New York Times

Mark Danner

On a bright sunny day two years ago, President George W. Bush strode into the East Room of the White House and informed the world that the United States had created a dark and secret universe to hold and interrogate captured terrorists.

“In addition to the terrorists held at Guantánamo,” the president said, “a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.”

At these places, Mr. Bush said, “the C.I.A. used an alternative set of procedures.” He added: “These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.” This speech will stand, I believe, as George W. Bush’s most important: perhaps the only historic speech he ever gave. In his fervent defense of his government’s “alternative set of procedures” and his equally fervent insistence that they were “lawful,” he set out before the country America’s dark moral epic of torture, in the coils of whose contradictions we find ourselves entangled still.

At the same time, perhaps unwittingly, Mr. Bush made it possible that day for those on whom the alternative set of procedures were performed eventually to speak. For he announced that he would send 14 “high-value detainees” from dark into twilight: they would be transferred from the overseas “black sites” to Guantánamo. There, while awaiting trial, the International Committee of the Red Cross would be “advised of their detention, and will have the opportunity to meet with them.”

A few weeks later, from Oct. 6 to 11 and then from Dec. 4 to 14, 2006, Red Cross officials — whose duty it is to monitor compliance with the Geneva Conventions and to supervise treatment of prisoners of war — traveled to Guantánamo and began interviewing the prisoners.

Their stated goal was to produce a report that would “provide a description of the treatment and material conditions of detention of the 14 during the period they were held in the C.I.A. detention program,” periods ranging “from 16 months to almost four and a half years.”

As the Red Cross interviewers informed the detainees, their report was not intended to be released to the public but, “to the extent that each detainee agreed for it to be transmitted to the authorities,” to be given in strictest secrecy to officials of the government agency that had been in charge of holding them — in this case the Central Intelligence Agency, to whose acting general counsel, John Rizzo, the report was sent on Feb. 14, 2007.

The result is a document — labeled “confidential” and clearly intended only for the eyes of those senior American officials — that tells a story of what happened to each of the 14 detainees inside the black sites.

A short time ago, this document came into my hands and I have set out the stories it tells in a longer article in The New York Review of Books. Because these stories were taken down confidentially in patient interviews by professionals from the International Committee of the Red Cross, and not intended for public consumption, they have an unusual claim to authenticity.

Indeed, since the detainees were kept strictly apart and isolated, both at the black sites and at Guantánamo, the striking similarity in their stories would seem to make fabrication extremely unlikely. As its authors state in their introduction, “The I.C.R.C. wishes to underscore that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.”

Beginning with the chapter headings on its contents page — “suffocation by water,” “prolonged stress standing,” “beatings by use of a collar,” “confinement in a box” — the document makes compelling and chilling reading. The stories recounted in its fewer than 50 pages lead inexorably to this unequivocal conclusion, which, given its source, has the power of a legal determination: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

•

Perhaps one should start with the story of the first man to whom, according to news reports, the president’s “alternative set of procedures” were applied:

“I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4 meters by 4 meters. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket.

“I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time.

“The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

“The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.”

So begins the story of Abu Zubaydah, a senior member of Al Qaeda, captured in a raid in Pakistan in March 2002. The arrest of an active terrorist with actionable information was a coup for the United States.

After being treated for his wounds — he had been shot in the stomach, leg and groin during his capture — Abu Zubaydah was brought to one of the black sites, probably in Thailand, and placed in that white room.

It is important to note that Abu Zubaydah was not alone with his interrogators, that everyone in that white room — guards, interrogators, doctor — was in fact linked directly, and almost constantly, to senior intelligence officials on the other side of the world. “It wasn’t up to individual interrogators to decide, ‘Well, I’m going to slap him. Or I’m going to shake him,’” said John Kiriakou, a C.I.A. officer who helped capture Abu Zubaydah, in an interview with ABC News.

Every one of the steps taken with regard to Abu Zubaydah “had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’”

He went on: “The cable traffic back and forth was extremely specific…. No one wanted to get in trouble by going overboard.”

Shortly after Abu Zubaydah was captured, C.I.A. officers briefed the National Security Council’s principals committee, including Vice President Dick Cheney, the national security adviser, Condoleezza Rice, and Attorney General John Ashcroft, in detail on the interrogation plans for the prisoner. As the interrogations proceeded, so did the briefings, with George Tenet, the C.I.A. director, bringing to senior officials almost daily reports of the techniques applied.

At the time, the spring and summer of 2002, Justice Department officials, led by John Yoo, were working on a memorandum, now known informally as “the torture memo,” which claimed that for an “alternative procedure” to be considered torture, and thus illegal, it would have to cause pain of the sort “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” The memo was approved in August 2002, thus serving as a legal “green light” for interrogators to apply the most aggressive techniques to Abu Zubaydah:

“I was taken out of my cell and one of the interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room.”

The prisoner was then put in a coffin-like black box, about 4 feet by 3 feet and 6 feet high, “for what I think was about one and a half to two hours.” He added: The box was totally black on the inside as well as the outside…. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”

After this beating, Abu Zubaydah was placed in a small box approximately three feet tall. “They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box; I think I may have slept or maybe fainted.

“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited.

“The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless.”

After being placed again in the tall box, Abu Zubaydah “was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

“I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week.”

•

Walid bin Attash, a Saudi involved with planning the attacks on American embassies in Africa in 1998 and on the Navy destroyer Cole in 2000, was captured in Pakistan on April 29, 2003:

“On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks…. I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural.”

This forced standing, with arms shackled above the head, seems to have become standard procedure. It proved especially painful for Mr. bin Attash, who had lost a leg fighting in Afghanistan:

“After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists.”

Cold water was used on Mr. bin Attash in combination with beatings and the use of a plastic collar, which seems to have been a refinement of the towel that had been looped around Abu Zubaydah’s neck:

“On a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements.

“Also on a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets…. I would be kept wrapped inside the sheet with the cold water for several minutes. I would then be taken for interrogation.”

•

Khalid Shaikh Mohammed, the key planner of the 9/11 attacks, was captured in Pakistan on March 1, 2003.

After three days in what he believes was a prison in Afghanistan, Mr. Mohammed was put in a tracksuit, blindfold, hood and headphones, and shackled and placed aboard a plane. He quickly fell asleep — “the first proper sleep in over five days” — and remains unsure of how long the journey took. On arrival, however, he realized he had come a long way:

“I could see at one point there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet X people. I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had [an] e-mail address ending in ‘.pl.’”

He was stripped and put in a small cell. “I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor,” he told the Red Cross.

“Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrist, resulting in open and bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing.”

For interrogation, Mr. Mohammed was taken to a different room. The sessions lasted for as long as eight hours and as short as four.

“If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe.”

As with Abu Zubaydah, the harshest sessions involved the “alternative set of procedures” used in sequence and in combination, one technique intensifying the effects of the others:

“The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of water boarding. The torture on that day was finally stopped by the intervention of the doctor.”

Reading the Red Cross report, one becomes somewhat inured to the “alternative set of procedures” as they are described: the cold and repeated violence grow numbing. Against this background, the descriptions of daily life of the detainees in the black sites, in which interrogation seems merely a periodic heightening of consistently imposed brutality, become more striking.

Here again is Mr. Mohammed:

“After each session of torture I was put into a cell where I was allowed to lie on the floor and could sleep for a few minutes. However, due to shackles on my ankles and wrists I was never able to sleep very well…. The toilet consisted of a bucket in the cell, which I could use on request” — he was shackled standing, his hands affixed to the ceiling — “but I was not allowed to clean myself after toilet during the first month…. I wasn’t given any clothes for the first month. Artificial light was on 24 hours a day, but I never saw sunlight.”

