The drowning technique called waterboarding

It's good to see that the New York Times has finally decided to call a spade a spade. For years it has followed the Bush administration’s lead in using euphemisms and circumlocutions to describe the notorious and plainly illegal interrogation techniques inflicted on prisoners held overseas and accused of terrorist activities. Though it has expressed some pride in the alleged candor of its terminology, the Times had always avoided calling torture by its name.

In particular, the Times employs several evasive phrases to describe so-called waterboarding: ‘the near-drowning technique’; ‘the simulated drowning technique’; and most bizarrely ‘the controlled drowning technique’. Collectively, they ratify the position adopted by the Bush administration by insinuating that drowning can be something other than drowning in the right circumstances. But drowning describes the filling of lungs with liquid, nothing more or less. It’s not something that can be ‘simulated’ or ‘near’, and ‘control’ is beside the point. You wouldn’t apply any of those terms to castration, say, if the government inflicted that on prisoners and then worked to reverse or mitigate the damage done. So why did the Times try for so many years to soften the plain fact that the US government was having men drowned?

Now at least the Times is starting to find the courage or sense to state the plain truth. In just the last day in an editorial as well as in an article reviewing Donald Rumsfeld’s memoir the NT Times has taken to using the unadorned expression "the drowning technique called [or 'known as'] waterboarding".

It seems that the Times made a recent decision to permit, perhaps even to prefer, honest language in this regard. On Jan. 19th of this year it posted an article on Guantanamo prosecutions by Charlie Savage that also used the same frank expression.

It appears that the Times was feeling its way tentatively toward candor back in November of 2010. On Nov. 14th it referred to "the drowning technique called waterboarding" in an article about an investigation of Dr. James E. Mitchell, a rogue psychologist who promoted torturous interrogation techniques under the Bush administration. However 4 days earlier it had used and subsequently retracted that language in an article on the Justice Department’s failure to prosecute anybody for destroying CIA videotapes of several interrogations that employed torture.

This appears to be an interesting case study in the Times’ timidity in the face of Orwellian language. The article as originally published contained the following details [highlighting is mine]:

The role of once-secret memorandums about interrogation techniques by politically appointed lawyers in the Justice Department’s Office of Legal Counsel has been controversial. The documents, which leaked in 2004 when the torture of prisoners at Abu Ghraib was in the headlines, asserted that the president, as commander in chief, has the constitutional power to override anti-torture statutes. The memos also claimed that certain techniques — like stripping prisoners naked, keeping them awake for long periods, slamming them into walls, and subjecting them to the drowning technique called waterboarding — did not amount to torture

More than two months later (sometime after Jan. 15, 2011) At some later stage the article was revised. Only the newer version is available at the Times’ website. The most extensive alteration, indeed the only one that I find (this is not indicated by the Times), is that the foregoing paragraph was edited down to produce the following:

Mr. Holder was referring to once secret Justice Department memorandums asserting that certain interrogation techniques, like stripping prisoners naked, keeping them awake for long periods, slamming them into walls and subjecting them to waterboarding, would not violate antitorture laws.

In the original version I highlighted the parts that were removed subsequently. You can see how much that is purely factual has been stripped out of the original, all of it quite unflattering to the Bush administration. The later omissions included the phrase "the drowning technique", which was not even replaced by one of the Times' traditional evasive phrases.

It seems that the Times wasn’t quite ready last November to see the stark language of truth being used. But the policy of evasion regarding waterboarding (at least) has now been reversed.

Admittedly, the Times has twice in the past described waterboarding as “the torture technique”, in an editorial from 2008, and in a second one from 2009. But as far as I can determine it has never stated that candidly as a fact in a news story. And in any case it is only quite recently that the Times has become willing to go on record describing waterboarding as “the drowning technique”.

So two cheers for the new found courage of the New York Times’ sort-of convictions.

