In 1961, Yale Psychology Professor Stanley Milgram sought to determine whether Adolf Eichmann’s claim that he was merely following orders was credible. He then began an experiment in which subjects for less than an hour were paid to punish someone in another room with electric shocks if they failed to answer a question correctly, not knowing that the person in the other room was not being shocked. Milgram later concluded, “The extreme willingness of adults to go to almost any lengths on the command of an authority constitutes the chief finding of the study and the fact most urgently demanding explanation.”
Ten years later, Stanford Psychology Philip Zimbardo got a grant from the U.S. Office of Naval Research to study the causes of conflict between military guards and prisoners.
But these important facts are not mentioned when the film “The Stanford Prison Experiment” begins. Nor is there any mention of the International Covenant on Civil and Political Rights of 1967.
Instead, filmviewers first view Zimbardo (played by Billy Crudup) and colleagues interviewing Stanford undergraduates who need some extra money before classes resume in the fall quarter to select among applicants to participate in a two-week “prison experiment” for $15 per day. Some are then randomly chosen either as guards or as prisoners. Rules of confinement are explained before the experiment, but the guards violate them during the experiment, inflicting extraordinary psychological and even some physical and sexual abuse on the prisoners. Although they believe that they are trying to make their prisoners obedient, the guards end up slave training.
Some prisoners are so devastated psychologically that they are released within a few days. The experiment itself is terminated on the sixth day, when Zimbardo concludes that he can no longer tolerate watching the abuse he watches from a surveillance camera on the monitor in his control room. Indeed, the main person who is experimented upon is Zimbardo himself for undertaking an experiment without apparent knowledge of Milgram’s experiment or of actual conditions in military prisons.
Zimbardo perfectly fits the role of the experimenter in Milgram’s study, bossing his psychology graduate students and the guards. But the experiment unravels as prisoners rebel, guards overreact, Zimbardo’s colleagues object, and his future wife calls him out for being an idiot. An older psychology professor, not part of the experiment, asks him to identify the independent variable of his experiment, which he cannot.
A title at the end–that no permanent damage was done to any of the experimental subjects—is contradicted by one of the former prisoners in a post-experimental conversation with one of his most abusive guards. That guard admits he was experimenting with himself in trying to test his own limits in inflicting abuse and professes surprise that no prisoner specifically objected—although they did.
That conversation is entirely different from debriefings after the Milgram experiment, when subjects were reassured that they caused no pain and were able to rationalize their own behavior.
Zimbardo, in short, proves to be the most naïve person in the film. Clearly, he violates professional ethics so blatantly because he needed the money (and prestige) from the grant more than the students. A title at the end indicates that Zimbardo now gives lectures and has written about abuse of power, including Abu Ghraib, having done so himself far more than any of the guards in his experiment. (The idea of paper bags over the heads of the Stanford prisoners in the film came directly from Abu Ghraib.)
Directed by Kyle Patrick Alvarez, “The Stanford Prison Experiment” went beyond the actual experiment in order to provoke conversation by filmviewers as they leave a cinema because the film is an experiment upon the audience as well.
What is depicted is a paradigm of why Americans and others around the world lack real democracy: They obey authority because they lack moral courage, preferring to worship (or have a taste of) power, even (or perhaps especially) when exercised illegitimately. Thus, learning nothing from the Milgram and Zimbardo experiments, some psychologists provided technical assistance to the torture conducted at Guantánamo, and the American Psychological Association until recently refused to consider condemning them.
The subliminal message of the film is that Abu Ghraib and Guantanamo are re-enactments of the Zimbardo experiments in which the Bush administration informed guards that the Geneva Conventions did not apply, thereby leaving care of prisoners up to the imagination of guards from a country that still seems fascinated with psychological torture as a method for maintaining tyranny.
by J. Wells Dixon
American military doctrine is clear: when a superior officer identifies a lawful strategic objective, forces under his or her command must work to achieve it without delay. When it comes to Guantánamo, however, the Pentagon continues to obstruct President Obama’s mandate to close the prison. Their defiance is tantamount to insubordination.
Obama has said repeatedly and without equivocation that closing Guantánamo is a moral imperative and national security priority for the United States. He has further said it serves as a recruiting tool for terrorists. The president started out well on Guantánamo, signing an executive order on his second day in office requiring the prison to be shuttered within one year. He failed to achieve that goal because of missteps early in his administration, but the Pentagon, working closely with the State Department, transferred 67 detainees during his first two years in office.
what has become an all too familiar pattern in recent years, however, momentum was lost and closure efforts stalled when the president lost his nerve in the face of political opposition. By January 2011, he had effectively turned his back on Guantánamo, and only four men left the prison in the two and a half years that followed.
