• Who Else Is Wrongly Detained?

    August 8, 2022 // 4 Comments »

    The rule is simple: abroad, Americans are subject to the host country’s laws and legal system, whether that be Great Britain or Russia. The Bill of Rights does not follow Americans to foreign countries, nor will the U.S. government intervene with the host country on their behalf. Try and bring some weed into Japan and if you’re caught, you’re looking at years behind bars. No matter what you were carrying would clearly be seen as a small amount for personal use back home, in Japan anything over about an ounce means you intended to sell it, and the punishment is lengthy accordingly. I should know; I spent seven years in Japan visiting American prisoners as part of my State Department job there. The top three reasons for their arrest were drugs, drugs, and drugs. Just like Stephanie Griner. I was not allowed to help you get out, or advocate for a shorter sentence.

    The only exception was if you were “wrongly detained,” a new category that allows the U.S. government to actively help free those designated. It is up to the Secretary of State to make the call, as there are no set criteria. Even the total number of American so designated is murky, somewhere around 40 out of those 4,000 some Americans locked up. One of the wrongfully detained is Stephanie Griner, held in Russia after admitting she tried to smuggle in to the country a couple of vials of cannabis oil. The U.S. announced just this week it is ready to trade a real bad guy, a Russian arms dealer nicknamed the “merchant of death” for Griner (and another American, Paul Whelan, accused of having a USB drive that contained classified information.) In April, retired U.S. Marine Trevor Reed, who had been sentenced to nine years in prison, was exchanged for a Russian pilot who had been in a U.S. jail since 2010.

    The problem is in looking at Griner’s case, it is very hard to see what makes her so “wrongfully” detained (as she admitted the smuggling attempt) and is being given a trial under Russian standards. Her case seems a long way from both other wrongful detentions (some we know about involve what would more readily be described as hostage situations involving terrorist elements) and other needful instances of Americans locked up abroad. Looking at just a handful of those cases it sure seems Griner benefited more from being a black, lesbian, woman athlete married to another woman in a tough midterm year than anything approaching right or wrong, never mind geopolitics that would see an arms dealer who sought harm to innocent Americans walk free.

    Consider the case in Japan of U.S. Navy lieutenant and Mormon missionary Lt. Ridge Alkonis, currently locked up on a three year sentence after two people were killed in a traffic accident doctors said may have been caused by a medical episode. The U.S. has not offered to help free him. Alkonis and his family hiked Japan’s famed Mount Fuji when on the way home Alkonis blacked out at the wheel and crashed his car, with his own family inside, in a restaurant parking lot and killed two Japanese citizens. Neurologists diagnosed Alkonis with Acute Mountain Sickness, which can cause sudden fainting up to 24 hours after rapid altitudinal change.

    Alkonis’ family offered an appropriate $1.65 million in compensation to the Japanese family for the loss of their two relatives, along with an apology. The Japanese family, however, uncharacteristically refused the settlement and instead demanded jail time for Alkonis. Senator Mike Lee of Utah claims Alkonis is being targeted as a proxy for American forces stationed in Japan, which remain unpopular among many Japanese who feel they receive special treatment under the law due to the U.S.-Japan Status of Forces agreement. Alkonis, for example, will serve his term in a barracks-like prison alongside other Americans, instead of the more medieval prison conditions and isolation Japanese criminals face in their own system. On the face the case certainly looks like one unfair, with an American singled out for extraordinary punishment and wrongfully detained. Why not help Lt. Alkonis, President Biden?

    Or what about Marc Fogel? Fogel is “the other American” imprisoned in Russia on minor drug charges. Fogel previously taught history at the international Anglo-American School in Moscow, and was well-known and well-thought of by diplomats not only from the U.S. but also from Great Britain, Canada, and elsewhere. For the past 11 months, Fogel has languished in Russian detention centers following his August 2021 arrest for trying to enter the country with about half an ounce of medical marijuana he’d been prescribed in the United States for chronic pain after numerous injuries and surgeries. He is facing down a 14-year sentence. Like Griner, he has admitted his guilt, seeking to smuggle vape cartridges of marijuana into Russia. His trial included accusations of close connections to the American Embassy, was confused by a visa issue and his personal friendship with the ambassador, and false claims he aimed to sell marijuana to his students. It all lead to a tougher than usual sentence. The State Department has denied Fogel “wrongfully detained” status. Why not help Marc Fogel, President Biden?

