The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

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The collective consciousness and the lingering spectre of torture

Col. Larry James, chief psychologist at Guantanamo, 2003; director of the Behavioral Science Unit at Abu Ghraib, 2004. Retrieved at Newsweek, August 2015

More than the release of the Senate’s “torture report”, one of the defining moments of the American public’s reaction to the CIA’s rendition, detention and interrogation (RDI) program was the moment the New York Times decided to stop using the euphemism of “enhanced interrogation techniques” to describe what was and is blatantly torture. Executive editor Dean Baquet wrote in August 2014,

The word “torture” had a specialized legal meaning as well as a plain-English one. While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods. (…) Over time, the landscape has shifted. Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee (…) Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I was reminded of this while reading a piece called “Lives by omission” in the latest issue of Harper’s. J.M. Coetzee published exchanges with psychotherapist Arabella Kurtz on the parallels between fiction and psychotherapy. In this particular excerpt, they examine the process of repression, that Freud explained distinguished human beings from beasts. Coetzee writes, “What we gain in repressing what we do not want to remember we have to pay for with the subterranean poisoning of other aspects of our lives.” Later, he provides a torture analogy:

But is it true that repression necessarily fails? To give an extreme example, certain people who have committed vile acts – torture, murder – seem able to construct life stories (memories) for themselves out of selected fragments of the real (the long hours they had to work, the gratitude of their superiors, the promotions and medals  they received) and to live with and by such memories, while repressing all the ugliness. Classical theory, at least in its popular version, says that such people have unhappy relations with their wives and children. It says they suffer from nightmares. It says that they are secretly haunted by the cries of their victims – by what they try and fail to repress of their “real” past. And indeed, if you put a torturer on trial or if you compel him to undergo a course of psychic rehabilitation, he may begin to recollect those “repressed” cries.

If we see the construction of a personal narrative when committing “vile acts” – and there is no doubt that the operatives, government agents or contractors, that have taken part in the RDI program have committed vile acts – as a success of the psychological process of repression, it is difficult then to legally extract an individual responsibility for said crimes. Or is it? Yes, the gratitude of the superiors, the constant political rhetoric around the efficiency of torture, supposedly scientifically supported and pushed by legal celebrities such as torture-by-warrant proponent Alan Dershowitz – provide comfort, containment, and eventually, a levee against the perhaps inevitable wound inside the human psyche that remains after the crime, a wound that extends to the whole of humanity, as Dostoevsky expressed so well.

When Col. Larry James, former chief psychologist at Guantanamo, responded – reacted – to the APA motion banning its members from colluding with the CIA and the Pentagon on interrogation techniques, he did so by claiming the motion, the legal opinion of which I have written, holds “negative consequences”. In the APA debate taking hold before the vote, James asked:

So I need to know: Does international law supersede U.S. law? Because if the answer to that is yes, this has dire negative consequences for all federal employees, particularly in the VA and the department of homeland defense.

APA president-elect Susan McDaniel said the vote was to “reset our moral compass”. And yet, there is a continued willingness to push a narrative of efficiency and most importantly necessity from which a portion of the US public had started to distance themselves. Even the paper of record had a moment of reckoning with the ubiquitous use of comfortable and convenient paraphrases – enhanced interrogation techniques – realizing their responsibility in the dissonance between public political discourse lied in telling the truth as it stood and stands, not furthering the lie. There is no way of knowing whether Col. James, as a public persona, aligns with Larry James, the private individual, on the issue of torture. Another aspect of the APA motion was that it stopped providing the CIA and the Pentagon with their medical crutch, a huge part of their justification for their actions; it also confronted APA members with themselves, their actions, and their beliefs, depending on how well rooted they were. As sole dissenter, Larry James isolated himself in a landmark decision that will affect future operations of US intelligence agencies and their collaborators. He placed himself on a different shelf, aligned himself with the US’ interpretation of the Convention Against Torture that was laid out by John Yoo. He worried about criminal responsibility if the APA took a position on the absolute prohibition that aligned with international law, not with the American political context of the war on terror.

Human rights law is not rhetorical. It was not written as such and is a difficult area of practice. It is often mentioned that legal positivism is a question of morality, conscience and interpretation – all of which being subjective – but it was meant to translate into effective and immediate remedies for those affected by the violations of these peremptory norms. The prohibition of torture, although it is an intersectional and interdisciplinary issue to approach, is no different. It is part of this body of law that holds within it the fundamental principles of humanism and a loaded collective memory. Speaking of the prohibition of torture as the absolute that it is has been derided to great extent since 9/11, as being unpractical and inapplicable on the ground. The role of the APA in supporting torture was to create a sound argument for exemption, a legally acceptable derogation, hitting back at IHRL for existing outside of a reality of constant violence, fear, and imminent threats. The world had changed, we were told; it took a turn for the worst; we would not be much of a society if we did not do whatever it takes into protect each other from those external and shapeless monsters that are jeopardizing all this stability we have created. Torture is a collateral crime; it is the result of our back against the wall; it is an answer of last resort that no one wishes to brag about, but still needs to use when – we are told – all other methods failed.