In May 2013, nearly two years ago, the president returned his attention to Guantánamo in response to a mass hunger strike by the men and recommitted to closing the prison. He said Guantánamo is “a symbol around the world for an America that flouts the rule of law,” and “there is no justification beyond politics . . . to prevent us from closing a facility that should never have been opened.” He warned that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” He lifted a self-imposed moratorium on transfers to Yemen, and appointed new envoys at the State and Defense Departments to oversee closure efforts. Transfers resumed, and 11 men were released between August and December 2013.
Then transfers stopped, and momentum was lost again, because Defense Secretary Chuck Hagel refused to sign the paperwork necessary to carry out more transfers. In the first 11 months of 2014, only six detainees left the prison, five of whom were exchanged in a prisoner swap for a U.S. soldier held by the Taliban. In November 2014, Hagel announced his resignation amid conflicts with the president, including his refusal to transfer detainees. Transfers quickly resumed: 22 men were released in November and December 2014, and five more in January 2015. Since then, however, the State Department envoy resigned – and hasn’t been replaced – and the momentum for closure has once again ground to a halt. Now, 122 men remain in limbo, half unanimously approved for transfer by all relevant security agencies.
At this point transfers are not expected to resume until May or June, and it looks increasingly likely that Obama will fail to close Guantánamo in the remaining 18 months of his administration. Whether that happens will be determined largely by the Pentagon’s willingness to transfer cleared men out of the prison and step up the pace of the Periodic Review Boards so that more men may be cleared. There are reportedly transfers approved in 2014 that have not been executed by the Pentagon. There are also reportedly several transfers awaiting Defense Secretary Ashton Carter’s signature. It makes you wonder whether these transfers are hitting his desk, or why they may be collecting dust on the Defense envoy’s desk. You also have to wonder why, in the face of continuing congressional opposition to closure, Marine General John Kelly would tout a purported “recidivism” figure of 30 percent when data released by the Director of National Intelligence shows that figure is below 6 percent and falling for men transferred by the current administration. Is the Pentagon working against the closure of Guantánamo?
Obama recently told a seventh-grader that he regrets not closing Guantánamo on his first day in office. His regret pales in comparison to that of our clients who continue to languish there, even though many have been cleared by the government for release for years. Yet despite the obstacles he has had to navigate, the president has never wavered from his stated commitment to closing Guantánamo.
From the ongoing indefinite detention of cleared detainees, to the glacial pace of the Periodic Review Boards, to the collapse of most military commission trials, the dysfunction in Guantánamo military operations is palpable. What remains to be seen is whether Obama, now with his back to the wall on closing Guantánamo, will continue to tolerate the intransigence and clear lack of effectiveness that plague the forces under his command.
by Cliff Sloan
When I began as the State Department’s envoy for closing the detention facility at Guantánamo Bay, many people advised me that progress was impossible. They were wrong.
In the two years before I started, on July 1, 2013, only four people were transferred from Guantánamo. Over the past 18 months, we moved 39 people out of there, and more transfers are coming. The population at Guantánamo — 127 — is at its lowest level since the facility opened in January 2002. We also worked with Congress to remove unnecessary obstacles to foreign transfers. We began an administrative process to review the status of detainees not yet approved for transfer or formally charged with crimes.
While there have been zigs and zags, we have made great progress. The path to closing Guantánamo during the Obama administration is clear, but it will take intense and sustained action to finish the job. The government must continue and accelerate the transfers of those approved for release. Administrative review of those not approved for transfer must be expedited. The absolute and irrational ban on transfers to the United States for any purpose, including detention and prosecution, must be changed as the population is reduced to a small core of detainees who cannot safely be transferred overseas. (Ten detainees, for example, face criminal charges before the military commissions that Congress set up in lieu of regular courts.)
The reasons for closing Guantánamo are more compelling than ever. As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” I have seen firsthand the way in which Guantánamo frays and damages vitally important security relationships with countries around the world. The eye-popping cost — around $3 million per detainee last year, compared with roughly $75,000 at a “supermax” prison in the United States — drains vital resources.
Americans from across the spectrum agree on closing Guantánamo. President George W. Bush called it “a propaganda tool for our enemies and a distraction for our allies.” Kenneth L. Wainstein, who advised Mr. Bush on homeland security, said keeping the facility open was not “sustainable.”
In 18 months at the State Department, I was sometimes frustrated by opposition to closing the facility in Congress and some corners of Washington. It reflects three fundamental misconceptions that have impeded the process.
First, not every person at Guantánamo is a continuing danger. Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.)
Second, opponents of closing Guantánamo — including former Vice President Dick Cheney — cite a 30 percent recidivism rate among former detainees. This assertion is deeply flawed. It combines those “confirmed” of having engaged in hostile activities with those “suspected.” Focusing on the “confirmed” slashes the percentage nearly in half. Moreover, many of the “confirmed” have been killed or recaptured.
Most important, there is a vast difference between those transferred before 2009, when President Obama ordered the intensive review process by the six agencies, and those transferred after that review. Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.
