Hillary

The Secretary of State speaks the truth on civilian trials of terrorism suspects detained at Guantanamo:

"[The civilian trial system] is good enough and strong enough to either convict and sentence the guilty, or even execute where appropriate, and where you can't convince an American jury, which is certainly obsessed with terrorism, maybe there's a question about the strength of the case," she said.

- Garry J. Wise, Toronto

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On Gitmo Trials: The Exclusion of Torture-Related Evidence

From a Mother Jones commentary:

For civil libertarians, it was a classic good news/bad news day. The good news was that a court had ruled that the government would pay a price for torture—maybe not in punishments for those who devised the policies, but in significant setbacks for its prosecutions of alleged terrorists. Today, torture met its first institutional, legal rebuke.

The bad news is that this is only the tip of the extra-legal iceberg. The law can be twisted in other ways—outside of the realm of torture—to accommodate the government's unique treatment of Guantanamo defendants, including the possibility of post-acquittal detention

More from CNN on Wednesday's landmark, tainted-evidence ruling in the Ahmed Ghailani trial: Key witness ruled out of terror trial over torture concerns.

- Garry J. Wise, Toronto

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Cheney

Scott Horton of Harpers on the former Vice President:

“I was a big supporter of waterboarding,” Cheney said in an appearance on ABC’s This Week on Sunday. He went on to explain that Justice Department lawyers had been instructed to write legal opinions to cover the use of this and other torture techniques after the White House had settled on them.

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture? Cheney told Jonathan Karl that he used his position within the National Security Council to advocate for the use of waterboarding and other torture techniques. Former CIA agent John Kiriakou and others have confirmed that when waterboarding was administered, it was only after receiving NSC clearance. Hence, Cheney was not speaking hypothetically but admitting his involvement in the process that led to decisions to waterboard in at least three cases.

What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

- Garry J. Wise, Toronto

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The U.S. Torture Prosecutions

U.S. Attorney General's Eric Holder announced Monday that he has appointed an independent prosecutor to investigate allegations of torture against some CIA interrogators who questioned detainees captured in the previous administration's "war on terror." Law.com reports:

Career federal prosecutor John Durham, who is overseeing the investigation of the destruction of CIA interrogation tapes, was tapped Monday to explore potential violations of anti-torture laws rooted in the interrogation of certain detainees, Attorney General Eric Holder Jr. said in a statement Monday afternoon.

The Department of Justice internal watchdog, the Office of Professional Responsibility, submitted to Holder a report Monday that recommended the department re-examine earlier decisions, made under the Bush administration, to decline to prosecute apparent violations of anti-torture laws.

In reaching his decision to appoint a prosecutor, Holder also reviewed a 2004 report compiled by the CIA inspector general's office. "As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations," Holder said in a statement Monday.

The New York Times has posted the complete Justice Department report relied upon by the Attorney General. The Times has also published a number of related documents. Included are two reports that former Vice President Dick Cheney has previously demanded be released, which he claims demonstrate the "success" of the "harsh" interrogation methods that were implemented:

Khalid Shaykh Muhammad: Preeminent Source On Al-Qa’ida

Detainee Reporting Pivotal for the War Against Al-Qa’ida

The remaining documents released and posted by the Times were:

• A 2006 letter from Steven G. Bradbury, then acting assistant attorney general, to John A. Rizzo, acting general counsel at the C.I.A., advising that the “conditions of confinement” in the agency’s overseas prisons were permitted by the Geneva Conventions (pdf).


• A 2004 letter to Dan Levin, acting assistant attorney general, describing the C.I.A.’s use of interrogation tactics in combination (pdf).

Constitutional attorney Glen Greenwald is highly critical of the limited scope of the Holder announcement:

Holder's decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, "to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter." More important, the scope of the "review" is limited at the outsetto those who failed to "act in good faith and within the scope of legal guidance" -- meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will "be protected from legal jeopardy" (the full Holder statement is here).

In theory, Holder's announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated.

...As a practical matter, Holder is consciously establishing as the legal baseline -- he's vesting with sterling legal authority -- those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees." Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

This quite likely sets up, at most, a process where a few low-level sacrificial lambs -- some extra-sadistic intelligence versions of Lynndie Englands -- might be investigated and prosecuted where they tortured people the wrong way. Those who tortured "the right way" -- meaning the way the OLC directed -- will receive full-scale immunity.

This decision to investigate, and possibly prosecute, only low-level operatives - while shielding the actual architects of the Bush-Cheney torture policies - is unforgivable, a position also well- advocated in this comment from BNP.