Few images of British national and Guantanamo detainee Shaker Aamer exist. He insisted that this one, depicting him smiling, was the one use in coverage of his case. Aamer, who should be released by the end October, is still on hunger strike.

But the prohibition of torture is an absolute; human rights law resists against political derogations; and the truth lies outside the scope of Col. James’ arguments. We have had an opportunity to look at this torture-we-dared-not-speak-of in 2006 and 2007 through European Parliament rapporteurs Dick Marty and Claudio Fava. Their work failed to challenge overseas. Europeans, their commitment to the rule of law and their stubborn refusal to accept a war paradigm for counter terrorism will have to wait until Bin Laden is killed. It did not matter. Those reports were academic, had gaping holes where ministers were supposed to testify, untimely, and pitted natural allies against one another on questions of principle.

Feinstein’s report shifted the attention away from the purported accomplishments of special forces overseas to what they were doing in “black sites”, in Bagram, in Guantanamo, and everywhere else. It showed the general public, weary of battles of words, a side to their endless but righteous war they were not ready to face. The backlash has yet to be immense. President Obama admitted the US “tortured some folks”, and there are still no charges, no indictment. There had been a suspension of the repression, a brief moment of lucidity, during which the horror was contemplated. In those moments, there are no nuances. There are no spectrums of opinion; there is no gradual assessment. We are horrified, or we are not. It is a choice. It is fundamental to frame it as a choice, because for the first time, the general public – not lawyers, not activists, not officials-speaking-on-condition-of-anonymity – were in the know. There was an incomplete, yes, but sufficient glance at the truth. We can stare at it, as the APA did, 6 years after the first draft of the motion was submitted, and act on it, fight, struggle, and scratch beneath the surface; or we can turn away. We can pretend those practices were small moments between brackets of our collective history; a bygone footnote of a much bigger context.

The “Hooded Men”, with their legal team and Fr. Murray. Retrieved at the IrishPost, October 2015.

But if it needs repression to be worked out, it is much more important than a footnote. Repression is a tool that shapes one’s identity. The piece I quoted before imagines what a torturer on trial would face, a sort of crash course in psychoanalysis: “… If memory is malleable in one direction, obliterating what disturbs the subject, it is surely malleable in the opposite direction too.” And if the rule of action and reaction also applies to the human psyche – for a stone to roll on a plane surface, it needs a force to project its weight forward – that crucial moment in our collective memory has yet to happen. The catharsis we expected from the passing of the APA motion did not take place. The administration did not take note. The UN committee against torture continues to plead for acknowledgement, truth, accountability, reparations. Those are not symbolic; truth and accountability can begin a process of healing, and of returning to the roots of the absolute prohibition. There is still much we need to know. We need access to the medical files of Guantanamo detainees; we need the stories of those detained at Bagram; we need the memoranda of understanding between the CIA and collaborating countries to understand how the US persuaded member states to take part in the program, from simple material support – Ireland lending the Shannon airport airfield for refuel – to construction and maintenance of sites in Poland, Lithuania, Romania and many other places. Ben Emmerson called the rendition private a vast international conspiracy. How the Obama administration expects us to forgive and forget is just as unclear. Or maybe the expectations are so low in what our collective threshold of tolerance is, that it becomes acceptable to whitewash a crime of this magnitude.

As the countdown has started on the 30 days during which Congress can oppose the release of long time detainee and British national Shaker Aamer, the question of the motive for his prolonged incarceration – he was cleared for release twice, in 2007 and 2008 – rises again. It is unclear how much we will know about his medical history between his capture and his release, whether medical professionals in London will have access to to treat him, if he will be able or willing to speak. Andy Worthington, a journalist who has spearheaded the campaign for his release, has often pondered whether Aamer was the detainee who knew or saw too much. What this effectively means, we are still not sure. Aamer’s lawyer, Clive Stafford Smith, warned us in an op-ed that a campaign of misinformation seeking to justify the treatment inflicted upon a man never charged with a crime and sold to US authorities by local warlords in Afghanistan would begin. We have a duty not to repress what we know of Shaker Aamer’s torture. We have a duty to resist and endure a debate that should last, no matter how nauseating the details and painful the recollections, until we have full accountability.

When the authors of the APA motion first contacted me, they mentioned my background: I grew up in Belfast, Northern Ireland, under British counter terrorism policies that included the use of torture. It has been part of our small, local, contained history – or so we thought: the evolution of psychological torture, from Kubark to Belfast to Bagram, is now established as linear. On November 30, the judicial review for the case known as the “Hooded Men” will open in the city, and the battle for public versus withheld information will continue to rage. There is a responsibility that lies with those of us who have seen the future of a policy of impunity not to see it reemerge elsewhere.

And this responsibility isn’t rhetorical either.

Al-Nashiri, Abu Zubaydah v Poland: the right to truth

Abu Zubaydah, whose eye was removed by the CIA during detention

“the hearing (…) lasted far beyond the usual 90 minutes. It lasted over three hours.”

