheney have told us — and Obama concurs — that terrorists kill and torture because they are innately evil, while America kills and tortures to spread spread freedom and democracy. Yet, it was democracy and freedom that also died on September 11th — a crime for which Osama bin Laden never claimed credit, outside of the controversially-sourced December 13, 2001 video (and subsequent others, equally controversial); a crime that compelled America’s war on terror, whose by-product has been unprecedented levels of wealth and power for those political and corporate profiteers (from Dick Cheney, Donald Rumsfeld and Alberto Gonzales, to Cofer Black and Erik Prince ), whose pockets have been filled from the blood of our wars.

The Trial of Khalid Sheikh Mohammed

Against this backdrop, it’s no wonder that the prevailing right and the sycophant left in America are up in arms over the prospect of Khalid Sheikh Mohammed being tried in federal court. Aside from the fears over what might be revealed, in the way of facts, such trials do not come with a 100% guarantee that the accused will be convicted.

Having said this — and knowing what I know of our country’s history over the past 8 years  — I have to wonder: Why Khalid Sheikh Mohammed?

Why did the DOJ and the Obama Administration choose this particular prisoner — the most hated, despised man on the planet, aside from Osama bin Laden — to use as the test case in America’s return to the standards of justice?

Could it be that the Obama Administration really doesn’t want this trial to take place? Could it be that they, like the Bush Administraion before them, they would like to just sweep the whole matter under the rug and keep forever hidden from scrutiny the crimes committed by our government?

I think so.

Otherwise, the first case on the docket would have been a prisoner such as Guantanamo detainee, Majid Khan — in all likelihood an innocent man — who was tortured into making confessions in 2003, yet has never been legally, officially, formally or otherwise charged with a crime. A man who has been rotting in secret prisons, then in Guantanamo, for the past 6-1/2 years.  A man for whom — few who know the facts of his case could argue — justice has been grossly perverted and denied.

Call me jaded, but I see red flags in the DOJ/Obama Administration announcement of the intention to try Khalid Sheikh Mohammed in federal court, rather than putting the full weight of our judicial system behind Majid Khan and the hundreds of others like him, whose fates have already been ruled on by the Supreme Court.

In a nutshell, the Supreme Court ruled this in 2008: Either charge these prisoners with a crime, or set them free.

So why has the Obama Adminstration, just like the Bush Administration, choosen to ignore this directive? It would appear that neither administration wants to openly acknowledge, before the entire free world, that our war on terror is not only immoral and illegal, but is being orchestrated by same ilk of men who would — upon coercing a man to confess flying to the Sabbath on a broomstick — sincerely believe that the end justifies the means.

To what crimes would you confess if someone stormed into your living room and kidnapped your infant niece? Or if you were suffocated with water? Or stripped naked and hung by your wrists from the ceiling until fell unconscious from the pain? Or had an electric prod shoved up your rectum?

What if someone threatened to do these things to your child? To what would you confess? Malfeasance? Petty larceny? Murder? Flying to church on a broomstick? Plots to blow up bridges?

And would you accuse others, as well?

Majid Khan is but one of many “co-conspirators” whose name happened to come up during one of Khalid Sheikh Mohammed’s 183 waterboarding sessions during March 2003 — back when the Bush-Cheney Administration was desperate to find any intelligence, even cooked intelligence, to justify going to war in Iraq.

Beyond the confessions extracted through the torture of Khalid Sheikh Mohammed — and, later, the torture of Majid Khan — that there is not one scintilla of evidence that Majid Khan is guilty of any crime, terrorist or otherwise. In fact, Khalid Sheikh Mohammed himself has several times acknowledged that he sometimes told the interrogators exactly what they wanted to hear, just to make the torture stop.

Yet, the questions still drift from our comfy armchairs: When is torture justifiable?

