Why did they remove his eye???

Why Did US Medical Personnel Remove High-Value Detainee Abu Zubaydah's Eye?

Wednesday 18 May 2011

by: Jason Leopold, Truthout

Shortly after he was captured in March 2002 at a safe house in Faisalabad, Pakistan, following an early morning raid jointly conducted by the CIA, FBI, Pakistani police and Inter-Services Intelligence (ISI), Abu Zubaydah woke up at a black site prison in Thailand and discovered that his left eye had been surgically removed.

Zubaydah, who is wearing an eye patch in a photograph included in his Guantanamo threat assessment file released by WikiLeaks last month, apparently never consented to the medical procedure and to this day has no idea why it was done, according to one of Zubaydah's attorneys.

"I can tell you that Abu Zubaydah has no explanation for the loss of his eye," said Brent Mickum, who has represented Zubaydah in his since 2007. "He continually wants me to make inquiries to try and determine the circumstances for which he lost his eye, but no one has been forthcoming."

Zubaydah, the first high-value detainee captured in the "war on terror" whom the Bush administration had falsely claimed [4] helped plan the 9/11 attacks and was the "No. 3" person in al-Qaeda, was shot in the leg, groin and stomach with an AK-47 during the March 28, 2002, raid. He allegedly attempted to evade capture by trying to jump from the rooftop of his safe house to the roof of a neighboring house. But the wounds he sustained did not include injuries to his eyes, face or head, according to intelligence officials and photographs of Zubaydah taken as he lay unconscious in a pool of blood, teetering on the brink of death, following the raid.

Retired CIA officer John Kiriakou [5], who was the head of counterterrorism operations in Pakistan and led the team involved in Zubaydah's capture, told Truthout recently that Zubaydah "had both eyes" when the suspected terrorist was escorted from a Pakistani hospital to a Gulf Stream jet a day or so after the raid where a trauma surgeon from Johns Hopkins University the CIA tapped to perform surgery on the suspected terrorist was waiting.

Truthout sustains itself through tax-deductible donations from our readers. Please make a contribution today to keep truly independent journalism strong! [6]

So, what happened?

A US counterterrorism official, responding to a query from Truthout, said, "Zubaydah had a preexisting eye condition when he was captured" and "American medical personnel treated the condition, [but] he ultimately lost the eye."

The revelation stands as the first piece of new medical information related to Zubaydah's case to surface in years.

But Mickum doesn't believe the government is being truthful.

"It is patently false to state Zubaydah lost his eye due to a preexisting condition and that is belied by the evidence that I have from [Zubaydah], which I can't discuss due to the government's protective order," said Mickum. "My client had two good eyes before he was seized. I'm aware of no information from my client, the government or any other source that he had a 'preexisting eye condition.'"

The counterterrorism official did not respond to follow-up questions about what Zubaydah's pre-existing condition was, when the surgery to remove his eye took place, who performed it and where it was done, whether officials at the CIA signed off on the procedure, whether measures were taken to try and save Zubaydah's eye and whether the CIA or any other intelligence official told Zubaydah why his eye was being removed.

Evisceration or Enucleation?

Dr. Jonathan Macy, who runs the Macy Eye Center [7] in Los Angeles and is an associate clinical professor of ophthalmology at UCLA and the University of Southern California, said the "indications for removal of an eye include trauma, infection, pain, tumor and sympathetic ophthalmia [8]," where a piercing injury to one eye results in inflammation of the uninjured eye.

"If the eye is removed primarily at the time of trauma, the indication is a blind eye that cannot be put back together," Macy said. "An alternative scenario would involve primary repair of the ruptured globe and the subsequent development of infection or pain in a blind eye."

Macy added that "removal of eyes is done with either evisceration or enucleation."

"Evisceration is usually the preferred procedure," Macy said. "With evisceration, the contents of the globe are removed, but the outer wall, or sclera of the eye in retained. A silicone ball implant is inserted within the sclera to create volume. The volume within the orbit allows proper fitting of a prosthesis. When the whole globe must be removed, that is an enucleation."

But Macy said it is unknown which procedure Zubaydah underwent because the counterterrorism official would only say that "he ultimately lost the eye."

A 1998 passport picture [9] of Zubaydah, which for years was the only photograph available, shows him wearing a pair of glasses and what appears to be a shadow or scar over his left eye, possibly the result of a shrapnel wound he suffered a decade prior to his capture.

