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Terror Tuesday: A decade after “shock and awe”

There are the dead, killed by drones. And then there are the living dead, buried alive in Guantanamo before it seemed more efficient simply to incinerate suspects.

But consider the list compiled by the Bureau for Investigative Journalism. At least 120 of the dead in Pakistan and Yemen are children, many of them very young children, whose names and ages are given here. It is hard to conceive of them as suspects, though a drone pilot in Nevada might argue that seen from the perspective of a drone’s camera, a 13-year-old male could appear of 'military-age' and hence a suitable target for a 'signature strike.'

As for the living dead – those immured at Guantanamo for more than a decade without charges, trial or hope of release – more than one hundred of the 166 who remain there have been on a five-week hunger strike.

One of those refusing to eat is the British resident Shaker Aamer, who appealed in a letter: "Please…torture me in the old way. Here they destroy people mentally and physically without leaving marks."

Eighty-six of these men, the majority of them Yemenis, had been cleared for release as long ago as 2008. President Obama responded to the December 2009 underwear bomber plot by putting a moratorium on the transfer of detainees to Yemen and may have forgotten about it and them, for all we know.

Not only did the State Department earlier this year close its office for managing transfers from Guantanamo. On March 12, a State Department adviser on Guantanamo policy told the Inter-American Commission on Human Rights that it has no plans in the "foreseeable future" to lift the moratorium, and refused to respond when asked when the Administration hoped to close the prison camp.

You won’t read about it in the US mainstream press, but lawyers for Guantanamo detainees say conditions in Guantanamo are deteriorating. In addition to the hunger strike, on at least one occasion recently, guards have reportedly opened fire on prisoners. The military says it was a “non-lethal round.”

Here’s how Murtaza Hussain, blogging in the UK Guardian, described conditions at the prison:

The deterioration in detainees' living conditions is believed to be tied to a recent change in the military command of the prison. It has been reported that under the new command regime, mistreatment of prisoners has increased, exacerbating a situation already desperate after over a decade of torture, solitary confinement, and detainee deaths at the camp.

Earlier this year, it was revealed that a detainee was shot in the neck by a guard, the first incident of gunfire known to have occurred in the camp's history. In addition to a pervasive atmosphere of violence at the facility – characterized by beatings and other forms of abuse by camp guards – detainees have increasingly had their meager personal effects confiscated or damaged, without cause or explanation. Mundane items such as family photos, letters and CDs have recently been taken away by camp guards and prisoners copies of the Qur'an have been desecrated under the guise of searching for contraband.

To individuals who have spent over a decade imprisoned under draconian circumstances, separated from their families and without any foreseeable prospect of freedom, the latest round of degradations appears to have represented a breaking-point.

Last September, one Yemeni, Adnan Farhan Abdul Latif, died under suspicious circumstances in what authorities term a suicide. He had been consigned to Guantanamo from its beginning, as one of those unfortunates sold to the Americans for a bounty.

In 2007 he participated in a hunger strike for six months and endured painful force feedings while immobilized in a restraint chair. In 2008 he was found to be innocent by a Joint Task Force, then cleared for release by Obama’s Joint Task Force in 2009, and by the federal court in 2010. But he was stranded by Obama’s moratorium.

These verses are from one of his poems, published in the 2007 volume, Poems from Guantanamo:

They are artists of torture,
They are artists of pain and fatigue,
They are artists of insults and humiliation.

Where is the world to save us from torture?
Where is the world to save us from the fire and sadness?
Where is the world to save the hunger strikers?

Where is that world? Don’t look for it in Washington, where the White House has averted its gaze and Congress is doing everything it can to ensure that Guantanamo stays open.

Despite the travesty of due process that Military Commissions are proving to be, Sen. Lindsey Graham among other senators denounced the Obama Administration for bringing bin Laden’s son-in-law, Sulaiman Abu Ghaith, to New York to stand trial, rather than sending him to Guantanamo.