The answer is this: Never. Beyond the fact that is is immoral, inhumane and illegal, it has also made it impossible to try these detainees in a just court of law. There is no justice system on this planet, unless in kangaroo courts in the most oppressive, dictatorial regimes — courts much like our own Military Tribunals — that could do anything but throw out the charges against Khalid Sheikh Mohammed. While — from what we’ve been told — there exists actual evidence of his guilt, the pool of justice has been so thoroughly polluted that it is all but impossible to ascertain his guilt or innocence through legal channels. The best that can be hoped is to stage a show trial, so that he may formally be pronounced guilty.

Time will tell, but I predict that the trial of Khalid Sheikh Mohammed will never take place in federal court. I predict that, instead, Americans on the left and the right will continue to step-up the rhetoric.  Words will be twisted behind people’s backs until, finally, someone in the Obama Administration or the Department of Justice cries, “Uncle!”

We’ll know the battle’s over by the silence left in its wake. It’s the same silence that was heard from the witches left dangling from the gallows; it’s the silence left by the burning bodies hanging from the lynching trees; it’s the sound made by a thousand tortured souls echoing from our illegal prisons. It’s the sound that justice makes, after being dragged kicking and screaming to the grave.

______________________________

by Mantis Katz for the canarypapers

______________________________

1. The Martens Clause and Armed Conflict by Rupert Ticehurst BA LLM,  Lecturer in Law, King’s College School of Law, London (article from the International Committee of the Red Cross website).

FOR MORE READING:

Guantanamo Voices: Guantanamo Basics: Answers questions on the prisoners at Guantanamo related to their detention, crimes and the judicial process

Advertisements

The (Unfinished) Story of Majid Khan, Dick Cheney and the Torture Memos

leave a comment »

FROM THE UNPUBLISHED ARCHIVES: This post is among several unpublished, unfinished drafts — all of them works-in-progress, when I set them aside to speak out on behalf of other issues. The news in America is relentlessly bad, and it’s only getting worse. It’s difficult for the average person to stand still long enough to make sense of one horror story, before another one overtakes it. Torture is promising to be an ongoing horror — past, present and future.  And I remain unconvinced that the Obama Adminstration has done enough — or intends to do enough — to ensure, “Never again.”

In this vein, we should never stop shedding light on all the terrorist acts Dick Cheney committed under the false flag of fighting terrorism. We should never stop demanding that Cheney and his gang be held accountable for their war crimes. Even as this post is unfinished, it holds value as a reference tool for shedding light onto the complex legal sleights-of-hand Cheney used to “legalize” torture.

Equally important is the need to continually shed light onto the victims of the Cheney-era war crimes. Many of these victims — if not most — are believed to be innocent. And who’s to say otherwise? Few have ever been officially charged with a crime and none have been permitted the basic right of a trial — their every effort to do so having been defeated by Team Cheney’s devious legalese, which is still a de facto part of American law. The number of these victims is seemingly countless. Majid Khan is but one of these human souls left to rot in jail, his guilt long ago sealed by accusations and confessions extracted under torture.

My apologies for not finishing this post, and for any loose ends I didn’t tie up.

The (Unfinished) Story of Majid Khan

Dick Cheney and his torture regime are like the vampire in the B-grade movie that refuses to die. Until someone drives a stake through its heart — that is, until the Department of Justice sees fit to take the gloves off and conduct an honest investigation into Cheney’s regime of corruption and torture — the monster will continue to re-injure our country, our laws, our integrity, our standing in the world. Not to mention the victims, whose stories are the stuff of nightmares. Problem is, the more time passes, the easier it becomes for Dick Cheney and daughter, Liz (who is — mark my words — being groomed to run for the vice-presidency in 2012), to re-write history and for the American public to then blindly accept their bill of goods. But, make no mistake, the rest of the world — the good, the bad and the ugly — aren’t buying.

Obama’s refusal to acknowledge America’s war crimes and hold these criminals acountable is not only short-sighted — permitting this history to exist unimpeded and ripe to repeat itself — but it also makes  Obama party to the crimes.  Obama’s neglect does not abrogate the DOJ from their duty to investigate these crimes to the fullest extent of the law. But that’s not how things are done in America today. Ultimately, it is up the American people to demand this. Perhaps we can pencil this fight into our busy agendas, somewhere between our battle for health care reform our own personal struggles with the collapsing American economy.

