Thursday, December 18, 2014

Enhancing torture by the CIA

The US Senate Report on the use of torture by the CIA in interrogating alleged terrorist suspects underscores the problem of identifying the responsibility of both the Executive and Congress over the state’s apparatus for gathering intelligence necessary in its war against terrorism. It’s not only the brutal methods employed by the CIA that are highly disturbing but also the Report’s absence of finding or acknowledgment of culpability beyond the pay grade of the CIA operatives conducting those investigations.

Senate Intelligence Committee chair Senator Dianne Feinstein (D-CA)
talks to reporters after coming out of the Senate in Washington on
December 9, 2014. Reuters Photo
In addition to the finding that the CIA’s interrogation techniques were more brutal and employed more extensively than the agency portrayed, the Torture Report also brings out two other significant points: one, that the interrogation program was mismanaged and lacked adequate oversight, and two, that members of Congress and the White House were misled by the CIA about the effectiveness and extent of its brutal interrogation techniques.
The question to ask therefore is: Who are the authors or leading officials who presided over the CIA’s regime of torture? Whether it was its intention, the Senate Report did not address who ultimately must bear the political responsibility for torture.
Like the Nazi criminals during the Nuremberg Trials, US top leaders—Presidents George W. Bush and Barack Obama, and Senate Intelligence Committee chair, Diane Feinstein— have pleaded “we didn’t know,” “we were misled,” and “the CIA didn’t tell us.”
If a similar Nuremberg Trial were convened today to prosecute those responsible for the CIA’s reign of torture, no judge would believe what these leaders say. There is no international court of law that would even be slightly persuaded by these pleas of ignorance of the CIA’s decade-long practice of torture. After all, former US Vice President Richard Cheney, one of President Bush’s unabashed architects of American aggression in Iraq and Afghanistan, even lauded the CIA practice of torture on television and boasted he would implement the same policies again.
After 9/11, torture has been the method of choice as revealed by top military officials during the Abu Ghraib investigation. During the administration of President Bush, Jr., CIA leaders submitted detailed reports on intelligence, including the sources and the methods of obtaining the information routinely—with videos and ‘live feeds’ for the politicians to view. Nothing was “held back” then and now, as current CIA head John Brennan testifies. Everyone who attended high-level national security meetings knew how intelligence was obtained, and if they failed to ask it was because torture was accepted as the normal operating procedure.
Pleading ignorance is not a valid and winning argument. Former Vice President Cheney is more reckless in admitting his preference for the use of torture in ferreting out information from captured prisoners of war. During Cheney’s appearance on NBC’s Meet the Press, he was asked if the Geneva Convention applies to this type of situation.
Cheney replied: “Sure there is. But remember, the terrorists were not covered by the Geneva Convention. They were unlawful combatants. And under those circumstances, they were not entitled to the normal kinds of courtesies and treatment you would accord to those.”
But the Geneva Conventions, a group of four international treaties covering different aspects of how civilians, prisoners of war and soldiers are to be treated once they are rendered incapable of fighting, guarantee a certain level of protection for former combatants, including prisoners of war and civilians. They set out in detail the requirements for food, clothing, shelter, safety from combat, access to medical care, and other matters.
US soldiers escort a detainee to his cell at Guantanamo Bay
Naval Base. Reuters Photo.
These fighters qualify for these protections if they adhered to some basic rules of law such as wearing uniforms, carrying arms openly, answering to a chain of command, and not committing war crimes. Many of those who were detained in Guantanamo Bay and other sites were from non-state terrorist groups and did not adhere to these rules. These are the unlawful combatants whom Cheney refers to and were not guaranteed the same protections afforded prisoners of war.
Is Cheney right?
There is in fact a distinction in the level of protection afforded under the Geneva Conventions, for those who receive extensive protections and those who do not. While detainees who do not have POW status don’t get the top level protection, they get more basic protections from the Geneva Conventions which would have shielded them against some of the brutal and harsh treatments mentioned in the Senate report.
Article 3, which is common and identical in all of the four Geneva Conventions, prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Besides, the United States Supreme Court in its ruling in Hamsdan vs. Rumsfeld, a watershed case on detainee rights, has already ended the debate on Article 3 of the Geneva Conventions. The Supreme Court made it completely clear, that whatever their status is, detainees are entitled to some minimal protections under the Geneva Conventions. Such ruling is binding law in the United States, no matter what Cheney says.
Common Article 3 of the Geneva Conventions as one source of basic protection for detainees is also bolstered by other international agreements as well. Article 75 of the Additional Protocol I of the Geneva Conventions includes minimal protections for all people, whatever their status, who are caught in a conflict. Two other international agreements to which the United States is a party, the 1984 Torture Convention and the 1966 International Covenant on Civil and Political Rights, also prohibit torture and cruel, inhuman, or degrading treatment or punishment.
In a more critical assessment of the Senate Torture Report, i.e., beyond the sheer brutality of the enhanced interrogation techniques employed by the CIA, James Petras, Bartle Professor (Emeritus) of Sociology at Binghamton University, New York, wrote: “The Senate Report is an exercise in institutional power—a means for the Senate to regain political turf, to rein in CIA encroachment. The Report goes no further than to chastise “inappropriate” techniques: it does not proceed from crimes of state to prosecute officials responsible for crimes against international and domestic laws.”
“We know, and they know, and as every legal authority in the world would know, that without the punishment of political leaders, torture will continue to be an integral part of US imperial policy: Impunity leads to recidivism.”
The grim reality is that the Senate Torture Report will not result in a radical shift in CIA interrogations because to the United States, the war on terrorism can never be left to erring on the side of caution to maintain a level of respect for law and human rights. Torture will always be necessary, even though it is not the official policy, in gathering information that could prevent loss of or harm to human life. Those who rely on torture will always find a ticking time bomb to justify its use.
Such justification for the use of torture was in the heart of Israel’s Supreme Court ruling in 1999, holding that interrogators can employ torture to extract information if it prevents a bombing, and has now earned currency among the CIA and White House lawyers.
As the tempest in the teapot continues to boil over the Senate Torture Report, don’t expect resignations, let alone prosecutions and trials. Worldwide indignation may be heard but the US government will never be held to answer for its use of torture.
The CIA operates under the notion that international law and Geneva Conventions have to be modified, or at the very least, be interpreted generously to allow enhanced interrogation techniques even if by their nature they constitute acts of torture.
Torture should not be universally condemned and its practitioners be prosecuted: this is a core belief that the CIA relies upon for as long as it provides useful information in preventing terrorists accomplish their objectives. Such is what is expected of an imperial power like the United States, and nothing less.
To paraphrase James Petras, the only way for torture to disappear is when politicians are put on trial for their crimes against humanity. “Only when the empire is transformed back to a republic: where impunity ends, justice begins.”