Whether or not torture is effective is not actually the issue. The real issue is that torture is just as illegal as bank robbery [see 18 U.S. Code 2340(a) and2340]. Until bank robbery is made legal, people who get caught helping themselves to a bank's money end up in rison. That's justice.

If government officials want to commit torture without going to prison, then they need to pressure Congress to make torture legal.

Until they do that, torture is a violation of law -- which means, at least in a nation that values equal justice under the law, that those who commit torture (or order underlings to do it) should be held accountable.

Andrew Sullivan makes the broader point. With the inevitable, next Republican political ascendancy, pro-torture advocates will simply return to "business as usual." History will repeat itself unless the previous administration's torture practices are thoroughly discredited and legally repudiated:

One political party in this country is now explicitly pro-torture, and wants to restore a torture regime if it regains power. Decent conservatives for the most part simply looked the other way. Unless these cultural forces in defense of violence and torture are defeated - not appeased or excused, but defeated - America will never return the way it once was. Electing a new president was the start and not the end of this. He is flawed, as every president is, but in my view, the scale of the mess he inherited demands some slack. Any new criminal investigation which scapegoats those at the bottom while protecting the guilty men and women who made it happen is a travesty of justice. If it is the end and not the beginning of accountability, it will be worse than nothing.

Worse than nothing, indeed.

- Garry J. Wise, Toronto

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Questions for the "Obamacare Death Panel" Prophets

A few questions come to mind for those ornery, silly conservatives in America who actually believe Sarah Palin's discredited, outlandish claim that Democratic health care proposals before Congress require that health-care dollars be saved by so-called "death panels" charged with enforcing mandatory, non-consensual euthanasia of the elderly and disabled by America's physicians

I truly wonder - do you really think your country is actually in that much trouble?

Do you really believe that doctors, nurses and other health care providers of your nation would actually cooperate in such a demented system, if it existed?

Do you really believe that the lawyers and judges and activists and law enforcement agencies of your entire country would simply roll over and pretend that such things weren't happening?

Do you really think America is so limp that is now actually capable of surrendering to such insidious fascism and totalitarianism?

Well...

If you do think fascism so imminent and worrisome, why didn't you think so only a few months ago when your country actually was:

• disavowing the Geneva Conventions?
• actively engaging in a documented regime of systematic torture that purported to be justified by widely-discredited legal memos written by executive branch lawyers appointed by your own President?
• destroying videotape evidence of actual torture sessions?
• invading other nations on demonstrably false grounds?
• detaining mass numbers of people - many who were wholly innocent - in Guantanamo and elsewhere without charges, trials or right of review?
• issuing rendition orders to send vast numbers of people to black hole prisons for brutal interrogations in undisclosed, foreign locations?
• Conducting sweeping domestic eavesdropping and warrantless wiretapping programmes that targeted ordinary citizens on a scale not yet disclosed?

If you fear totalitarianism so gravely, why do you now so vehemently object to prosecution of the lead actors behind those practices and policies? Wouldn't such prosecutions allow America's courts an opportunity to legally disavow such blatant offences against democracy and the rule of law?

Couldn't such criminal charges establish the very legal precedents that might well protect you against everything you so emphatically claim you fear from your government?

If any of it ever happened?

Again.

Just wondering.

- Garry J. Wise, Toronto

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Video: Visiting John Yoo's Law School Classroom

John Yoo, the legal architect of the Bush "enhanced interrogation" regime receives a visitor to his Tax Law class at Chapman University School of Law in Orange County, California:

- Garry J. Wise, Toronto

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On Universal Jurisdiction, Those Pesky Spanish Judges and Canada's War Crimes Legislation

The Washington Post looks at Spain's National Court justices, who seek to hold the United States and other nations accountable for alleged war crimes and crimes against humanity, wherever they have occured, based on the legal principle of universal jurisdiction:

Judges at Spain's National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.

The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.

... Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.

...Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

See: Spain's Judges Cross Borders In Rights Cases - High-Ranking U.S. Officials Among Targets of Inquiries.

Also see Wikipedia's article on universal jurisdiction, for a good backgrounder.

.....

Canada Convicts Rwandan War Criminal

Earlier this week, on May 22, 2009, a 42 year-old Rwandan man was convicted in the Quebec Superior Court on seven counts of genocide, war crimes, and crimes against humanity in Canada's first prosecution under the 2000 Crimes Against Humanity and War Crimes Act.  

Canadian Press  reported on the conviction:

MONTREAL — A Rwandan man accused of murdering and raping Tutsis during that country's bloody genocide some 15 years ago has become the first person ever to be convicted under Canada's war crimes legislation.

