Balkinization: The Absurdity of Limiting the Scope of the Congressional Hearing

Comments:

Marty,
You are absolutely right, we need to have the full picture all the way back and in public. We need to see the full cancer. I am so tired of these efforts to compartmentalize and cut up this stuff in order to evade responsibility.
Best,
Ben

# posted by

Benjamin Davis : 5:37 PM

I am at Guantanamo Bay waiting to testify (again) on Thursday about unlawful command influence in the military commissions process. Since I have nothing to do until Thursday, I was able to watch today’s Senate Armed Services Committee hearing from start to finish. Those of you who got to watch the hearings and saw the testimony of Jim Haynes probably understand why I submitted my resignation within an hour of learning that the Department of Defense chose to place me under his command and control. My ability to ensure full, fair and open trials evaporated at that moment.
Today’s hearing focused on the propriety of employing harsh interrogation techniques to obtain intelligence. My concern as chief prosecutor was not so much whether the harsh techniques produces good intelligence (perhaps it did), it was whether the same information was also reliable evidence we should use to establish someone’s guilt and perhaps sentence him to death. In my view, that is a much higher threshold. If there’s genuine doubt about the reliability of the information we extracted in the intelligence context there should be no doubt the same information has no place in a judicial proceeding conducted in the name of the United States. Unfortunately, above me in the chain of command were Brig Gen Tom Hartmann and Jim Haynes who didn’t share my views on waterboarding and other enhanced techniques. Note, too, that after Judge Allred found in the Hamdan case that Brig Gen Hartmann broke the law by engaging in unlawful command influence DoD didn’t remove Brig Gen Hartmann, they charged six more detainees. Apparently if you can refocus the public’s attention on the flurry of activity on the right hand they might not notice that the left hand has erupted in flames.

# posted by

Morris Davis : 5:40 PM

This is just a note as a civilian to salute you Mr. Davis (no relation).
Best,
Ben

# posted by

Benjamin Davis : 5:44 PM

And this is just another note as a civilian to salute you, Mr. Morris Davis. Thank you.

# posted by

jpk : 6:07 PM

I just wanted to post a link so others could find a recording of the hearings easily:

http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&tID=5&src=atom&atom=todays_events.xml&products_id=206004-1

Thanks for bringing it up.

# posted by

Margo : 6:10 PM

And my respect to you as well, Col. Davis. I salute you for your honour, your love of your profession, and your love of your country.

Those that think that the military have conducted themselves with less than honour defame the military. It is only some that wear the uniform that have brought dishonour. And unfortunately, it is not those that have stepped down, but rather the ones that believe in doing things by the rules and by the law, and who have been frustrated in their ability to do so by the present administration and command. This will pass, but not without some damage to the service.

Cheers,

# posted by

Arne Langsetmo : 7:40 PM

Col. Davis,

I'd really like to talk to you about a few things, but I'm not sure doing it in a public blog is such a good idea. I'm not a reporter per se, though I do have a web site, publish an irregular email news digest on the detainee issues, and write a bit when I have something to write. My most significant effort has been filing two amicus briefs in the detainee cases as a layman, pro se -- one with the SC in Hamdi, the other with the DDC in the cases that were just decided in Boumediene.

If you're willing to talk about this stuff a bit via email, my address is cbgittings@yahoo.com

regards,

Charly

# posted by

Charles Gittings : 1:00 AM

Back to deleting comments again Marty?

# posted by

Bart DePalma : 9:39 AM

L.S.,

Cool!
It could be worse, though.
A few years ago, here in the Netherlands, the Queen, through her Cabinet (which is what we call her personal staff), ordered/asked the AIVD, the agency responsible for looking out for terrorists, organised crime, etc, to look into the man that was going to marry her niece.

Legally, that was OK in the sense that the law regulating the AIVD listed the cabinet of the Queen among the people that were allowed to make such requests, but it became a little awkward during the debate in parliament. After all, as a matter of law the prime minister and the other ministers were completely responsible for the Queen's action, as they always are. Of course, in this case they only heard about the request when they read about it in the paper. Nevertheless, they had to maintain the legal fiction that it was essentially their decision, rather than the Queen's, and that they knew all about it. Very surreal...

# posted by

martinned : 9:45 AM

Back to deleting comments again Marty?

# posted by Bart DePalma : 9:39 AM

You are in no position to talk.

# posted by

Bartbuster : 10:06 AM

It is amazing to finally see the culprits in the flesh - Jim Haynes lying through his teeth (for counsel to the "Sec Def," he has a horrible memory - couldn't remember almost any memo he ever should've seen). (Col. Davis, isn't Haynes the one who said we can't have any acquittals in the military commissions since men had been held there for so many years?) And Alberto Mora the one true hero in all of this. I wonder if this will lead to anything...

# posted by

Marjorie Cohn : 11:29 AM

As to the scope of Congressional hearings regarding so-called, "harsh interrogations," how about some examination of the more than 100 detainees known to have been tortured to death while in US custody?

Watched Senator Sessions, in yesterday's hearing, re-float the "official" canard that, "we only employed water boarding 3 times" -- as if these 3 "admitted" instances of water boarding alone encapsulate the limit of US interrogation excess.