Friday, December 5, 2014

Breaking down the culture of impunity

It all started with the Marcos dictatorship. In two decades of iron rule, Marcos perfected a system of oppression that knew no bounds, without fear of punishment for illegal wrongdoing for in his own mind his word is the law. Thousands had been killed, jailed and had disappeared. Torture and extrajudicial killings were widely practised with no one brought to the halls of justice for human rights violations.
The Marcos years spawned a culture of violence and impunity, and his successors would quietly condone the practice of extrajudicial executions and disappearances of those who voiced their protests against the government. Violence and impunity have become a way of life for the state, so pervasive they have been ingrained into our culture.

Remembering the victims of the Ampatuan massacre, 58 people, 
32 of them journalists, who were brutally murdered 5 years ago in
Maguindano province.
In June 2013, during the World Economic Forum East Asia in Myanmar, President Noynoy Aquino declared that the culture of impunity in the Philippines was over and invited investors to the country. Aquino said: “The culture of impunity is over. Much of what we have done is based on the belief that a sense of justice and the predictability of outcomes breed prosperity.” He added: “It is clear that good governance has created a climate of confidence in the Philippines. If there is no corruption, there will be no poverty.”
What was President Aquino thinking? Is he from another planet?
I had an almost similar serendipitous experience about two weeks ago in an Internet forum when I brought up the issue of culture of impunity as a stumbling block to a fair, accessible and efficient system of justice. A forum member asked if I was referring to the culture of impunity among lawyers in the bench and other high places. What?
It’s high time that President Aquino and like-minded people understand that a culture of impunity is neither caused by corruption or poverty, and that lawyers as a professional group are not responsible for fostering such culture. This a very serious matter and not something we could just quibble with.
Impunity simply means exemption from punishment, or the failure to bring perpetrators of human rights violations to justice. As such, impunity constitutes a denial of the right of victims to justice and redress.
The Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity of the United Nations Commission on Human Rights defines impunity as “the impossibility of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”
Now that we have a clear idea of what impunity means, perhaps we can begin a thorough understanding of what we need to do to combat this pervasive culture of impunity in our country.
For journalists alone, the Philippine Centre of Media Freedom & Responsibility reported that an average of six per year is killed for their work. This number may be lower compared to the Gloria Arroyo regime but the number of slain journalists under the Aquino presidency has surpassed those of the administrations of Fidel Ramos and Joseph Estrada.
The Centre fears that this continuing violence against journalists will not abate before the end of Aquino’s term in 2016, which shows the failure of the Aquino administration in preventing attacks against the press.
The killing of journalists is linked to the larger culture of impunity when wrongdoing of all kinds goes unpunished. For the thousands who had been killed or disappeared during the oppressive Marcos dictatorship, and for the continuing extrajudicial executions and disappearances, not one has been made responsible under the law for either their murder or violations of human rights.
Those in authority like the President or his loyal military officers exploit the long arm of the law in persecuting dissenters or those in their judgment are planning to overthrow the government. And if no one is prosecuted for violating the people’s right to express themselves by making them disappear or silencing them permanently through extrajudicial execution, the system of justice breaks down and it spawns a culture of violence.
Take the case of former General Jovito Palparan, who is alleged to be the mastermind in extrajudicial abductions and killings of government critics during his military service. Palparan earned the nickname “Berdugo” (“the Butcher”) for his alleged involvement in numerous human rights violations, such as the murder of Edwin Marcellana and Eddie Gumanoy, and the disappearance of University of the Philippines’ student activists Sherlyn Cadapan and Karen Empeno.