Third, a common impression is that we cannot find countries that will accept detainees from Guantánamo. One of the happiest surprises of my tenure was that this is not the case. Many countries, from Slovakia and Georgia to Uruguay, have been willing to provide homes for individuals who cannot return to their own countries. Support from the Organization of American States, the Vatican and other religious and human rights organizations has also been helpful.
I don’t question the motives of those who oppose the efforts to close Guantánamo. Some are constrained by an overabundance of caution, refusing to trust the extensive security reviews that are in place. Others are hampered by an outdated view of the risk posed by many of the remaining detainees. A third group fails to recognize that the deep stain on our standing in the world is more dangerous than any individual approved for transfer. These concerns, however well-intentioned, collapse in the glare of a careful examination of the facts.
The road to closing Guantánamo is clear and well lit. We are now approaching the 13th anniversary of the opening of the Guantánamo detention facility. Imprisoning men without charges for this long — many of whom have been approved for transfer for almost half the period of their incarceration — is not in line with the country we aspire to be.
New York Times, January 5, 2015
Among discussion about Senator Dianne Feinstein’s release of a 528– page summary of the Senate Select Committee on Intelligence Committee’s Study of the Central Intelligence Agency’s Detention and Interrogation Program (www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-document.html?_r=0), the most egregious defense has been penned by John Yoo, Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice, during the Bush administration.
The following should serve to refute each of the claims made by Yoo in a recent op-ed in the Los Angeles Times (www.latimes.com/opinion/op-ed/la-oe-yoo-torture-feinstein-20141214-story.html#page=1):
1. Feinstein released the report without Republicans, so the claims cannot be trusted.
The fact is that the full report had bipartisan cooperation. The Republicans objected to the report’s release for partisan reasons, not inaccuracies. Moreover, one prominent Republican—John McCain—approved.
2. The report was not based on interviews of witnesses, so the claims cannot be trusted.
Feinstein’s bipartisan committee agreed to review existing documents of witnesses. There was no need to re-interview or cross-examine.
3. CIA officials “have rejected many of the report’s factual findings and its central claim that the CIA systematically misled the White House and the present and covered up the abuse of terrorists.”
If anything motivated Feinstein and the rest of her committee, it was that CIA intelligence briefings were lies. Secretary of State Colin Powell was also kept out of the loop—and resigned.
4. American law banning torture during interrogation only criminalizes those who apply methods with “specific intent” to cause “severe physical or mental pain and suffering.”
According to the law, “severe physical or mental pain and suffering” is defined as including the following: “(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality”
The record shows that signs of pain and suffering as well as blood were ignored by those who continued to torture. Further, when the methods were applied, members of the FBI exited the rooms to avoid any association with the torture. There have been sufficient whistleblowers to attest that the torture continued after evidence of suffering was clearly present. The torturers knew what they were doing.
Besides, international law also applied, including measures short of torture that constitute “cruel, inhuman or degrading treatment.” The United States has ratified the appropriate international treaty, which has been interpreted in European courts to ban such practices as sleep deprivation.
5. Only waterboarding was “close to the line” as an illegal method of torture.
Waterboarding was conducted against American soldiers during World War II in Japan, and those who did so were convicted in the Tokyo War Crimes Trials under the supervision of the U.S. military. Accordingly, the Geneva Conventions banned torture, and American law was written in full cognizance of that experience. But the Feinstein report and other sources indicate other methods as well that have been banned. The most common were routine beatings for several minutes resulting in bleeding, broken bones, unconsciousness, and even death. Others include making incisions on the skin of a penis three times, hanging from handcuffs, chaining prisoners to the floor in a cold room naked in fetal positions, sleep deprivation, forcible removal from one cell to another as many as 112 times in a period of two weeks, subjection to freezing temperatures without adequate cover, requiring a prisoner to stand for 24 hours for 20 days, forcing prisoners to squat naked for hours while chains cut into their flesh, stuffing prisoners head first into sleeping bags to induce claustrophobia, the threat to kill a prisoner’s 9-year-old daughter, telling a prisoner that the voice he heard screaming outside his cell was that of his wife, threatening to rape the wives and children of prisoners, and deprivation of clothing and food. Torture can be inferred when several techniques are applied in tandem.
6. The Geneva Conventions did not apply to Al Qaeda terrorists because they fought for no nation.
In fact, many of those detained were captured during wartime—the war in Afghanistan against the government. Some were caught while fighting against forces of the United States and its allies.
Others were turned in by Afghans and Pakistanis for a variety of reasons—for the bounty paid by the United States, because they spoke Arabic, or because Afghans wanted to get rid of political rivals. The International Covenant on Civil and Political Rights, which bans torture during interrogation of prisoners, applied to those who were not captured on the battlefield. The United States has also ratified that treaty.
Moveover, to establish that someone is a terrorist means to find that person either planning or committing a specific act. When torture was used to force prisoners to confess to terrorism or plots of terrorism, there clearly there was no advance proof that they were terrorists.