Macy said in that photograph Zubaydah's "left orbit may have already contained a prosthesis," but Macy did not take a position as to whether that was the case.

"When one eye is normal and the other eye has a prosthesis, they rarely appear symmetrical," he said. Zubaydah's "eyes look slightly different from one another, but not to any marked degree."

Macy also viewed the photograph [10] of Zubaydah lying unconscious that was taken immediately following the raid and said Zubaydah's eyes appears to be "fine."

"I do not see any see any cuts or big lacerations and no cuts around the face or nose," Macy said.

Regarding the counterterrorism official's account about Zubaydah's pre-existing eye condition and the circumstances that led to his left eye being removed, Macy said the scenario is conceivable.

"If the eye had suffered significant direct trauma, there are usually signs of injury to the surrounding skin," Macy said. "The photos don't show collateral damage. Therefore, the official explanation is very plausible."

"Rather than perforation causing infection, an infection of the cornea may lead to perforation of the globe," Macy added. "In this case, as there is a claim of a preexisting condition, [Zubaydah] may have suffered a previous corneal ulcer that thinned and weakened the globe. He may have had a bacterial infection or herpes of the cornea. This is almost always a unilateral process. Such infections may be severe enough to perforate the eye, rendering it blind. The offending agent must be removed, leading to evisceration or enucleation."

Zubaydah's medical records would likely explain the pre-existing eye condition, but those files are classified. The government has refused to share Zubaydah's medical files with his legal team, all of whom have top secret clearance, because it contends that doing so would amount to a violation of the detainee's privacy rights, an assertion that Mickum said is "so ludicrous that it is not even laughable at this stage."

Mickum said Zubaydah now wears a prosthetic eye, but it sometimes irritates him so he takes it out and instead wears the eye patch.

Shrapnel Wound

The only known pre-existing condition that may have affected Zubaydah's eye was the shrapnel wound to his head he suffered from a mortar attack while "on the front lines" in Afghanistan fighting Soviet forces a decade prior to his capture, according to the government's classified Detainee Assessment Brief released by WikiLeaks.

That file says Zubaydah "stated he had to relearn fundamentals such as walking, talking and writing; as such, he was therefore considered worthless to al-Qaida."

Last year, the government finally admitted [11] in court documents that Zubaydah's diaries seized during the raid of the safe house "indicate that he suffered cognitive impairment from a shrapnel injury for a number of years."

But when former Justice Department attorney John Yoo prepared one of the August 2002 torture memos, authorizing the CIA to subject Zubaydah to ten brutal torture techniques, which included waterboarding and repeatedly slamming him into a wall, Yoo wrote: "Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods."

"Through reading his diaries and interviewing him, you [CIA] have found no history of mood disturbance or other psychiatric pathology ... 'thought disorder' ... enduring mood or mental health problems," Yoo wrote.

One of the interrogation memos Yoo drafted for the Department of Defense (DoD) that was used by military personnel and contractors conducting interrogations at Guantanamo and other prison facilities operated by the DoD stated that "gouging" a prisoner's eyes out was arguably legal under the president's executive powers unless "specific intent" to harm the prisoner could be proven.

"Infected Eye"

Details about Zubaydah's eye appear to have first surfaced in a 2008 FBI inspector general's report [12] that contained details of his interrogation conducted by CIA contractors, which former FBI special agent Ali Soufan, identified in the report by the pseudonym "Thomas," said amounted to "borderline torture."

In the report, the then-FBI Inspector General Glenn Fine said Soufan's colleague, FBI special agent Steve Gaudin, identified by the pseudonym "Gibson," disclosed to his fiancé in 2002 or 2003 that he accompanied Soufan to the black site prison in Thailand to "interview a notorious terrorist."

Soufan had interrogated Zubaydah at the CIA's black site prison in Thailand in April 2002, before CIA contractors took over, and had tended to his wounds.

Gaudin's fiancé at the time, identified in the report as "Morehead," "stated the terrorist was missing an eye. [Gaudin] told [the FBI during an interview into the matter] that Zubaydah had an infected eye, sometimes wore an eye patch and eventually got a glass eye," which seems to indicate that Zubaydah's eye may have already been removed by the time both agents arrived at the black site in April 2002.

Truthout tried to reach Gaudin's ex-fiancé to determine if Gaudin disclosed additional information to her about Zubaydah's eye and his medical condition in general, but she did not return emails or voice mail messages left on her cell phone.