In 2006, the Melo Commission headed by former Supreme Court Justice Jose Melo rendered a report which concluded that most of the killings of militant activists and journalists were instigated by the military, and recommended that General Palparan and other military officials be held liable. Yet then President Gloria Arroyo did nothing to prosecute Palparan but instead continued with greater impetus the execution of Oplan Bantay Laya, her government’s anti-insurgency operations.
Now that Palparan has been arrested after being on the lam for three years, it is highly doubtful if the government will be serious this time around. Palparan is charged with the kidnapping and serious illegal detention of UP students Sherlyn Cadapan and Karen Empeno.
According to Senator Antonio Trillanes, once a navy officer, General Palparan only followed orders during his time in the armed forces. In other words, he was just doing his job. But Trillanes has forgotten, or perhaps, he didn’t know, that the defence of following orders has already been debunked by the Nuremberg trial and succeeding cases. Besides, military generals are not strangers to the concept of command responsibility. Maybe, Trillanes was simply channeling himself, a convicted mutineer who staged a coup against his commander-in-chief, that he himself was not fully punished for the crime of rebellion and why should Palparan be made liable when he was simply doing a heroic job to fight communism in the country.
Chances are, the prosecution of Jovito Palparan will drag on until the press is no longer interested to report about him, exactly what’s happening to the Ampatuan massacre whose trial is yet to be set down. Five years ago, 58 people, 32 of them journalists, were brutally murdered in Maguindanao province, a most gruesome and brazen massacre in Philippine history. It was the worst attack on the press in history and the most violent single election-related incident in the Philippines.
The court proceedings have only dragged on under the watch of President Noynoy Aquino whose administration has shown little interest in pursuing justice for the victims of the massacre. Despite strong international outcry, many are being led to believe that the massacre would end up as another statistic in the long list of unsolved political killings in the Philippines. 
Just consider some of the grim realities surrounding the trial: four witnesses have been killed so far, obviously to prevent them from testifying; authorities have failed to arrest 98 suspects who remain at-large; 41 accused policemen have been granted bail because the evidence is found not strong; the head of Army’s 601st Brigade who turned down the victims’ request for security escort has been promoted despite the massacre; allegations that the prosecution team has accepted bribes; and the continuing threats on the victims’ relatives and pressures that they settle amicably with the Ampatuans.
President Aquino was criticized before for dismissing media killings as not always work-related. According to the International Federation of Journalists (IFJ), a total of 33 journalists have been killed in the line of duty since Aquino took office in 2010 and the President is still bedazzled why. Perhaps this could also explain why he doesn’t understand what a culture of impunity is.
On her part, Supreme Court Chief Justice Lourdes Sereno highlights the problem as one of procedural weakness in the justice system, where the courts lack the capability to execute their own writs and processes. In one of her rare public speeches, the Chief Justice admitted that the courts have no means to serve arrest warrants and have little resources to ensure the protection of their servers from the very real threat of retaliation.
The culture of impunity is a real enemy, and the indifference of President Aquino has only emboldened those in power to entertain no trepidation in eliminating their most vocal critics and opponents, not excluding those in the media. Offering a lame excuse like the Chief Justice’s most important dilemma in enforcing the law will not solve the injustice in our system. It’s a frame of mind, a way of thinking that has been implanted in our psyche by the long years of dictatorship under Ferdinand Marcos. T