How can Yoo explain the detention of 64 children at Guantánamo, some as young as 10, to be among the “worst of the worst”? Why were they hooded without the ability to see and chained to the bottom of aircraft en route from Afghanistan along with the others? What intelligence were they supposed to provide? There were still 21 children at Guantánamo in May 2008 while Bush was still in office.
7. US. Soldiers had been trained on the same methods without physical or mental injury.
Experiments were indeed conducted on American soldiers, but they stopped short of inflicting injury.
8. “We knew little about Al Qaeda, and intelligence indicated that more attacks were coming.”
Aside from the obvious contradiction in Yoo’s sentence, the fact is that the Clinton administration knew about Al Qaeda, and the Bush administration heard warnings from Richard Clarke, National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism, but did not want to know more from him.
9. “If some CIA interrogators went beyond these methods [of harsh interrogation], they would not have received Justice Department approval.”
Yoo was the one who wrote in approval on behalf of the Justice Department, so his statement is one of self-incrimination.
10. Standard interrogation methods could take “weeks, months, years—or never” to yield intelligence.
In other words, the end justified the means. Yet the evidence presented in the Feinstein report indicates that valuable intelligence was obtained by standard methods, whereas torture produced phony information.
11. There has been no “second large-scale terrorist attack for the last 13 years.” Ergo, the CIA’s interrogation methods were effective.
Here, Yoo discredits the effectiveness of national security surveillance and local law enforcement for preventing terrorist attacks without proof that the CIA made any contribution.
Yoo’s qualifier “large” in “large-scale attacks” is a recognition of the fact that small-scale attacks have occurred. Yet in all those cases, the reason for the attacks was retaliation against the United States for breaking international law, as Faisal Shahzad said in court when he was convicted of putting a bomb in Times Square on May 1, 2010. An American citizen, he was reacting to indiscriminate drone strikes in Pakistan that had killed hundreds of innocent civilians.
12. The CIA could only have found out the name of the courier to track down Osama Bin Laden through torture. “The Feinstein report cannot explain how the CIA brought down Al Qaeda’s leadership.”
Feinstein has replied that the names of the courier and others were already in CIA files and were discovered through normal interrogation methods. The leaders were located through normal intelligence and brought down by drone strikes.
13. Yoo justifies American “practical” wartime measures by pointing out indiscriminate killing by Union Army troops under General William Sherman during the Civil War, massive bombings of Germans during World War II, and President Harry Truman’s unleashing of the atom bomb on Japan.
Yet none of these measures were at the time in violation of domestic or international law. The Geneva Conventions came later. Not until 1949 did international law place restrictions on aerial warfare. Besides, Yoo’s point is irrelevant: The examples are not about interrogation methods. Yoo accuses Obama (though not Bush) of impropriety involving drone strikes, and on this point he is correct: Interrogations would result in fewer deaths if those killed by drone strikes would be captured instead.
14. A “large majority of Americans support tough interrogation methods.”
In 2007, only 27 percent of Americans surveyed in a poll said the United States should torture prisoners captured in the war against terrorism, but in 2012 41 percent said they approved of torture. In 2005, a poll reported that 82 percent thought waterboarding was wrong, though the percentage slipped to 55 percent in 2012. Chaining of prisoners naked in cold rooms was disapproved by 79 percent in 2005 but was by 51 percent in 2012. Americans also have strongly opposed threatening prisoners with dogs and religious humiliation.
Conclusion. Feinstein’s report was in the mode of a “truth commission.” But the report does not articulate specific crimes that could be prosecuted from the evidence, as Yoo notes. That was the task of my book well-documented George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes, which I gave to NBC journalist Chuck Todd to be delivered to Barack Obama just before his inauguration in 2009, with a recommendation to close Guantánamo on which he acted soon after taking office. The importance of the information is underscored by the words of Benjamin Ferencz, Nuremberg Chief Prosecutor, who wrote the Foreword to the book.
Such “truth commissions” and war crimes trials are usually served upon those no longer in power, so the question has arisen why the report was released, even in a redacted form. She has been accused of endangering American lives by bringing the subject into the public arena. But the publication only brings the matter into the American public discourse. Two television journalists (Jack Cafferty and John Stewart) were forced to recant accusations that American public officials (Donald Rumsfeld and Harry Truman) have been war criminals, so the subject has been taboo for decades. The rest of the world has known about the facts for years, and those particularly incensed continue to act upon those facts. For Obama to pardon those responsible, as some urge him, would further fan the flames of international hostility.
There will come a time in the future when an American president and Congress will join in admitting that serious, illegal wrongdoing occurred during the misguided “war on terror” in order to recover whatever is left of the moral authority of the United States.
There are two ways of reviewing Camp X-Ray, a dramatic film directed by Peter Sattler on behalf of a production company in Karachi. One is to watch Private First Class Cole (played by Kristen Stewart) as she is assigned to the maximum security prison at Guantánamo, learns the routine, but finds more sincerity on the part of prisoner Ali Amir (Peyman Maadi) than her fellow soldiers. Ali has finally found in Cole, whom he calls “Blondie,” an interlocutor who is civil enough to engage him in conversation, not just about his confinement but about a Harry Potter volume that he would like to read and her state of mind as she guards him and even prevents him from committing suicide.