Daniel Freedman, who works as director of strategy for policy and analysis at Soufan's consulting firm, The Soufan Group, said Soufan confirmed that Zubaydah had a "preexisting eye condition."

"I checked with [Soufan] and the [counterterrorism official's] account is correct," Freedman told Truthout in an email.

Neither Freedman nor Soufan elaborated.

Kiriakou, who wrote a book [13] about his tenure at the CIA and the capture of Zubaydah, said, "I now recall that when [Zubaydah] first opened his eyes, his left eye was cloudy, like it had a significant cataracts film over it."

"Zubaydah spent most of the time with his eyes closed and I just forgot about it," said Kiriakou, who was surprised to learn Zubaydah's eye had been removed. "It looked like a really bad cataract. I was with him about 48 hours when the plane came. I do not recall the Pakistani doctors paying any attention at all to his eye. They were so focused on his wounds that they didn't pay any attention to anything else."

Zubaydah Blames Interrogators

Zubaydah seems to be under the impression that he lost his eye as a result of abusive treatment.

During his Combatant Status Review Tribunal hearing [14], Zubaydah said the interrogators subjected him to "months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder and my left thigh and my reproductive organs."

The counterterrorism official also said that any suggestion that Zubaydah "lost the eye while being captured or as a result of interrogation would be flat wrong."

But other detainees' claimed there were attempts to gouge out their eyes.

In a recent interview [15] with The Guardian UK, Omar Deghayes said a Guantanamo guard "pushed his fingers inside my eyes" and blinded him in his right eye.

"I didn't realise what was going on until the guy had pushed his fingers ­ inside my eyes and I could feel the coldness of his fingers," Deghayes told The Guardian UK, explaining that the incident took place when he protested a policy that called for detainees to walk around without pants. "Then I realised he was trying to gouge out my eyes."

Shaaker Aamer, the last British detainee who remains imprisoned at Guantanamo, told his attorney [16] he also experienced similar treatment. Aamer said naval military police brutally tortured him for two and a half hours on June 9, 2006, "gouged his eyes" and "held his eyes open and shined a maglite in them for minutes on end, generating intense heat," during a brutal two-and-a-half hour beating on June 9, 2006, after he refused to provide his captors with a retina scan and fingerprints.

Mickum said the loss of Zubaydah's eye and the government's rationale that it was the result of a "preexisting eye condition" only raises additional questions about Zubaydah's treatment.

"The only way to rule out that anything nefarious took place is to look at Zubaydah's medical records," Mickum said. "Until that occurs, the jury is way out and the government is not entitled to any credibility. They've lied consistently starting with the fact that they said Zubaydah was never tortured. The only inference one can draw is that he lost his eye as a result of mistreatment by the government and that he received poor medical treatment in the aftermath of his injury."

Scott Horton award

Last night, Harper's Magazine writer Scott Horton (pictured above left) won a National Magazine Award in the reporting category, beating out the favorite, Michael Hastings's Rolling Stoneprofile of Gen. Stanley McChrystal, who lost his job as commander of NATO forces in Afghanistan. Horton's winning entry was "The Guantanamo 'Suicides': A Camp Delta Sergeant Blows the Whistle." The piece is an investigation of the suspicious deaths of three inmates at Guantánamo. I have known Horton since the mid-1990s, when we met in Central Asia. He was an unusual hybrid of corporate lawyer and human rights defender. His writing career began a bit later -- in the early years of the Bush administration with an email blast called "No Comment," a compilation of links and short commentary on national politics that he distributed to friends and interested colleagues. Its searing approach attracted much attention, led to the blog being absorbed by Harper's, and now recognition for this breakthrough article. Horton conducts his own email interviews in a "Six Questions" format, so I asked him to submit to the same. His replies follow.

O&G: In your main piece, you tell the story of Col. Michael Bumgarner. Can you catch us up as to what has happened in the meantime with the Justice Department's treatment of the three men's deaths, and in addition with Staff Sgt. Joseph Hickman, the main whistle-blower in your story?

Sergeant Hickman continues to serve with his unit, as do several other guards that night whose observations supported the article. In fact, after the story appeared a source in the office of Secretary of Defense told me that an effort would be made to "reach out" to these "disgruntled soldiers," but I'm sure the Pentagon discovered the same thing I did: These soldiers were not remotely "disgruntled." They were and are all proud to serve and proud of their service at Guantánamo, which won them commendations. They were concerned about telling the truth, however. There is no sign of any further examination of the facts by the Justice Department -- though it did use dubious national security claims to block a congressional investigation when a House Judiciary subcommittee attempted to look into it.