An art exhibit marks the 5th anniversary of the Ampatuan massacre.
The Philippines has an enviable record when it comes to signing up-to-date human rights treaties and ratifying international conventions and agreements, but without a determined and robust prosecution of violators and torturers, all these human rights commitments become empty promises.
What must be done?
For starters, set down the Ampatuan case to trial, without any more delays, or ifs and buts. The President needs to set aside his ego-bruising experience when the Supreme Court overturned the Disbursement Acceleration Fund. He should extend his hand to the Chief Justice in working together to ensure and secure justice to the victims of the Ampatuan massacre.
Next, release all political prisoners and put an end to the state position of repetitive denials that the Philippines does not have political prisoners. In dismissing the existence of political prisoners, the Aquino administration is only replicating the same pronouncements of the Marcos dictatorship which started the practice of rounding up and detaining government protesters.
As of November 2014, there are 491 political prisoners in the Philippines, 220 of them were arrested during the current regime. There are 43 female political prisoners, 53 are ailing, 42 are elderly, and six are minors.
By releasing all political prisoners, the government will acknowledge that they are not the enemy of the people but the plunderers and those who perpetuate violations of human rights. These are the true enemies of the people who should be jailed.
Lastly, establish a genuine Truth and Reconciliation Commission that will be tasked with the final investigation of all past political crimes committed by the state, including illegal imprisonment of those who criticize the government, extrajudicial executions and disappearances. The late President Corazon Aquino decided not to establish such commission after Ferdinand Marcos was deposed apparently because of pressure from the military which was responsible for most of the atrocities and violence committed by the Marcos regime. Most countries who wanted to break from the past like South Africa, Chile, Argentina and others have gone this route and benefitted immensely from the findings and recommendations of such commissions.
But we are not talking of a fact-finding body such as the Philippines Truth Commission that was established by Noynoy Aquino upon his ascendancy to the presidency in 2010. Such commission was invalidated by the Supreme Court for violating the equal protection clause for singling out the Arroyo administration. That commission was tagged by the court as vindictive and focused on selective retribution. 
Picking up on the Chief Justice’s suggestion of promoting a counter-culture, which she did not define, to the culture of impunity, the words of the Nobel laureate, Elie Wiesel, seem apt for us to take to heart: “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”