Yet, here are but 3 entries from our military's own records -- DOD autopsy reports for unnamed detainees who "died" while in US custody; their "manner of death" listed as "homocide" --

Autopsy number A02-95:

Detainee was found unresponsive restrained in his cell. Death was due to blunt force injuries to lower extremities complicating coronary artery disease.Contusions and abrasions on forehead, nose, head, behind ear, neck, abdomen, buttock, elbow, thigh, knee, foot, toe, hemorrhage on rib area and leg. Detainee died of blunt force injuries to lower extremities, complicating underlying coronary artery disease. The blunt force injuries to the legs resulted in extensive muscle damage, muscle necrosis and rhabomyolysis. Electrolyte disturbances primarily hyperkalemia (elevated blood potassium level) and metabolic acidosis can occur within hours of muscle damage. Massive sodium and water shifts occur, resulting in hypovolemic shock and casodilatation and later, acute renal failure. The decedent's underlying coronary artery disease would compromise his ability to tolerate the electrolyte and fluid abnormalities, and his underlying malnutrition and likely dehydration would further exacerbate the effects of the muscle damage. The manner of death is homicide.

Autopsy number A03-51:

Died as a result of asphyxia (lack of oxygen to the brain) due to strangulation as evidenced by the recently fractured hyoid bone in the neck and soft tissue hemorrhage extending downward to the level of the right thyroid cartilage. Autopsy reveleaved [sic] bone fracture, rib fractures, contusions in mid abdomen, back and buttocks extending to the left flank, abrasions, lateral buttocks. Contusions, back of legs and knees; abrasions on knees, left fingers and encircling to left wrist. Lacerations and superficial cuts, right 4th and 5th fingers. Also, blunt force injuries, predominatnly recent contusions (bruises) on the torso and lower extremities. Abrasions on left wrist are consistent with use of restraints. No evidence of defense injuries or natural disease. Manner of death is homicide. DOD 003329 refers to this case as "strangulation, found outside isolation unit."

Autopsy number A03-144:

Death caused by the multiple blunt force injuries of the lower torso and legs complicated by rhabdommyolisis (release of toxic byproducs into the system due to destruction of muscle). Manner of death is homicide. Decedent was not under the pharmacologic effect of drugs or alcohol at the time of death.

This last entry could well be the death certificate for the young, Afghani taxi driver, "Dilawar," chronicled in Alex Gibney's documentary film, Taxi to the Darkside.

From a WaPo review of Gibney's film, Down a Dark Road, by Richard Leiby:

In 2002, a young Afghan taxi driver named Dilawar, who'd never spent a night away from his dusty little village, got lost in the fog of war and took a wrong turn into an abyss from which he would never return. It was a detention center at Bagram Air Base, where he was grilled on suspicion of being a Taliban fighter. Military interrogators hung him from a cage in chains, kept him up all night and kicked him senseless, turning his legs into pulp.

He lasted only five days. The Army initially attributed his death to natural causes, even though coroners had ruled it a homicide. Low-level soldiers were punished. It turned out that Dilawar (who, like many Afghans, used only one name) was not an enemy fighter, had no terrorist connections and had committed no crime at all.

[snip]

"Murder's torture," Lawrence Wilkerson, a retired Army colonel and former Colin Powell aide, says in the film. "Murder's the ultimate torture."

From the minutes of an October 2002 meeting at GITMO, quoted in Senator Levin's Committee report, The Origins of Aggressive Interrogation Techniques-- chief counsel to the CIA’s CounterTerrorism Center, Johnathan Fredman, "presented the following disturbing perspective of our legal obligations under anti-torture laws, saying,"

"If the detainee dies, you're doing it wrong."

Bush, Cheney, Rumsfeld, and their myriad of advisors (Addington, Yoo, Bybee, Haynes, et al) -- who scripted, sanctioned, and unleashed US torture policy -- got it horribly, monstrously wrong.

See further:

Homicide Unpunished, a WaPo editorial:

ONE OF THE most shocking photographs from the Abu Ghraib prison in Iraq shows a grinning guard giving a thumbs-up sign over the bruised corpse of an Iraqi detainee. Subsequent investigation showed that the deceased prisoner, an Iraqi named Manadel al-Jamadi, died of asphyxiation on Nov. 4, 2003: He was tortured to death by Navy SEAL and CIA interrogators who took turns punching and kicking him, then handcuffed his arms behind his back and shackled them to a window five feet above the floor.

Command's Responsibility: Detainee Deaths in US Custody in Iraq and Afghanistan, by Human Rights First:

Human Rights First's new report provides the first comprehensive accounting of the U.S. government's handling of the nearly 100 cases of detainees who have died in U.S. custody since 2002.

# posted by

manonfyre : 11:42 AM

Wow! Salute to Marjorie Cohn!

Have almost memorized the opening remarks of your May 6th testimony before Congress:

"What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. Jus cogens is Latin for 'higher law' or 'compelling law.' This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition. [Also, no statute of limitations. ~m]

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

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, 'No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.'

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon personal dignity, particularly humiliating and degrading treatment under, Common Article 3. In Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.

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

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

I've quoted and linked to your testimony many times in the past few weeks.

A huge, heartfelt, THANK YOU!

BTW: Kucinich cites "jus cogens" in Article 8 of his 35 Articles of Impeachment.

# posted by

manonfyre : 12:06 PM