What more do we know now about Camp No, the black site at Guantanamo where the men appear to have been taken? Is this a CIA-run section of the camp?

I am still investigating Camp No. In the meantime I have developed more evidence that Camp No was used by the intelligence community in connection with interrogations -- including by the CIA from 2003 through 2006. But it's not clear that the CIA was the only agency authorized to use Camp No.

One of your points is that the Obama administration has treated the issues of rule of law and justice, as practiced with prisoners at Guantanamo, with the type of cavalier attitude that you documented during the Bush administration. One issue is going along with a coverup from the Bush period, but you think that similar highly suspicious suicides have occurred on Obama's watch as well. Do the cases in the two administrations match up? And how the Justice Department talks about them?

I think it's clear that the Bush and Obama Administrations have more or less the same attitude about accountability for the mistreatment of prisoners connected with the "war on terror" -- they condemn it officially but believe that those in senior positions must be fully protected from any meaningful review or punishment. "Don't look back" is the Obama motto -- which poses a dilemma for law enforcement since, aside from the world of science fiction, all crime occurs in the past. But I have to acknowledge that the Obama Administration overhauled the standards for prisoners in its first six months, and this resulted in a sharp decline in reported incidents of abuse at Guantánamo and in Afghanistan. That being said, there are still some troubled spots -- such as the forced-feeding program at Gitmo and the JSOC-run "black prison" at Bagram, where I am skeptical about the extent of changes.

The deaths in detention are particularly worrisome. On one hand, suicides are a problem common to prisons everywhere, and particularly so when the conditions of internment heighten despair (as when there is no prospect of release). On the other hand, prisons around the world routinely press claims of suicide to cover deaths in detention since that may be the least horrible explanation for the deaths. These two considerations have to be held in balance when deaths in detention are studied. I am very concerned about the deaths associated with the forced-feeding program at Guantánamo. It remains enshrouded in unjustifiable secrecy and it merits much closer study. Something is plainly wrong about this program.

Read on to the jump for more of the Horton interview.

The administration would argue that politics have not allowed it to close down Guantanamo, nor to hold public civilian trials for prisoners accused of crimes. It might even argue that these issues are third-rails in a highly charged political environment that could sandbag the administration's other priorities. Your take? What reaction are you getting when you raise these issues privately at the senior levels of the Pentagon?

It's very clear that the Obama team set out to implement the Obama campaign promise to close down Guantánamo and to reform the rules governing prisoners. They accomplished a good deal, but somewhere in the first half year they ran into an immovable obstacle that was sheltering some aspects of the Bush-era program, especially the murky role played by the intelligence community in this process -- that obstacle was plainly named Robert Gates. Greg Craig and Phil Carter, Obama's two lieutenants most committed to the changes he promised, then resigned within a few weeks of one another. There's an important story there that has not -- so far -- been told. Secretary Gates clearly agreed with President Obama that torture was counterproductive, that the Bush-style extraordinary renditions program should be shut down, and he agreed to pull back on many Bush-era excesses. But he has protected core aspects of the Bush-era programs, and he has adamantly and rigorously opposed any kind of accountability -- shielding the intelligence side with particular zeal.

President Obama plainly had the power fully to implement his promises, but he chose not to do so. This almost certainly reflects a political calculus that national security issues generally and detention issues in particular were Republican turf and he should avoid anything that put them on the political front burner. This shows us a Barack Obama who is driven by tactical election year concerns, not by the ideals of a young law professor, who addressed these issues with eloquence and vision during his 2008 campaign.

Osama Bin Laden was just killed. Obama says he got justice. Your take?

I am immensely proud of the SEALs Team Six members whose assault on the Bin Laden compound bore fruit. I am also especially proud of my high school friend Bill McRaven, who organized the mission. John Yoo says that Bin Laden should have been taken prisoner. Of course that would have been desirable. On the other hand, I don't think any of us are in a position to second-guess the SEALs and the split-second decisions they took on the ground in Abbottabad. They had every right to use lethal force if they considered themselves at risk, and I wouldn't for a second take that away from them. The mission has also served to expose the enormous problem we have had for years with Pakistan's perfidious military and intelligence service which the Obama team -- to their great credit -- have treated with a far higher level of skepticism than their extremely gullible predecessors.

