"Is waterboarding torture?"

Great journalism by Shep Smith of Fox News as he tries to get a straight answer from Rep. Hoekstra on waterboarding.

Military Tribunals for Guantanamo Detainees

President Obama has decided to reinstate military tribunals for Guantanamo detainees.

Two senior administration officials outlined several of the rules changes, which will be carried out by executive authority, to The Associated Press on Thursday night. They include:

_Restrictions on hearsay evidence that can be used in court against the detainees.

_A ban on all evidence obtained through cruel, inhuman or degrading treatment. This would include statements given from detainees who were subjected to waterboarding, a form of simulated drowning.

_Giving detainees greater leeway in choosing their own military counsel.

_Protecting detainees who refuse to testify from legal sanctions or other court prejudices.

The White House may seek additional changes to the military commissions law over the next 120 days, but it was not immediately clear Thursday what they could include.

The return of the tribunals is troubling from a human rights perspective because of the due process concerns they create.

"It's disappointing that Obama is seeking to revive rather than end this failed experiment," said Jonathan Hafetz, a national security attorney at the American Civil Liberties Union. "There's no detainee at Guantanamo who cannot be tried and shouldn't be tried in the regular federal courts system. Even with the proposed modifications, this will not cure the commissions or provide them with legitimacy. This is perpetuating the Bush administration's misguided detention policy."

Critics of the Guantanamo commissions, including Obama as a senator in 2006, called them a violation of U.S. law because of the limits on detainees' legal rights. Pushed by President George W. Bush, Congress created the current tribunal system in 2006 after scrapping an earlier version that gave detainees additional rights.

Obama voted for the earlier version of the tribunals plan that also had the support of four moderate Republicans on the Senate Armed Services Committee. But he opposed the system that Congress ultimately approved, calling it "sloppy."

"We have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court," Obama said in a Sept. 28, 2006, speech on the Senate floor. "This is not how a serious administration would approach the problem of terrorism."

Later, on the presidential campaign trail in February 2008, Obama described the Guantanamo trials as "a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges."

Marc Ambinder makes a useful point.

This point has been overlooked in the first round of coverage about President Obama's decision to use military commission tribunals for some of the Gitmo detainees: according to an administration official, most of the remaining 241 detainees will be afforded Article III trials -- that is, fully-fledged, regular trials, unless they're released without trial. Some of them might be shunted to a newly-created national security court, if the administration and Congress team up to create one. The remaining detainees -- presumably dangerous folks who the administration wants to detain but who haven't had the right type of evidence accumulated against them -- will be tried by the military. The AP says about 20 military commissions will be held.

On first read, then, the military commissions are being used as a way to justify indefinite detention -- to create a means through which habeas corpus rights for these prisoners can be exercised (but not fully granted) and then exhausted.

One question: it's totally true that the criminality, so to speak, of the Gitmo detainees ranges from innocent to murderous. Where does the administration draw the lines -- release, Article III, commission -- and in doing so, do the lines appear capricious enough to provoke the ire of the regular judicial system and Congress?

Pfizer Settles Medical Experimentation Case in Nigeria

The state of Kano in Nigeria agreed to settle a lawsuit against Pfizer over a meningitis drug study for $75 million. In the study, Pfizer treated 100 children with meningitis with the experimental antibiotic Trovan. A control group of 100 other children, was treated with an FDA-approved antibiotic, ceftriaxone. However, the families allege that the dose was lower than recommended in order to inflate the apparent effectiveness of Tovan. Eleven children in the study died and others were left with brain damage, paralysis and slurred speech. According to Pfizer, these effects are known to be after-effects of meningitis and the children who received Trovan had a better survival rate than those on ceftriaxone. The families were allegedly not told about the nature of the experiment or about the possible side effects of Trovan.

This case was recently before the Second Circuit Court of Appeals in the US. Eighty-eight Nigerian families brought suit under the Alien Tort Statute (ATS). The statute allows non-US citizens to bring lawsuits for certain violations of international law. It has been used to successfully bring lawsuits or in settlement against other corporations, including Chevron, Unocal and Yahoo! (A previous post discussed an Alien Tort Statute case against Royal Dutch Shell for alleged complicity in human rights abuses by the Nigerian military.)

The majority of the Second Circuit panel decided that claims for non-consensual medical experimentation can be brought under the ATS. However, the court did not review the lower courts decision to dismiss the case on the ground of "forum non conveniens," meaning that there is a more appropriate forum.

In 89 pages containing numerous barbed comments, the 2nd U.S. Circuit Court of Appeals majority and dissent differed over whether the families' claims that their children had been subjected to medical experimentation without their consent fell within the 18th-century law.

In concluding that the law embraces claims of unconsented medical experimentation, Judge Barrington D. Parker wrote for the majority that the dissent took an approach to "customary" international law that is "unselfconsciously reactionary and static."

