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 Detainee Deaths at Guantanamo
Full knowledge of detainee deaths isn't known, including their number and causes. Alston cites five reported, four called suicides, the other attributed to cancer. Custodial powers are required "to ensure and respect the right to life." As such, they bear responsibility for detainee deaths and are obligated to investigate and publicly report their findings and whatever evidence supports them. So far, DOD has stonewalled all efforts to comply, except to release redacted autopsy and other internal investigation reports. Lack of Transparency Regarding Civilian Casualties DOD officials told Alston that it doesn't compile data on Afghan or Iraqi civilian casualties because body counts don't relate to the effectiveness or legality of military operations. Yet doing it is important to judge if America is serious about avoiding them altogether and keeping them to a minimum when they happen. No evidence suggests that's so. Private Contractors Credible reports indicate that private security and other contractors engage in indiscriminate and otherwise questionable force against civilians, causing numerous casualties that may number in the thousands. Little of this gets reported and transparency overall is lacking. "The most comprehensive study to date found that few firms ever report shooting incidents, that such incidents are often misreported, and that SIRs (serious incident reports) that are filed are almost uniformly cursory and uninformative." As a result, private contractors get away with murder because no authority holds them accountable. Civilian Intelligence Agencies What's true for contractors, applies to the CIA as well with credible reports of at least five custodial deaths from torture or other means. Claimed investigations were conducted. CIA involvement was never confirmed or denied. Its Inspector General told Alston that cases involving possible unlawful killings are classified, and no one so far has been prosecuted nor will they as Obama ruled out the possibility. Transparency and Accountability for Unlawful Killings and Custodial Deaths Failure to assure transparency and "effective investigations into, and meaningful prosecution of, wrongful deaths means the (US) Government cannot fulfill its obligation to ensure accountability for violations of the right to life." Military Justice System Failures In Afghanistan, Alston witnessed a lack of transparency first hand and the Government's unwillingness to be held accountable for illegal conduct. Most often investigations are quashed or inadequately done. Moreover, they're never against senior officers, and light sentences are administered to the few convicted. America fails in its "legal obligation to effectively punish violations (or observe) the rule of law," as vital in war as in peace. One study "of almost 100 detainee deaths in US custody between August 2002 and February 2006 found that investigations were fundamentally flawed." They also violated the military's own regulations for investigations, and resulted in "impunity and a lack of transparency into the policies and practices that may have contributed to the deaths." Chief Warrant Officer Lewis E. Welshofer Jr.'s sentencing is typical of others. After being convicted of negligent homicide and dereliction of duty for the death of Iraqi Major General Abedd Hamed Mowhoush, he was confined to base for two months, fined $6000, and reprimanded by letter. Welshofer's "sentence is not an anomaly." Notable in all cases is that "command responsibility," the recognized basis for criminal liability since WW II, is absent from the Uniform Code of Military Justice (UCMJ) and US War Crimes Act. It means commanders go unprosecuted and accountability is undermined. Civilian Justice System Failures "For far too long, there has been a zone of de facto impunity for killings by private contractors (PCs) and civilian intelligence agents operating in Iraq, Afghanistan, and elsewhere." It's not for lack of an applicable legal framework. It's because "US prosecutors have failed to use the laws on the books to investigate and prosecute PCs and civilian agents for wrongful deaths," some of which occur from torture, abuse as well as willful homicides. The DOJ has prosecutorial authority over PCs, civilian government employees, and former military personnel suspected of war crimes under two of its operations: -- the US Attorney's Office for the Eastern District of Virginia for detainee abuse cases; and
-- the Domestic Security Section (DSS) of DOJ's Criminal Division for unlawful shootings committed while protecting convoys. Ensuring Transparency and Accountability It's only possible through the "will to enforce the rule of law," yet Alston's conclusion is that outcome is highly unlikely. "In short, war crimes prosecutions in particular are 'politically radioactive' " and won't happen. However, there are other steps the government can take to increase transparency and accountability: -- create a national "commission of inquiry" to conduct independent investigations of policies and practices causing deaths and other abuses; and