You are a lawyer. Now you beat out some stiff competition to win the National Magazine Award. Are you going to go back full time to law, a continued mix of the two careers?

Now that's what we lawyers call a compound question. Still, I'll answer most of it. As a lawyer, I am focused on international or cross-border investigations. As a writer, as you will see from my work for both Harper's and Foreign Policy, I am focused on legal and national security affairs, but a good part of my work focuses on the same fields in which I practice -- although I don't write about my clients or matters in which they are interested. So my work is in the border zone. I have been writing and practicing simultaneously for a number of years now, and the blend varies from time to time, but I don't anticipate giving up either end of the game.

From Roger Fitch and our Friends Down Under

USA's new found regard for international law

Monday, March 21, 2011
Justinian in Guantanamo, Law of war, Roger Fitch Esq

Batting Padilla around the federal circuit courts ... The varied meanings of habeas corpus ... "Material support for terrorism" up for review in CMCR ... The Raymond Davis case - Vienna Convention applied to CIA agent ... Roger Fitch, Our Man in Washington

Donald Rumsfeld just published his memoirs, and he's receiving conservative accolades for "defending the constitution".

Rummy gave Guantánamo his seal of approval as "one of the finest prison systems in the world", though it's far more likely he'll be doing time in, say, Europe.

The former defence secretary and his deputy Paul Wolfowitz have meanwhile succeeded in getting the civil suit against them by José Padilla thrown out.

Padilla is the American citizen seized in a civilian courtroom in New York, taken to a military brig in South Carolina, and subjected to years of pointless punishment and cruelty.

Scotusblog has the new ruling. It's a shocking decision in which an Obama appointee in South Carolina dismissed a torture suit, because it's inconvenient for important people.

It was the reverse of the decision in California in Padilla's lawsuit against John Yoo. Glenn Greenwald and Emptywheel comment.

Rummy: conservative accoladesThe Obama administration stopped its direct legal defence of Rummy and Wolfie, but pays others to do the job. More here.

When first seized, Padilla lost his habeas in New York district court, but won on appeal in the 2^nd circuit.

Then the Supreme Court remanded the case to the 4^th circuit, where Padilla won in district court but lost on appeal. At his second Supreme Court appeal, Padilla would have had five justices (with Scalia) prepared to find his military detention unlawful.

Instead, Padilla was returned to US civil courts, where his Florida conviction is still on appeal in the 11^th circuit.

His lawyers have thus far been busy in the 2^nd, 4^th, 9^th and 11^th circuits.

* * *

The lawless military commissions are resuming, with President Obama issuing a new Executive Order for military detention of "terrorists". The Guardian has more.

This great new policy means prisoners lucky enough to be charged with nothing at all get a chance to seek their release every three years.

Heller: legal impossibility of some of the Guantanamo chargesThe commissions will continue to try Guantánamo prisoners for acts which happened not only outside a war, but before a war.

Melbourne law prof Kevin Jon Heller notes the legal impossibility of some of the cases .

For years, the Bush and Obama administrations have been charging Guantánamo prisoners with "conspiracy" and "material support for terrorism."

Neither is a valid war crime, and in its 2006 Hamdan decision, a plurality of the Supreme Court noted that any "war crime" must be one recognised in the law of war, and specifically said conspiracy wasn't.

Even so, the Bush administration again charged Hamdan with conspiracy, though the jury acquitted on that offence.

The war crime of "material support for terrorism" (MST) has even less to commend it. The crime was unknown when Congress invented it, in 2006, well after any Guantanameros could have committed it.

The ex post facto problem aside, no appellate court has validated these novel war crimes - even though Bush and Obama have secured six shaky convictions.

At last, a court - albeit a Pentagon court - is set to rule on the legal status of conspiracy and MST.

A year after first hearing the appeals of Salim Hamdan and Ali Hamza al-Bahlul, the Court of Military Commission Review set new hearings on two issues: "joint criminal enterprise" (in association with conspiracy), and "aiding the enemy" for its analogy to MST.

Lawfare has the story with the briefs here and here.

In Hamdan, the Obama administration asserted a new "doctrine of retroactive re-characterization" to validate MST, while conceding it was "an exceptional technique that is not frequently used in any system [and] seldom used in order to avoid abuse".

In Al Bahlul the government cited with approval a notorious 1818 summary military tribunal conducted by the ethnic cleanser and Indian-killer General (later President) Andrew Jackson, something that Human Rights First and the Center for Constitutional Rights found scandalous.