On December 2nd, 2013, the European Court of Human Rights (ECHR) held an in camera hearing in the cases of two Guantanamo detainees, Al-Nashiri and Abu Zubaydah, petitioning against Poland for facilitating their detention, torture, and rendition to the United States where they have been detained – without charge – ever since. Their lawyers, representing them in the European institution based in Strasbourg, France, filed simultaneously, allowing their cases to merge and form a more cohesive pattern against the use of what Europe has referred to “black sites” of the CIA: detention sites, secret prisons, located in remote areas, where local law enforcement either turned a blind eye or thoroughly collaborated with American intelligence on suspects of terrorism in the vague, overwhelming and never ending “War on Terror”. During that hearing, representatives of the Polish government, Judges and counsels for both applicants heard testimonies from expert witnesses on the use of torture on the applicants and the specially chartered flights that took them from Thailand to Poland, and from Poland to the United States.

The following day, the hearing consisted in the Polish government forming an argument before the Court as to whether its domestic investigation of the allegations – launched in 2008 – had met the standards of fairness, length and equity required by the European Covenant of Human Rights. Beyond the strict legality of the argument, lawyers for both parties – and especially their Polish advisors – were unequivocally denouncing the political pressure exerted on the Polish government and its intelligence officials onto the Department of Justice, where the investigation has been lingering for five years now, and seeing no sign of ever coming into a close. Nowak-Far, the Under-Secretary of State for the Ministry of Foreign Affairs, opened the seance with a somewhat unassured claim that “trust must be established” that resolution of the investigation would be made domestically; that the Polish government had no intention of burying the case under paperwork or, as counsel suggested, the weight of classified information pertaining to intelligence activities, not only on Polish territory, but also per their agreement with US intelligence officials. Quickly into Nowak-Far’s argument, the issue of secrecy reared its ugly head, in a constructed speech that is all too frequent in the current climate of foreign affairs. Poland, which had requested that the hearings be made behind closed doors – subsequently refused by the ECHR, as per their rules of transparency – lamented that “media pressure, public pressure” were affecting the investigation, meant to be objective and impartial. According to Nowak-Far, Poland is, since 2008, still collecting evidence of the rendition of torture of the applicants, and believes any disclosure or even recourses to a superior Court is “premature”. There was an definite sentiment of wishing to keep the ECHR away from Polish proceedings, and to attribute to the Polish government, and its discretionary use of government secrecy, the right to dispose of the investigation in a manner that they felt was “convenient”. This adjective would be often used against them by the applicants’ legal counsel during the course of the hearing, which lasted far beyond the usual 90 minutes. It lasted over three hours.

No matter how intensive the preparations of the Polish government – by Nowak-Far, at first, later followed by Sliwa, Deputy Krakow Prosecutor of Appeal – it could not manage to hide the blatant and outstanding inconsistencies of the case. From the moment the use of rendition had emerged for Al-Nashiri and Abu Zubaydah, in 2005, it took three additional years for Poland to launch an investigation, a delay that is unacceptable under European standards and especially outrageous given the violations committed by Poland. The second issue was the considerable amount of classified information that was not even made accessible to legal counsel. The entire case is shrouded is secrecy, cloaked with political intrigue, and veiled by the notion of national security – Poland’s and the United States’. At the heart of the Al-Nashiri and Abu Zubaydah case lies the concept of whether national security, its intrigues, its myths, its almost occult following bequeaths the violation – gross and systematic – of human rights not only on European territory, but later on United States territory after leaving the European Union (the Covenant strictly forbids the extradition of any citizen if said alleged criminal is at risk of unfair trial, torture or capital punishment.) Poland has tried its hardest to delay the investigation, to the point of even changing prosecutors on three different occasions, one while one prosecutor was hearing M. Pietrzak, one of the counsels for Al-Nashiri. What the Court heard on December 3rd was nothing short of sheer incompetency in the part of the Polish administration to meet the human rights standards it failed to uphold while the secret prison while still active under CIA supervision. The representatives of the government of Poland looked worried and at a loss for words when counsel after counsel addressed the Court with damning tales of their relationship with the Polish Department of Justice, which spoke volumes as to the ways in which an executive power can go to hide what could be to its disservice.

the European Court of Human Rights, the morning of the hearing.

“Poland not only should have known, but Poland did know”

What emerged from both counsels was fierce determination and the appeal that a sovereign Court might work in their favor. Ms. Singh, counsel to Al-Nashiri, opened the proceedings on the applicant’s side with a powerful and focused call to administer justice in a case that has failed to see any protection of the rule of law for its applicants. The Court, she said, would be the first to “meaningfully address the issue of torture”. In a passionate call to “end the impunity”, she re-assessed the “cogent, credible and categoric testimony” heard during the previous day’s hearing that Al-Nashiri had indeed been transported to Poland, sent to a secret prison built specifically for those practices, detained, then sent back to the United States where he remains today. Legal counsels have even obtained documents from both CIA and USG that attest to that effect – while Poland neither confirms nor denies the accusations, it remains vague and unassertive as to whether it has indeed participated in activities under US auspices. In the case of rendition, Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