•

Abu Zubaydah, Walid bin Attash, Khalid Shaikh Mohammed — these men almost certainly have blood on their hands. There is strong reason to believe that they had critical parts in planning and organizing terrorist operations that caused the deaths of thousands of people. So in all likelihood did the other “high-value detainees” whose treatment while secretly confined by the United States is described in the Red Cross report.

From everything we know, many or all of these men deserve to be tried and punished — to be “brought to justice,” as President Bush vowed they would be. The fact that judges, military or civilian, throw out cases of prisoners who have been tortured — and have already done so at Guantánamo — means it is highly unlikely that they will be brought to justice anytime soon.

For the men who have committed great crimes, this seems to mark perhaps the most important and consequential sense in which “torture doesn’t work.” The use of torture deprives the society whose laws have been so egregiously violated of the possibility of rendering justice. Torture destroys justice. Torture in effect relinquishes this sacred right in exchange for speculative benefits whose value is, at the least, much disputed.

As I write, it is impossible to know definitively what benefits — in intelligence, in national security, in disrupting Al Qaeda — the president’s approval of use of an “alternative set of procedures” might have brought to the United States. Only a thorough investigation, which we are now promised, much belatedly, by the Senate Intelligence Committee, can determine that.

What we can say with certainty, in the wake of the Red Cross report, is that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact. We can also say that the decision to torture, in a political war with militant Islam, harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us. The consequences of this choice, legal, political and moral, now confront us. Time and elections are not enough to make them go away.

Mark Danner, a professor of journalism at the University of California, Berkeley, and Bard College, is the author of “Torture and Truth: America, Abu Ghraib and the War on Terror.” This essay is drawn from a longer article in the new issue of The New York Review of Books, available at www.nybooks.com.

New York Times

William Glaberson

A Pentagon report requested by President Obama on the conditions at the Guantánamo Bay detention center concluded that the prison complies with the humane-treatment requirements of the Geneva Conventions. But it makes recommendations for improvements including increasing human contact for the prisoners, according to two government officials who have read parts of it.

The review, requested by Mr. Obama on his second day in office, is to be delivered to the White House next week.

The president’s request, made as part of a plan to close the prison within a year, was widely seen as an effort to defuse accusations that there were widespread abuses at Guantánamo, and that many detainees were suffering severe psychological effects after years of isolation.

The report, by Adm. Patrick M. Walsh, the vice chief of naval operations, describes steps that could be taken to allow detainees to speak to one another more often and to engage in group activities, the government officials said. For years, critics have said that many detainees spend as many as 23 hours a day within the confines of cement cells and often were allowed to exercise alone in fenced-off outdoor pens.

The report is being presented to a White House that some government officials have described as caught off-guard by the extreme emotions and political crosscurrents provoked by its plan to close the Guantánamo prison. Some critics said the report’s conclusions could intensify the debate about the prison, and put the Obama White House for the first time in the position of defending it.

The report came as officials separately said on Friday that the Obama administration had decided on the transfer of the first Guantánamo detainee since the president took office, a former British resident, Binyam Mohamed. Lawyers for Mr. Mohamed had drawn wide attention with accusations that he was tortured in Morocco on instructions from American intelligence agencies.

Mr. Mohamed, who is to be returned to Britain, was originally charged with plotting to detonate a radioactive “dirty bomb” inside the United States. But the Pentagon official in charge of the Bush administration’s military commission system for conducting war-crimes trials dismissed those charges in October.

Also on Friday, Attorney General Eric H. Holder Jr. announced the creation of a task force to begin reviewing the cases of the remaining 245 detainees. The group, which is to include representatives of military, intelligence and other agencies, is to be led by a career federal prosecutor, Matthew G. Olsen, who has been a senior Justice Department lawyer dealing with national security issues.

The administration’s plan to close Guantánamo includes a new effort to decide whether detainees can be released, transferred to the custody of other countries or prosecuted. In the report on the conditions at Guantánamo, Admiral Walsh reviewed many accusations of abuse that critics have made about the prison, said one Pentagon official who has seen the report.

The report concluded that the Pentagon was in compliance with the requirements of the Geneva Conventions. The review included some of the most contentious issues, including the forced feeding of hunger-striking detainees and claims that many prisoners were suffering from psychosis as a result of conditions in the detention center.

According to one official, the report noted that some detainees had difficulty communicating from cell to cell, a contention that many detainees’ lawyers have also made. The Pentagon has long insisted that no detainees are held in solitary confinement. Military officials have said instead that the prisoners are held in “single-occupancy cells.”

Some Pentagon officials have continued to press the case that the Bush administration’s approach to detainee issues — and the Guantánamo Bay prison itself — should not be abandoned. The report is likely to accelerate that behind-the-scenes struggle.

The White House had no comment Friday.

One Pentagon official, speaking on the condition of anonymity because of the sensitivities involved in challenging the White House plan to close the prison, argued that the report showed that the Bush administration had created a humane detention camp. Speaking of the remaining detainees, this official said the report showed that if the men were moved, they might “go from a humane environment to a less humane environment.”

Critics of the Guantánamo Bay detention center, which is on the grounds of the American naval base at the eastern end of Cuba, have been preparing for Admiral Walsh’s report. They said they were concerned that the new administration would use it to avoid major alterations to the Guantánamo detention camp during its final year.

Gitanjali Gutierrez, a lawyer for Guantánamo detainees at the Center for Constitutional Rights, said that she and other lawyers found that conditions have remained bleak since the start of the new administration.

Ms. Gutierrez said that a report by the rights center, to be released next week, asserts that two major Guantánamo prison buildings, known as Camp 5 and Camp 6, should be closed immediately. She said prisoners there continue to be held in isolation for as long as 24 hours a day, that psychological difficulties are treated as disciplinary infractions, and that many cells are windowless.

Ms. Gutierrez said detention camp officials have recently increased detainees’ opportunities for recreation and social interaction. She said detainees’ lawyers have been concerned that some of those moves were in anticipation of visits now being made by senior members of the new administration. The attorney general is to visit Monday.

“This is really running the risk that the review is just a big whitewash,” Ms. Gutierrez added, “and we expect more of the new administration.”

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

 Le front du désert : des camps européens de réfugiés en Afrique du Nord

This article first appeared in the German journal Konkret (issue 12/2004) and traces the implementation of the creation of migrant and refugee prisons, so called off-shore centres, in northern Africa, as part of the EU’s globalisation of migration control. With the example of recent developments in EU and particularly German and Italian relations with Libya, the author highlights the relationship between military, economic and migration control agreements between the EU and third countries and documents the devastating effect these have for migrants and refugees caught up in the militarisation of the EU’s external borders.

 »How can you forget the concentration camps built by Italian colonists in Libya into which they deported your great family – the Obeidats? Why don’t you have the self-confidence, why don’t you refuse?» the Libyan intellectual Abi Elkafi recently asked the Libyan ambassador in Rome, who had initiated the country’s orientation towards the West. «The reason I write to you are the atrocious new concentration camps set up on Libya’s soil on behalf of the Berlusconi government,» Elkafi wrote in an open letter.

 In June 1930, Marshal Petro Badoglio, the Italian governor of Libya, ordered the internment of large parts of the then 700,000 inhabitants of Libya. Within two years, more than 100,000 people had died of hunger and disease in the desert concentration camps. Around the same time, Badoglio had fortified the 300 kilometre long Libyan/Egyptian border line with barbed wire fence. This is how the Italian colonists destroyed the Libyan resistance. For years, they had not succeeded – neither by bombing villages and oases, nor by using poison gas. The current Italian government laughs at any demand for compensation, Abi Elkafi writes.