    If neither of those cases catch your interest, President Biden, the State Department has some 4,000 more to choose from. The point is not to see Stephanie Griner suffer, the point is to ask what makes her case special enough to warrant the designation “wrongfully detained” and the offer of a lop-sided prison swap to be made. During my State Department career I visited hundreds of American prisoners abroad, from celebrities and white collar criminals dealing with multi-millions of dollars at issue to near-homeless Americans trying to make a quick drug score. Not a single one of them felt he was “rightfully detained” in every sense; most felt their sentences were too long given the minor offense they committed. But I was under strict and standing orders not to advocate for any of them, to allow the host country process to play out as it would. What makes Stephanie Griner more special than Lt. Alkonis or Marc Fogel, Mr. Biden? Will they have to wait for some future election cycle when it is their peer group a future president seeks to impress?


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    Posted in Biden

    Immunity: Disastrous Decisions in 2007 Return to Haunt 2012

    November 7, 2011 // 1 Comment »

    It was the 2007 Nisor Square Blackwater Killings, Not Wikileaks, that Derailed Plans for US Troops to Stay on in Iraq.

    Despite some creative speech making as Obama tries to take credit for “agreeing” to withdraw the last of America’s occupying army from Iraq by the end of the year, Iraq’s own version tells the true story: US troops are leaving Iraq after more than eight years of war because Baghdad rejected American demands that the soldiers have immunity. Comments by Prime Minister Maliki make clear that it was Iraq who refused to let the military remain under American terms.

    Why Iraq Said No

    Why the Iraqis might not want to grant full immunity to every American soldier in Iraq come January 1, 2012 (they all do have immunity now, under the Bush-negotiated SOFA in place until midnight 12/31/2011) is not hard to guess, likely something to do with almost nine years of war and occupation, almost nine years of accidents and “collateral damage” and mistaken identities and all the sad rest. One incident singled out was detailed by the release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as the US military initially reported. There is clearly far too much blood on American hands for Iraq to simply forgive and forget, what State Department spokesman Mark Toner described after the troop withdrawal announcement as the start of “a new chapter in our relationship” with Iraq.

    But despite the long legacy of bloodshed which became frightenly common place for many Iraqis, the refusal of immunity is more likely tied to one horrible, bad day in Nisor Square, where in 2007 Blackwater mercenaries hired by the State Department gunned down 14 Iraqis (some say it was 17) and wounded 20 more. Such killings occurred almost daily in Iraq, but what made this one tragically memorable is that despite almost over-whelming evidence that the victims were innocent, technicalities in US law were used to prevent the shooters from being prosecuted. They walk free today. The system the US wanted for its troops in 2012 did not work when tested. The process America promises in 2012 will protect Iraqis them failed them completely in 2007.

    To begin, the American Embassy in Baghdad in 2007 produced a “spot report” claiming that Blackwater had come under fire from an “estimated 8-10 persons” who “fired from multiple nearby locations, with some aggressors dressed in civilian apparel and others in Iraqi Police uniforms. The team returned defensive fire.” The report was on State Department Diplomatic Security letterhead, but was actually written by a Blackwater employee.

    However, the US Army’s First Cavalry Division arrived at the Square moments after the shooting. They found no shell casings from AK-47s (the kind used by insurgents or the Iraqi police). The Cav concluded “It was obviously excessive. It was obviously wrong. The civilians that were fired upon, they didn’t have any weapons to fire back. And none of the Iraqi police or any of the local security forces fired back at them.” A later Iraqi government inquiry also concluded that Blackwater opened fire without provocation.

    The Iraqi government revoked Blackwater’s license to operate in Iraq the day after the massacre. Blackwater, however, kept operating in Iraq without a license, under State Department contract, until 2009, two years later. Through its many name changes and corporate reshuffling, remnants of Blackwater continue to carry weapons in Iraq today.

    Immediately following the shooting, State Department officials for reasons never explained offered limited immunity from US Federal prosecution to the Blackwater mercs involved to compel them to make statements. At the time, State disagreed with other law enforcement officials that such actions might jeopardize prosecutions. That proved to be the money shot: the US government obtained indictments against the contractors involved in the shooting. The case was then punted in court because it was not clear whether the indictments were based on immunized statements or other evidence. The DC Circuit court remanded the case, directing the government to show that it obtained sufficient evidence implicating the contractors prior to obtaining the immunized statements. Basically, since the State Department compelled the Blackwater guys to answer questions, the courts ultimately found they were denied their Fifth Amendment rights. Game over.