Update: It's not certain when the editing down of the Nov. 10 article happened, so the wording was revised to reflect that.

crossposted at unbossed.com

Lies are awkward things

Now that many prominent Republicans are denouncing the McCarthyite smear campaign against DOJ attorneys being orchestrated by Keep America Safe, Liz Cheney and William Kristol are scrambling to recast themselves as innocuous good-government types. Indeed. Their attacks were simply misunderstood, they say. KAS never meant to impugn the loyalty or “values” of the lawyers hired by the Obama administration, its leaders began to claim late last week. Instead they just wanted DOJ to release the lawyers names. Later, when the names had been released, it turned out that they just wanted DOJ to explain whether those attorneys were working on any issues related to Guantanamo prisoners. It’s just a call for transparency, you see, not at all a political hatchet job - as Kristol helpfully explained in his characteristically dismissive tone:

THE WEEKLY STANDARD has learned that another left-wing advocacy group, Human Rights Watch, is circulating a letter condemning what the letter describes as “a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy.” The Human Rights Watch letter mischaracterizes the “attacks” as saying “that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees.” In fact, the main issues in the debate have been whether Congress and the public are simply entitled to know who these lawyers are, and the question of whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.

In other words, Cheney and Kristol hope to wriggle free of the McCarthyism charge because the KAS ad smeared the DOJ attorneys with innuendo, which is after all subject to interpretation. Unfortunately for KAS, however, its campaign also dealt in deliberate lies as I pointed out last Thursday here. At the time I emailed KAS spokesman Aaron Harison asking him to explain the assertion in question. Though he’s a veteran of John McCain’s rapid-response team from the 2008 election, Harison still has not responded to my query more than three days after I sent it to him.

Lies must be awkward things to walk back.

The lie, boldly stated by Harison last week, is that the DOJ attorneys under attack had represented “terrorists, many of whom killed Americans”. As I explained here, that is utterly false.

I sent Harison an email at KAS asking for an explanation of that comment: "Which terrorists specifically are you referring to, and which DOJ lawyers represented them?" No response has been forthcoming.

Little wonder. The lie is not incidental. It’s a bald-faced lie. It is a gross escalation of the campaign by Keep America Safe to evoke public fear and loathing of the DOJ attorneys. And it has nothing to do with transparency, or what issues these attorneys are working on, or whatever other plausible sounding rationales that KAS might dream up in the future to try to justify its egregious attack. KAS won’t address this lie because it cannot and maintain the fiction that it has been misunderstood.

Lies are very awkward things.

crossposted at unbossed.com

Another lie from the McCarthyites at Keep America Safe

This week Keep America Safe released a video broadly impugning the loyalty of several lawyers hired by Obama’s Justice Department. The lawyers had represented or otherwise contributed to court filings on behalf of several prisoners held at Gitmo. Keep America Safe, led by Liz Cheney and William Kristol, demanded that DOJ release their names and dubbed them ‘the al Qaeda 7’. The video asked “Just whose side are they on?”, implying clearly that the lawyers cannot be trusted to place the interest of the US above those of the ‘terrorists’ they once advocated for. Said KAS spokesman Michael Goldfarb:

“They have propagandized on behalf of our enemies, engaging in a worldwide smear campaign against the CIA, the U.S. military and the United States itself while we are at war.”

After this crude smear campaign by KAS caused widespread revulsion, another spokesman, Aaron Harison, and Cheney herself tried to deny that the ad “question(s) anybody’s loyalty”. But of course McCarthyism is exactly the game that KAS is up to. Harison drove that point home today by adding a shiny new lie to the gross innuendo and fear-mongering that KAS specializes in.

The DOJ lawyers in question, Harison said, had chosen to defend “terrorists, many of whom killed Americans”. No matter how you look at it, that allegation is false.

The DOJ lawyers represented or contributed to filings for various Guantanamo prisoners, but none of them have been convicted of killing anybody.

Only one of those prisoners, Omar Khadr, even faces such an allegation. But Khadr hasn’t been proven to be a terrorist – and he’s certainly not “many” terrorists. The allegation is that while a boy he killed a single US soldier, not multiple “Americans”. Furthermore, the unproven allegation is based on flimsy evidence and a seemingly coerced confession.

So even if you assume that each and every Gitmo prisoner is indisputably and most definitely a terrorist and that all allegations are true (as Dick Cheney and his brood have tried to train us to do), you still can’t back up the claim that “many” of the men represented by these DOJ lawyers “killed Americans”. It’s a lie.

