As named below, UN Special Rapporteur Fionnuala Ní Aoláin is also a University of Minnesota Law Professor and the Director of the Law School’s Human Rights Center. I was introduced to David Weissbrodt, the previous and founding Director of the HR Center, before assuming my duties as Military Commission (Guantanamo) Defense Attorney. He then assisted me and other defense attorneys in our representation, and his book on “Fair Trial Rights” taught me much of what I know about International Law and International Human Rights Law. When I retired from the Army in November 2012 one year after mandatory retirement age, I returned to MN and David asked, and appointed, me to serve as a Senior Fellow with the HR Center. Which I remain as, with my role continuing Guantanamo representation as an Appellate Attorney mostly before the D.C. Appellate Court.
Consequently, I know Prof. Ní Aoláin and applaud her for her honest report. Last year I audited a law school class of hers and will again this Fall as meeting my Continuing Legal Education requirements. She’s tremendously knowledgeable about “war,” having visited and studied many of the European battlefields from a young age with her father.
As Defense Attorney, the issue of who we appear in front of and what possible arguments may appeal to the Judges hearing the case are relevant. Which goes to the “legal/political theory” which guides them in their decision making. In addition, just the question of why the US so readily abandoned the Rule of Law and Constitutional Law, and turned to torture so immediately and readily upon 9/11 was and remains a research question of abiding interest to me. Call it “militarism” if you want, or equally correct, call it “fascism,” but when the “genealogy” of this “Operating Code,” (political theory) of the U.S. National Security State is researched, it leads directly back to the ideas formulated as the euphemistically named “Conservative Movement” by its CIA founders. And its primary ideologists beginning with Joe McCarthy and his “ideological support network,” of Willmoore Kendall guiding and editing Bill Buckley and Brent Bozell in their apologia for McCarthy. Which contrary to “Myth,” was aimed more at “Liberals” as the “Enemy,” rather than Communists, by the aforesaid “Conservatives” whom Peter Viereck correctly noted were "anti-traditional, rootless revolutionaries of Europe’s authoritarian right wing, attacking the deep-rooted American tradition of liberal-conservative synthesis. Conservative authority, yes; right-wing authoritarianism, no." Or, as he also correctly frames them: “right-wing thought controllers.” The “evolution” of this line of thought led directly to "right-wing authoritarianism,” with the two principal ideologists of it, former CIA Influence Operations specialists Willmoore Kendall and James Burnham, correctly seen as precursors to Trump. And DeSantis, I would add.
Which fully explains why both “theorists” are so zealously promoted here by Trump’s (and now DeSantis') most zealous booster here, Tom Pauken. But as a one-time conservative, whose scales began falling from my eyes beginning with the Gulf War and the end of the Cold War so that by 9/11, my Conservative acquaintance’s, civilians and military, support for the "War,” and as much or more so, for “torture,” came as no surprise to me. With the “anti-Imperialist” Pat Buchanan fully, and enthusiastically, onboard for torture as well! And the only Republican speaking out against it being Ron Paul, who made a mockery of himself with his perverse “Oligarchy-building economics” so that he could readily be dismissed as a crank with no credibility. With his fellow Republicans all jeering him in debate, telling all you need to know about his fellow Republicans!
That is one reason why I am so virulently opposed to “right-wing thought controllers” of today (to include those Democrats substantively allied with Graham, Cotton, et al.), who replicate the Conservative Movement’s founder's hostility to the Bill of Rights. Call them neoconservative, or conservative, but when 9/11 happened, all the "cons” went in for “unleashing” the National Security State, with the sole exception of The American Conservative magazine’s founders, which lasted only until Trumpism/National Conservatism took hold, and their Straussian editors began touting Steve Bannon and his geopolitical theory of capturing Eurasia, which was gradually became “mainstream,” with TAC as they joined forces with Straussian politicians like Josh Hawley to clamor for war with China.
But “Conservative” jurisprudence was fully on display at the “Heritage Foundation,” which led the charge against the Rule of Law and the U.S. Constitution, when Judge Randolph declared he would never uphold a habeas corpus release Order for Guantanamo prisoners, to resounding cheers from the almost 100% Conservative audience (-3). Tom Pauken since clued me in on the “Origin” of such anti-American jurisprudence by so favorably promoting to me Willmoore Kendall as anti-Constitutional legal theorist :-)
https://www.lawfaremedia.org/article/thoughts-judge-randolphs-speech
But compare Prof. Ní Aoláin’s tour of Guantanamo as someone with respect for the Rule of Law, with the Heritage Foundation’s outright lies about it:
On Jul 5, 2023, at 6:01 AM, Seymour Hersh <seymourhersh@substack.com> wrote:
Open in app or online
Prisoners at Guantánamo Bay, January 11, 2002. / Shane T. McCoy/US Navy. Now comes yet another little-noted report on the continuing excesses and inhumanity at Guantánamo Bay, the post-9/11 American military prison that only two decades ago set the standard for war crimes—a standard that is now being eclipsed by the war in Ukraine.
The report’s author is Fionnuala D. Ní Aoláin, the United Nations special rapporteur on the promotion and protection of human rights while countering terrorism, a law professor at the University of Minnesota and the Queens University in Belfast, and an experienced human rights investigator. She based her report on a four-day visit to the island prison last February. She was given extraordinary access to the thirty-four prisoners who then remained in captivity, most of whom have been found guilty of nothing more than being in the wrong place in Afghanistan at the wrong time. Thirty prisoners remain in Guantánamo today, sixteen of whom have been cleared for release.