M. Pietrzak’s characterisation of a “politically inconvenient” investigation for Poland was echoed by M. Hughes, representing Abu Zubaydah. The applicant, being in detention in Guantanamo Bay for over a decade without being charged, is now, according to his counsel, in “debilitating conditions”. Those crimes were committed by state agents acting, according to M. Hughes, in the name of state secrecy. The counsel insisted that the Court takes into account the severe aspect of the case, which is that those violations of fundamental human rights were committed by state agents, for a nation represented at the Council of Europe. The responsibility is born by the government of Poland, acting in complicity with the United States. The “effective remedy” promised by the rule of law by which each Council of Europe member state is require to abide has not been delivered by Poland, which failed to conduct any fact-finding mission; all the evidence presented, beyond a reasonable doubt, came from independent sources – human rights organisations, investigative journalists – while Polish state agents were placed at the disposal at the CIA under what M. Hughes called “open-ended means”, clearly indicating that Poland had no interest in ever trying to reign in or limit the scope of CIA activities on its territories, no matter how grave the violations and difficult the cover-up operation. The responsibility of the state, he said, can’t be denied. “Poland not only should have known”, he concluded, “but Poland did know”.

Ben Emmerson, QC – UN Special Rapporteur of Human Rights While Countering Terrorism (un.org)

The intensity of the hearing, however, was only matched by the presence of Ben Emmerson, United Nations Special Rapporteur to the protection of human rights while countering terrorism, an issue that has required his expertise a little too often in recent years. Mr. Emmerson, attending the hearing as a third party, insisted on offering his comments to the Court, in a way that took the case out of the legalist field that Poland wished it had maintained, and into a broader and wider scope that question not just the treatment of Al-Nashiri and Abu Zubaydah by Polish and American forces, but also the question of secrecy, confidentiality, classification of information, and access to legal counsel and representation. Mr. Emmerson attended the hearing in order to affirm and perhaps re-affirm the United Nations’ Human Rights Council’s commitment to the right to truth – both as an individual and collective component. In this he wishes to address the ECHR as “we speak in one voice in the understanding of this right”. The role that this case will play in jurisprudence recent and future will be not only to guarantee that the public may know about the suffering of the applicants, “but of other victims, of similar crimes, as members of the public have the right to know what happened”. This declaration comes in direct, diametrical opposition to the wishes of the government of Poland, repeatedly asking, begetting the Court to not let the details of the hearings be reported in the press, not let members of the public attend the hearings, and even blocking lawyers from accessing classified information – information that M. Pietrzak said “should not even be classified”. Both counsels have admitted to having been allowed to access classified information on only two occasions – one for only three hours, the second for fifteen minutes (!) without possibility of photocopy, remote access, and transportation of files. Mr. Emmerson, and through him the United Nations’ Human Rights Council, believe that the accountability of state officials in what he qualified to be “gross and systematic human rights violations” could only be achieved through transparency.

This hearing, and the case of those two applicants before the Court on this December day, is in the direct following of a process of seeking the truth since the Bush-era conspiracy of extrajudicial rendition and extrajudicial processes of suspects of terrorism. In recent years, however, through various jurisdictions, the process has “sped up”, and has implicated an extraordinary number of member-states, besides the United States (54 in total so far). In the high value target program of the CIA, the use of torture was systematic. Mr. Emmerson was deliberately choosing short sentences, and maximum-impact wording for an intervention that was unprecedented in the ECHR. “I use the word torture without hesitation”, he said. “I do not recognize the CIA term of ‘enhanced interrogation'”, this euphemism destined to cover the blithe horror that torture conveys. The judicial proceedings in Italy this year, against the CIA rendition program involving Italian intelligence officers accused of cooperating with the CIA, “was nothing more and nothing less than a straightforward application of the rule of law that bounds each member of the United Nations”. Although Mr. Emmerson strongly encourages the multiplication of proceedings regarding rendition, he expressed his “regret” at the still unbelievable scope of the crimes committed under what he dubbed “an international conspiracy”.

Mr. Emmerson focused on the main issue that riled up the legal counsels of both applicants: that evidence had to be found from outside sources than the Polish investigation, and that every shred of detail they were legally supposed to access was barred from classification and national secrecy. At this stage, Mr. Emmerson explained he formally submitted to the Court a copy of the 2011 Feinstein report – the result of a Senate Intelligence Committee investigation into the CIA high value target program, which Feinstein herself qualified of a “regrettable mistake” (sic). The frustration of the constant impunity and lack of accountability of heads of state on issues of national security may be the biggest issue in violations of international human rights law to this day; the presence of a United Nations Special Rapporteur at a ECHR hearing only highlights further the necessity to reach a common and global agreement on the superiority of fundamental human rights above issues of national security, especially when said national security fails to abide by standards of human rights law when countering terrorism – a post specifically personified by Mr. Emmerson, and a question that the ECHR answered in 2002, releasing a set of guidelines for member states following a series of petition for human rights violations by the United Kingdom under their Anti-Terrorism, Crime and Security Act (ATCSA) 2000. Mr. Emmerson was delighted to also announce that a report on similar activities and collusion in the United Kingdom had been made by Lord Gibson, and the publication was imminent; not in a matter of months, he said, but in a matter of days, in what may be the most comprehensive overview of British and American intelligence cooperation in these matters.