 Military camps for refugees – the reality of off-shore centres

Four years ago, the western press received first reliable reports on internment camps in Libya. In September and October 2000, pogroms against migrant workers took place in Libya and 130 to 500 sub-Saharan Africans were killed in the capitol Tripoli and the Tripoli area. To escape the persecution, thousands of builders and service sector employees from Niger, Mali, Nigeria, and Ghana fled south. Many of them were stopped at road blocks in the Sahara and taken to Libyan military camps. Le Monde Diplomatique reported on several camps in where migrants and refugees have been held since 1996 – about 6,000 Ghanaians and 8,000 people from Niger are supposed to be held in one of them alone. The Ghanaian president Jerry Rawlings visited the camp to bring back some hundred compatriots. The Somali Consultative Council appealed to Gaddafi on 22 February 2004 «to unconditionally release the Somali refugees who are imprisoned in your country and who have started a hunger strike immediately and not send them back to the civil war in Somalia.» In the beginning of October 2004, the Italian state TV channel RAI showed pictures from a Libyan refugee camp. Hundreds of people were depicted in a court yard, heavily guarded; the barracks apparently do not have sleeping facilities. Reports of some of the Somalis who have recently been deported to Libya confirm the existence of these camps.

Did the Libyan government originally build these camps in order to provide a labour force for major building projects in the south of the country (»greening the desert»)? Or are they an attempt to fight refugees in transit? In any case, the Libyan government already announced some time ago that undocumented immigrants would be imprisoned in southern Libya and deported. In December 2004, the Libyan interior minister Mabruk announced without further explanation that Tripoli had deported 40,000 migrants in the last weeks alone.

 These imprisonments and deportations have now become antecedents of the so-called off-shore centres of the European Union, propagated particularly by Germany’s interior minister Otto Schily. Libya is the first non-European country which allows for its camps to be integrated into the EU’s deportation policies. Together with the new airlifts to Tripoli, by which African refugees are being deported collectively from Italy since 2 October 2004, first facts of this regime have been created. At the beginning of October 2004, the designated and later suspended EU commissioner Buttiglione announced during his hearing before the European Parliament in Strasbourg that the EU did not want to create «concentration camps» in north Africa, but wanted to use the already existing camps «in which refugees are living under the most difficult circumstances.» At their informal meeting in Scheveningen on 30 September to 1 October 2004, the EU’s justice and interior ministers agreed in principle that the EU is striving for the creation of «reception camps for asylum seekers» in Algeria, Tunisia, Morocco, Mauritius and Libya, not under supervision of the EU but of the respective countries.

Mostly unnoticed by the public, the EU states that form the EU’s external borders are creating the preconditions for a new deportation regime. Whereas until recently, refugees and migrants who were stopped by border police were taken into the EU country, there are now enormous reception capacities on the Canary Islands and on the southern Italian and eastern Greek islands. This «initial reception» is no more intended to lead into European cities and the already meagre EU legal protection. The camps at Europe’s peripheries are typically located near airports on former military compounds, guarded by paramilitary troops and hardly accessible even for the UNHCR. Contact to the outside world is made extremely difficult if not impossible. The facilities are secured with modern prison equipment. The Canary islands currently hold camps with altogether 1,950 places.

These camps in the Canaries, southern Italy and eastern Greece, also mark the introduction of a social change initiated by EU states: in the 1990’s the boat people were welcomed by the Mediterranean population. Although the state declared a state of emergency when large refugee boats arrived and put them into stadiums, it remained a public event which attracted many inhabitants who drove to the stadium with clothes, blankets and food. With the new prison camps, the administration now systematically separates boat people from the society they arrive in and thereby creates the organisational preconditions for mass deportations to places outside the EU, far from any legal or societal control. Extraterritorial, law-free zones are being created at the fringes of Europe.

Since the beginnings of the 1990’s, Western European migration and refugee strategy papers point to the EU intending to export the asylum procedures to places outside Europe. They outline a global migration control approach that ensures that refugees and unwanted migrants from Africa, Asia and South America do not reach Europe anymore. Central to this concept are camps encircling Europe.

Up to now these plans could not be implemented. German authorities unsuccessfully attempted to enforce this practise in the early 1990’s after the war against Iraq, when the no-fly zone was created over Iraqi Kurdistan: they wanted to declare the area a «safe haven» for Iraqi refugees, to which they could be deported en masse. This did not succeed until the NATO war in Kosovo. Within a few weeks, the war zone was surrounded by refugee camps, thus stopping hundreds of thousands on their flight to the EU.

In the beginning of the current Iraq war, Tony Blair suggested the creation of refugee camps under the supervision of the EU but outside its territory. His «new vision for refugees», published in March 2003, foresaw returning those who would apply for asylum in the EU to outside the EU’s borders. His vision was one of a ’camp universe’, set up by EU officers and made up of Transit Processing Centres (TPC) in front of the gates of the EU, together with the UNHCR and the notorious International Organisation for Migration (IOM). From there they would be able to bring the refugees back to «safe» zones near their regions of origin and select a few for entry into the EU. When that plan became known to the public, it went down in a storm of protest.

Despite the public criticism, Otto Schily and Giuseppe Pisanu, the German and Italian interior ministers, developed the idea further in the summer of 2004. The European Commission together with the Strategic Committee for Immigration, Frontiers and Asylum (SCIFA) were to test preliminary measures of «a European asylum office with interception functions» in northern Africa (Schily in FAZ, 23.7.2004). In practise, this proposal implies that boat people coming through the Mediterranean were to be returned to camps located in Arab states – in collective procedures and without an individual check on their nationality, their flight route or reasons for flight. This practise is called refoulement and is explicitly prohibited in the Geneva Refugee Convention. EU Member States’ constitutions as well as the European Convention on Human Rights prohibit refoulement as well. However, this practise not only concerns the violation of rights of asylum seekers. In internment camps or when deported to desert areas without support, migrants, no matter if they flee from poverty and hunger or for other «economic» reasons, suffer the same fate they were trying to flee. They are threatened with imprisonment, abuse and death.

Testing and developing military technology in the fight against migration

Recent international events have changed the political, military and economic situation to such an extent that desert camps have now come within Schily’s and Pisanu’s reach. The first barrier for unwanted refugees and migrants is Europe’s external border policy. But since EU enlargement and the global «fight against terror», these policies are being formulated under different conditions. In 2001, the German and Italian interior ministries laid down their dream of an EU border police in EU documents. The plan was intended to bring the unsafe borders of certain members under centralised control. At first, the focus was on the eastern border of accession states, but the accession states were not exactly enthusiastic about the idea that especially German, together with other EU police officers, were to secure their eastern borders. They fear that a total closure of borders will create tensions with their eastern neighbours. Further, the German border guards have reaped antipathy in the local accession population in the Oder and Neiße region with their policing practises and the NS massacres committed by German troops in the Bug river region have by no means vanished from people’s memories.

Politicians of the South European front states – as they are called in official EU documents – have less scruples. The anti-terrorist measures against the Arab-Muslim population has enforced a development of strong external borders. The operative core of a future EU border protection is based on the greater Mediterranean region. The Mediterranean Sea is a new challenge for the control fanatics. The goal is the ’virtual’ extension of European borders to the North African coasts. Even the docking of the wooden boats is to be prevented. Furthermore, the border police long to control the Sahara-Sahel-zone, together with the military and European and American secret services, thus setting up a second ’rejection’ ring around Europe. Besides stopping refugees, the oil and gas production in the desert has to be secured. Thus, the border surveillance agreement between Italy and Libya provides for an internationalised control of the 2,000 kilometres long coast line and also the 4,000 kilometres long desert border of Libya.

