Special Reports



The short intensive burst of publicity at the turn of the year had faded in the glare of other more immediate events, but the fundamental issues raised about the US-led practices of flouting national, and ignoring international law, remain. Now a UN report on Guantanamo Bay and a British High Court judge's comments in a case before him on three British detainees there, have revived the central issues. A spread of important questions are now in play, but so far not being answered. We ask some of them here.

There has been a spate of incidents come to light in recent months: of US agents snatching suspects from the streets of foreign, sometimes allied countries, or detaining suspects without charge at frontiers, and of now routinely exercising the CIA doctrine of extraordinary rendition, to a point where it is no longer extraordinary at all.

Sometimes these events are combined. Certainly in the minds of those disturbed by what appear to be flagrant violations of what, post-Nuremberg, had been thought to have been achieved in the international arena. These include the indefinite imprisonment of prisoners taken on the battlefield; sometimes in secret prisons outside the supervision of any law; the ignoring of international treaties to secure minimum standards of civilised behaviour; the use of torture; and not least the affront to reason and violence to the language, in calling it something else.

All of these things happen, and since nobody can bring the perpetrating power to book, they can be expected to continue to happen, foreign protests notwithstanding. But it does mean that confused citizens of democratic allies at least, would like to have some idea of what remains of the rule of law in terms of human rights internationally, and what redress there now is for innocent victims of the juggernaut?

It is not enough to point out, as the White House reflexively does, that the 470 detainees at Guantanamo Bay, are dangerous terrorists. There is no question about many of them, but when are they going to be brought to trial, or what is the plan for their future? It is equally clear that there are and have been other detainees, perhaps a lot, taken there in error or whose future capacity for danger should be tested in the courts, with the evidence for and against being assessed by independent judges. Once error is established, justice requires meaningful compensation. How can that be the subject of dispute in a western democracy?  Punishing the guilty is a well known maxim that all can go along with, but punishing the innocent and then no compensation, all to save nickels and dimes in terms of the anti-terrorist budgets, is a disgrace to the American nation.

With such a blunt instrument as the terrorism laws at their disposal and with suspects setting off identification alerts for border police, mistakes will be made. - we cite the case of Khaled-AL- Masri, a German salesman being mistaken for Khaled-EL-Masri, an important al Qaeda suspect, (which caused the German to be hijacked off the street having previously crossed a European border, flown half-way around the world to Afghanistan and enduring much pain and anguish before his eventual release) - Because there is no international court with jurisdiction, compensation is not available to him - and there are many other cases like this.

It has long been held in most nation states, even undemocratic ones, that citizens should surrender the power of personal revenge to the State, who will take the necessary steps to ensure that the national system of justice shall adequately deal with the offence. But in the supra-national arena, outside the protection of international treaties, force is seen to be the only significant factor. The individual state can no longer guarantee to hold the balance of justice in the face of this now familiar extraterritorial intervention, and this unless corrected, could eventually lead to an escalating degree of anarchy.

In the context, what should be the status of personal revenge if the state (your state) is unable to give you justice against a criminal act performed by agents of a foreign government? Are you to protest until all avenues of redress are exhausted and then suffer in silence, or try to take matters into your own hands? One answer to that is that it depends on the ability, temperament and resources of the wronged party, but in certain circumstances if this situation continues, we could be witnessing the birth of the contract-killer's charter. A flavour of the anarchy possible can be seen in the recent Spielberg movie "Munich"; and the book, "Jennifer Government". You wouldn't want it!

The fundamental point is that most democratic states, including the US, have entered into international extradition treaties to deal with the knotty problems of fugitive criminals, usually with checks and balances to protect political fugitives. Only those suspects who are already held by friendly foreign governments will go through the legal extradition process, one problem being that evidence may have to be produced and the outcome cannot be certain.

A pecking order of 'suspect acquisition' can be discerned where low- grade suspects that are non-US nationals are 'disappeared' in the manner of the CIA- assisted fascist governments of Chile and Argentina, and subjected to extraordinary rendition, where the US have sub-contracted the torture. (However, US citizens apprehended in the US, have to be treated on the assumption that the law will be invoked on their behalf). High-grade suspects, usually from the known upper echelons of Al Qaeda, whose arrests have usually been triumphantly publicised, are unlikely to ever set foot in the USA, or any courtroom where habaeas corpus is in force, and are swept off to the secret prisons overseas. There, it seems, for the most important prisoners the CIA is willing to handle the interrogations, to commit torture, semantically described otherwise, but not ever on US territory. No doubt the legal advice is that those who do such work overseas will never be held accountable in a US court.

So we live in a world where the big guy on the block is subject to no law except his own, whilst the rest of us limp along resenting it, but unable to do more than protest and appeal to progressive forces within the USA, whom alone can influence the situation.

