William Fisher: Defending the Indefensible

After years of ignoring the United Nations panel charged with oversight of the Convention Against Torture (CAT) - a centerpiece of international human rights law - the US government turned up at a meeting of the group in Geneva with a delegation of more than two dozen lawyers and other officials to affirm that the US is "absolutely committed to uphold its national and international obligations to eradicate torture" and that "there are no exceptions to this prohibition."

That's what I call chutzpah!

The government's theory must be that the more lawyers you bring to Geneva, the easier it will be to bob and weave your way around those pesky questions people keep asking about Abu Ghraib, Bagram, Guantanamo, renditions and secret prisons in Eastern Europe.

Especially if your delegation doesn't include anyone from the CIA.

Heading this delegation of representatives from the departments of State, Defense, Justice and Homeland Security, is State Department legal adviser John B. Bellinger III.

With an absolutely straight face, Bellinger told the Committee Against Torture that despite instances of abuse in Afghanistan, Iraq and Guantánamo Bay, Cuba, the US has not systematically mistreated prisoners and remained committed to a global ban on torture.

But members of the panel referred to a report by investigators for the European Parliament who said last month they had evidence that the CIA had flown 1,000 undeclared flights over Europe since 2001, in some cases transporting terrorist suspects abducted within the European Union to countries known to use torture.

Bellinger said he could not answer questions about intelligence-related activities, but asserted that the allegation that those planes carried terror suspects was an "absurd insinuation."

He added that in cases where the government has "rendered" prisoners to countries with poor human rights records, it has sought assurances that they will not be tortured.

But the panel wasn't buying the "diplomatic assurances" argument. "The very fact that you are asking for diplomatic assurances means you are in doubt," said Andreas Mavrommatis, chairman of the committee.

The "diplomatic assurances" charade has been known - and discredited - for years. But "rendition" is a policy the administration defends, saying it helps to get dangerous individuals out of the US.

In one of the better-publicized cases of "rendition," Maher Arar, a Syrian-born Canadian citizen, was detained by US authorities after arriving at John F. Kennedy International Airport from a vacation in North Africa. Instead of being allowed to continue his journey to Canada, he was detained by US officials, then shipped off to Syria, where he was imprisoned for a year and tortured. He tried to sue the US government, but his suit was dismissed because the Justice Department argued that trial would involve divulging "state secrets" in open court.

In another "rendition" case, a German citizen, Khaled el-Masri, was abducted while on vacation in Macedonia in December 2003 and flown to Afghanistan, where he remained in jail without charge until late May 2004, when he was taken to a deserted country road and set free. He too has brought suit against the US government.

Bellinger also defended the US decision not to grant prisoners held in Guantánamo Bay, Afghanistan, and Iraq rights under the Geneva Conventions.

Terrorist suspects could pose a threat to security if allowed to meet with representatives of the International Committee of the Red Cross, as stipulated by the Geneva Conventions, he said.

The rationale of such a security threat has clearly been applied by the Bush administration to the alleged key figures in the terrorist attacks of September 11, 2001 - Khalid Sheikh Mohammed and Abu Zubeida. These men are being held in undisclosed locations without access to the Red Cross or to legal counsel, and have reportedly been subjected to "aggressive interrogation" techniques such as "waterboarding," in which the prisoner is led to believe he is drowning. And at Guantanamo Bay, Cuba, the government has Mohamed al-Qahtani, who it now claims is the real would-be 20th hijacker.

Many legal experts believe that US treatment of these suspects is the principal reason they will never be tried in a court of law, civilian or military. It is unlikely that either would admit evidence obtained through torture.

That's one reason the Justice Department made such a big deal of the trial, conviction and sentencing of Zacarias Moussaoui, who was clearly a bit player in al-Qaeda who had nothing to do with the 9/11 attacks. He was found guilty of conspiracy and of lying to the FBI, thereby preventing the government from taking actions to prevent the 9/11 attacks. The government sought the death penalty, but the jury sentenced him to life in prison without the possibility of release.

Meanwhile, back in Geneva, attorney Bellinger offered a self-congratulatory tribute to US commitment to the rule of law. "The timing of our report comes at a difficult time for the United States," he said. "But we did not shy away from coming."

Members of the panel were clearly unimpressed. Some expressed skepticism about aspects of the American presentation. For example, Fernando Mariño Menendez of Spain cited data from human rights groups saying that of 600 American service members or intelligence officers accused of having been involved in the torture or murder of detainees, only 10 have received prison terms of a year or more.

Addressing reporters after the hearing concluded, Bellinger said that provisions in the torture convention that prohibit transferring detainees to countries where they could be tortured do not apply to detainee "transfers that take place outside of the United States." He added, however, that the US has "as a policy matter, applied exactly the same standards" to such transfers.

Members of the US delegation also emphasized that there have been "relatively few actual cases of abuse" of terror detainees, and Bellinger said that some allegations have been widely exaggerated.

Deputy US Assistant Defense Secretary Charles Stimson told the UN panel that of the 120 detainee deaths that have occurred in Afghanistan and Iraq, abuse was suspected in only 29 cases. He said that the deaths had been investigated and appropriate action taken. Stimson also said that no detainees have died at Guantanamo Bay.

For years, Bush administration officials have argued that international human rights laws should not constrain the conduct of United States forces. By sending its oversized delegation to Geneva, the administration is belatedly seeking to restore credibility to its record on prisoner treatment by affirming support for the CAT.

But pulling off that sleight of hand is going to take a lot more than a couple of dozen lawyers turning up in Geneva.

They could start by including a CIA representative in our next delegation to Geneva.

Then President Bush could rescind the "signing statement" he attached to the McCain anti-torture legislation, effectively giving himself the right to ignore the law whenever he says it's in the interest of national security.

That's known as Dubya's Rule of Law.

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.

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