This can hardly be achieved by boat and jeep patrols. Control technologies tried and tested in the most recent wars will therefore also be deployed. Detection of refugees by air with optronic and radar technology is currently being tested all over the Mediterranean.

The Spanish Guardia Civil has rediscovered the surveillance tower. From above, the visual and electromagnetic identification technique can continuously and automatically scan the Straits of Gibraltar and the Moroccan coast. Other parts of the coast, due to the earth curvature, cannot be controlled by means of towers only. Nevertheless, the Canary Islands and the Spanish South Coast are equipped with the tower technology. Tests are made to link all accessible data in real time in order to identify and follow all ships in the controlled area. This technology, known as SIVE (Sistema Integrado de Vigilancia Exterior), is now exported to the Greek islands.

Meanwhile, Italy is practising the use of drones, which are planned to being used in Libya’s desert borders. In October 2004, the Italian air force general Leonardo Tricarico announced that Italy had purchased five predator drones for 48 million dollars from the Californian arms company General Atomic Aeronautical Systems in San Diego. The US is using predators to chase al-Qaeda; the unknown flight object can also launch rockets. Tricarico explained that the Italian air force was planning to use the drones against terrorism as well as against irregular migration. By the end of October 2004, the Italian air force were trying to detect refugee boats from the air.

Testing of the new technologies at the South European ’front’ is co-ordinated by the so-called ad hoc centres of the EU preceding the future EU border agencies. Two sea surveillance centres are based in Spain and Greece, one air surveillance centre in Italy. Another one is responsible for ’risk analysis’. Taking the insurance business as an example and with the assistance of Europol, it is calculated where the greatest damage by irregular migration is imminent. There, surveillance is strengthened.

The ad hoc centres are combined in Schengen Committees, which by now should have long been subsumed within EU institutions regulated under the Amsterdam Treaty. These circles have launched new power centres to create an EU border protection within five years. Thus, SCIFA+ unifying the Schengen round with all EU border police forces was founded in 2002, and in 2003 the PCU was created – the coordinating unit of the practitioners. The latter sees itself as a crisis centre using focal points at the external borders to push through the centralised command structures, regarding the development of preventive measures and stringent controls of national border guard units as its duty.

It is hard to say whether these EU coordinated methods have failed so far, or whether they already have fatal outcomes. On the one hand, it is reported that a planned EU manoeuvre of various national naval units in the Straits of Gibraltar and around the Canary Islands was halted due to language difficulties. On the other hand, ’high tech’ is regarded as a magic potion that motivates border police and marines who believe their work thereby becomes more valuable. The intensified search with technical equipment in the Straits has already forced boat people to use more dangerous waters to come to Europe. It can also be assumed that EU agencies declared the arrival of boat people on the Italian island of Lampedusa ’a state of emergency’ in order to justify the need to implement extraordinary measures.

It is important to remember that according to official estimates, 400,000 to 500,000 people secretly cross the southern EU border every year. Whoever can afford it, arrives by plane with a false passport. Whoever has relatives and friends might go on one of the ferries engaged in the massive holiday traffic. Only the poor come on wooden boats. According to reliable calculations, more than 10,000 people drowned in the Mediterranean Sea since 1992, that is since visas became obligatory for the EU’s southern neighbours. The European governments, however, do not declare a state of emergency because of the huge death tolls, but because of the arrival of around 30,000 boat people per year. In late summer 2004, around 1,800 people reached the island of Lampedusa. Obviously a high figure for a small island but small compared to the Mediterranean figure as a whole. The Italian state and the EU use them as a warning to others. Deterrence is the goal.

Oil interests and migration control – the economic agenda

The second aspect which brought the Libyan desert camps within reach of Pisanu and Schily is of economic nature. Since the mid-1990’s, Gaddafi has slowly opened up Libya’s economy and thus the oil and gas industry to foreign investors. Besides Russia, Libya is the most important non-European oil supplier for Germany, whereas Germany is the most important goods supplier to Libya after Italy. In 2002, the German minister for trade and commerce announced an ’export offensive’ in the Middle East and North Africa – implying increasing investments in the oil and gas industry in these regions. The potential gains to be made from Libya have first priority here. In the 1970’s, before economic cooperation decreased, most of the German investments in North Africa and the Middle East were made in Libya. Now, the German Association of Chambers of Commerce and Industry does not only predict investment opportunities in the Libyan energy sector but also in infrastructure, telecommunication and health. Another big market is the food supply for the population, most of which has to be imported.

24 March 2004: The British prime minister Tony Blair visits Gaddafi. The Dutch-British oil company Shell receives a 165 million Euro contract to produce oil and gas in Libya, forming the basis of a «long-term strategic partnership». There is talk of a «oil against weapons» deal, because around the same time, the arms company BAE initiates talks on major business with Libya. Libyan’s armed forces want new equipment. The wish list includes night vision gear and air radars.

In July 2004, Libya clears the way for the participation of foreign investors in state companies. The government decides on the privatisation of 160 state companies, 54 of which cannot only sell shares to foreign investors but can be taken over by foreign capital by allowing for majority shareholding. The plan is to privatise 360 firms until 2008. At the end of July, the WTO lobbies for the accession of Libya. In August 2004, the German government re-introduces the so-called Hermes-Bürgschaften for Libya, which allows exporting companies to insure themselves against economic and political risk scenarios (many exporting firms can only export to certain countries with this guarantee).

On 5 September 2004, the Libyan state invites numerous interested firms from all over the world for a presentation on new oil and gas fields. The neo-liberal Libyan prime minister Shukri Ghanim announces that production licences will be put up for bidding in the coming months. According to recent estimates, Libya has the eighth biggest oil reserves world wide. The country currently produces 1,6 million barrels of crude oil per day. The goal is to increase production up to 2 million until 2010, with the help of numerous new foreign investments – in 1970, 3,5 million was produced per day. The low production costs and high quality of Libyan oil is attractive to foreign investors.

7 October 2004: Italian president Silvio Berlusconi visits Libya for the fourth time that year. This time to open the pipeline ’Greenstream’ of the ’West Libyan Gas Project’, built and operated by the Italian ’energy giant’ ENI, the number one of the foreign companies active in Libya. 6.6 billion dollars were invested into the 520 kilometres long pipeline, now supplying gas from the Libyan Mellitah to Sicily. Until now, it is the biggest Mediterranean project of its kind and makes a second pipeline for Algerian gas obsolete. The day for the opening was chosen to coincide with the «day of revenge» in Libya, which celebrates the victory over colonialism since the 1970’s. In consideration of Belusconi, Gaddafi renames it the «day of friendship» and declares the once despised enemy to be welcome guests.

11 October 2004: The EU foreign ministers meeting in Luxemburg resolve the political barriers to economic cooperation with Libya. The council of ministers revokes the relevant UN sanctions from 1992 and 1993. The arms embargo is also revoked by the general EU framework for arms exports to third countries. The precondition for these changes was the Libyan agreement to pay compensations for the victims of a bomb attack on a Berlin discotheque in 1986, similar to Libya taking responsibility for the attack on the Pan-Am machine which crashed over Lockerbie. Furthermore, Libya is introducing a neo-liberal market economy, as is laid down in the Euromed partnership agreements between the EU and its Mediterranean neighbouring states.