The most dramatic examples come with instances of clear or apparent injustice, for which no remedy is seen to be available. It must be acknowledged that in this twilight world, the efforts of the culpable intelligence agencies to remain secret, must mean that many actions are outside the scrutiny of the free media who just don't know, and may never know about them. Prime examples of this are these secret off-shore prisons saved for a small number of top suspects which it is acknowledged by US government spokesmen, are to be held there indefinitely. Only a few people know anything about them, except we can assume that as certain high-profile prisoners have been captured, that is where they must have been taken. Given those parameters, how do we know or how will we ever know, not just about torture but if they are even still alive?

What indeed is to happen eventually to a 'squeezed- out' top level al Qaeda operative, perhaps completely traumatised, with nothing further to offer, perhaps no more than a husk of a human being? How can they ever be released - that doesn't sound like an option? Can they ever be arraigned in a court - any court with rules of evidence? Some of these men were involved in the mass murder of 9/11, but where can they be securely imprisoned for the rest of their lives, given that these secret prisons will not remain a secret for ever? Moreover, they are located on the territory of other sovereign states, whose own due process may at some point be invoked and come into play.

The kind of 'hard men' orchestrating these arrangements, including veterans of assisting in numerous Latin American disappearances, death squads and assassinations, would have little difficulty in snuffing them out. We do not know which prisoners if any have already succumbed under torture, and maybe some still alive will be said to have joined them after continuing 'aggressive interrogation'. Is this what is to happen?

Death by torture, as a means of execution, has been known throughout history - pour decourager les autres? In Cambodia, Pol Pot maintained a prison camp - a converted school in his capital Pnomh Penh where many prisoners were taken to be tortured, not for information, none was looked for, but to this horrible form of execution, their children being routinely bludgeoned to death.

Torturers throughout history have on occasion been over-enthusiastic. The Dominican friars, torturers of the Templar knights, in their eagerness to get results, in the first few days of their purge killed about 30 of them under interrogation, out of some 200/300 prisoners. Or a contemporary example was the US Army sergeant who interrogated a trussed-up Iraqi general by stuffing him upside-down into a sleeping bag and then sitting on his chest, whilst the Iraqi soldier suffocated. It wasn't supposed to be an execution, he said at his courtmartial, but perhaps the captive general was just not coming across with the location of those pesky WMD's. Maybe that is why the murder charge was commuted to manslaughter with a sentence of just two years, before remission. Well, bigger people also got it wrong about the WMD's.

The question of what constitutes torture is key here. The British High Court judge reviewing applications before him on three British detainees in Guantanamo Bay, spoke for many of us when he said on Febuary 16th that: "the US is out of step with most civilised nations as to what constitutes torture". Washington has defined torture as narrowly as: intense physical injury (not 'pain' note), or 'organ failure'. It is interesting to see that in this particular, as in many others, they are echoing the Holy Inquisition, which first institutionalised torture in western history. The Church in its time forbade them the breaking of limbs or the piercing of the flesh. So the Dominicans who ran the Inquisition accidentally killed the Templar knights referred to above, by placing the oil-basted feet of bound prisoners over a slow fire, or using the rack to grotesquely stretch their limbs without breaking them. The point being that the unendurable pain involved would have gained for many, perhaps the lucky ones some of whom were not young, the 'release' of heart failure - the 'organ failure' flagged up by Washington.

We have had to wait several centuries before knowing such details - how long will it be before the CIA manual on 'aggressive questioning' will come to light? Waterboarding has had some advance publicity and it seems not denied as a method noted by the CIA's own Inspector, who commented on its excessive use on certain prisoners. The new Director of the CIA said recently that his agency "doesn't do torture", but this was a favoured method of the Gestapo in WWII used to get quick results in questioning Free French Resistance suspects. Would the survivors agree with the Director that it was not torture?

There is a koan - a Zen riddle without an answer - which asks for the difference between a terrorist and a freedom fighter, but here we are faced by even more stark contrast between a 'grunt' and a fanatic; a foot-soldier and a volunteer terrorist.
It may well be the case that many of the individuals that suffer under the detention system are moral delinquents, capable of acts of terrorism who most of us without hesitation would seek, once identified, to have legally constrained. Others less obviously so. The prisoners at Guantanamo Bay most of whom were flown there directly from Afghanistan in 2001/2, included a sizeable number of men captured on the battlefield by their military opponents the Northern Alliance, and handed over to the CIA agents on the spot. In very difficult conditions (there was one serious prisoner breakout and massacre at that time), it was these field agents, not all experienced in such matters, that had to divide 'sheep from goats' in terms of their danger to society, and their potential for information perhaps leading to the ultimate crushing of al Qaeda.

