Six Reasons the “Dark Side” Still Exists Under Obama

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Prosecutors indicted the Boston bombing suspect on Monday, following up on the Obama administration’s decision to try Dzhokhar Tsarnaev, a U.S. citizen, in civilian court, despite calls from congressional representatives to try him as an enemy combatant.

The Obama administration has charged a number of terrorism suspects in civilian courts, including Osama bin Laden’s son-in-law, Sulaiman Abu Ghayth, who the government arrested and charged March 7 with conspiring to kill Americans; Faisal Shahzad pleaded guilty in 2010 after attempting to detonate a car bomb in New York’s Times Square; and Umar Farouk Abdulmutallab, who was sentenced to life in prison last year for attempting to bring down an airplane on Christmas Day, 2009.  

While the Bush administration also pursued criminal cases against some suspects, it also funneled hundreds of detainees through the “dark side” it put in place to combat the war on terror. The Obama administration from the beginning planned to do things differently.

“We’re going to close Guantanamo,” Obama said in a 2007 campaign speech. “And we’re going to restore habeas corpus. … We’re going to lead by example — by not just word but by deed. That’s our vision for the future.”

Obama has signed an executive order banning torture, ordered that some Guantanamo detainees be tried in a military commission, and abandoned the phrase “war on terror.”

But the worst of what happened under Bush — physical and mental torture — could easily happen again, according to a report released last week by the Constitution Project, a nonpartisan public-interest organization dedicated to the rule of law, on the U.S. government’s approach to terrorism suspects. The report’s task force included Asa Hutchinson, a former U.S. attorney and Bush administration official; James Jones, a former Democratic Congressman from Oklahoma; Talbot D’Alemberte, a former president of the American Bar Association; and William Sessions, former head of the FBI.

The report aims to offer a definitive account of what happened in Iraq, Afghanistan and Guantanamo, as well as the numerous covert detention facilities, known as “black sites,” where detainees were held. It noted that since the Obama administration decided not to commission an official study or establish a Truth Commission, the report is likely to be the only record of what happened. You can read it in full here (pdf).

The report said it was “indisputable” that the U.S. engaged in torture approved by President George W. Bush — but also that the Obama administration, by its own actions, has made it possible for such abuses to happen again. Here’s why:

1. Executive Orders Don’t Last: The most concrete step Obama has taken to end torture — signing an executive order banning the practice — could easily be rescinded by the next administration. This could be done in secret, the report notes, without any formal announcement.

2. It Hasn’t Deleted “Appendix M”: The Bush administration edited the Army Field Manual on Interrogations, which for 50 years has provided guidance to soldiers on how to treat prisoners. The latest version, produced in 1992, specifically prohibited “abnormal sleep deprivation,” which the manual calls “mental torture,” and “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time” which it considers “physical torture.”

But in 2006, the Bush administration removed that language and added Appendix M, which authorized “separation,” isolating the detainee from others to prevent him from gathering information from others or learning new counter-interrogation techniques. The report found that the tactic “could inflict significant mental and physical stress” on a detainee and could technically allow him to be interrogated for 40 hours straight, with only four-hour rest periods on either end. Appendix M also forbids sensory deprivation, but allows goggles, blindfolds and handcuffs to “generate a perception of separation” for up to 12 hours, or longer if security necessitates it, the report said.

The Obama administration to date hasn’t re-edited the manual to remove Appendix M or restore the deleted language.

3. We Still Aren’t Sure about Renditions: The practice of kidnapping suspects and sending them to foreign countries to be interrogated began long before the Sept. 11 attacks. The first known incident was believed to have been authorized by President Bill Clinton, who seized Ramzi Yousef in Pakistan and put him on trial for the 1993 World Trade Center bombing. Later, the U.S. began sending suspects to other countries, not for trial, but interrogation.

There were about 70 renditions before 9/11, the report said. The number of renditions after 9/11 is in dispute, but the report cites a 2007 investigation by the European Parliament that found the CIA flew as many as 1,245 extraordinary rendition flights between 9/11 and February 2007. But former CIA director Michael Hayden told the Council on Foreign Relations in 2007 that the actual number of rendition flights is “a tiny fraction of that,” and that most of the flights carried equipment or documents, not detainees.

More is known about how the detainees were treated. The foreign governments gave “diplomatic assurances” that they wouldn’t abuse the detainees, but those were “unreliable,” the report said. In fact, the report found that detainees were “more likely than not” to be tortured or subject to “cruel, inhumane or degrading treatment.”

The report cited examples such as hanging detainees from limbs, beating them with metal rods, or shocking their genitals. U.S. officials knew what went on because they sometimes were involved in interrogations, the report said.

The interrogations also produced poor evidence, according to the report. “No military commander would ever go into combat based on this [evidence], because they know they can’t verify it,” said Tyler Drumheller, the former head of covert operations in Europe. The report said it wasn’t clear whether the Obama administration has continued renditions. That’s because….

4. The Obama Administration Is Still Keeping Secrets: The administration has fought in both civil and criminal cases to prevent the CIA from divulging any information on its treatment of detainees. It’s also pressured governments of friendly countries who participated in renditions, encouraging them not to share what they know.

The Obama administration has also focused on prosecuting government employees for leaking classified information under the Espionage Act — and it has done so more than all other previous administrations combined, the report found.

5. Guantanamo Is Still Open. Obama pledged to close the detention facility before he was elected in 2008. But there are still 166 detainees still behind held at Guantanamo — 86 who have been approved for release, and 46 of which the Obama administration has decided should be held indefinitely, without charge or trial. (Full numbers here (pdf).) More than half of the detainees are currently on a hunger strike, and some of them are being restrained and fed through a tube because, the Pentagon told CNN, it won’t allow them to “commit suicide by starvation.” The report’s task force said that such forced feeding is “a form of abuse and must end.”

In 2009, Obama established military commissions for some detainees, but the trials have been fraught with defense attorneys’ concerns that their confidential communications with their clients are monitored, and that their documents have been ransacked and most recently, subject to a “data breach” in the Pentagon’s computer system.

6. There’s Still No Official Policy on Detainees: The U.S. has so far ignored the 9/11 Commission recommendation to develop a common approach to treatment and detention of suspected terrorists, drawing on the Geneva Conventions, that allied countries could adopt to prevent future abuses. The report said: “With the passage of time, the US’s failure to take meaningful, permanent action in this regard has put our nation’s security at greater risk.”

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