The Bush-Cheney administration is engaged in secret talks with their Iraqi counterparts to craft a binding executive agreement renewing current US military and detention policies when the United Nations authorization expires this December. The "status of forces" proposal is bogged down in disputes between the Pentagon and key Iraqi factions, and faces potential sharp questions in the US Congress in the coming weeks.
Assuming the administration has its way, which is by no means certain, the agreement between the two executive branches will preserve the right of US forces to initiate unilateral military action and continue rounding up tens of thousands of Iraqis in abusive preventive detention facilities where human rights are violated routinely.
Senators including Hillary Clinton and Barack Obama oppose any such bilateral executive agreement without Senate hearings and concurrence. House critics like Rep. Bill Delahunt and Jim McGovern already are engaged in hearings on the proposed agreement. House Judiciary Chair John Conyers also has questioned the constitutionality of the measure.
At stake for the anti-war movement and the progressive blogosphere is whether the current administration can bind the next president to its current Iraq policies.
In a June 13 letter to the United Nations Security Council, Human Rights Watch [HRW] called for a rejection of the American rationale for preventive detention. In legal terms, the US currently claims the right of internment "for imperative reasons of security." But with the declared end of "belligerent occupation" in 2004, HRW argues, the Iraq war is a conflict where Article 3 of the Geneva convention and the International Covenant on Civil and Political Rights should apply to the treatment of all detainees and prisoners. Those protocols require that "all persons arrested be brought promptly before a judge; have access to legal counsel and family members; be charged with a cognizable criminal offense and receive a prompt fair trial meeting international fair trial standards." Those standards are systematically violated in Iraq [and Afghanistan] where as many as 100,000 detainees are held without charges, without lawyers, and without an independent judicial process, in life-threatening conditions. American taxpayers spent more than $20 billion during the past five years supporting the repressive Iraqi police and prison apparatus.
In careful language, the HRW letter goes on to "recognize the problem of torture and other mistreatment in Iraqi detention facilities. International law prohibits the transfer of individuals to the custody of a state where there are substantial grounds for believing they are in danger of being tortured." That's the prohibition which the proposed "status of forces" agreement attempts to circumvent.
Whether HRW can achieve enforcement of the Geneva Conventions in Iraq and Afghanistan is doubtful since their appeals are to the very authorities who installed the sectarian, Shi'a-controlled governing coalition in Baghdad complete with brutal militias and secret prisons. The complicity of the US was revealed in a 2004 article by a top counterinsurgency adviser to the US Command urging a "global Phoenix program" as the solution to global jihad. First implemented in South Vietnam, that is the program now being carried out in Baghdad with little questioning by the American media.
The UN Security Counsel is unlikely to intervene on its own against the proposed "status of forces" language. But increased rumblings in the Iraqi parliament and the US Congress, under pressure from human rights, clergy and anti-war groups, could become a tipping point revealing the heart of darkness the Iraqi and Afghani gulags have become.
US law [the Leahy Amendment, 1997] already prohibits any assistance to military or police entities known to be human rights violators. Key Congressional staff are preparing official letters inquiring why the Leahy Amendment doesn't apply to Iraq. The Center for American Progress and the recently-formed Campaign Against Torture in Iraq and Afghanistan have demanded the Leahy Amendment be implemented.
That would undermine the remaining authority of the al-Maliki regime in Baghdad and, by threatening to de-fund official repression, force an ultimate choice on Baghdad and Washington. Ending preventive detention policies, holding provincial elections as promised, while keeping US troops in a holding pattern, might well bring about a legitimate Iraqi government that would insist on a timetable for US withdrawal. It may be that or a new generation of suicide bombers born in detention camps.
Tom Hayden is the author of Ending the War in Iraq [2007]. For more information, go to www.stopfundingtorture.com