Amongst them were al Qaeda volunteers who may well have had useful information and could be a continuing danger, but also there were many Taleban soldiers, who claimed to have been fighting for their homeland in a civil war - which is indeed what it had been until the Alliance intervention. They had been recruited by the same Taleban de-facto government of Afghanistan, with whom other governments, including the US, had previously engaged in negotiations over the years. None of that qualified Taleban foot-soldiers to be treated as international terrorists, to be denied the rule of law and the protections afforded by the Geneva convention. The fact is that the Taleban and al Qaeda were plain different things at that time, the latter known to the former as 'the Arabs,' and not greatly loved, as witness with the 9/11 horror, they had brought down destruction on the Taleban, their host government, along with regime replacement, and a foreign army of occupation for their homeland.

More recent individual cases of wrongful imprisonment, of which there seem to be many, can be mentioned in the context. A computer engineer, Maher Arrar, a Canadian citizen, born in Syria, was returning home via New York from a holiday in North Africa. Passing through JFK airport en route for his home in Canada, he was detained by NYC Port Authority officials at the height of the terrorist scare. Handed on to the CIA, they secretly shipped him out, via their rendition system, to Syria where he was tortured by the well practiced Syrian agencies with whom, back then the CIA were friendly. After more than a year, since he apparently knew nothing after he had been severely tortured, they released him as useless to them and he was returned to Canada, from where he not unreasonably, seeks compensation from the US government that arranged the torture, took him there, and no doubt provided many of the questions.

A notorious case still buzzing, concerns a Moslem preacher living in Milan; Hassan Mustafa Osama Nasr, lifted off the street by a CIA team apparently more than twenty in number, that being the collection of names of US citizens for whom extradition warrants are being sought by the Milan civil magistracy, (who by this action are effectively asking the same questions as this essay). The CIA wanted this suspect and took him, without the formality of requesting extradition. He then completely disappeared. This may well have happened in other times and places where perhaps that might have been the end of the known story, but in this case about nine months later, Nasr's family received a telephone call from him, in which he told that he had been secretly taken to his country of birth, Egypt and there tortured, but subsequently released as having nothing to tell.  It is significant that if the Egyptians could get nothing out of him with their horrific methods - they are known to set hungry attack dogs on trussed captives - then it would be reasonable to say that he probably was a rabble-rousing preacher, but if he was a terrorist, why would the Egyptians release him?

Obviously the US did not invent the illegal snatching of wanted men - they have just perfected it, and defied the civilised world in doing so. Back at the end of the 19th century, the revolutionary Dr Sun Yat Sen, leader of the Chinese rebellion against the Imperial dynasty, whilst visiting London was imprisoned in the Chinese embassy. Luckily for him, his plight was picked up by the press, and government pressure was successfully put upon the Chinese to release him. More recently, the celebrated case of the Nazi, Adolf Eichmann, snatched by Mossad in Argentina and smuggled back to Israel to his trial and death sentence, caused a big rumpus at the time. A Turkish military team seized Abdullah Ocalan, leader of the Kurdish rebellion in their country, from Kenya, where he been given refuge in the Greek embassy and brought him back to a Turkish prison. These were celebrated cases, which once perpetrated were followed assiduously by the world's media - some kind of protection for the prisoners otherwise endangered 'bodily extremities'. Not any more, it seems.

What kind of men and women are these CIA interrogators - no doubt political correctness disguises their job description? Are they right to use these methods - will history, let alone the law - endorse their actions?

We know about the Dominicans, famous as the managers and operatives of the Holy Inquisition, who apart from their enthusiasm for inflicting pain (for the good of the souls of the victims of course), were also considered to be the leading intellectuals of the Catholic church, producing such medieval luminaries as Thomas Aquinas and Albert Magnus. Few if any would now say that the Holy Inquisition was other than perhaps the blackest episode in the history of the Roman church. The Vatican has publicly apologised for this awful and lengthy lapse from Christian charity.

As for today's American inquisitors, will future history name the directing intelligence, a Torquemada figure, perhaps a 'suit' in a Langley corner office, from amongst them? We have few, actually no sources about the people, but perhaps Doonesbury, the widely syndicated Gary Trudeau cartoon-strip, gives an idea with their portrayal as a combination of veteran 'cowboy' operatives - been around half a dozen Latin American civil wars, death squads and the like - plus not the brightest product of not the best mid-western universities. They might not be able to put into the scales of history the intellectual achievements of the followers of St Dominic, but having the normal surfing skills of their generation, whether on the ocean or the internet, they have no doubt been able to adapt to the techniques of water-boarding.

Clive Lindley - Publisher