Summaries of arguments are here and here.

* * *

Ex-CIA general counsel John Rizzo has revealed how President Obama avoids soiling his hands when ordering aerial assassinations for State Enemies: no names of the Staatsfeinde, bitte!

Rizzo can speak freely. CIA officers who break the law are not punished, and some are even promoted.

Davis: immunity for CIA man in PakistanBetter still, CIA operatives caught spying overseas instantly become distinguished diplomats.

In a new-found regard for international law, the US government asserted the Vienna Convention on Diplomatic Relations, following Pakistan's arrest of a CIA agent, Raymond Davis, for double murder.

The Vienna Convention is usually news when the US flouts it, e.g. carting off Afghanistan's ambassador in Pakistan to Guantánamo.

Davis previously worked for the dreaded corporate mercenary Blackwater and is a good shot, easily dispatching two men with every bullet hitting home, including those in the back. He even had time to photograph the dead before he was arrested.

However, he's hardly a diplomat.

In the end, Davis escaped Pakistani justice when the US arranged the payment of "blood money".

Besides embracing Islamic law and invoking the Vienna Convention, the US also brandished the International Court of Justice, whose uncongenial decisions the US customarily ignores.

In fact, it's been a big month for US support of such alternative and international institutions, usually derided as "lawfare" fora which harm American interests.

The International Criminal Court is another such forum, and the US has spent years trying to kill it off. Yet, in a surprise move, the US ambassador to the UN joined in referring Libyan officials to the ICC.

The US previously passed the "Hague Invasion Act" to punish any country bold enough to turn over Americans for trial.

* * *

The DC Circuit is now overturning every successful Guantánamo habeas that the US appeals. Usually, it's the work of partisan appeal panels featuring the dour Republicans, Brett Kavanaugh, Janice Rogers Brown and Raymond Randolph.

Randolph: most reversed judge in war crimes jurisprudenceUnderstandably, Mr Obama is in no hurry to fill the court's vacancies.

The latest activist decision by an all-Republican DC panel is in the case of Saeed Hatim. Once again, Judge Randolph, the most-reversed judge in Guantánamo jurisprudence, was on the rampage.

Law prof Steve Vladeck explains and Jurist has more.

The New York Times meanwhile has confronted the rogue judge over his role in the Kiyemba (Chinese Uighur) cases.

Jonathan Hafetz agrees at Concurring Opinions.

From Roger Fitch and our friends down under at Justinian

Law of war is a moveable feast

Monday, September 13, 2010
Justinian in Law of war, Roger Fitch Esq

State Department reports to UN on human rights in the USA ... Surprisingly few US civilians killed overseas by terrorists last year ... Of all the defendants before Military Commissions, only one has been charged with an actual war crime

In January, an appellate panel of the DC Circuit ruled 2-1 (in the Guantánamo habeas case of Al Bihani) that the president is not constrained by the international law of war, a Bush claim that Obama disowned.

The majority judges in that panel were Janice Rogers Brown and Brett Kavanaugh, perhaps the most extreme of George Bush's dismal appellate appointees.

A full bench of the circuit has now denied a rehearing to Al Bihani. While the decision was unanimous, seven of nine judges disclaimed the lower court's dicta on international law.

U Texas law prof Robert Chesney sorts the 113-page decision, which has extensive opinions from the original panel's judges.

American University law prof Steve Vladeck sees it as a real improvement on the original decision.

The dissident judges were unrepentant, and Kavanaugh wrote 87 pages in which he continued his claim that Congress must expressly refer to international law for it to apply.

It's a position at odds with repeated Supreme Court decisions on Guantánamo.

Scotusblog has more.

* * *

This column usually tracks actions of the US government that challenge international humanitarian law (IHL), the law of war, as demonstrated by the highly questionable detentions and trials at Guantánamo.

In the area of international human rights (HR), however, the US has a better record.

Thirty-three years ago, Jimmy Carter began an emphasis on HR that led to annual reports by the US State Department on countries around the world - but not the US.

Now, State has produced a report to the UN that examines human rights in the US as well.

Human Rights First has more.

Perhaps the report should have covered the activities of Americans in strife overseas for human rights violations but these (and the due-process-free foreign acts of the US government) are not included.