The lawmen seem ignorant of the fact that the US Court of Appeals for the District of Columbia has recently thrown out Guantanamo war crimes convictions in two cases because the charges on which the detainees were convicted were not internationally recognized as war crimes. Abu Ghaith has been charged with speaking out on behalf of Al Qaeda’s mission — not a recognized war crime – and is therefore not eligible to be tried before a Military Commission.

The Washington Post editorialized that Abu Ghaith’s "transport to a civilian criminal court in the United States predictably prompted howls of protest from Congressional Republicans; it also underlined the mess Congress and the White House have jointly made out of the system of arresting and holding suspected terrorists."

Today, a decade since the United States inflicted "shock and awe" on the people of Iraq, we still have only a hazy idea of the extent of our government’s responsibility for war crimes.

Earlier this month, a UK Guardian exclusive reported that Col. James Steele, a Special Forces veteran who had trained El Salvador’s torture and death squads in the mid 1980s, had played a similar role in supervising the establishment of Iraq’s secret torture-interrogation system after the American invasion. He reported to the once revered General David Petraeus.

The recent (failed) prosecution of the infamous security contractor Blackwater has also brought some new information to light in the form of tens of thousands of pages of documents. As Eli Lake writes, "these documents illuminate Blackwater’s defense strategy – and it's a fascinating one: to defeat the charges it was facing, Blackwater built a case not only that it worked with the CIA – which was already widely known – but that it was in many ways an extension of the agency itself."

Nearly two years ago, The Washington Post reported that the wars in Iraq and Afghanistan have turned the CIA into what one official termed "one hell of a killing machine."

"'You couldn’t tell the difference between CIA officers, Special Forces guys and contractors,' said a senior U.S. official after a recent tour through Afghanistan. 'They’re all three blended together. All under the command of the CIA.'"

How convenient, given the CIA’s dedication to operating in secret, far beyond the public gaze. And this apparently is how President Obama wants it.

In spite of what has become a steady patter of requests from politicians and the press that he divulge more widely the legal defense for his drone wars, the President seems determined to keep what the CIA is doing, and why it is doing it, firmly under wraps, even as he gives lip service to transparency and open government.

Could the Executive Branch be accused of abusing its power? "This is not Dick Cheney we’re talking about here," he reportedly told a group of senators.

It will be interesting to see what the Justice Department does now that a three-judge panel of the US Court of Appeals for the DC Circuit ruled on March 15th that the CIA cannot invoke the so-called ‘Glomar doctrine’ to refuse to confirm or deny whether it is holding any information related to drone strikes.

In September 2011, US District Judge Rosemary Collyer had thrown out an ACLU FOIA lawsuit to obtain documents from the CIA. She was unconvinced by the ACLU’s argument that since even CIA Director Leon Panetta had publicly acknowledged the drone program and called it "very effective," the Agency could not simply stonewall when asked to turn over related documents.

On March 15, 2012, the ACLU appealed “the CIA’ attempt to hid the worst-kept secret in the world.”

In considering the ACLU’s appeal, the DC Circuit Court reviewed the multiple times that government officials – including the President – have alluded to the drone program to reach its conclusion that "the CIA asked the courts to stretch the [Glomar] doctrine too far – to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible."

The ruling does not mean that the ACLU will get the requested documents. Instead, it tosses the case back to the district court, and gives the CIA the opportunity to come up with different reasons to deny the FOIA request.

But at least the DC Circuit panel, unlike federal judge Colleen McMahon, pushed back against the Alice in Wonderland logic. The ACLU called the decision a "victory for transparency." In the words of ACLU attorney Jameel Jaffer, who argued the case before the court:

This is an important victory. It requires the government to retire the absurd claim that the CIA's interest in the targeted killing program is a secret, and it will make it more difficult for the government to deflect questions about the program's scope and legal basis. It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them…

The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders.

One would think there would be little disagreement with Jaffer’s statement in a country that calls itself a democracy. What’s disturbing is how controversial these words have become.

© 2021 ACLU of Massachusetts.