Lawyers for Desire Munyaneza immediately said they would appeal a Quebec Superior Court ruling that found their client guilty of seven charges stemming from war crimes committed during the 1994 Rwandan genocide.

Quebec Superior Court Justice Andre Denis said he was convinced that Munyaneza was guilty of all the charges against him, making Munyaneza the first person to be convicted under Canada's Crimes Against Humanity and War Crimes Act.

Munyaneza, a 42-year-old father of two, faced seven charges related to genocide, war crimes and crimes against humanity for his role in massacres and rapes near Butare, Rwanda, between April and July of 1994.

Sections 6 and 9 of the federal Crimes Against Humanity and War Crimes Act  (excerpted below) grant jurisdiction to Canadian courts over war crimes and related offences committed outside Canada including crimes involving torture and conspiracy to commit to torture: 

OFFENCES OUTSIDE CANADA

Genocide, etc., committed outside Canada

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

Definitions

(3) The definitions in this subsection apply in this section.

"crime against humanity" 
«crime contre l’humanité »

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"genocide" 
«génocide »

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" 
«crime de guerre »

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission...

PROCEDURE AND DEFENCES

Place of trial

9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

- Garry J. Wise, Toronto

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Springtime is for Neo-Con Revisionism

We now bring you a Neo-Con Talking Points Moment.

In today's edition (brace yourselves...) we shall learn:

• George Bush wasn't an evil-doer for that long...  
• And now, President Obama's just like him (but so smooth in the delivery, you don't even notice it).
  

New York Times op-ed columist David Brooks establishes the theme, with (to put it mildly) a revisionist's perspective on the Bush era:

The Bush-Cheney period lasted maybe three years. For Dick Cheney those might be the golden years. For Democrats, it is surely the period they want to forever hang around the necks of the Republican Party. But that period ended long ago.

By 2005, what you might call the Bush-Rice-Hadley era had begun. Gradually, in fits and starts, a series of Bush administration officials — including Condoleeza Rice, Stephen Hadley, Jack Goldsmith and John Bellinger — tried to rein in the excesses of the Bush-Cheney period. They didn’t win every fight, and they were prodded by court decisions and public outrage, but the gradual evolution of policy was clear.

From 2003 onward, people like Bellinger and Goldsmith were fighting against legal judgments that allowed enhanced interrogation techniques...

Jack Goldsmith, former U.S. Assistant Attorney General in the Bush administration's Office of Legal Counsel, takes the same ball and runs the field with it in The Cheney Fallacy:

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

- Garry J. Wise, Toronto

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Quotable: On Torture, Waterboarding, and Dick Cheney

Jesse (the Governing Body) Ventura, former Minnesota Governor, Navy Seal and professional wrestler:  

I would prosecute every person who was involved in that torture. I would prosecute the people that did it, I would prosecute the people that ordered it, because torture is against the law... I was waterboarded [in training] so I know... It is torture...I'll put it to you this way:  You give me a waterboard, Dick Cheney and one hour, and I'll have him confess to the Sharon Tate murders.

Here's the video:

- Garry J. Wise, Toronto

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Ashcroft, Gonzales Disavow the "Nixon Defence"

From Think Progress: Gonzales And Ashcroft Disagree With Rice: Just Because A President Says It Does Not Make It Legal

- Garry J. Wise, Toronto

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'Scapegoat' Charles Graner Plans Appeal, Centers on Torture Memos

From the Washington Post:

Now, the recent release of Justice Department memos authorizing the use of harsh interrogation techniques has given Graner and other soldiers new reason to argue that they were made scapegoats for policies approved at high levels. They also contend that the government's refusal to acknowledge those polices when Graner and others were tried undermined their legal defenses

Graner remains locked up at Fort Leavenworth, Kan., about halfway through a 10-year prison sentence for detainee abuse, assault and dereliction of duty. His lawyer said this week that he is drafting appeals arguments centered largely on the revelations in the memos and a newly released congressional investigation into the interrogation practices

...Charles Gittins, a Virginia lawyer who represents Graner, said he has been fuming since reading the memos. He said he has long believed that there was no way Graner and the other Army Reservists invented techniques such as stress positions, leashing and the use of dogs, and he says the documents confirmed his suspicions.

- Garry J. Wise, Toronto

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Quotable - "Torture Isn't Conservative"

Ken Adelman,  former chair of the Reagan-era Arms Control and Disarmament Agency:

"I'm having trouble figuring out why staunch conservatives aren't as outraged by the torture memos and practices as the American public. ... It's somewhat outrageous for real conservatives not to be outraged by all this. Conservatism has never been, and should not become now, the pro-torture movement...