Not a simple lie. There’s nothing simple about the elaborate smear campaign that KAS is orchestrating. Just a damned lie.

crossposted at unbossed.com

Associated Press 26 days late to the story

Here is an example of astounding incompetence by journalist Pete Yost and the Associated Press. Today he produced a not-very-enlightening report for the AP on a ruling by U.S. District Judge Thomas Hogan in a habeas case brought by a Guantanamo prisoner, Musa’ab Omar al-Madhwani. Yost states – rather vaguely – that the ruling was made "this week".

That’s false. Judge Hogan made his ruling on December 14, 2009 (PDF). By the next day there were multiple news reports available on the ruling, such as this from the WaPo and this at McClatchy.

So how did Yost get this so badly wrong? The short answer is pure sloppiness. A longer answer would point out that Yost appears to have little independent understanding of what Hogan’s ruling entailed; and that this item on the Madhwani ruling from the Courthouse News Service appeared today shortly before Yost produced his report.

For what it’s worth, the Courthouse summary of Hogan’s ruling was prompted by the publication (dated January 6th, 2010) of a one-page order formally denying the habeas petition. Why Courthouse News is producing these summaries weeks after the rulings are actually handed down is another question. In any case, it seems likely that Yost relied uncritically upon this unreliable service, without even doing minimal diligence to check whether the ruling was recent or indeed had already been reported in the news media. It's noteworthy that the Courthouse News summary did not supply a date for Hogan’s ruling; you’d have thought that would have been a red flag for Yost.

What’s more troubling than Yost's sloppiness is the failure of the Associated Press editors to catch this fiasco before it was released. This is the outfit, remember, that has been up in arms about bloggers who dare to link to its "news" reporting. At the rate they’re going, the AP shouldn’t have to worry much longer about anybody linking to their "work".

NPR: It's 'liberals' who think imprisonment without trial is unAmerican

From NPR's report this morning on a radical proposal to give the government the power to lock people up indefinitely without trial, we learn that it is only 'some liberals' who object:

Some conservatives say it will turn the battlefield into CSI: Afghanistan, requiring soldiers to collect evidence as they're being shot at. Some liberals say holding people without trial is fundamentally un-American.

Evidently conservatism has no view at all about upholding the Fifth Amendment to the US Constitution:

No person shall ... be deprived of life, liberty, or property, without due process of law [...].

Nor the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...

The proponent of this legislation, Benjamin Wittes, a faux-liberal pundit now lodged at Brookings, has been pushing all manner of national security 'reforms' that undercut fundamental American liberties. Wittes wants to see a parallel system of justice created, 'national security courts', to make it easier to convict people by stripping away rights and due process protections.

His current proposal, what purports to be a draft of legislation to create a 'system' of 'preventive detention' (i.e. indefinite imprisonment without trial), tries to help Barack Obama dig himself out of the ditch he drove into with his pronouncement last month that he wishes to have the power to pick and choose from a variety of courts and military tribunals in which to put certain terrorism suspects on trial. The venue will be chosen to favor conviction, and if conviction is insufficiently certain then any prisoner deemed dangerous will continue to be held without trial indefinitely. In other words, the Obama proposal is to create a specious facsimile of due process for terrorism suspects.

Wittes is happy to pitch in to help foist a law for imprisonment without trial upon the US because, as he helpfully explained to NPR, it's effectively what George W. Bush had been doing as president.

Those concerns lead many to ask why Wittes is pushing for indefinite detention at all. We already have it, he says. Detainees have been held at Guantanamo for years. Thousands more are imprisoned in Afghanistan. The Supreme Court has said the United States can detain some terrorists for the duration of hostilities against al-Qaida and the Taliban. So, Wittes says, "There's no question that we're detaining people outside of the criminal justice system. The question is what the rules are for that detention and who makes those rules."

Next month, perhaps Wittes will also get around to drafting helpful legislation to legalize the forms of torture that the Bush administration inflicted on terrorist suspects.

WSJ: Obama set to reverse himself on criminal interrogations

Last year while campaigning candidate Barack Obama used to boast about a law he helped to enact in the Illinois state legislature, which required all police interrogations to be videotaped. This mandate of transparency, he said, would discourage abusive interrogation practices in the future and serve to hold accountable any public servant who dared to engage in them. Today, however, Evan Perez and Siobhan Gorman of the Wall Street Journal report that President Obama is on the verge of ordering the Justice Department to block the disclosure of evidence of extremely brutal interrogations – on the grounds that it would be too embarrassing for the public to see quite how abusively government employees behaved.