14/15 October 2004: Chancellor Schröder, accompanied by German industrialists, visits Gaddafi. Schröder signs a bilateral investment agreement and is present when oil and gas concessions are granted to the German Wintershall, a subsidiary of the BASF group, represented in the country since 1958 and one of the leading foreign producers with an investment of 1.2 billion dollars. During the chancellor’s visit, the German RWE group also started business in the oil and gas production, and the German Siemens group received contracts worth 180 million. Furthermore, the German government is interested in orders for «technical material like night vision gear or thermal cameras for border protection». Germany’s economic goal is to dominate the Libyan foreign investment market. When Gaddafi mentions to the chancellor that Rommel’s landmines are still causing accidents and that it was high times to clear them, the German side ignores the issue without comment.

The military and migration control – the foreign policy agenda

The third reason for Schily and Pisanu to be interested in the desert is of military nature and is closely connected with border fortification, camp policy and oil and gas production: the German economy openly links economic aims in North Africa and the Middle East with its military planning, because the markets in question are said to «have specific security risks». This is why on 11 February 2005, the Federal Association for German Industry and the Federal Association of German Banks directly linked its ’Conference on Financing in the Region North Africa Middle East’ to the ’Munich Security Conference’, which takes place annually to enable Western states to coordinate their military policies and war tactics. In February 2005, EU foreign policy therefore joined EU strategies regarding refugees, the military and the economy in the Mediterranean and the Middle East.

Like Pakistan and Turkey, Libya could soon be a privileged partner of the West as a stronghold against Islamism and Africa’s failing states. Because of his leading role in Africa’s integration and the African Union (which replaced the OAU in 2001), Gaddafi has a special influence in a lot of dependent states. This became clear during his role in freeing the hostages from Switzerland, Germany and Austria who were held in the Sahara. Negotiators and money from Libya also played a central role in the negotiations around some Western tourists, amongst them Germans, who were held by extremists on the Philippines in the summer of 2000. Now British officers will operate as consultants to the Libyan army. A military co-operation with Greece is agreed upon.

Resulting from a deal with Italy in 2003, Libya is currently purchasing boats, jeeps, radar equipment, and helicopters for border surveillance. Italian trainers and consultants are already in the country. According to press reports, Rome supplied tents and other material for three camps in Libya in the first days of August. «The camps are being set up», said Pisanu in an interview with the newspaper La Republica, «they were never under discussion». Meanwhile, the Italian navy is guarding large areas of the Libyan coast. Under pressure from Rome, Egypt is controlling the Red Sea for refugee ships. Funded with money from Italy, Tunisia is operating 13 deportation prisons of which 11 are kept secret, safe from public scrutiny. It is said that many of those refugees and migrants deported from Italy are being transported to the Tunisian-Algerian desert and abandoned there.

The German government is also responsible for arming the North African coast. According to the German defence ministry, Tunisia will receive six Albatross speed boats from the German navy. Already two years ago, it was agreed to deliver five speed boats to Egypt. In 2002, Algeria received surveillance systems at a value of 10,5 million EUR, Tunisia received communications and radar equipment for around 1 million EUR, Morocco received military trucks worth 4.5 million euro.

The Western industrial countries have described the assumed danger in and from the Mediterranean region in two scenarios: One focuses on Islamic fundamentalism, the other on uncontrolled migration. It is surprising how these two completely different social phenomena are conflated in this vision of threat. Agreements of the EU countries state that al-Qaeda and the boat people use the same North African networks. In the meantime, search units are being formed whose remits are to fight both enemies together.

Source

EDITORIAL

New York Times

 In a long series of valedictory speeches and interviews, President Bush and Vice President Dick Cheney have been crowing about Guantánamo Bay, secret prisons and abusive interrogations, claiming they met the highest legal standards and that no prisoner had been tortured. Fortunately, the truth broke through the noise, in the words of some of the very people ordered to carry out the policies.

 In an interview in The Washington Post, Susan Crawford, the retired judge who runs the military tribunals at Guantánamo, said that harsh interrogation methods had endangered the life of Mohammed al-Qahtani, a Saudi national accused of planning to take part in the 9/11 attacks. Authorized by then-Defense Secretary Donald Rumsfeld, they included sustained isolation, nudity and prolonged exposure to the cold.

 “We tortured Qahtani,” Judge Crawford said, adding that she was therefore unable to prosecute a man who seemed to pose a real threat to the United States.

Judge Crawford was not the only one speaking out. Major David Frakt of the Air Force Reserve, who was assigned to defend another Guantánamo prisoner, told MSNBC’s Rachel Maddow that he and all the other defense lawyers in the system consider the tribunals “unfair, rigged” and unconstitutional. He noted that his client’s prosecutor resigned to protest the lack of evidence in the case.

That is the real nature of Mr. Bush’s grotesque legacy: abuse and torture at an outlaw prison where hundreds of men — many of whom did nothing — have been held for years without real evidence or charges. And truly dangerous men were treated so badly that it may be impossible to bring them to justice.

It will be hard enough to close down Guantánamo as Barack Obama has vowed to do, but the legal burdens Mr. Bush is dumping on his successor are much greater.

The appalling Military Commissions Act of 2006, railroaded through Congress, must be repealed. Interrogation rules that respect American values and laws and the Geneva Conventions must be set for all government agencies, including the intelligence agencies.

And there is the profound question of whether the new administration should prosecute those who tortured and abused prisoners — and those who ordered them to do it. Judge Crawford’s legal finding that torture occurred adds a new complication, since a treaty obliges the United States to investigate such allegations.

We have heard a lot of talk about how the country needs to look forward and not backward. We certainly would like to forget the horrors of the last eight years. But you cannot fix something before you know exactly how it is broken. The clandestine system Mr. Bush and Mr. Cheney have built will not give up its secrets easily.

To ensure that the abuses stop, Mr. Obama and his administration will have to work hard to find out all that has happened. They will have to locate and override all of the policy memos, directives and executive orders that have redefined and condoned torture and other abuses. Guantánamo is the place to begin.

 The timetable: Mr. Obama is expected to announce as early as Wednesday that he is beginning the process of shutting Guantánamo. We hope he sets a target date. That may make it easier to persuade other governments to agree to accept some prisoners — one of the difficult challenges ahead. But we do not agree with critics who insist that date must fall within his first 100 days.

This page called early and often for closing Guantánamo. But we recognize that this is going to be very hard work.

 Sorting out the inmates: Mr. Obama’s lawyers will have to review every file, most of which the Bush administration has refused to turn over to any authority, including Congress. We know from bitter experience that the Bush administration’s judgment is worthless when it comes to what these prisoners may have done, how they have been treated and what justice they should face.

Just last week, Mr. Cheney claimed that the interrogation of prisoners like Khalid Shaikh Mohammed, believed to be the planner of 9/11, who was tortured by waterboarding, allowed the United States to capture a “very impressive” list of Al Qaeda leaders in 2003. If that is true, Mr. Obama needs to know who they are, where they are, and what was done to them in the last five years.

A blueprint: Senator Dianne Feinstein, the new head of the Intelligence Committee, has a bill for closing Guantánamo that Mr. Obama should embrace. It sets a one-year deadline and requires that every prisoner either be charged and tried in United States federal court; transferred for trial by an international tribunal under United Nations authority; returned to the custody of the government of their homeland, if that government does not abuse and torture prisoners; held as a prisoner of war; or, simply, released.

The separate system of tribunals created by the military commissions act must be abolished. They are a mockery of American justice, and utterly unnecessary.