Ní Aoláin is a brilliant observer. She is the first UN official ever to be allowed to visit the prison. She acknowledges that the basic living conditions of the remaining prisoners have been much improved in the recent years as the population of detainees dwindled, but those improvements, she writes, are offset for those still jailed by the “cumulative effects of past rendition, disappearance, incommunicado detention, systematic torture and ill treatment, and continued detention,” which “have had severe and long-term psychological and physical consequences.” She is especially critical, as were past observers, of what she found to be “serious structural and institutional deficiencies in present care.” She links those concerns with her unique observation that the medical and psychiatric care available “may trigger for some detainees previous experiences of torture, cruel, inhuman, and degrading treatment.” She noted that the US government’s “failure to provide such care exacerbates the impact of the horrific treatment or punishment they previously suffered and prolongs the consequences.”
In her conclusion, Ní Aoláin writes that every current or prior prisoner she met with speaks bitterly of the public perception that they are “the worst of the worst,” despite the fact that most of them have never “been charged, let alone convicted of a single crime.” She adds: “None of the former detainees have been compensated by the US Government for the systematic crimes of extraordinary rendition, torture, cruel, inhuman, and degrading treatment, and arbitrary detention.”
Her comprehensive report made little news in America, aside from a summary by reporter Carol Rosenberg of the New York Times, who has made Guantánamo and its excesses her beat, and an Associated Press report that ran in the Miami Herald. I was unable to reach Ní Aoláin, who is now on a month-long assignment, but last week she gave a brief interview to PBS NewsHour. Asked why she believed the US government “should apologize to the detainees responsible for the deadliest attack in US history,” she answered: “Those who tortured [at Guantánamo and elsewhere] betrayed the rights of victims, because they ensured you couldn’t have a fair trial. . . . In fact, victims of terrorism are due an apology for torture because it was the very torture that was done, sometimes in their name, that has prevented them from actually ensuring the fulfillment of their rights.
“Let me be clear. Torture is the most egregious and heinous of crimes. Even in situations of war we don’t accept that people can torture. We say this to Russia. We say it to China. We say it to many, many countries across the globe. . . . You are not allowed to torture.”
The Biden administration, obviously aware that Americans by and large care little about Guantánamo and the souls who have been wrongfully imprisoned there, left the response to UN Ambassador Michèle Taylor. Her reply to the report essentially said Ní Aoláin had it all wrong. “We are committed to providing safe and humane treatment for detainees … in full accordance with international and US domestic law. Detainees live communally and prepare meals together; receive specialized medical and psychiatric care; are given full access to legal counsel; and communicate regularly with family members.”
President Biden issued a statement last month declaring his administration's opposition to “all forms of inhumane treatment” and its commitment to “eliminating torture and assisting torture survivors as they heal and in their quests for justice.” He cited abuses by the Russian military in Ukraine and inside Russia itself, the government of Bashar al-Assad in Syria, and credible reports of “cruel, inhumane, and degrading punishment” by the North Korean government.
There is an account in Ní Aoláin’s report that depicts for me the senseless horror of Guantánamo, past and present, most vividly. Look again at the photo at the top of this article. It foretold the coming inhumanity for the early wave of alleged Al Qaeda terrorists. Many of those prisoners, as we now know, were grabbed in Afghanistan by CIA officers and Special Forces troops out of American anger and fear in the aftermath of 9/11. Some were bought from local captors for fees ranging up to many thousands of dollars. Evidence of guilt was not a requirement in those early days.
Here is Ní Aoláin’s angry account—written in the third person; she is “the SR”—of how America flew those prisoners cleared for release in recent years to their new home countries:
The SR is profoundly concerned that men cleared for transfer, against whom no crime has been charged and who are security cleared, continue to be shackled, blindfolded, and have their sensory organs covered up during long airplane transports. The SR was informed that during transfer from the detention facility to the aircraft, the detainee’s hands and legs are restrained to ensure the safety of both US Government personnel and the detainee. Once a detainee is transferred to the custody of the US Air Force Air Mobility Command Detainee Movement Team, the team determines the restraints required for safety purposes. The SR finds such restraints and travel to be traumatic and retraumatizing and engages both inhuman and degrading treatment. She is further concerned that the Detainee Movement Team may be ill-prepared to tailor their treatment of the men in full respect of their human rights. She underscores that the very fact of the detainee's transfer indicates the security of their release. She finds the current modalities of travel constitute inhuman and degrading treatment under international law and are unjustified given the status of individuals who have been released following long-term arbitrary detention, many for over two decades. Although she was informed that all detainee transfers are accompanied by a medical team and that detainees are free to use the restroom onboard and eat prepared meals absent a security risk, she expresses serious concern, that several former detainees with whom she spoke were not given such liberties during flight, opening the door to further human rights abuse.
Ní Aoláin was assured that the freed prisoners would have access to US embassies and consulates in the countries to which they were deported, and that American officials would check on their status in their new communities. In practice, she writes, the freed prisoners were unable to make contact with any American diplomats and she knew of one case in which a former prisoner was held in “incommunicado detention” by his host country for attempting to reach an American diplomat. It was even worse in two other host countries, where the returned prisoners were put under house arrest and in one case even tortured.
All in all, as the UN’s special rapporteur did not say, it could not be worse for those souls if they were found not guilty of wrongdoing and cast into hell for the rest of their days.