Back in March, Mr. Emmerson took to the Guardian to express his commitment to uncover the truth behind the practice of rendition, and presented a report to the UN Human Rights Council in Geneva calling for the United States, as well as the United Kingdom, to release information regarding the practice under the Bush Administration. The evidence, he said, must also contain what has been exposed by The Guardian and the BBC. It is important to be reminded of this editorial for two reasons: one, the Obama Administration has carried on the practices of the Bush Administration, not only in matters of rendition, but in matters of complete secrecy, of national security classification, of lack of transparency, of covert operations and of extrajudicial techniques of interrogation specifically and counter-terrorism more generally. The accountability that is requested by Mr. Emmerson should of course date back to the first days of the Patriot Act but also continue under the policies of President Obama, whose actions in Pakistan, Yemen, Iraq, Afghanistan, Somalia, and in the military base of Guantanamo Bay must be uncovered, released, exposed in full, in matters of public interest. What makes Mr. Emmerson’s battle for transparency under the Obama Administration so difficult is the current climate is to destroy, intimidate, detain and charge whistleblowers, from Edward Snowden to the tragic case of Chelsea Manning, the recent imprisonment of Jeremy Hammond and the war on the PayPal 14 – the financing behind WikiLeaks. The war on information is no longer a myth or a strange paranoia roaring an ugly head around newrooms. It’s effective and, in its pursuit of Chelsea Manning in military trials, also defers to military commissions digging through charges of espionage and conspiracy: the Administration is, in fact, at war, and not only with those evanescent, vague and ubiquitous terrorists. It is at war against its very own constitutional principles. The second point to emerge in Mr. Emmerson’s quest for accountability in human rights violations is what he calls the “right to truth”. This right to truth is in direct opposition to the current culture of secrecy, of executive authority bypassing regular legislation, of presidential edict avoiding democratic voting, and the extreme militarisation of law enforcement that serves to silence the dissent.

Extent of the damage (washingtonpost.com)

“Confidentiality in no way absolves them of responsibility.”

The point of contention, which should be addressed by the Court in its deliberation, was whether the right to truth – accorded to the applicant receiving victim status – could be extended to the general public. If, in the Del Prada Rio v Spain case, the ECHR granted a personal right to truth to the applicant, the UN wishes for this to be extended to the collective in the name of freedom of information and access to information. The CIA high value target program can be traced back to a foreign policy of systematic violations and enforced disappearances dating back to Latin America in the early 1980s. The United Nations Special Rapporteur on Freedom of Expression said it clearly – “the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.” The exposure of grave and systematic violations can not be dependent on the willingness or the disposal of a victim to launch proceedings – the victim, or if deceased, their family, which can be found reluctant to seek judicial redress for various reasons. It is therefore up to the citizenry and specifically the members of the media to invoke the right to freedom of information in cases of systematic violations as to ensure the accountability of the guilty. The presence of the United Nations at the hearing was to be placed in a political and security context. It did not need to reaffirm the commitment to human rights law, embedded into the ECHR; it needs to address the global, international risk of being faced with constant classification of information in the face of important proceedings that need to establish the fundamental and non-derogating character of human rights. Emmerson insisted: “the success of initiatives to counter terrorism depends on persuading societies that democratic governments are committed to the rule of law and respecting human rights. To end impunity.” With a snark it was hard to conceal, he insisted it was “hard to win the hearts and minds” when horrible crimes are committed under the cloak of executive authority.

The United Nations Special Rapporteur ended his intervention by stating that freedom of information and human rights violations are intrinsically intertwined. The right to an effective remedy implies the right to open proceedings, and open proceedings imply access to information, which all lead to the right to truth. The United Kingdom, which has refused to enshrined Article 13 of the Covenant in domestic law, will soon bear the full responsibility of the implication of human rights violations.

Ms. Singh, in conclusive arguments, followed in the path of the Special Rapporteur insisting on Poland trying to “obscure the truth”. The longer the delay, the more difficult it is for the legal counsel to access witnesses, to extract testimonies, and to provide evidence. The facts presented at the in camera hearing were not contestable, she explained, “because they are true”. Mr. Hughes carried on: “Poland is unwilling to face reality. Confidentiality in no way absolves them of responsibility.”

Gaslighting: the use of torture under Obama

On this most august and holy month of Ramadan, the coverage of hunger strikers at Guantanamo has taken on a whole new depth of human rights violations: piling over indefinite detention, military camp, inhumane detention facilities, we are now adding torture to the list. If abuse of prisoners at Guantanamo is sadly nothing new, the force-feeding of the hunger strikers has been widely documented. Yet, for some unfathomable reason, there is a debate on whether or not force feeding inmates chained to a chair through a nasogastric tube constitutes torture. Perfectly reminiscent of the very same kafka-esque “conversation” on the use of waterboarding as a interrogation method, it seems we are only collectively, nationally adding question marks at the end of simple statements because we refuse to believe they are true. We create subjectivity because well documented, legally astute facts become impossible to digest. This is what the Obama Administration has proved to be masterful at: the art of gaslighting.