-- appoint an independent special prosecutor, free from institutional or political pressures to the greatest degree possible. "The most credible response to the military justice system's investigative failure and sentencing distortions would be the creation of a Director of Military Prosecutions (DMP) position" - much like in Australia, Canada, Ireland, New Zealand, and the UK "to ensure greater separation between the chain of command and the prosecution function." The DOJ should also establish a special office solely to investigate and prosecute cases involving PCs, civilian government employees, and former military personnel. Reparations for Civilian Casualties International law mandates that compensation for human rights violations be paid, and in some instances to families it has been. But it's much too little for the families of too few victims. The Foreign Claims Act requires payment of legal claims arising from negligent or wrongful deaths caused by military personnel outside of combat. Other programs also exist, including the Commander's Emergency Response Program (CERP) for "condolence payments" and in Afghanistan authorization of "solatia payments." However, these are ad hoc efforts, and the "lack of systematic compensation for civilian casualties caused by private contractors is acute." As their employer, the government bears ultimate responsibility but shuns it. Targeted Killings: Lack of Transparency Regarding the Legal Framework and Targeting Choices Credible evidence shows America engages in targeted killings on the territory of other states, and senior officials admit using drones for this purpose. Yet when queried, answers are evasive, not forthcoming, and disturbing justifications are given that violate the letter and spirit of international law. Recommendations - For Domestic Issues -- enforce due process and fairness in death penalty cases;
-- reform the system of partisan elected judges;
-- public defenders should be competent, well funded, and oversight of this function should be independent of the executive and judicial branches;
-- commissions should be established to review cases of wrongful convictions - discovered through subsequent exonerations;
-- ways the death penalty is administered and implemented should be evaluated and changed;
-- racial disparities in death penalty impositions need to be addressed and corrected;
-- congressional legislation should let federal courts review death penalty cases on their merits;
-- capital punishment should be used sparingly and only for the most serious crimes of willful killings; (ideally, it should be banned entirely as no civil society worthy of the name has the right to claim an eye for an eye);
-- foreign nationals should have their executions stayed until proper consular reviews and reconsiderations are conducted;
-- immigration detention deaths should be promptly reported and investigated; and
-- Homeland Security should assure proper medical and other essential care is provided, consistent with international standards. The Military Commissions Act violates international laws and shouldn't be used for capital case prosecutions. Ones conducted should assure due process according to international human rights and humanitarian law requirements. International Operations -- civilian casualties should be tracked and publicly disclosed;
-- the DOD should ensure military justice transparency by establishing a central office of "registry" to track cases from investigation through final disposition and should include upcoming hearings, investigative findings, rulings, pleadings, testimony transcripts, and other pertinent materials;
-- comprehensive criminal jurisdiction over armed conflict offenses should be ensured and "command responsibility" should be codified in the Uniform Code of Military Justice (UCMJ) and War Crimes Act;
-- federal legislation should be enacted to provide criminal jurisdiction over private contractors and civilian employees, including the CIA and other intelligence branches;
-- an independent commission of inquiry and special prosecutor should be established to investigate practices causing deaths and other abuses; also a Director of Military Prosecutions to hold everyone throughout the chain of command responsible for their alleged crimes;
-- an office to investigate and prosecute private contractors, civilian government employees, and former military personnel should be created within the DOJ;
-- enhanced reparations programs should be established to provide adequate compensation to families of those wrongfully killed;
-- targeted killings must stop; reasons for them in lieu of capture should be explained and whether states in which they occur gave consent; specifically, international laws must be scrupulously enforced; and
-- collaterally killed civilian numbers should be disclosed, by drones or other attacks, and measures should be in place to avoid them or hold them to a minimum. Acting deputy at the US mission in Geneva, Larry Richter, said: "We do not believe that military and intelligence operations during armed conflict fall within the special rapporteur's mandate." Much more important is his lack of power to act on the crimes he discovered. Still he deserves credit for revealing what US authorities try hard to suppress and ignore.
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Stephen Lendman, a contributing editor to MWC News, is a Research Associate of the Centre for Research on Globalization. He lives in Chicago and can be reached at lendmanstephen[at]sbcglobal.net.
Also listen to The Global Research News Hour on RepublicBroadcasting.org Monday through Friday at 10AM US Central time for cutting-edge discussions with distinguished guests on world and national issues. All programs are archived for easy listening.
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