I want to be absolutely clear with our people and the world: the United States does not torture. — George W. Bush, September 6, 2006

By the time George Bush uttered those words, he was (technically, anyway) correct. That is, according to the precise letter of the law, as interpreted by Dick Cheney’s crackerjack team of attorneys at the Dept. of Justice Office of Legal Council (OLC) and published in the four Bybee and Bradbury memos, dating from August 2002 and May 2005. According to Team Cheney, we never did torture, and even if we did, the point was moot. Here’s why, according to the Bybee and Bradbury memos:

  • Intention is nine-tenths (plus one-tenth) of the law: Unless the interrogators intended to inflict pain and suffering, it was not torture. And since the specific intention of the interrogators was to gather intelligence — and not to inflict pain and suffering, per se — it was not technically torture.
  • Location, location, location: Under the terms Article 16 in the Geneva Convention Against Torture (CAT), the torture prohibitions apply specifically to “territories under [United States] jurisdiction.” To ascertain whether we were in compliance with this treaty obligation, the memo authors repeatedly consulted dictionary definitions of “territory” and “jurisdiction,” which neatly supported their argument that it is was not illegal for the U.S. to torture prisoners, so long as the torture took place in non-U.S. territories. Thus, the network of secret black site prisons around the globe (e.g. Afghanistan, Poland, Syria, Morocco, Thailand, etc.) where torture took place were determined to be, technically, legal, as were enhanced interrogations on any ships not registered with the U.S.  (see pages 17-21 in the May 30, 2005 Bradbury Memo)
  • Look that up in your Funk & Wagnalls: An existing U.S. Senate reservation states the the U.S. is bound to the obligations of the Geneva Convention Against Torture “only insofar as the term ‘cruel, inhuman or degrading treatment or punishment'[ means [that] prohibited by the Fifth, Eigth and/or Fourteenth Amendments to Constitution of the United States.” Scrutinizing the language of this reservation, Team Cheney again consulted the dictionary for clarity on the precise definitions of key words and terms, such as “torture” and “calculated” and “severe physical suffering” and “severe mental pain or suffering” and “prolonged mental harm.” After careful consideration of the dictionary definitions, they concluded that  the CIA’s enhanced interrogation techniques, including waterboarding, were legal. Waterboarding cannot be considered “severe physical suffering” because, according to the dictionary, for distress to be “severe,” the intensity and duration of the distress must be taken into account. The memo explains that, by definition, waterboarding does not constitute “severe physical suffering,” since (a) the physical distress of waterboarding ends as soon as the session is over, and since (b) these sessions were, by their estimation, brief (with the maximum time set at 12 minutes per day, total, of actual waterboarding per day, with each session to last no longer than 40 seconds.) A similar argument is used to explain why waterboarding does not cause “prolonged mental harm,” as the length of these sessions do not conform to the dictionary definition of “prolonged.” You’d have to read the memos to appreciate the beauty of these definitions, as they apply to the blow-by-blow legalization of torture, as construed in these memos. Here are a few examples, as they apply to each of the following Constitutional Amendments:
    • 8th Amendment – This amendment protects against the infliction of “cruel and unusual punishments.” As the memo argues, however, this amendment only applies after an individual has been convicted of a crime. Thus, the memo concludes that “Because the high-value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here.” Accordingly, so long as the due process is denied ( per the provisions of the 14th Amendment, below) then a detainee could be detained forever, being subjected all the while to “cruel and unusual punishments.”
    • 5th Amendment — Unlike the Eighth and Fourteenth Amendments, the Fifth Amendment allows that NO person shall be deprived of life, liberty or property without due process of law. Setting aside the dictionary for a moment, the memo’s authors turned to case law, citing a 1952 ruling, which stated that the due process component of the 5th Amendment protects, specifically, against executive action that “shocks the conscience.” And to determine whether an action “shocks the conscience,” it is necessary to determine whether it is “arbitrary in the constitutional sense,” which, in turn, depends on whether the action is justifiable “in the service of a legitimate government objective.” The memo authors devote several pages to this concern before ultimately determining waterboarding and other enhanced interrogation techniques do not “shock the conscience” and therefore do not violate the 5th amendment.  Building on this argument, the memo asserts that — since aliens (non-U.S. citizens) are not entitled to Fifth Amendment rights outside of the sovereign territory of the United States — it is not illegal to subject aliens to “cruel, inhuman or degrading treatment or punishment”so long as this takes place in the above mentioned black prison sites. This argument was no doubt used to justify the extraordinary rendition of Canadian citizen Mahar Arar to Syria. (To be sure, since the Constitution technically only applies to U.S. citizens, it stands to reason (and this is painstakingly spelled out in the Bybee-Bradbury memo) that it is perfectly legal to subject non-U.S. citizens to “cruel, inhuman, or degrading treatment or punishment.” )
    • Fourteenth Amendment — While this amendment provides that “No State shall deprive any person of life, liberty or property without due process of law,” this provision does not *technically* apply in the District of Columbia, which is coincidentally where the White House is located. This gave the Bush-Cheney Administration additional license, as if they needed it, to deprive anyone they jolly well pleased — from American citizens to aliens — of life, liberty or property, without due process of law.