The other way is to count the number of war crimes being committed: (1) The denial that they are war criminals, as the euphemism “detainees” is used to pretend that the Geneva Conventions do not apply. (2) Violating medical ethics by forced feeding. (3) Cruel treatment in the form of forced movement from cell to cell. (4) Outrages upon personal dignity, which prompts Cole to file a complaint. (5) Reprisals for refusal to eat. (6) Systematic insults. (7) Cramped housing in a single cell. (8) Solitary confinement. (9) Prisoners disallowed from food preparation. (10) Prisoners not allowed to eat together. (11) Lack of a prison canteen. (12) Inadequate recreational opportunities. (13) Inhumane transfer of prisoners to Guantánamo. (14) Failure to allow prisoners to elect representatives for negotiation with prison management. (15) Repeated punishment. (16) Punishment beyond the 30-day maximum. (17) Corporal punishment evidenced by scars on Ali’s body. (18) Confinement without daylight. (19) Inhumane treatment, notably lights left on for 24 hours. (20) Failure to try accused prisoners. (21). Lack of speedy trials. (22) Failure to have a public list of Geneva Convention provisions. (23) Failure to disseminate Geneva Convention provisions to military personnel. (24) Failure to allow visits between prisoners and their attorneys. (25) Failure to allow United Nations personnel to visit prisoners. (26) Failure to allow the Red Cross or other nongovernmental organizations to visit prisoners. (27) Failure of commanding officers to report offenses against prisoners to their superiors. (28) Failure of commanding officers to discipline or prosecute soldiers committing offenses against prisoners. (29) Attempting to justify torture. (30) Failure to repatriate prisoners promptly. (31) Failure to allow prisoners to correspond with families.
But these are only a subset of 165 war crimes against prisoners committed by the United States since 9/11, as documented in George W. Bush, War Criminal?, a book for sale in a Karachi bookstore that is only available online in the USA (2009).
At the end of a war, according to Article 20 of the Hague Convention of 1907, as later revised by the Geneva Conventions of 1949, prisoners of war must be either released to go home or put on trial for war crimes. As the American role in the Afghan civil war winds down during 2014, the subject of prisoner release from Guantánamo will inevitably have to be addressed.
Accordingly, the exchange of five members of the Taliban for one American soldier held hostage by the Taliban for four and one-half years on May 31, 2014, has brought the Geneva Conventions back into the limelight, having been ignored ever since January 25, 2002, when Alberto Gonzalez, White House Counsel to President George W. Bush and later attorney general, authored a memorandum stating that the Geneva Conventions did not apply to the “war on terror.” For the first time, several members of the media are now using the term “prisoner,” rather than the politically correct term “detainee,” as they describe the swap, although the American military claims that they always referred to the soldier as a “prisoner of war.”
The American is 28-year-old Army Sergeant Bowe Bergdahl, the only known American held as a prisoner of war by the Taliban. Negotiations for his release had been ongoing since December 2013, but the Taliban insisted that he would be released only in exchange for a swap of all five members of the Taliban held at Guantánamo.
Bergdahl was transferred to an American military hospital in Landstuhl, Germany, where he is receiving psychological care and evaluation as well as a debriefing on the circumstances of his capture. According to present plans, he will be further treated at a military hospital in San Antonio, Texas, and later reunited with his parents in Hailey, Idaho, after his treatment at the hospital concludes.
Although his stay in San Antonio was described as “long term,” he was reported in good physical condition upon his release, so Bergdahl may suffer from a psychological toll after four and one-half years of captivity. The Taliban may believe that his release is consistent with Article 6 of the Geneva Convention of 1864, which requires repatriation of “unfit” prisoners of war; if so, then he should have been released earlier. But that raises the question why seriously ill prisoners have been held at Guantánamo, including Shaker Aamer and Ibrahim Othman Ibrahim Idris, whose lawyers have petitioned for their release this year.
The five former Taliban prisoners in Guantánamo include Khirullah Said Wali Khairkhwa, who was associated directly with Osama bin Laden and Mohammad Omar, the Taliban’s supreme commander. Another, Mullah Norullah Noori, led troops against American and Coalition forces, was directly subordinate to Taliban Supreme Leader Mullah Omar, is associated with members of al-Qaeda, and is wanted by the UN for possible war crimes. Mullah Mohammad Fazl is the Taliban’s deputy former defense minister. Abdul Haq Wasiq, as the Taliban’s deputy minister of intelligence, support al-Qaeda and Taliban personnel in eluding capture; he also trained al-Qaeda personnel in intelligence methods. Mullah Khirullah Said Wali Khairkhwa, former Taliban interior minister, was directly associated with Osama bin Laden and Taliban Supreme Commander Mullah Muhammad Omar. Mohammad Nabi Omari, a senior Taliban official, belonged to a joint al-Qaeda/Taliban ACM cell. All are alleged to have been “cooperative” prisoners, whatever that means.