In dissent, Judge Richard C. Wesley described the majority as creating a new norm "out of whole cloth" upon the basis of "materials inadequate to the task."

US Elected to the UN Human Rights Council

On Tuesday, the United States won election to the UN Human Rights Council. The Obama Administration ended the US policy of boycotting it. (Previous posts on criticism of the Human rights Council are here and here.)

U.S. Ambassador Susan Rice said Washington still believed the body was flawed, but added: "We are looking forward to working from within with a broad cross-section of member states to strengthen and reform the Human Rights Council."

Hillel Neuer of Geneva-based group UN Watch said the presence of China, Cuba, Russia and Saudi Arabia on the council would result in "the foxes guarding the chickens." He said the council's credibility was at stake over its failure to hold an emergency session over the bloody fighting in Sri Lanka.

Steve Crawshaw of New York-based Human Rights Watch welcomed U.S. council membership but criticized its uncontested election. "The message that was understood around the world ... (was) that somehow elections without competition make sense," he said.

"The Tiananmen Legacy"

In anticipation of the 20th anniversary of the Tiananmen Square massacre, Human Rights Watch has released "The Tiananmen Legacy" on ongoing persecution and censorship in China. The related video is below.

The government's ongoing efforts to censor history, crush dissent, and harass survivors stands in stark contrast to the impressive economic and social developments in China in recent decades. The Chinese government should recognize that 20 years of denial and repression have only caused the wounds of Tiananmen to fester, not heal.

Sophie Richardson, Asia advocacy director at Human Rights Watch.

(An earlier post, on the memoirs of a Chinese official who was involved in discussions about the crackdown on demonstrators, is here.)

Thousand Flee War Zone in Sri Lanka

Under fire from the Tamil Tigers, over two thousand civilians waded across a lagoon in Sri Lanka to escape the war zone. At least 4 civilians have been killed and 14 have been wounded. The map shows the war zone, located on a thin strip of land between the lagoon and the ocean.

Tiananmen Memoirs Published

Just before the 20th anniversary of the massacre at Tiananmen Square, the memoirs of General Secretary Zhao Ziyang have been published in English in Hong Kong. Zhao was opposed to the brutal crackdown on demonstrators and after the massacre, he was fired and placed under house arrest until his death in 2005. The memoirs detail the discussions that took place within the party before the massacre.

Those that have seen the book said Mr Zhao denounced the killing of protesters on 3-4 June 1989 as a "tragedy".

"On the night of 3 June, while sitting in the courtyard with my family, I heard intense gunfire. A tragedy to shock the world had not been averted," he said, according to Reuters news agency.

In the book Mr Zhao, who wanted China to embark on far-reaching political reforms, praised Western-style democracy.

"If we don't move toward this goal, it will be impossible to resolve the abnormal conditions in China's market economy," he wrote.

Mr Zhao's former secretary, Bao Tong, said he was behind the scheme to publish his former boss's memoirs.

Mr Bao spent seven years in prison because of his involvement in the Tiananmen incident and is still under house arrest in Beijing.

"I planned both the Chinese and English versions of the book," he told the BBC.

"If China's legal bodies want to find someone responsible, they ought to come after me."

Suu Kyi of Burma Taken to Prison

Pro-democracy leader Aung San Suu Kyi has been taken to jail and will be tried for violating the conditions of her house arrest. An American man swam across a lake to visit her in her home; he faces charges as well.

BBC has a short profile with background on Ms. Suu Kyi. (The image above is from the profile.)

Torture and the Rule of Law

Slate's Dahlia Lithwick has a great summary and analysis of yesterday's torture hearings from a legal perspective. Some excerpts:

[South Carolina Senator Lindsey] Graham dismisses today's hearing as a "political stunt" because "we would not be having this hearing if we were attacked this afternoon." What this really means is that for all his talk of legality and law and the rule of law, in his view the law means one thing "in the quiet peace of the moment" and something entirely different in the immediate aftermath of a terrorism strike. It's sort of like a national Twinkie defense, but Graham is willing to strap a saddle onto that Twinkie today and ride … and ride and ride.

Former State Department counselor Philip Zelikow is also thinking about how we will all go crazy after the next terror strike when he testifies: "We could be hit again and hit hard. But our decision to respect basic international standards does not appear to be a big hindrance in this fight. ... Others may disagree. They may believe ... that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government, and the country, needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong."

Demjanjuk Deemed "Fit to Stay in Jail'

John Demjanjuk, the retired US autoworker and accused Nazi guard was deported to Germany to stand trial. (A previous post is here.) Germany doctors determined that he is fit to remain in custody until trial.

He is being kept under medical observation to allow experts to determine whether he is fit to go to trial - an assessment which may take weeks.

But deputy prison director Jochen Menzel said Mr Demjanjuk was in strikingly good condition.

"He is not typical for his age... he is in better shape than usual for an 89-year-old," he told German news channel N24.