The three videotapes in question, from 2005, show the interrogations of multiple suspects (none ever charged with any crimes). Officers inflicted a variety of diabolically clever forms of torture on them as well as plain old physical brutality. For example, one preferred method of "interrogation" was to bang a suspect's head against the wall repeatedly.

Although the Justice Dept. wishes to publish the tapes, in compliance with an ACLU lawsuit seeking their release, some of the wise establishment types surrounding the new president reportedly are urging him to reverse his earlier position on transparency, accountability, and the rule of law. Their reasons?

According to the WSJ, they argue that release of the tapes would hurt the government's credibility, hand a propaganda victory to America's enemies, and alienate some officers - who might not be willing in the future to engage in such practices if their recent misdeeds are not concealed. As one government official commented anonymously, making public the details of government wrongdoing would make officers "disinclined to take any risks in the future."

And there you were thinking that the whole point of exposing criminal deeds was to disincline people from repeating them in the future.

A tip of the hat to Milo for alerting me to the WSJ report.

Does it matter that torture "doesn't work"?

On Sunday The Washington Post published yet another commentary by a former interrogator arguing that torture doesn't "work". This one is by a pseudonymous Air Force veteran who led a team of interrogators in Iraq from March to August 2006. To his great credit, he describes the use of torture as repugnant and unAmerican. He refused to go over to the dark side and instead insisted that interrogations be conducted according to the Army Field Manual.

However his argument that torture should be rejected in part because it's "ineffective" – that is, it produces unreliable testimony and is counterproductive – ought to trouble more people than it appears to do. Sure, we all ought to be able to agree that torture produces a farrago of dysinformation (typically whatever the victim thinks the torturer wants to hear in order to stop the torment). But so what? Is it reasonable to measure torture by the yardstick of "effectiveness"? Would torture be more acceptable if it produced more reliable testimony?

Here's the gist of the pseudonymous Matthew Alexander's point:

I'm not some ivory-tower type; I served for 14 years in the U.S. Air Force, began my career as a Special Operations pilot flying helicopters, saw combat in Bosnia and Kosovo, became an Air Force counterintelligence agent, then volunteered to go to Iraq to work as a senior interrogator. What I saw in Iraq still rattles me -- both because it betrays our traditions and because it just doesn't work.

[...]

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.

I've no doubt that he's right that prisoner abuse has inflamed passions against the US around the world. It's also true that torturers become blinded to what motivates their victims. And though he doesn't say so, practicing torture endangers our troops in the longer term by seemingly justifying the abuse of captured American forces. On their own, each of these are important to take note of.

Each of those things are true, but just as with the fact that torture produces unreliable testimony, they should not be used to make the case against the use of torture. Because the argument against torture really is quite simple.

It's illegal.

Adding anything further to that argument clouds an issue that desperately needs clarity. Indeed, the advocates for torture would want to debate it in terms of utility and expediency. That is the only grounds on which they could ever win such a debate. What's more, it's far from certain that with an average audience anybody can assume they'll win that debate. Notice how perilously close even this pseudonymous author comes to conceding that torture has its uses:

I know the counter-argument well -- that we need the rough stuff for the truly hard cases, such as battle-hardened core leaders of al-Qaeda, not just run-of-the-mill Iraqi insurgents. But that's not always true: We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."

The utility of torture is an issue best set aside until the day that somebody actually dares to come out in the light of day to try to change the laws against torture. Even George Bush couldn't bring himself to do that. May we never live to witness such shamelessness.

Meanwhile, let's not open the back door to justifying a torture regime by quibbling over torture's utility. Strictly speaking it's irrelevant.

crossposted at unbossed.com

They write letters by night

Kevin Hayden posts another in his series of interviews with attorneys representing Guantanamo prisoners, this time with Buz Eisenberg. Like the others, it's a must read for all who'd like to know what's actually involved in George Bush's detention and interrogation policies. The defense lawyers have all manner of shocking information that never seems to make its way into the traditional media's accounts of what transpires at Gitmo (and other prisons in the spiderweb).