They were flown to Qatar, where the government is to house them with their families for at least a year after which they presumably will be returned to Afghanistan. During that year, the Qatar government has agreed to place restrictions on the activities and movement of the former Guantánamo prisoners.
Objections have been raised to the prisoner exchange by several parties. A defense of the action has been made inside and outside the Obama administration. But the Geneva Conventions have been left out of the discourse thus far.
In addition, not cited in the press or by the Bush and Obama governments is the fact that the UN Security Council has since December 20, 2001, annually approved of a force supplied by the North Atlantic Treaty Organization to stabilize the country. When that annual resolution expires, any outside role in the Afghan civil war might amount to a violation of the Convention on Duties and Rights of States in the Event of Civil Strife of 1928, which prohibits interference in officially recognized civil wars: If the Taliban is officially recognized as a “belligerent,” further support to the Afghan government would violate that treaty. And negotiations for the prisoner swap unofficially appear to have recognized the Taliban as a belligerent in a civil war.
Hamid Karzai, lame duck president of Afghanistan, has objected that the deal violates unspecified international law. He also is incensed that his government was not consulted about the secret transfer of the five Afghan citizens, evidently referring to previous agreements between Washington and his government.
Karzai has also protested the pledge of Qatar to place restrictions on the former Taliban prisoners. In his view, perhaps referring to the Geneva Conventions, there should be no restrictions. Despite the restrictions, Afghan Taliban’s longtime leader Mullah Omar thanked the government of Qatar for its “tireless efforts.”
Republican members of Congress have blasted the swap as a violation of restrictions placed by law on transfers out of Guantánamo. In particular, members of Congress were not consulted before the exchange. Although Obama signed that law every year as a provision within the military appropriations bill, he always did so reluctantly. He has again threatened to veto that bill for fiscal 2014-15 on the ground that the provision is a violation of executive prerogatives. My view, expressed two years ago in the New York Review of Books, is that the restrictions amount to a bill of attainder, as Guantánamo prisoners are in effect prisoners of Congress, which metes out a sentence of indefinite incarceration without a prior trial. When members of Congress objected, Barack Obama apologized for the oversight.
Josh Korder, sergeant within Bergdahl’s former platoon in Afghanistan, and other members of his unit have objected that the missing soldier should instead be arrested and tried for desertion because he walked away from his comrades one night in 2009 without a weapon in hand. But their only evidence is that Bergdahl was dissatisfied with his combat assignment. Nevertheless, the Army promoted him to specialist while in captivity. According to letters sent home as reported in a Rolling Stone article of June 2012, he was disgusted by combat conditions. He possibly witnessed war crimes committed in the American military occupation of Afghanistan. However, a Wikileak document states that he was captured while sitting on a makeshift latrine.
General Martin Dempsey, chairman of the Joint Chiefs of Staff, has responded that the circumstances surrounding Bergdahl’s release were unique and “the last, best opportunity to free him,” a pragmatic justification. But Dempsey also opened an inquiry about the facts of Bergdahl’s disappearance and said that the Army “will not look away from misconduct if it occurred [though] . . . he is innocent until proven guilty.”
Yet another objection is the long-held view that “America does not negotiate with terrorists.” But is the Taliban a “terrorist” organization or instead a party in a civil war? In fact, Washington has never declared the Taliban to be a terrorist organization in Afghanistan. The justification for fighting in Afghanistan in 2001 was that the Taliban government supported a terrorist organization, al-Qaeda, but that pretext evaporated when the Taliban was driven out of the country. During the 2012 Republican primary season, candidate Herman Cain even proposed prisoner swaps as a way to close Guantánamo.
Some have argued that the 5-for-1 swap might raise the future cost of ransoms of various sorts. That prediction may be true but is irrelevant to war crimes issues.
One pragmatic consequence, if not a justification, is that the prisoner swap will revive negotiations to end the war. Clearly, the swap occurred because of secret negotiations. But an agreement to end the civil war would have to involve both the Afghan government and the Taliban, and outgoing President Karzai refused to engage in peace negotiations in 2013, when he objected to the opening of an office in Qatar by the Taliban as in effect a “government in exile.” He will no longer be president before the end of the year.
As the date for termination of the UN-approved role of the American military in Afghanistan approaches, will Guantánamo finally be closed? December 31, 2014, is that date and may be that watershed if all prisoners are either released or retained for trial. And those put on trial may be moved to the U.S. Mainland for those trials.
Before punishing Syria for using chemical weapons, President Barack Obama must apologize to the people of Afghanistan and Iraq for the use of chemical weapons while President George W. Bush was in office. Otherwise, a military strike on Syria for the use of chemical weapons can only be described as an act of hypocrisy.