* * *

The State Department also released an annual report, by country, on terrorism. It reveals that in 2009 a total of nine American "private citizens" were killed by terrorism overseas (14 were injured). The terrorism definition used ("premeditated, politically motivated violence perpetrated against non-combatant targets") excluded attacks on US military personnel.

That's interesting, given that the Canadian Omar Khadr is being tried in a military commission for the "terrorist crime" of killing a US soldier in battle.

Perhaps it's one reason the Obama administration is having second thoughts about Khadr's trial. After all, "legal experts" continue to maintain that the commissions are illegal.

Prof Vladeck is one of them, with a new law review article, The Laws of War as a Constitutional Limit on Military Jurisdiction, describing the invalidity of prosecutions for faux war crimes at Guantánamo.

Loyola Law School's David Glazier has also weighed in, noting that "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities".

Glazier quotes from The Conduct of Hostilities Under the Law of Armed Conflict (2004):

"With unlawful combatants, [the law of armed conflict] refrains from stigmatizing the acts as criminal. It merely takes off a mantle of immunity from the defendant, who is thereby accessible to penal charges for any offense committed against the domestic legal system."

The article says that, by trying Khadr for unknown or invalid crimes, the US may itself be committing a war crime. According to Glazier:

"The perverse irony is that the only 'war crime' present in Khadr's Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant."

And it doesn't stop there:

"Incredibly, testimony at Khadr's aborted first trial sessions indicated that an armed CIA officer in civilian clothes - an unprivileged belligerent - was among the American participants at the firefight in which [the American soldier] Speer was fatally wounded."

Nevertheless, the Khadr case continues.

As I noted in my last post, the Pentagon-selected judge doesn't think Omar Khadr was tortured, though the facts are remarkably similar to those in Mohammed Jawad's case, and Jawad's confessions were found to be forced.

Judge Patrick Parrish's rulings on the defence suppression motions have now been released. The Miami Herald has more.

The judge never bothered to address the cruel, inhumane and degrading side of Khadr's ordeal other than finding there had been no "mistreatment", yet one of the supposed benefits of the 2009 amendments to the Military Commission Act was its exclusion of coerced, not just tortured, testimony.

Khadr's motion to suppress confessions might well have succeeded had he drawn Jawad's judge, Col. Stephen Henley, rather than Col. Parrish.

* * *

The US is also backtracking on the military trial of Abd al-Rahim al-Nashiri, the USS Cole bomber.

Nashiri was formerly a guest of the CIA in Poland, where he was entertained with water boards and electric drills.

Though not currently charged, he has been identified as the only military commissions defendant ever charged with an offence that is actually a war crime - treacherously attacking a military target.

The only problem? The bombing occurred in Yemen in 2000, when and where there was no war.

As it happens, Yemen tried Nashiri for these offences in absentia, in 2004, and sentenced him to death.

The US could simply deport him, but there's a bloodlust among the ship's commander and the families of victims, and it must be sated through American proceedings.

* * *

Adding to the legal controversy around military commissions is the unexpected announcement that the Court of Military Commission Review has opted for a full bench consideration of the appeal of Salim Hamdan, the now-released Guantánamero convicted of "material support for terrorism". The appeal was heard in January.

The docket is here.

* * *

Another unfortunate appointment to the bench, Jay Bybee, has made the news again.

The 9th Circuit judge and water torture enthusiast has written an opinion explaining when a person can - and can't - have water.

Hint: you can't have it when you need it.

David Luban and Emptywheel comment.

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • July 23, 2010

Rough treatment by the courts

“You have a right to a speedy trial – unless they need to torture you first” ... The media’s characterisation of waterboarding – it used to be called torture, now it’s nothing special … Americans stripped of their citizenship by transport safety bureaucrats … Our Man in Washington reports

Long-established legal principles are falling left and right, all in the name of … National Security.

In New York, in a shocking but not unexpected decision on the 6th amendment right to speedy trial, federal district judge Lewis Kaplan has ruled Ahmed Ghailani should stand trial in 2010 for the terrorism charges on which he was first indicted 12 years ago, in 1998.

This was so even though he has been in continuous government custody since 2004.

The New York Times has more.

Ghailani was indicted by the Clinton administration for the bombing of US embassies in Africa.

When he was apprehended, the Bush administration withheld him from the New York court for five years, two of them in the CIA torture program.

Judge Kaplan has already ruled, however, that any torture Ghailani suffered is irrelevant, and accepted the government’s dubious claims that it acted in good faith.