Torture is not only immoral; it's not conservative. And conservatives shouldn't be defending it."  

Via Andrew Sullivan

- Garry J. Wise, Toronto

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Canadian Bar Association: Repatriate Khadr

The Canadian Bar Association once again has called for the repatriation of Omar Khadr.  

An April 24, 2009 letter from C.B.A. Presient J. Guy Joubert to Canadian Prime Minister Stephen Harper and U.S. President Barack Obama references last week's Federal Court ruling in Omar Ahmed Khadr v. The Prime Minister of Canada et al., and calls upon both leaders to facilitate Mr. Khadr's prompt transfer from Guantanamo Bay to Canadian custody:

The CBA is a national association representing 38,000 jurists across Canada. We work to promote the Rule of Law and improve the administration of justice in Canada and around the world. It is in this light that we have protested Mr. Khadr’s subjection to the military tribunal process in Guantánamo Bay and called for his repatriation. We take no position on Mr. Khadr’s guilt or innocence. Our concern is that he receive a fair trial in accordance with all procedural protections and special considerations to be afforded a minor, as required by domestic and international law. Canada’s justice system is well equipped to fairly and openly assess Mr. Khadr’s criminal culpability, in a manner that reflects his status as a minor at the relevant time.

...Yesterday, Canada’s Federal Court ruled the ongoing refusal of the Government of Canada to request Mr. Khadr’s repatriation to Canada “offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter”. It ordered the government to seek Khadr’s repatriation as soon as practicable.1

...Prime Minister, the time has come for the Canadian government to advise the U.S. that it is willing to negotiate the terms of Mr. Khadr’s repatriation to Canada to face Canadian justice. In turn, Mr. President, we urge the U.S. government to negotiate the terms of Mr. Khadr’s repatriation with the Canadian government and to transfer available evidence respecting his conduct to the Canadian government. We urge you to come to an agreement that recognizes international human rights obligations, due process and the Rule of Law, and the desirability of ensuring the national security of both countries.

(h/t:  Ken Chapman)

- Garry J. Wise, Toronto

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Judge Bybee Defends His Torture Memo

The New York Times reports that Judge Jay S. Bybee has issued a statement, defending his August 1, 2002  legal memorandum that purported to provide legal cover to the Bush administration for the use of specified torture techniques, including waterboarding:  

Judge Bybee... said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Andrew Sullivan has responded with a veritable knockout punch:

Let me give a simple small example, helpfully laid out here. Bybee was able to defend waterboarding as non-torture in a legal memo ostensibly providing objective analysis of the case history of the torture technique in the US. Among the obvious precedents for such a decision was the most recent case - when the Reagan administration Justice Department prosecuted a Texas sheriff and his deputies for waterboarding a suspect to get a confession in 1983:

At the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture. "We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977. Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."

"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel." Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe." One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.

The Reagan Justice Department - back when Republicans opposed torture - did not buy this defense and neither did a jury. They convicted the the deputy on three counts of civil rights and constitutional violations. Now: this case occurred before the UN Convention on Torture went into effect, but any good faith legal memo explaining the history of this particular torture technique would surely have cited it. It's easily findable with Google, let alone with the research resources available to the Office Of Legal Counsel.

I honestly cannot imagine how a serious legal memo with respect to a very rare torture technique would not cite the most recent domestic precedent, finding that it violated the constitution. Can you?

Think Progress reports that Judge Bybee has been asked to testify before the Senate Judiciary Committee:

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his “views” about torture and his “role” in drafting the torture memos. “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House,” Leahy wrote. “I look forward to your cooperation and your testimony.” Read Leahy’s letter (pdf) here.

Meanwhile in Spain, investigations have begun into the torture practices at Guantanamo, according to Associated Press.  Specific focus appears to directed on the Bybee legal memorandum and other "torture memos" prepared for the Bush administration by the Office of Legal Counsel.

MADRID – A Spanish judge opened a probe into the Bush administration over alleged torture of terror suspects at Guantanamo Bay, pressing ahead Wednesday with a drive that Spain's own attorney general has said should be waged in the United States, if at all.

Judge Baltasar Garzon, Spain's most prominent investigative magistrate, said he is acting under this country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain.

He said documents declassified by the new U.S. government suggest the practice was systematic and ordered at high levels of the US government.

...Now, Garzon is opening a separate, broader probe that does not name any specific suspects but targets "possible material authors" of torture, accomplices and those who gave torture orders.