    Immunity and the American Empire

    Do soldiers garrisoning the American Empire in places like Germany, Korea and Japan have some form of immunity now? Yep, pretty much they do. Here’s how it works.

    Virtually without exception, American military forces assigned abroad (at least those in place overtly) are covered under a country-specific Status of Forces Agreement, a SOFA. Each SOFA is negotiated between the US and the “host” country, and covers things from as mundane as the need for driving licenses and who pays local taxes to immunity from national laws. An American soldier covered by a SOFA typically cannot be held accountable under local law, or, if accountable, only under specified conditions and circumstances that typically offer the soldier US-level rights protections. In many cases, s/he may be punished by the US military for a crime, but not necessarily by the local government. The SOFA rules vary considerably from place to place, and can be as complex as any legal code. Most SOFAs are public documents available on the web, though some have a classified addendum.

    A SOFA agreement is not unique to the US military, though our overseas presence makes us the biggest user. Most NATO forces, as well as folks like Australian military abroad, exist under some sort of SOFA agreement. Though it can be misused and is often seen as unfair by host country people who are victims of soldier crimes and accidents, SOFA in its most benign form is not much more than a written agreement for the conditions under which a foreign military exists in another, sovereign, nation.

    The theory behind all these rules is that the US does not want to grant the host country the ability to arrest and prosecute its soldiers, especially for anything remotely in the line of duty. Accidents do happen, but the SOFA is supposed to prevent politically-charged arrests when say the host country party in power needs to look tough around election season.

    Full immunity, what the US wanted in Iraq, is at the extreme end of the SOFA scale: anything an American soldier would do in Iraq has a get-out-of-jail free card attached to it, whether it is a truly accidental weapon discharge or a violent rape of a young girl. The latter, on Okinawa in 1995, when three US service members gang raped a 12 year old, remains an impediment to changes in the US-Japan SOFA even today, over fifteen years later, and even though the men were ultimately convicted in a local court and served sentences in a Japanese prison. A current alleged rape of a young woman by a soldier in Korea serves to highlight how contentious a SOFA agreement can be, even among friends. “I understand the US wants to protect its soldiers from kangaroo courts overseas, but Koreans also have a right to safeguard their own citizens,” said one Korean activist. “The perception among many here is that US soldiers commit crimes and then run back to the protection of their base.”

    Back in Iraq

    From the Iraqi point of view, the outcome of the Nisor Square Blackwater killings was pure evil. US mercs murdered Iraqi civilians, and then the State Department and US Courts together let them go unpunished. Nobody in Iraq, given the horrors perpetrated on them by the US, was ready to hear talk about “rights.” The State Department thought they saved their own butts with a short-term solution of not taking responsibility for what their own guards did, but in the end likely contributed in large part to the deal breaker that will midwife the full withdrawal of US troops from Iraq this New Year’s Eve.

    Meanwhile, the Army pull-out means that the State Department will need to hire 5000 mercenaries to protect itself in Iraq. Those mercs will be protected under existing international standards for diplomatic immunity, meaning they will be completely free from any prosecution under Iraqi law and unaffected by the existence or absence of any SOFA.

    There it is, full circle. This damn war has just too much irony in it.

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    Posted in Biden

    This is How It Ends in Iraq

    October 18, 2011 // Comments Off on This is How It Ends in Iraq

    A much younger David Petraeus, in 2003 while invading Iraq, famously asked a reporter “Tell me how this ends,” correctly wondering how the US would get from invasion to whatever would come to pass for a permanent state of being for Iraq. No one then knew.

    Juan Cole now thinks he knows the answer to Dave’s question:

    And so that is the way the war ends. No great demonstrations in the US against it in its twilight. It is ending almost by default, because the Iraqi parliament can seldom get real legislation done, the US is forced to adhere to the 2008 SOFA. In the background, the bombs are still going off and the country is riven by ethnic disputes. Hundreds of thousands of Iraqis have been killed.

    The US will receive no benefit from its illegal war of aggression, no permanent bases, no bulwark against Iran, no new Arab friend to Israel, no $14 a barrel petroleum– all thing things Washington had dreamed of. Dreams that turned out to be flimsy and unsubstantial and tragic.

    Read the whole article on Informed Comment.

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    Posted in Biden