Waterboarding was torture. In fact, it still is. There would be no need of undergoing the shock of seeing an intelligence agency’s nominee stating facts if it had been recognized as such when practiced. Beautiful, poetic euphemisms such as “enhanced interrogation techniques” or slightly more ominous ones related to “stress and duress” all refer to the use of prohibited actions taken against individuals, citizens or not, charged or not, in custody of law enforcement and/or military, worldwide. As time went on and the watch of human rights organisations progressed, the use of more subtle forms of torture – like the British “five techniques” – aimed at circumventing international law. When using different methods was not appropriate, playing on territoriality laws could easily be done with the practice of rendition. Torture is reprehensible; it sends the collective consciousness back to medieval times of Iron Maidens and witches at stakes and the drawing and quartering of Guy Fawkes. Here lies the problem though: those methods belong in a distant past, when humanity was devoid of empathy, bathing in the bloodshed of constant wars, and tyranny was the only political system we had known. Revolutions, Enlightenment and the Nüremberg Trials sought to give us rules to live by. But the practice perdures; we just label them differently.

The public was shocked by Abu Ghraib because the photos released were indeed images of an obscure, dark age of cruelty and systematic dehumanisation. The war in Iraq and abuses by US armed forces were said to be provoked by extreme duress suffered by soldiers under guerrilla warfare; under lack of proper training on interaction with civilians; and a seemingly absent accountability. Soldiers were extremely young, sent to a country they didn’t know fighting a war they didn’t understand facing an enemy they couldn’t identify using weapons they could not see. Abu Ghraib was horrifying in that it brought the public closer to the atrocities of war, the destruction of the human psyche, and the compartmentalisation of conflict. It was the brutality and senselessness of the Bush era; before him, war was supposed to be not just clean, but “just”, approved by international organisations and using sanctioned weaponry by highly trained military personel. The War On Terror™ reverted back to our most basic, primal instincts. When Obama took office, he swore to change; words like “transparency” and “accountability” were used. Obama, a Nobel Peace Prize, could surely not violate the CAT so close to the 25th anniversary of its signature. A constitutional law professor could surely understand the binding principles of international conventions. Besides, America had evolved as a nation; it was understood no one could possibly win the hearts and minds of foreign populations while capturing their citizens in the night and electrocuting them in the name of intelligence gathering.

But Guantanamo has always remained a dark stain on Obama’s lyricism on foreign policy. First claiming he would close to shameful and illegal military base, he let the movement simmer down and inmates fester. To this day, among 166 prisoners, around half have been cleared for release in 2009, yet still detained. The rest are still awaiting charges. The very fact that this system exists – and does so outside of the realm of civil law – is in itself a massive human rights violation. But the abuses are rampant, in a zone outside of continental America, guarded by military, where no visitation rights are granted, and the legal status of inmates is vaguely unknown. Enemy combatants, terrorists, aiding and abaiting criminals, whichever way you look at them, the very fact those appellations are created in a text that is a constitutional exception should raise all possible red flags. How could an isolated island away from the prying eyes of Judge Kessler and consorts could be free of any abuses? Accountability exists precisely because history has proven, again and again, that use of force left to its own devices never checks itself. It runs amok and destroys. And in the case of Guantanamo, it is destroying under our very eyes. Thanks to the relentless work of Guantanamo attorneys and journalists such as Jeffrey Kaye, Jason Leopold and John Knefel, consistent reporting has been made. It would be hard for anyone now to claim that they did not know. But when the narrative becomes too painful to bear, when the ghost of collective responsibility creeps in at every election, the easiest way to cope with the deafening silence on the part of your chosen political champion is to… Change the narrative.

Because the most current example of double standards and political consciousness hypocrisy concerns the issue of state surveillance – intolerable under Bush but somewhat necessary under Obama – lets apply the same technique to the use of torture in a democratic society that is only supposedly at war in two countries. Waterboarding was severely decried under Bush by Democrats and other liberals; it was unacceptable, and Matthew Alexander had released an incredible and courageous book on the possibility of using alternative, legal interrogation methods in conflict zones. There seemed to be consensus – at least in places other than the far right and John Yoo’s offices – that torture was not only inacceptable, but that it was perfectly avoidable. But instead of understanding human rights law as a legal blanket of protection over all citizens, we legally created exceptions, and this rhetoric has persisted and bled into Obama’s foreign policy. It is not acceptable to torture, UNLESS: it is unacceptable to indefinitely detain someone without charge, UNLESS; it is impossible to waive Miranda rights, UNLESS; it is illegal to use military force in foreign lands without declaring war, UNLESS. This string of constitutional and international exception has morally – even if definitely not ethically – plagued the Obama Administration since it took office. And no place is more glaringly and obnoxiously standing in the face of the international rule of law than Guantanamo.

Kristine Huskey, from Physicians for Human Rights, testified at the time of the hunger strike:

Severe and lasting psychological trauma … caused by chronic states of stress, anxiety and dread, because these people at Guantánamo don’t know if they’re going to be released, if ever … all of this uncertainty and uncontrollability causes extreme stress on the immune system, the cardiovascular system. It leads to asthma, diabetes, gastrointestinal disorders, spread of cancer, viral infections, hypertension, depression, suicide, PTSD.