In other words, (according to the authority of Dick Cheney and his crackerjack team of lawyers) there are no domestic or international laws to prohibit the U.S. from torture, illegal detainment, extraordinary rendition or the denial of due process. Which brings me to the case of Majid Khan.

It is only appropriate (since his incarceration and torture would have been deemed illegal in pre-Bybee-Bradbury years) that his name is physically present in these memos. In the May 30, 2005 Bradbury memo, if you look at the 2nd paragraph on page 10, you’ll find his name. Look closely, because the words “Majid Khan” — much like the actual person — have been partially obliterated by the ubiquitious redactions.

In broad brushstrokes, the story of Majid Khan  can be given in two sentences: Majid Khan, a legal U.S. resident from Baltimore, was arrested in 2003, based on accusations from a torture victim, who has since acknowledged giving false information under torture, simply to make the torture stop. Majid Khan has spent the past 6 years — and counting — in prison, without charges, during which time he, himself, has been reportedly subjected to torture, under which he confessed to crimes he never committed.

Majid Khan is seen in year in high school in Baltimore, Maryland. Khan, 27, is now jailed at Guantanamo Bay, Cuba.

Majid Khan is seen in 1999 during his senior year in high school in Baltimore, Maryland. Khan, 27, is now jailed at Guantanamo Bay, Cuba.

Again, my apologies to Majid Khan and his family for not finishing this post. I hope that this post will be a starting point for others to take an interest in his story.  By all appearances, Mr. Khan is an innocent man: he has yet to be charged with any crime — much less been granted the basic right of a trial — and, as such, appears to be guilty of nothing more than getting mired in the web of Dick Cheney’s deceitful war on terror.

Below is a synopsis of Majid Khan’s story, quoted from the Center for Constitutional Rights (CCR), a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. CCR has been actively involved in litigation on behalf of many Guantanamo detainees, including Mr. Khan, whom they’ve represented since Sept. 2006, a timeline of which can be found here, at the CCR website, along a list of PDF files of their actions throughout this case:

Mr. Khan was kidnapped in 2003 while visiting relatives in Pakistan, imprisoned in secret CIA detention for three-and-a-half years and subjected to “alternative interrogation methods” that amount to torture. He has never been formally charged with a crime.

Majid Khan had immigrated with his family to the United States in 1996. They settled in Baltimore, where he attended Owings Mills High School, graduating in 1999. Majid was granted legal asylum in the U.S. in 1998 and subsequently worked for the State of Maryland. In 2002, he went to Pakistan to get married and then came home to the United States to continue working. Shortly after returning to his wife in Pakistan, Majid and other relatives were kidnapped from their residence.