It was extremely encouraging to hear Eric Holder, Mr. Obama’s choice for attorney general, say at his confirmation hearing on Thursday that the new administration is open to trying prisoners in the United States. It is appalling that an attorney general nominee has to say he respects the law, but such is the Bush legacy.

The real bad guys: After the prisoners are sorted out, Mr. Bush’s egregiously bad judgment leaves all Americans with a huge problem. The abuses authorized by top Bush officials, and so gleefully defended by Mr. Cheney in particular in the last few weeks, create the possibility that men like Mohammed al-Qahtani and Khalid Shaikh Mohammed will never be able to face justice in a real courtroom.

Mr. Obama’s team will have to come up with a solution that does not set such men free. We are not sure what it should be, but there is one unacceptable choice: creating a new detentions law that would allow them held without trial. That would merely compound Mr. Bush’s catastrophically bad choices.

Interrogations: The 2006 military tribunals law bound military interrogators to the Army field manual’s rules, which conform with the Geneva Conventions — unlike Mr. Bush’s policies. But, at Mr. Bush’s insistence, the bill carved out an exemption that allowed intelligence agencies to go on hiring civilian interrogators and to engage in practices that are clearly immoral and illegal. Ms. Feinstein’s bill would eliminate the loophole on how prisoners are treated and ban the use of civilian interrogators.

We were glad to hear Mr. Holder state that the Obama administration considers the Geneva Conventions binding. But we wish he had been more clear on a solution, beyond calling the Army field manual a “good start” for interrogation rules in C.I.A. prisons. We also were unclear from his answers whether Mr. Obama has decided, as he should, to ban civilian interrogators.

Mr. Holder unequivocally declared waterboarding to be torture, which his predecessors would not do. But this is not just about waterboarding. Other practices, like forced nudity, prolonged isolation, and extremes of heat and cold, are abuses under the same laws and treaties that prohibit torture. And Judge Crawford reminded us that torture is not necessarily just one terrible act. In the Qahtani case, she said: “This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive.”

C.I.A. prisons: We have never heard a convincing explanation for why the Central Intelligence Agency needs its own network of prisons beyond the reach of law, in undisclosed locations. If there is a good reason, we hope this administration will explain it. We are skeptical, and we urge Mr. Obama to support Ms. Feinstein’s bill, which would require the C.I.A. to report all detainees to the International Committee of the Red Cross.

We recognize that this is a daunting agenda, and that to succeed, Mr. Obama’s White House, Justice Department and Pentagon will also have to rebuild demoralized legal divisions where professionals were replaced with apparatchiks whose mission was to twist the law to justify their masters’ decisions.

This work is essential to restoring the rule of law. It is essential to restoring this country’s reputation around the world. And it is essential to restoring Americans’ faith in themselves and in their government. That is the only way to move forward.

EDITORIAL

New York Times 

Nearly three years after Congress created the military commissions at Guantánamo Bay, lawmakers and the Obama administration are working to undo the grievous damage to the Constitution, American justice and the nation’s global image. Senator Carl Levin, the chairman of the Senate Armed Services Committee, has produced a good first draft of a new military tribunals law that was approved unanimously by his committee.

 Mr. Levin showed courage taking on an issue long tainted by George W. Bush’s campaign of fear. And he set a standard all Americans can understand: Military tribunals must not subject prisoners to anything that Americans would not accept if the trials were in another country and a United States citizen was in the dock.

 After years of watching government lawyers undermine the rule of law, it has been especially gratifying to see President Obama’s lawyers urging senators to do even more to create a system that will fairly try prisoners and no longer shame Americans.

 At a hearing last week, Defense and Justice Department lawyers suggested major improvements in the Levin bill, which seeks to replace the 2006 Military Commissions Act. Most important, they said tribunals may not violate the Constitution’s due process requirements.

 There are still significant problems with the Levin bill. But it is a huge improvement over the kangaroo courts created to guarantee guilty verdicts against anyone Mr. Bush declared an unlawful enemy combatant.

 The new bill, which has the backing of two key Republican senators, John McCain and Lindsey Graham, embraces the basic principles of American justice and the Geneva Conventions in vital ways. It begins to restore the distinction between military offenses committed on an actual battlefield, which can be judged by a military tribunal, and crimes properly handled by civilian courts. The bill also:

 Gives defendants in tribunals more access to evidence, including classified evidence, relying on tested procedures used to protect national security.

Bars the use of evidence obtained through torture and cruel, inhumane and degrading treatment.

Gives lawyers on both sides more independence.

Puts the burden on prosecutors to justify the introduction of hearsay evidence, rather than compelling the defendant to prove that such evidence is unreliable.

These are all essential improvements for a deeply rotten system, but they are not enough.

In testimony last week, Jeh Johnson, legal counsel for the Defense Department, and David Kris, an assistant attorney general, urged the Senate to remove a clause that makes “material support” for hostilities against the United States a crime that can be tried in a military tribunal.

Mr. Kris said that is not likely to withstand judicial scrutiny, since it is a civilian crime, not a violation of the laws of war. Charges of material support — which could include writing a check to an organization that turns out to be linked to terrorist groups — are hard to define and can be unwitting or coerced.

While barring the use of evidence obtained by coercion, the bill is too vague in defining cruel, inhuman and degrading treatment — a concept twisted beyond recognition by Mr. Bush’s lawyers. Mr. Kris and Mr. Johnson said the law should permit only evidence given voluntarily, and define what that means in a military setting.

The administration lawyers also wisely suggested a “sunset” provision, which would require Congress to consider whether to continue tribunals after the legal nightmare Mr. Bush created is cleaned up.

The bill does not adequately address important concerns raised by the military lawyers defending Guantánamo inmates. The head of that group wrote to the Justice Department on June 9 saying that the current law requires only that defendants, even in capital cases, get a “reasonable opportunity” and money to find witnesses and retain outside experts, counsel and interpreters. They said any new law should meet the standards of military law (defense resources are equal to the prosecution’s) or civilian law (defendants get resources “necessary for adequate representation”).

Senator Levin acknowledged that shortcoming and promised to fix it. We hope he will display the same openness about other needed changes.

We welcome the Obama administration’s fierce defense of the law and its efforts to fix the military tribunals. But we are puzzled by its failure to make public a document vital to the effort. In May, according to news reports, the Justice Department laid out the constitutional requirements for a proper detainee policy, including military tribunals. It is irresponsible to have Congress consider this new bill without that document.

The White House and the Congressional leadership must do all they can to fix a shamefully broken system. We fear that some senators who voted for the Levin measure in committee are already weakening. Republican opponents are certain to revive the false charge that respecting the Constitution means coddling terrorists.

Since the 9/11 attacks, this country’s political leaders have too often chosen fear and political expediency over principle. That must not happen again.

EDITORIAL

New York Times

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.

 The target of the judges’ rulings were Combatant Status Review Tribunals, panels that determine whether a prisoner is an “unlawful enemy combatant” who can be tried by one of the commissions created by the 2006 law. The tribunals are, in fact, kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants.

 On Monday, two military judges dismissed separate war crimes charges against two Guantánamo inmates because of the status review system. They said the Pentagon managed to get them declared “enemy combatants,” but not “unlawful enemy combatants,” and moved to try them anyway under the 2006 law. That law says only unlawful combatants may be tried by military commissions. Lawful combatants (those who wear uniforms and carry weapons openly) fall under the Geneva Conventions.

 If the administration loses an appeal, which it certainly should, it will no doubt try to tinker with the review tribunals so they produce the desired verdict. Congress cannot allow that. When you can’t win a bet with loaded dice, something is wrong with the game.