Despite the fact Ghailani was charged for acts that occurred outside a time and place of war, Judge Kaplan took it for granted that the government had a right to hold him in military detention as an “enemy combatant” and that a military commission (where Ghailani was also charged) would have been valid.

He accepted detention for interrogation alone, and the (previously unknown) right to lock people up as “intelligence assets”.

The Supreme Court has said that an “enemy combatant” – the ostensible basis for Ghailani’s CIA and Gitmo detention – is someone seized in the Afghanistan war for events related to 9/11, and also has said that such prisoners cannot be held indefinitely just for interrogation.

If one accepts the legality of the previous detention, however, speedy trial problems magically disappear.

Perversely, the prior detention is legitimated for purposes of tolling speedy trial requirements, while any torture that occurred during that detention is considered irrelevant to the trial now set to begin.

Emptywheel summed up the decision:

“You have a right to speedy trial – unless they need to torture you first.”

So far the only conviction of an American (or anyone else) under the US Torture Act has been the US-born son of the African dictator Charles Taylor, a conviction just upheld by the 11th Circuit.

There’s also a Torture Victim Protection Act, but it’s been roughly treated by US courts.

One such court – prudently left under Republican control by Mr Obama – is the DC Circuit, which just did its bit for national security by suggesting that “some evidence” should be the standard for Guantánamo detentions rather than the onerous “preponderance of evidence” adopted by the DC district courts.

National security demands no less.

* * *

Peripheral Guantánamo issues are still playing out in the courts.

The Center for Constitutional Rights will take the snooping-on-lawyers case Wilner v NSA to the Supreme Court.

The cert petition is here.

Mother Jones, meanwhile, has more on the case of the Guantánamo lawyers who snooped on the CIA, and the trouble it brought them.

Mother Jones also has a report on the professional strife former CIA and Guantánamo psychologists are in.

These include the now-dean of a college psychology department, Larry James, the notorious CIA contractor James Mitchell (pic), and a third psychologist.

* * *

The House Judiciary Committee testimony of torture lawyer (now federal appeals judge) Jay Bybee, has just been released, and it confirms that some of the gruesome interrogation techniques used by the Bush Gang went beyond what DoJ authorised.

Jason Leopold has more.

Emptywheel noticed Bybee may have inadvertently confirmed that CIA detainee Abu Zubaydah was subjected to a torture experiment in sleep deprivation before the opinion justifying the procedure was requested.

As for Abu Zubaydah’s 83 episodes of waterboarding, was it really torture?

That depends on who’s drowning whom. A new Harvard study on the US media’s characterisation of water torture found that:

“From the early 1930s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5 percent … of articles on the subject and The Los Angeles Times did so in 96.3 percent of articles… By contrast, from 2002‐2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4 percent)... In addition, the newspapers are much more likely to call waterboarding torture if a country other than the United States is the perpetrator.”

Emptywheel comments.

* * *

At least Britain’s new conservative PM David Cameron (snap) is willing to do what a “liberal” US president won’t – investigate the previous government’s involvement in torture.

The Al Rawi civil torture case in Britain continues, however, and is producing bombshells such as MI6’s advice for dealing with detainees held by lawless intelligence services such as the CIA.

British disclosures already show involvement with the US in torture and rendition missions, e.g. Tony Blair personally intervened to send UK citizens and residents to Guantánamo rather than bring them home for uncertain prosecution.

* * *

Mr Obama recently had his first loss in an appeal against denial of habeas in a Guantánamo case.

Belkacem Bensayeh, the last man detained in the Boumediene case, will get a new habeas hearing, thanks to the DC Court of Appeals.

Scott Horton comments.

In Bensayeh the Court of Appeals had to explain to the Obama lawyers that possessing a false passport doesn’t make someone a member of al-Qaeda.

Perhaps we shouldn’t blame people for wanting false passports, when the real ones don’t work.

A number of Americans and permanent US residents are presently stranded overseas, unable to return to the US (or even fly over it) because the dreaded No-Fly List now trumps a passport.

It seems the Transport Security Administration and airlines flying to the US are colluding to effectively strip Americans of their citizenship.

The Washington Post reports that converting to Islam, visiting Yemen or studying Arabic will do the trick, not to mention the careless adoption of a Muslim name.

Being dusky doesn’t help.

CAIR (the Council on American Islamic Relations) has issued a travel advisory warning of “forced exile” for US Muslims who go abroad.

The ACLU has filed a lawsuit to stop the practice.

Jurist has more.