In the middle of the night, on March 5, 2003, individuals identified as Pakistan security officials pounded on the door of the home of Majid’s brother in Karachi, and rushed into the flat. The family members at home included Majid, his brother, his brother’s wife and their month-old daughter. As the family was trying to wake up, the officials hooded and bound them before placing them in a vehicle. They were all taken to an unknown location.

Majid’s sister-in-law and infant niece were imprisoned for about a week. Pakistan officials imprisoned his brother for approximately one month. When Majid’s brother was released, officials threatened him not to make any public statements or inquire after Majid. As a result of the threats, Majid’s family in Baltimore and Karachi waited anxiously and fearfully for his return. He was never released or heard from again.

Back home in the U.S., Majid’s family cooperated with U.S. authorities in every way they could; Majid’s older brother, a U.S. citizen, was interviewed hundreds of times by the FBI and he asked repeatedly about Majid’s whereabouts. Nonetheless, Majid’s family did not learn he was in U.S. custody or even that he was alive until a news reporter knocked on their door and told them President Bush announced Majid’s name in a speech before the nation on September 6, 2006.

Majid now has a young daughter he hasn’t seen.

For more on Majid Khan from the Center for Constituional Rights archives:

Khan v. Bush / Khan v. Gates Synopsis: CCR’s representation of Majid Khan involves two cases: Khan v. Bush is a habeas corpus … of former Baltimore, MD resident and U.S. asylum-holder, Majid Khan, who was transferred from three-years in secret C.I.A. detention to …
Going to See a Ghost: Majid Khan and the Abuses of the ‘War on Terror’ … wrote this op-ed in The Washington Post on CCR client Majid Khan, a former Baltimore resident who was “disappeared” into a CIA …
Redacted Motion to Declare Interrogation Methods Used on Majid Khan Are Torture Cleared By CIA … the government to preserve evidence of Guantanamo detainee Majid Khan’s torture by the CIA, a second motion filed by the Center for … the motion is due to the court on December 20. “Majid Khan was subjected by U.S. personnel to a ruthless program of …
CCR Attorneys Release Revelations of Torture of Former Ghost Detainee Majid Khan Sub Heading: Motion Filed to Preserve Evidence of Majid‘s Torture While at CIA Black Site Last week, a motion that … attorneys filed in the case of former ghost detainee Majid Khan was made public. The heavily redacted motion, which was filed in order to …
Government Declassifies Majid Khan Torture Motion … by the Center for Constitutional Rights (CCR) on behalf of Majid Khan, a former CIA ghost detainee now held at Guantanamo. The motion and its …
Freedom of Information Act: Ghost Detention and Extraordinary Rendition Case … tortured in Syria for nearly a year. CCR also represents Majid Khan, a former resident of Baltimore, Maryland, who was detained in secret for …
Dixon, J. Wells … Yemen. He also represents former Baltimore-area resident Majid Khan, who was imprisoned and tortured in secret CIA “black sites” for more …
CCR Files Important Brief in Khan v. Bush … response to the government’s efforts to deny CCR access to Majid Khan, on whose behalf CCR previously filed a petition of habeas corpus. Mr. …
Gutierrez, Gitanjali … Convening Authority in May 2008.  She also represents Majid Khan, a Baltimore resident and citizen of Pakistan transferred from secret CIA …
CCR Attorney Gives Unprecedented Classified Briefing to Senate Intelligence Committee on Details of CIA Torture Program … provided a thorough account of what was done to CCR client Majid Khan and of the on-the-ground implementation of the CIA’s “enhanced …

Court Orders Government Not to Destroy Torture Evidence … to preserve” evidence relating to Guantanamo detainee Majid Khan, including evidence of his torture by the CIA. The U.S. Court of Appeals …

FAQs: What Are Ghost Detentions and Black Sites … In addition, CCR provides legal representation to Majid Khan, one of the 15 men transferred from secret CIA custody to Guantanamo Bay. …
House Votes to Outlaw Waterboarding … was released on the same day that the government brought Majid Khan, who is represented by the Center for Constitutional Rights, and others to …
CIA Acknowledges It Has More than 7,000 Documents Relating to Secret Detention Program, Rendition, and Torture … of men. These include some of our clients, like Majid Khan, who were known to be in the program. The public needs to know what …