A hunger strike is a destructive and dangerous way to make yourself heard; but it has been the tool of the oppressed and desperate political prisoners for centuries, from South Africa to Northern Ireland. Most often these hunger strikers had nothing left to lose. They sought attention from the international community to shed a light on their plight. What a hunger strike means to convey is that the striker will willingly risk his or her life because his or her liberty is more valuable, especially if it benefits the collective in the long term. Guantanamo prisoners have nothing left to lose. They were deprived of their most basic rights under domestic and international law; they are detained for no apparent or declared reason; they know not of when their ordeal will cease; they are subjected to arbitrary abuse by armed forces which legitimacy to act is severely questioned. So, they are letting themselves die. But because the perspective of the death of an inmate in illegal US custody is a legal black hole the administration refuses to fall into, those inmates are now force-fed; put simply, nutrition is forced inside their body cavities, against their will, in the attempt to keep them alive. To save face. And this, in itself, is an act of torture. Self-inflicted starvation is destruction; medically supervised force feeding is torture and a sick twist on the Hippocratic oath. Several statements have been released against the force-feedings. And the irony of the holy month of Ramadan implying fasting until sunset means the force feedings will take place at night, in a disgustingly cynical display of pseudo respect of the inmates’ religion. There is no such thing as torturing a man according to his own religious rites. This is a farce.

Force-feeding has been declared as a form of torture and prohibited medical behavior in detention facilities by the Declaration of Tokyo, article 7; it has, of course, been classified as torture by the United Nations Commission on Human Rights (UNCHR). The textbook reference on torture in democratic societies, compiled by Darius Rejali (1), classifies three models on the use of torture: the national security model, the juridical model, and the civic discipline model. On the topic of national security, referring to France and its control of French Algeria, Rejali explains:

What is important here is that democratic institutions were unwilling or unable to stop the turn to torture. One after the other, the judicial system, the legislature, the opposition parties, and the press failed. The police and military soon operated outside the law. In effect, they formed a closed state within the state. The military used its privileged position to establish covert torture, delay investigations, shape information, recruit political allies, and mobilize public opinion for the war. (…) In the National Security model, as France suggests, officers practice torture as part of a proactive strategy to combat an enemy in an emergency. Victims may be locals or foreigners, but they are always chosen because of their suspected political activities.

I understand terrorism is scary and may tear away at one’s sense of safety. I understand war has become a distant, professional occupation that hardly affects the general population. I understand that the fallacy of a democracy Bush put the country through for eight years needed to be changed; I saw the glimmer of hope in people’s eyes when Obama was first elected in 2008. I saw the desperate need to believe again, to hold onto a sense of security, that we would all be alright, that sanity had been restored and fear would no longer prevail. But this is over. No matter how much we try to believe our elected leader would just never sign on an individual’s torture before lunch, it is happening, and it is our collective responsibility to hold him accountable. From renewing the Patriot Act and adding new provisions; signing NDAA; not interrupting the PRISM program; and using JSOC all over our blue planet, the current foreign policy is dangerous. Do not mistake torture for what it isn’t: simply an enhanced, supersize version of interrogation. Do not believe torture is an acceptable exception (and certainly do not believe it is suddenly legitimate because it has been ordered by warrant). Do not believe torture is anything anyone deserves, under any circumstances. Human rights law has been created and enforced under the belief there is such a thing as an absolute in natural law – that unless we created a legal framework every nation would abide by with a goal to protect everyone from the horrors we suffered in the past, there would be no end to the pain we would inflict and would then receive as a result. Torture has never saved lives; it destroys them. Torture has never freed lives; it chains them. Torture is a degrading easy way out serving sociopathic purposes when acting alongside basic rules of human decency, empathy and righteousness has lost its meaning. A nation who tortures,  a nation that kills is a nation that has little left as a collective conscience.

(1) Torture and Democracy. Rejali, Darius. Princeton Press, 2007.

Who we are vs who we have to be: on legal protection of whistleblowers

Deep down the political science major that I once was, lied the unsatisfied and relentless wish to be a historian. I have watched countless documentaries and read piles of books on World War II, ever since I was a little girl and could somewhat comprehend the ramification of 1933. Being European, this was mandatory learning. It culminated into a paper on German propaganda between 1933 and 1938 that I wrote in my Diplomatic History class in college. I have never stopped reading. I have never stopped watching. Thanks to this unparalleled education in France, Germany, and the United Kingdom, I can now detect patterns in political history. I can recognize language in political rhetoric. I can hear the bells ringing. I am equipped with an alarm capable of seeing the end of democracy for what it is. We always fool ourselves into thinking we are different, that our society is different, that our history is different, that we, as a people, are different. We are not. History does repeat itself. It makes us question where we stand when faced with tyranny and sadism. It makes us question if we have it in us to be freedom fighters. I come from a country of people rising up with rifles in the face of colonialism. But when government propaganda insinuates itself in discourse, are we capable – informed, educated – enough to see it for what it is and fight for the freedom and safety of all? And I mean safety, not security. Security is a blanket statement under which we hide the most disgusting of ideologies. We need to see them. We need to see hatred, bigotry, racism, misogyny, and intolerance for the plagues they are, and fight for all.

“… it’s important to listen to whistleblowers. This is why it’s important to a free democracy to hear and heed the warning calls.”