 There is only one path likely to lead to a result that would allow Americans to once again hold their heads high when it comes to justice and human rights. First, Congress needs to restore the right of the inmates of Guantánamo Bay to challenge their detentions. By the administration’s own count, only a small minority of the inmates actually deserve a trial. The rest should be sent home or set free.

 Second, Congress should repeal the Military Commissions Act and start anew on a just system for determining whether prisoners are unlawful combatants. Among other things, evidence obtained through coercion and torture should be banned.

 And Congress should shut down Guantánamo Bay, as called for in bills sponsored by two California Democrats, Representative Jane Harman in the House and Senator Dianne Feinstein in the Senate. Both lawmakers are intimately familiar with the camp and have concluded it is beyond salvaging.

 Their bill would close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.

 The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.

 It is time to get rid of it.

 [from the April 1, 2002 issue of the Nation]

 Although the Bush Administration conceded on February 7 that the Taliban detainees at Guantánamo Bay deserve to be covered by the Geneva Conventions, the Administration refused to allow them, or any of the 186 detainees at that time (the number now stands at about 300), prisoner-of-war status. One might reasonably expect that the Geneva Conventions and the protocols of international law would offer a promising legal avenue for contesting the US government’s detention and treatment of these prisoners, and indeed they provide some useful resources for this purpose. But the 1949 Geneva Convention accord on the treatment of prisoners of war, based on an outmoded notion of war and soaked in bias toward the nation-state, makes it difficult for POWs who do not belong to recognized states with conventional armies to lay claim to protection under international law.

The Administration claims that these prisoners do not merit POW status under the Geneva Conventions, which stipulate that POWs must belong to a “High Contracting Party” and have operated in the service of “regular armed forces” in a conventional war. But the United States, understood as the “Detaining Power” under the conventions, is required to treat these prisoners as POWs until a “competent tribunal” is set up to decide the question. At the same time, the paradoxical fact is that the Geneva Convention accord on POWs, which seeks to protect prisoners of war from hostile governments that may well be unwilling to recognize their rights to fair treatment, also functions as a civilizational discourse that favors prisoners who belong to established nation-states. So while it is important to insist that international law ought to be followed in this case, we also need a critique and expansion of this law. And the law must be changed not only in light of the new character of war but to insure that those engaged in military action on behalf of stateless organizations receive the same protections as those who fight for established states.

 On January 22 Defense Secretary Donald Rumsfeld explained why these prisoners should not be called “prisoners of war,” and why he prefers to call them “battlefield detainees” or “unlawful combatants.” For the United States, these are not POWs, because this is no ordinary war; it is not primarily a battle between recognizable nation-states or, in the parlance of the Geneva Conventions, “High Contracting Parties.” The term they have come up with, “battlefield detainees,” designates a place not yet under the law or, indeed, outside the law in a more or less permanent way. It is unclear whether some of these prisoners will ever be tried, and Rumsfeld at the end of February indicated (and recently reaffirmed) that they might be held “indefinitely” without trial. In this context, the hunger strikes in which many prisoners have engaged might be understood as another version of a suicide tactic, practiced by those who stand little chance of achieving the status of legal subjects in an appropriate trial. If they are tried, it is not ruled out that they could be sentenced to death, without any rights of appeal, by a military tribunal. The Geneva Conventions rule out the possibility of a secret military tribunal for POWs and guarantee trials that follow the laws governing civilians or, minimally, the same kinds of courts to which US POWs are subject. But the United States has allowed no legal counsel for these prisoners and no guarantee of a trial that would follow the stipulated rules, and it clearly has no intention of doing so, even though it seems willing in some instances to allow repatriation to nations such as Britain.

 The Geneva Conventions and the United States both engage in the questionable practice of distributing rights of protection differentially, depending on a prisoner’s affiliation with a state-based military operation. Instead of asserting an entitlement to protection against degradation and violence and rights to a fair trial as a universal right, the Geneva accord on POWs applies a selective criterion to the question of who merits protection and who does not, and it clearly privileges those prisoners in wars between recognizable states. The Conventions accept conventional war, but have not been articulated well enough to have a clear application in the present circumstance.

 To its credit, on the other hand, the Geneva accord on POWs is explicit that the term “POWs” includes those who belong to “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” In other words, the detaining power, in this case the United States, may not recognize the authority to which these prisoners profess allegiance, but that should have no bearing on their status. Any doubts about that status are to be settled by a competent tribunal convened under the terms of the accord. Given that the Guantánamo prisoners’ status is obviously open to debate, the Bush Administration’s claim that there is “no doubt” about their standing appears to be a cynical manipulation of the Conventions. The United States purports to be acting consistently with the Geneva Conventions, but it clearly ignores their stipulations, allocating to Rumsfeld’s Department of Defense the right to determine the status of the prisoners and refusing to yield to the authority of a competent tribunal.

 Although the United States announced that it would recognize the Taliban, the representative government of Afghanistan at the time of war, as an entitled state under the Geneva Conventions, it nonetheless depleted the Conventions of their binding force by continuing to deny the Taliban “prisoner of war” status. Indeed, the United States says only that its actions are “consistent” with the Geneva Conventions in treating the prisoners humanely, but it ignores the definition of humane treatment that the accord supplies (access to legal counsel, fair trials, limited time in detention, etc.). Given this flagrant violation, it makes sense to call for the Geneva Conventions to have binding force. Unfortunately, however, the Conventions are only of limited help here, since they are pervasively biased toward the nation-state and unprepared to furnish dictates for the present and future forms that armed conflict might take. The Conventions aid and abet the United States by guaranteeing prisoners not affiliated with state-centered military actions fewer rights than those who are. Only those combatants who operate in conventional ways qualify as “regular armed forces” under Article Four of the accord on POWs: For instance, members of militias have to belong to a “Party” to the conflict, whether directly or indirectly, and to belong to a “Party” means, effectively, to belong to a nation-state or to have an established relationship to one (ironically, the United States assumed this connection of Al Qaeda to the Taliban when it began its war, identifying the one with the other when the United States targeted nations that “harbor” terrorists, but now backs off from that connection when it would entitle captured Al Qaeda members to prisoner-of-war status). Those militias must be organized by a clear chain of command with “a person” commanding his subordinates; they have to wear “a fixed distinctive sign recognizable at a distance”; they have to carry arms openly; they have to conduct their operations according to the “laws and customs of war.”

 Thus the Geneva Conventions not only presuppose a conventional sense of war (where the model appears to be based on wars prior to its drafting in 1949) and of what a “legal combatant” is, but they enforce that sense, operating as an instrument not only of the nation-state but of the geopolitical distribution of legitimate and illegitimate violence. Legitimate violence is waged by nation-states; groups of armed resisters who are directly representing no nation-state in particular, or several in tangential ways, are, de facto, illegal combatants. Only “High Parties” can legally go to war and deserve the human rights protections guaranteed by the Geneva Conventions. The notion of the legitimate warrior is in part drawn from World War I, it seems, when everyone could be “seen” on the battlefield. Of course, this requirement is untenable, since it implies that there are no undercover actions in legitimate war, no stealth bombers, no camouflage. And the fact that the Al Qaeda network has defined itself as a group whose chain of command (if it can even be called that) is systematically effaced from public detection would seem to be anathema to the Conventions’ conception of war.