Sources plus more info for further reading:

April 17, 2009 Letter from Attorney General Eric Holder to  Sen. John D. Rockefeller in response to the Senator’s Feb. 2009 request for declassification and release of a narrative regarding advice provided by the CIA on the legality of certain interrogation techniques

World Socialist Website: More Revelations from Bush Torture Memos

Security Dilemmas (A blog dedicated to examining issues of international and national security, international politics, and international law): Legalizing Torture? Part II: The 30 May 2005 Bradbury Memo

Emptywheel/Firedoglake: The Gestation of Bradbury’s Torture Memos

Congressional Research Service: The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens (January 21, 2009)

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The text

ACLU: FAQs on the U.N. Convention Against Torture

ACLU: On April 16, 2009, the Department of Justice released four secret Bybee-Bradbury Memos, which were used by the Bush-Cheney Administration to justify torture. This page includes links to the texts of the following memos:

  • The Bybee-Memo: An 18-page memo, dated August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
  • Bradbury Memo: A 46-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
  • Bradbury Memo: A 20-page memo, dated May 10, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
  • Bradbury Memo: A 40-page memo, dated May 30, 2005, from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF]
    • NOTE: This is the memo where you will find mention of Majid Khan in the 2nd paragraph on page 10, which reads:

More specifically, we understand that KSM [Khalid Sheikh Mohammed] admitted he had tasked Majid Khan with delivering a large sum of money to an al Qaeda associate… Khan subsequentgly identified the associate (Zubair) who was then captured. Zubair, in turn, provided information that led to the arrest of Hambali. the information acquired from these captures allowed CIA interrogators to pose more specific questions to KSM, which led the CIA to Hambali’s brother, al-Hadi. Using information from multiple sources, al-Hadi was captured, and he subsequently identified the Guraba cell…. With the aid of this additional information, interrogations of Hambali confirmed much of what was learned from KSM.

The footnote (#6) to the above section was redacted in entirety, except for this sentence:

We discuss only a small fraction of the important intelligence CIA interrogators have obtained from KSM.

2007 International Red Cross report This ICRC report, dated February 2007, details the treatment of fourteen “high value detainees” in CIA custody. The leaked report was first published by the New York Review of Books. This report cites specific instances of ill-treatment as reported by these 14 detainees. Below are the passages that mention Majid Khan:

  • Prolonged Stress Standing (Section 1.3.2): Ten of the fourteen [detainees] alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or more months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment. For example…. Mr. Majid Khan [was shackled] for three days in Afghanistan and seven days in his third place of detention…. While being held in this position some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper… Three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own bodily fluids. Of these, on Mr. Bin Lep agreed that his name be transmitted to the authorities.
  • Prolonged Nudity (Section 1.3.6): The most common method of ill-treatment noted during the interiews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently. For example…. Mr. Majid Khan alleged that he was kept naked for three days in Afghanistan and for seven days in his third place of detention….. Most of the detainees commented that the provision of clothes was determined by how cooperative they were perceived by the interrogators.
  • Deprivation/Restricted Provision of Solid Food (Section 1.3.12) Eight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month.This was often followed by a period with the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts. For example…. Mr. Majid Khan alleged that he did not receive any solid food for seven days in Afghanistan.
  • In addition, the dates of the ICRC’s written interventions to the U.S. authorities, requesting information on Majid Khan are given in Annex 2 of this same report.