In a 10-page writ, Garzon said documents on Bush-era treatment of prisoners, recently declassified by the Obama administration, "reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of persons denied freedom without any charge whatsoever and without the rights enjoyed by any detainee."

Garzon cited media accounts of the documents and said he would ask the U.S. to send the documents to him.

The judge wrote that abuses at Guantanamo and other U.S. prisons for terror suspects, such as the American air base at Bagram, Afghanistan, suggest "the existence of a concerted plan to carry out a multiplicity of crimes of torture."

- Garry J. Wise, Toronto

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'Orwell Would Laugh'

The indispensible Cathie from Canada:

...using a term "enhanced measures" instead of "torture" is like a drug addict calling heroin "my medication". George Orwell would laugh.

- Garry J. Wise, Toronto

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On Courts, Khadr and Canada's Conservatives

CTV News reports today that Stephen Harper's Conservative government continues to hedge on whether it will abide by an April 23, 2009 Federal Court ruling, require it to formally request the repatriation of Omar Khadr, a Canadian citizen confined at Guantanamo Bay since 2002:  

Foreign Affairs Minister Lawrence Cannon said Sunday the federal government is still pondering whether to appeal a Federal Court order on the Omar Khadr case.

On CTV's Question Period, Cannon reiterated the government is "looking very seriously" whether to appeal the order that it request the United States to send Khadr home from the U.S. military prison in Guantanamo Bay, Cuba.

In a ruling released Thursday in Omar Ahmed Khadr v. The Prime Minister of Canada et al., Federal Court Judge James W. O'Reilly ordered the Stephen Harper government to demand Mr. Khadr's return to Canada from Guantanamo "as soon as is praticable."  

Mr. Kadr was 15 years old when he was originally detained in Afghanistan and accused of throwing a grenade at an American soldier.

The court's ruling comes at a time when Americans are actively debating whether criminal or congressional investigations are warranted into the use of so-called "harsh investigation methods" in Guantanamo and elsewhere, on orders of the departed Bush administration.   The Federal Court, however, makes it clear that Canada's federal government was complicit in the American utilization of these investigative "techniques" upon Mr. Khadr.

In view of recent developments in Washington, the Prime Minister's apparent resistance to the Federal Court's ruling seems particularly perplexing.  U.S. Attorney General Eric Holder is "nearing decision" on the release of an initial group of Guantanamo detainees.  U.S. President Barack Obama's has pledged to close the prison by January, 2010.

In the Khadr ruling, Mr.  Justice O'Reilly pulled no punches in characterizing certain treatment afforded Mr Khadr at Guantanamo as torture, and noted that Canada's government "implicitly condoned" violations of international law by the U.S. government in its detention of Mr. Khadr.  

Excerpts from the Federal Court ruling follow:

[2] Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents’ possession.

[3] I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States... 

...[56] Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation “for the purpose of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a fair and reasonable investigation” and harms “the rights and dignity of the suspect” (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT.

...[61] Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Art. 39).

[62] Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Art. 40.1).

[63] The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

[64] Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family. 

[65] Canada had a duty to take all appropriate measures to promote Mr. Khadr’s physical, psychological and social recovery.

...[68] Clearly, Canada was obliged to recognize that Mr. Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr. Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face.

...[91] I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely,the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter.

[92] The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.

Scruffy Dan has thorough coverage on the court's ruling and the Harper government's continued waffling: The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights.

UPDATE I:

Also see Dave at Galloping Beaver, who surgically dissects the case against Khadr, and notes:

The worst part is the part you have not yet gathered in.

The government of the United States of America has told the government of Canada that they are willing to release Omar Khadr to Canadian custody on Canadian soil. All that has to happen is that the Canadian government officially request repatriation. That's the only condition.

Think I'm making that up? Then ask them. I know it's a fact. The US, as a matter of saving face in four different directions, wants to rid themselves of Omar Khadr but they need to do it under the proper optics. All that needs to be done is to have the Harper government make a public request. No back-channels.

Think I'm wrong?

Ask them. Ask them, if the Canadian government made a formal request to the government of the United States for the repatriation of Omar Khadr would he be returned to his country of birth?

Because if that happened Khadr would be on his way to Canada, in custody, but at least where the rule of law still has some meaning.

So, why won' Lawrence Cannon do that?  Because the "conservative" voting base would go ape-sh*t.

Not much of a reason.

UPDATE II:

I'd  highly recommend the helpful analysis of this ruling from McGill University's Human Rights and Legal Pluralism blog:

This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. 

...the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter....

... as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.

- Garry J. Wise, Toronto

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