If you look at history, there are signs, massive red flags that alert us to the impending horror that befalls us if we do not stay alert. This is why it’s important to listen to whistleblowers. This is why it’s important to a free democracy to hear and heed the warning calls. A society that imprisons a citizen because he noticed human rights or civil rights violations is a sick, crumbling society.

The difference between being a whistleblower and releasing private or privy information has been narrowed down in a 2004 decision by the United States Court of Appeal, Ninth Circuit, in Garcetti v. Ceballos. The court decides if issue raised by the speaker was made “as a citizen upon matters of public concern.” However, it ruled in 2006 that government employees are not protected from retaliation from their employers, which is the main goal of enabling a whistleblower protection. A system heavily criticized by Sen. Chuck Grassley (R-IA), who claimed that it was penalizing the claimants, the merit board rules against whistleblowers at a rate of 98%.

John Kiriakou

John Kiriakou, a CIA veteran, blew said whistle on the Obama administration’s foreign policy. Sentenced to two and a half years of prison term for revealing the name of an undercover agent, Kiriakou was one of the first agents to confirm the use of waterboarding in interrogation techniques and to overtly and openly criticize the Obama administration’s destructive policies. Last week, Kiriakou told RT:

I took a strong stance and a very public one and that’s what got me into trouble. But honestly the only thing I would do differently is I would have hired an attorney before blowing the whistle. Otherwise I believe firmly even to this day I did the right thing.

In an era where the current administration releases a memo authorizing drone strikes on its own citizens, being a whistleblower requires courage, integrity, and the gift of being a conscience objector. Kiriakou has sided alongside civil rights lawyers, fundamental freedoms upholders, and non-governmental organisations to stand against antiquated foreign policy methods that recall the darker days of the Cold War, when the use of torture was justified by a paranoid domestic policy banning everything that could more or less resemble an alliance with the East. What John Kiriakou did is nothing short of heroic; risking his entire career and a solid prison sentence for having called out his own government – his own employers – for violating international law and domestic law, the man has yet to feel any regrets. A former classmate told the Washington Post Kiriakou felt “pretty upbeat” following his sentence.

“There is no room to be a conscience objector in modern day America, when the rule of law is clearly walked over “

It is very telling that the first charges brought against Kiriakou were made under the Espionage Act, a law dating back to 1917, when the United States were first involved in World War One. Constantly amended since, it is meant to deal with either military interference, or support of US enemies. Charging Kiriakou under the Espionage Act is clearly a means to express that whomever objects to the use of torture in the course of US-led military and intelligence operations becomes an enemy of the state. Despite a change in leadership in 2008, this goes to show that the Obama Administration has clearly not taken its distance from the Bush Administration’s infamous motto: “You are with us or against us”. There is no room to be a conscience objector in modern day America, when the rule of law is clearly walked over with every passing law in Congress and many whistleblowers are regarded as insane, political extremists, or dangerous totalitarians (!). However, it becomes clear that protecting whistleblowers – especially those working for government, an organization that is supposed to be more accountable than all – is absolutely necessary to protect the essential freedoms associated to a working democracy.

This is far from being a new idea. A Whistleblower Protection Enhancement Act has been submitted to the House in 2009 by Sen. Daniel Akaka (D-Hawaii) in the hope to extend the whistleblower protection to any disclosure of any violation of the law. Efforts to pass the law in the 107th, 108th, 109th and 110th Congress have all failed. Several versions of the already existing law passed the House in 2008, gaining even the support of then-Senator Barack Obama. A weak version proposed by the Senate in a lame-duck session of the 111th Congress had the misfortune to contain amendments that were going against the initial purpose of the law, ie. making it harder for federal employees to become whistleblowers. This goes to show the consistent trend in accepting disclosure of legal violations in corporate institutions, but restraining the possibility of calling out governmental actions, even decisions that are putting US citizens at risk, violating international law, or even constitutional law. With every possible version of the Whistleblower Protection Act, came the difficulty to pass amendments authorizing and facilitating the possibility to counter-examine and check government action, when in reality, a government that is not held accountable to any party and keeps its own agent sealed shut is a government that is likely to violate the law in the name of vague principles such as “national security”.

It is now up to us to decide which side we will stand on; if we are going to support whistleblowers and condemn their systematic sentencing for speaking up against despicable actions carried on by the very governing body we elected into office, or if we will idly stand by and trust blindly an organisation that has repeatedly failed us in the past. Far from this blog and this author to dive into conspiracy theories; far from us to be anti-government trustees, seeing failure and deceit at every turn. It is however part of the natural course of constitutional law to protect not only the people, by the people, for the people, but to keep check on those we allowed to guard our fundamental liberties. To decide where to stand on whistleblower protection is to decide what kind of citizenry we want to be a part of; what type of information we want to see shared, what kind of education we want to uphold. It is, to its very core, a question pertaining to the kind of society we want to live in, and whether or not we want to be a part of it.

“Whoever destroys the life of a single human being (…) it is as if he had destroyed an entire world; and whoever preserves the life of a single human being … it is as if he had preserved an entire world”. (Talmud, (Sanhedrin 4:9))