The Washington Post:

  • Human Beings Without Humanity — (Excerpt: “The profoundly disgusting memos made public yesterday — in which government lawyers attempted to justify flatly unconscionable and illegal acts — provide a depressing reminder of a time when the powerful and powerless alike were stripped of their humanity. These memos gave the CIA the go-ahead to do things to people that you’d be arrested for doing to a dog. And the legalistic, mechanistic analysis shows signs of an almost inconceivable callousness. The memos serve as a vivid illustration of the moral chasm into which the nation fell — or rather, was pushed — during the Bush era. President Obama deserves great credit for defying members of the intelligence community who wanted to keep these memos secret. But in calling for the nation to move on without any further looking back, Obama put his political needs above his moral and legal obligations…..”)
  • Too Embarrassing to Disclose? (Excerpt: “President Obama’s approach to government transparency is disturbingly opaque in places, particularly when it comes to disclosing information about the Bush administration’s torture legacy….”)

Salon.comIs waterboarding torture? Ask the prisoners (November 6, 2007)

Long Excerpt: If senators such as Charles Schumer and Dianne Feinstein have doubts about whether waterboarding is torture, they should — and should be allowed to — interview the men who have likely experienced it in secret CIA detention facilities in American hands.

For example, they should interview Majid Khan, a Baltimore resident abducted and held for years in secret CIA prisons. He was a “ghost detainee” who this past year was among the “reappeared” at Guantánamo.

President Bush himself has clearly stated that Khan was held at a secret CIA facility before being transferred to Guantánamo. Bush also made clear that an “alternative set of procedures” were enforced — procedures widely believed to include waterboarding.

So, was Majid Khan really waterboarded? I don’t know. Khan has been prohibited from speaking to anyone except my colleagues, lawyers at the Center for Constitutional Rights who were finally allowed to visit him recently. One of those attorneys, Gitanjali Gutierrez, and her colleagues have also since been silenced: The government forced them to sign a protective order because Khan knew about “enhanced interrogation techniques.” Likely translation: Khan was tortured and the government is trying to cover it up by silencing him — and even his attorneys….

Those senators are perfectly within their rights and powers to pick up the phone right now and demand to interview Khan and others who were likely tortured at CIA secret sites. They can conduct classified interviews with the lawyers for the Center for Constitutional Rights about their milestone visit with Khan. They can learn exactly what happened to these men. And, if the men were waterboarded, they can learn exactly what the practice entails.

What they will likely hear are descriptions like one written by Henri Alleg, a French journalist who suffered waterboarding during the Algerian war: “I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.”

…. And so the question is extremely simple: Do the men and women who serve on the Senate Judiciary Committee want to know, or not? Do they care about whether our nation has tortured?

….I believe that upon talking to victims of waterboarding any reasonable senator — or citizen — will define it as torture. There is no reasonable disagreement on this point. It was a technique invented in the Spanish Inquisition and used to terrible effect in the centuries since. The only question is whether there is any institution or group of politicians in this nation with the will to stand up for our Constitution, even at the risk of their own political prospects. If there are such men and women, then there is yet hope that our nation will rescue the Constitution from those who would shred it.

This is not a moment for political theater. This is not a moment for politics at all. This is the moment for good and decent leaders to remember that the truth still matters and to act accordingly.

POTENT QUOTABLES:

This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off. Nearly three thousand al-Qa’ida terrorists and their supporters have been detained. In Afghanistan the al-Qa’ida who refused to surrender have been killed. The hunt is on. — Cofer Black (former Director of the CIA’s counterterrorism center from 199 to May 2002) in his Sept. 2002 testimony before the House/Senate Intelligence Committee Hearing in their joint investigation into September 11th

The gloves are coming off gentlemen regarding these detainees…. we want these individuals broken. — U.S. Senate Committed on Armed Services report, titled “Inquiry Into the Treatment of Detainees in U.S. Custody” November 2008, pg. 199 [quoting an August 2003 email sent by Capt. William Ponce (the battle captain in the Combined Joint Task Force 7’s Human Intelligence and Counterintelligence Office in Iraq) to interrogation elements in the field, in which he requested they submit “interrogation techniques wish lists.”]

The danger facing us is enormous. The efforts we take to meet it must be just as enormous. The time has come to remove the gloves! We must use our fists now! ….Those who do not understand this fight today will thank us on bended knee tomorrow that we took it! — Joseph Goebbels, from his 1943 speech, “Nation Rise Up and Let the Storm Break Loose”