These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.
Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to. (Others see it differently.)
Human rights organizations have responded with dismay, if not outrage. Center for Constitutional Rights, whose attorneys have been active in the legal defense of a number of Guantanamo prisoners, stated, “The announcement underscores the fact that decisions about whether to try detainees in federal court or by military commission are purely political. The decision is clearly driven not by the nature of the alleged offense, or where and when it was committed, but by the unpopularity of the detainee and the political culture in Washington.” CCR also compared the precedent-setting behavior to “Egypt’s apparent plans to use military trials for protesters at Tahir Square.”
Human Rights First spokesperson Daphne Eviatar said, “Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.”
Most organizations stressed the fact that this was an about-face for the Obama administration. Indeed, one of the oldest human rights organizations in the United States, Human Rights Watch, called the decision a “blow to justice.” HRW Executive Director Kenneth Roth said, “The military commissions system is flawed beyond repair. By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda.”
The National Association of Criminal Defense Lawyers statement concentrated on the faults of the military commissions themselves, headlining their press release, “At Guantanamo, “Detainees Are Presumed Guilty”:
“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “
Anthony Romero, Executive Director of the ACLU, echoed this today when he called the military commissions “rife with constitutional and procedural problems,” noting the outstanding cases “are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate.”
The Origins of the Military Commissions
CCR, HRF, HRW, and NACDL are all correct, so far as they go. It is evident to many observers that only peculiar military exigency, backed by facts, could allow for military tribunals, as the Supreme Court’s 2006 Hamden decision made clear. It is a matter of historical record that the Bush-era military commissions policy, adopted by President Barack Obama, was initially pushed by former CIA employees William Barr and David Addington, with the encouragement of former Vice President Dick Cheney, along with other “War Council” participants John Yoo, Defense Department counsel under Donald Rumsfeld, William Haynes, and Bush lawyers Alberto Gonzales and Timothy Flanigan.
At the same time the military commissions proposal was initiated, via a military order by Bush, the Bush administration was stripping detainees of Geneva Conventions protections, as well as implementing a program of torture, with Haynes soliciting the Pentagon’s Joint Personnel Recovery Agency (JPRA) as early as December 2001 for techniques used in the “exploitation” of prisoners.
In a recent article by Jason Leopold and Jeffrey Kaye, it was shown that the JPRA program that was “reverse-engineered” was Survival, Evasion, Resistance, and Escape (SERE) course SV-91, “Special Survival for Special Mission Units,” whose mission was to train U.S. military and intelligence personnel to withstand torture meant to “exploit” them for enemy purposes. Those purposes went far beyond the gathering of intelligence. As then-SERE psychologist Bruce Jessen, who was later to work as a contract psychologist and interrogator for the CIA beginning in 2002, noted in notes for SV-91 written in 1989:
“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc. )…Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”
Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”
A former colleague of Dr. Jessen, and along with him a founder of the SV-91 SERE class, former Captain Michael Kearns told Leopold and Kaye:
“What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”
The Stalinist governments of the USSR and East Europe used to make a great practice of show trials, one of the most famous being the trial of Hungarian Cardinal Mindszenty. Arthur Koestler’s famous book Darkness at Noon is about the show trial and confession of an “old Bolshevik” under Stalin’s regime. Such show trials still occur in many parts of the world, from China and Vietnam, to Indonesia, Burma, Iran, Pakistan, Zimbabwe, and the list could go on and on.
That list now includes the United States, where most recently, former child prisoner Omar Khadr was tried in a military commission, pleading guilty with a coerced confession, after years of torture and imprisonment in solitary confinement, his penalty phase of the military tribunal amounting to a show trial, complete with psychiatric “expert” testimony about Khadr’s supposed propensity for “terrorism.” The result? A 40-year sentence for the young man who never spent a free day as an adult, part of a staged deal with the U.S. military prosecutors, who presumably will release Khadr to Canadian authorities in a year or so, where he will continue to be imprisoned, pending any appeals there. But the penalty “trial” got a lot of press, and the U.S. was able to garner a propaganda “victory.”
Without Accountability, Whither America?
The United States is only a small step away from some kind of dictatorship. This may sound like hyperbole to some, but the lack of a clear and strong opposition to military and intelligence community institutional pressures has driven the Obama administration to the right even of the Bush administration on matters of secrecy and executive power. Proposals for “terrorist” or “national security” courts continue to be seriously considered, while the public uproar over the use of torture on prisoners has died down ever since Barack Obama told his Democratic Party followers not to “look back,” and made clear that accountability for war crimes would not happen on his watch. Meanwhile, tremendous inroads are made on privacy rights, while surveillance of private citizens, strip searches at airports, seizures of personal computers, and gathering of personal data from emails and phone calls are now everyday occurrences.
As a result, Obama has been the active creature of militarist forces within the government, and on point after point, has given way to lobbying by the military and intelligence establishments, themselves beholden to a power elite that holds the economic reins of the country, from oil to finance, in their hands. Obama’s role is most evident in his recent military actions against Libya.
The courts, too, have stepped back from their gesture towards judicial independence under Bush, with the Supreme Court ruling today that it would not hear three Guantánamo detainee cases, appeals on rejected habeas reviews regarding Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad. While the cases concerned issues surrounding use of hearsay, other evidentiary standards, the role of international law, and the right to a meaningful challenge to detention, the Court gave no explanation for denial of cert. Courthouse News noted, by the way, that new Justice Elena Kagan “does not appear to have recused herself from consideration of two of the cases because of her prior work as U.S. Solicitor General.”
Meanwhile, some anti-torture activists are trying to pursue accountability the best they can, going after the licensure status of mental health professionals who participated in the Bush torture regime. Complaints against former Guantanamo Chief Psychologist Larry James and CIA contract interrogator James Mitchell have not gotten very far, with their cases dismissed.
Another case against former Major John Leso, a psychologist working for the DoD Behavioral Science Consultation Team at Guantanamo, who in 2002 helped write an interrogation protocol that relied in part on SERE “reverse-engineered” torture techniques, was also dismissed, but according to Raw Story, this Tuesday the Center for Justice and Accountability (CJA) and the New York Civil Liberties Union (NYCLU) will ask the New York Supreme Court to reconsider the decision of the New York State Office of Professional Discipline (OPD) not to investigate the misconduct complaint against Leso.
The issue of the military commissions must be considered in the context of its embedded existence as part of a full-scale exploitation plan upon prisoners, implemented as part of a war policy with strong imperialist ambitions, initiated by the United States in the aftermath of 9/11. The agitation for such a war preceded 9/11. The terrorist attack set lose this militarist policy, whose appurtenances — military tribunals, exploitation of prisoners, psychological warfare, secret prisons, false confessions, experimental torture programs, and unchecked executive power — threaten to end the semblance of democracy in the United States once and for all.
Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018