 Hence, we can make sense of Speaker of the House Dennis Hastert’s remarks to the press about the prisoners in Guantánamo: “These aren’t military people. They don’t belong to a country, they don’t wear a uniform, they’re not part of an army. It’s a unique situation and we’ll have to deal with it in a unique way.” “Unique” thus becomes the word that suggests that the law has limited applicability here, that we are not in a situation in which rules regarding humane treatment can be extended universally, since there are exceptions to the universal, and we are dealing with the exception here. Moreover, we can see that the claim to humane treatment is not exactly universal in the Geneva Conventions–in fact, the word “universal” is never used. Where the term is implied, it seems that the discourse of universality is limited to those individuals understood to represent state-centered conflict taking place in already established and recognizable forms, where the norms of something called “civilization” apply. Article Three of the accord on POWs makes this clear, for instance, when it states that POWs will be protected from “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.” Implicitly, the accord concedes that there are “uncivilized people”; it remains unclear who they are and whether, in the eyes of the “civilized,” they are entitled to rights otherwise conceived as having universal applicability.

The accord assumes the perspective of the civilized, and it extends the discourse of civilization in letting us know what is and is not a civilized war. The very conceit of a civilized war betrays the hegemonic action of the accord itself, a document and a contract that seeks to define civilization in its modes of war and in its procedures of accountability over and against a barbaric other, thereby occluding its own barbarism or, rather, encoding its own in an elaborate proceduralism that it arbitrarily applies and suspends.

Yet given the extralegal solutions that the Bush government is now proposing–including permanent detention without trials for many–it nonetheless makes sense to return to that document, to see what might be wrought from what good resources it does provide. The Geneva Convention accord on POWs can be read in at least two ways, and it will be important to produce and insist upon one public reading rather than another. The Geneva Convention principles, written in August 1949, make clear that POWs do not have to be members of regular armies, considered as armies of a state, as long as they belong to a “Party”–understood as “High” and “Contracting”–to the conflict. So it is possible to read Al Qaeda’s relation to Afghanistan as precisely such a relation to a party. Moreover, the Conventions warrant a competent court or tribunal to intervene and decide the question of the prisoners’ standing as POWs; prior to such a determination, their POW status is supposed to be assumed. Further, the detaining power is strictly obligated to treat detainees humanely–as the accord defines that, including access to legal counsel–while their standing is being determined.

In the end, however, even more important than insisting on a reading of the Conventions that protects the Guantánamo Bay detainees is producing a document with international standing that radically extends the applicability of their protections and tries to make good on a promise of universal rights to humane treatment. It also seems crucial that we consider how to apply the Geneva Conventions to new forms of conflict, ones that do not conform to those conventions of war established in 1949. After all, this is a war that is no war. As a shorter-term operation, it is waged against a military network composed of people who are conceived as illegal combatants. But the war is not over; it appears that it will now be continued in such places as Indonesia, Iraq, North Korea, Iran, Pakistan and the Philippines. And military action continues in Afghanistan. As a war against terrorism on many fronts (and not necessarily on nation-states), it is already a war without end, and without a geographic boundary or a state-defined enemy in the sense that the Geneva Conventions imagine wars to have–that is, wars declared and concluded between established (not even emergent) nation-states.

 Since we are already outside the parameters of conventional war, we are apparently outside the parameters of international legal jurisdiction as well. Guantánamo Bay makes this explicit: It is a land leased by the United States, but not “US soil,” which would, constitutionally, give rights of legal appeal to the prisoners detained there. When Rumsfeld says that this is no regular situation, since the United States is fighting a terrorist organization, and not a country, he implies that the extraordinary character of terror justifies the suspension of law in the very act of responding to terror. The detention of violent soldiers is justified, since they are still and always fighting in his view and they represent no country–unstoppable vessels of uncivilized violence. They are outside the law, outside the framework of countries at war imagined by the law, and so outside the protocols governing civilized conflict.

 Just as a distinction is drawn between legitimate violence and illegitimate violence according to whether the combatants are affiliated with states, various forms of political violence are now commonly called “terrorism,” not because there are distinguishable valences of violence, but as a way of delegitimizing violence waged by, or in the name of, authorities deemed illegitimate by established states or, indeed, those that threaten the hegemony of the nation-state itself. As a result, we have the sweeping dismissal of the Palestinian intifada as “terrorism” by Ariel Sharon, whose use of state violence to destroy homes and lives is surely extreme. The use of the term “terrorism” thus works to delegitimize certain forms of violence committed by non-state-centered political entities at the same time that it sanctions a violent response by established states. Obviously, this has been a tactic for a long time, as colonial states have dealt with the Palestinians and with the Irish, and it was as well a case made against the African National Congress. But the new form that this kind of argument is taking, and the naturalized status it assumes, will only intensify the enormously damaging consequences of the struggle for Palestinian self-determination. Israel takes advantage of this formulation by justifying state violence against the Palestinians in the name of an infinitely expansive conception of self-defense. So “terrorism” becomes the name to describe the violence waged by the illegitimate, whereas “legal war” becomes the prerogative of those who can assume international recognition as legitimate states. In the current war, US soldiers would be covered by the Geneva Conventions and US POWs would be guaranteed POW status, but those they fight, deemed illegitimate, would have no legal recourse to those same protections. (Indeed, the very fact that Bush subjected this policy to review appeared to stem from a fear that US soldiers might also be summarily deprived of the same protections on foreign soil.)

 Although the Geneva Conventions might be more openly interpreted if they were reconvened to consider these questions (and why shouldn’t they be?), they currently serve to reinforce the distinction between legitimate state violence and illegitimate violence waged by the stateless. One surely needs to feel no sympathy with Al Qaeda to worry about the long-term international consequences of this distinction. In turn, the distinction between state-sanctioned violence and illegitimate violence or “unlawful combat” becomes the basis for the distinction between state violence and terrorism or, in the case of states whose legitimacy is in question, state terrorism (as the Russians have tried to impute to Chechnya). In this regard, it could be said that the stateless are terrorized by the distinction between state violence and “terrorism.”

 The “terrorists” are considered to be outside the law, to sanction treatment that is outside the law because of the character of their violence. The fact that these prisoners are seen as pure vessels of violence, as Rumsfeld claimed, suggests that they do not become violent for the same kinds of reasons that other politicized beings do, that their turn to violence can make no sense historically, or cannot make sense in the way that conventional wars make sense, and that their violence is somehow groundless and infinite, if not innate or constitutive. If this is “terrorism” rather than violence, it is action that has no political goal, or cannot be understood politically. It emerges, as they say, from fanatics, extremists who do not espouse a point of view and do not have a part in the human community. But even as Rumsfeld characterizes the prisoners in Guantánamo as individuals who will kill again if they are not detained, imagining them as capable of an infinite violence, the US war has also established its own relation to infinity, since it is unclear how a generalized “war on terrorism”–with all the vagueness that implies–can ever properly end. That the violence of the prisoners is associated with Islamic extremism or terrorism suggests that these prisoners are already cast outside the bounds of civilization, and that the dehumanization that Orientalism already performs is heightened now to an extreme, so that the uniqueness of this kind of war makes the humane treatment of prisoners, as stipulated by international convention, exempt from the presumptions and protections of universality and civilization alike.

 The question of who will be treated humanely presupposes that we have first settled the question of who does and does not count as a human. And this is where the debate about Western civilization and Islam is not merely an academic debate, a misbegotten pursuit of Orientalism by the likes of Bernard Lewis and Samuel Huntington, although they do exemplify how notions of civilization produce the human differentially. To what extent does the nation-state operate as the basis for our notions of what is “human”? And does the Geneva Convention encode this expectation that humans, as we know and honor them under the law, belong primarily to nation-states? It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization–treating some humans as outside the scope of the law–becomes one tactic by which a putatively distinct “Western” civilization seeks to define itself over and against a population understood as, by definition, illegitimate?