Upon receipt of a recently published book (George W. Bush, War Criminal?) from Chuck Todd of MSNBC just before his inauguration in 2009, Obama was informed that three types of chemical weapons were used in Afghanistan and Iraq contrary to international treaties that amount to war crimes:
1. The Use of Napalm
A hill outside Basra was napalmed during the initial invasion of Iraq. So were two bridges south of Baghdad.
Reports are based on an article by Andrew Boncombe (“U.S. Admits It Used Napalm Bombs in Iraq”) in The Independent on August 10, 2003, and a second source, Martin Savidge (“Protecting Iraq’s Oil Supply) broadcast on CNN on March 22, 2003.
The use of napalm is banned by Article 55(1) of Protocol 1 to the Geneva Conventions. Adopted in 1977, the provision reads “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”
2. Use of White Phosphorous
During November 2004, white phosphorous, a chemical that can cause serious burns, was used as an anti-personnel airborne weapon in Fallujah, according to several American military officers. On the last day of the month, General Peter Pace, who headed the Joint Chiefs of Staff, defended the use of white phosphorous to illuminate targets at night.
Evidence was first reported by Peter Popham (“US Forces Used Chemical Weapons During Assault on City of Fallujah”) in The Independent on November 8, 2005, and affirmed as well by Ali A. Allawi in The Occupation of Iraq (Yale University Press, 2007, p. 339).
According to the Article 2 of the Protocol on Prohibition or Restrictions on the Use of Incendiary Weapons of 1980: “(1) It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons. (2) It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.”
3. Use of Depleted Uranium Weapons
Some 2,000 tons of depleted uranium bullets, which can combust into a ball of fire measuring 10,000 Centigrade degrees, were utilized in the invasion of Iraq. At least 200 tons were used after the invasion. Children exposed to the munitions have come down with leukemia.
There are many sources: Dahr Jamail, “What Have We Done?” Iraq Dispatches, August 6, 2005; Neil Mackay, “US Forces’ Use of Depleted Uranium Is ‘Illegal’,” Sunday Morning Herald, March 20, 2003; Angus Stickler, “Depleted Uranium Weapons—A BBC Investigation,” BBC Radio, August 21, 2007; Geert Van Moorer, “One Year After the Fall of Baghdad: How Healthy Is Iraq?,” Health-Now.com, April 28, 2004; Nao Shimoyachi, “Depleted Uranium Shells Decried: Citizens Find Bush Guilty of Afghan War Crimes,” Japan Times, March 14, 2004; World Tribunal on Iraq Declaration of the Jury of Conscience, Istanbul, June 25, 2005.
According to Article 11 of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management of 1997: “Each Contracting Party shall take the appropriate steps to ensure that at all stages of radioactive waste management individuals, society and the environment are adequately protected against radiological and other hazards.”
Unilateral military strikes against Syria would be illegal under international law. Eight legal avenues for countermeasures against Syria’s use of chemical weapons are being blocked. One, however, may be open.
1) China and Russia will veto the UN Security Council from taking action, although they have allowed a weapons inspection team.
2) Action could be taken at The Hague, headquarters of the Organization for the Prohibition of Chemical Weapons (OPCW), set up by the treaty banning chemical weapons (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 1992), which has been ratified by most countries except for Syria. An OPCW expert team is part of the UN weapons inspection team in Syria. But on July 16, the American delegate complained that the Ukrainian chairing OPCW’s Executive Committee refused to place the issue on the agenda for discussion.
3) The treaty empowers the OPCW Conference of all ratifying countries to recommend sanctions against a violation. However, the latest meeting of the Conference was last year. Another meeting will take place in December.
4) The UN General Assembly, which could act under the powers of the Uniting for Peace Resolution of 1950, is not in session but is likely to block action when reconvened in September, as the membership is similar to the OPCW’s Conference.
5) Under customary international law, every country has the right of reprisal. That is, any country has the right to retaliate against unfriendly action by another, though the response must be proportional to the unfriendly action. If Britain, France, and the United States contemplate several military strikes against Syria, they must pretend that many of their own citizens were injured or are potentially threatened by the Syrian chemical weapons attack.
6) Regional organizations can take action when the UN cannot, according to some experts. The Arab League disapproves of any military strikes against Syria. The Gulf Cooperation Council has also not encouraged such action.
7) The Responsibility to Protect principle, adopted by the UN, allows action to prevent or stop genocidal action. A few military strikes, not having that aim, would not be consistent with that principle.
8) A new principle could be enunciated unilaterally by the United States. So argues John Bellinger III, who was legal adviser during the administration of George W. Bush. But his suggestion has not been followed by the White House.
9) Bellinger also suggests that the United States recognize a Syrian opposition group as the legal representative of Syria (as has the Gulf Cooperation Council). Then that group could call for military action, and Washington could come to the aid of a recognized government. But the Obama administration has resisted that option.
When President Barack Obama originally announced his “red line” on chemical weapons, the reference was to the possibility that the chemical weapons facility would get into the wrong hands during the civil war. Later, the objection was that the Syrian government would use or has used the weapons. Now the fear is that the United States will unleash further chaos without legal justification.
But we are talking about Mr. Drone Strike. The use of drones is extrajudicial execution, contrary to the International Covenant on Civil and Political Rights and a war crime. So, too, is an American military strike on Syria.
After the attacks on September 11, 2001, President George W. Bush declared a “War on Terror” and secured support in that “war” from Congress later that year in a resolution entitled “Authorization for Use of Military Force.” Based on that resolution, Bush commanded American troops to enter Afghanistan, and the Taliban was driven from power in the country. For a war to be in accord with the UN Charter, the UN Security Council must give approval. No such approval, however, was sought or granted. The Afghan War, in other words, was illegal under international law, although the UN Security Council later approved the occupying military force already inside Afghanistan by giving the force a mission to maintain stability in accordance with the Fourth Geneva Convention.
When Barack Obama became president, the “War on Terror” was replaced by the “War on Al-Qaeda.” Once again, no UN Security Council approval was sought or granted, so many observers felt that the pursuit of Al-Qaeda terrorists would change from a military to a police operation.
Under international law every country has the right of reprisal in response to an unfriendly violent act, provided that the response is proportionate. Thus, the killing of Osama Bin Laden in 2010 could be viewed as exercising the right of reprisal for the attack on 9/11 following his indictment in a New York court. Although the raid was conducted on the soil of another country without permission, the reprisal focused on one person and not on that other country.
But the Obama administration’s meaning of “War on Al-Qaeda” became clear during the first week of February 2013, when a White Paper was released to justify drone attacks against members of Al-Qaeda anywhere in the world, including persons who held American passports. The “War on Al-Qaeda” is in fact a military operation. As a military operation conducted on foreign soil, sometimes intruding into the sovereign territory of countries without their permission, failure to secure UN Security Council approval means that the War on Al-Qaeda is illegal under international law. Nothing in the White Paper justifies the War on Al-Qaeda on international legal grounds, though valiant efforts to cite American court cases might give the impression otherwise.
There are two basic types of war crimes. The most basic is aggression. In contrast with the aggression conducted by the United States in Afghanistan after 9/11, the drone war is so unrelenting as to constitute aggression as well. The second type of war crime is misconduct in battle, which has occurred during the Afghan War. Hundreds if not thousands of innocent civilians have been killed in drone attacks; such conduct would be a war crime if the killing were indiscriminate, but there is no evidence the innocent have been deliberately targeted.
Thus, the main issue is that drone attacks fall somewhere between legitimate reprisals and illegal aggression when conducted with the permission of another country. When conducted without permission, there is no doubt that repeated drone attacks constitute illegal aggression.
But the White Paper was not prompted by a desire to clarify whether the War on Al-Qaeda is in conformity with international law. The main concern is that American citizens might be shot dead by drones without the benefit of judicial process. The detailed analysis in the White Paper, however, ignores several important facts: An American citizen becomes a traitor in joining Al-Qaeda or a related group that is committed to attack American persons and property. Treason is a domestic crime. A person suspected of treason should first be indicted and given an opportunity to surrender to law enforcement authorities. But such persons will never surrender, so capture should be the next step, followed by trial. But capture of a person plotting treasonous acts is unlikely, too. The logic of the situation suggests that persons joining treasonous organizations, such as Al-Qaeda, have in effect renounced their citizenship and thereby have surrendered constitutional protections. Therein lies some of the unspecified logic of the White Paper, which advocates killing such persons by drone attacks, because their membership in a terrorist organization ipso facto means that an attack on American persons or property is “imminent.” The analogy is that Jefferson Davis could have been killed without trial while he was president of the Confederate States of America.
In other words, the White Paper makes a strong case for killing members of Al-Qaeda in countries where drones are permitted. However, one flaw in the White Paper is a failure to indict those targeted in an American court for specific offenses. The case is even weaker where drone attacks are not approved. Domestic law appears untidily to support drone attacks, but international law does not.
In 2012, Christof Heyns, UN Special Rapporteur on Extrajudicial Killings, Summary or Arbitrary Executions, referred to drone attacks as “war crimes,” and the UN Human Rights Council is now deliberating whether to concur. Nevertheless, extrajudicial executions are banned by Articles 6, 14, and 15 of the International Covenant on Civil and Political Rights as crimes against humanity.
Many American officials claim that drones encourage nonterrorists to become terrorists. Some discount that assertion. If Cuba employed drones over the United States, the American public would not sit idly by, so why should those living in neighborhoods frequented by drones within Pakistan and Yemen feel anything but hatred toward the United States?
Although there are no treaties dealing with drones, an estimated sixty countries now have drones, which could be deployed everywhere, creating a chaotic world. Accordingly, a treaty banning the use of drones crossing international borders is inevitable.