In this interview, Eisenberg passes along a striking letter written one month ago by another attorney, Sabin Willett. In it Willett asks that the US government begin to treat his clients with a modicum of dignity now that a federal court has ordered their release.

Willett represents Uighur prisoners held for 7 years without trial in appalling conditions. The government admits that they're not enemy combatants and haven't engaged in any hostile acts toward the US, but never the less has delayed for years releasing them. Some were shipped off in 2006 to a detention center in Albania, but other innocent Uighurs continue to be locked up at Gitmo.

So in October of this year a judge in the DC Court of Appeals, who once again found no reason for the continued detention of these 17 Uighur prisoners, finally acted decisively and ordered their release into the custody of fellow Uighurs living in and around Washington. The Bush administration, true to form, appealed the decision and got a stay of the court order, expecting that it could delay releasing the Uighurs until after Bush leaves office.

For Bush, the issue is not justice or national security. Instead, it's all about not having to admit he's been defeated in his attempt to lock prisoners away forever for no good cause. That's the real reason why the Uighurs have to continue to suffer imprisonment, so that Bush is not seen to have presided over their release.

It's the same thing in the case of Salim Hamdan, a former driver for bin Laden, who's being transferred to Yemen to serve out the last month of his sentence. This summer, a Guantanamo military tribunal rejected the inflated allegations leveled by the Bush administration and sentenced Hamdan effectively to 5 months in prison, to last until the end of 2008. In essence, the military jury said Hamdan would have to serve for the duration of the Bush administration...or nearly so. To be more precise, the jury compelled the Bush administration to decide in its last few weeks what to do after Hamdan's short sentence expired. Would it follow through on its threat and continue to imprison Hamdan – thus nullifying the point of the very kangaroo courts Bush had striven to create? As I commented at the time:

So the [Hamdan] sentence, which runs through late December, also puts Bush on the spot during the last few weeks of his rule. He has the chance, if he chooses to take it, to demonstrate once again for posterity that he fits the Wilsonian mold of the vindictive, embittered president. After that, though, his wishes will suddenly stop mattering any longer.

As it turns out, Bush took a middle route – the route of petulance. He's shipping Hamdan to Yemen and letting that government take the onus of releasing him when the sentence expires. The most important thing, as with the Uighurs, is that George Bush should not have to face up to his own defeat.

And so in an act of supreme petulance the Bush administration will continue to fight against releasing Uighur prisoners whose detention it cannot justify, and whom it cannot continue to hold. Even worse, as with so many other Gitmo prisoners who had the gall to seek vindication of their legal rights in court, the government officials are ensuring that the Uighurs are treated abysmally in captivity.

And here's where that striking letter by Sabin Willett comes in. He composed it shortly after the DoJ had obtained a stay of the DC Court's order for the Uighurs' immediate release. The letter is addressed to attorneys in the Department of Justice who had obtained the stay after losing the case. After describing just how cynically his opposite numbers have behaved in regard to the Uighurs, Willett asks that government at least treat his clients with a modicum of dignity, for once, when he travels to Guantanamo to meet with them on October 27th. In particular, he asks that they not be shackled at the meeting since their imprisonment has been found to be illegal.

The letter speaks volumes about a good many things:

From: Willett, P. Sabin
Sent: Saturday, October 25, 2008 5:14 AM
To: 'Wolfe, Kristina (CIV)'; Warden, Andrew (CIV); Subar, Judry (CIV)
Cc: Manning, Susan Baker
Subject: Uighur cases

Dear Kristina, Andrew and Jud:

Our Uighur clients have now been at Guantanamo for about 6 1/2 years. After years of stalling and staying and appellate gamesmanship, you pleaded no contest -- they are not enemy combatants. You have never charged them with any crime. In October a federal judge said they must be freed. They were on freedom's doorstep. The plane was at Gitmo. The stateside Lutheran Refugee services and the Uighur families and the Tallahassee clergy were ready to receive them. You blocked their release by getting an emergency stay from the Court of Appeals. Then by extending the stay. Since then we have done everything we can to try to win that release again and we have failed. And you have positioned this shrewdly. You know it will take many months to get a decision. If we win you will ask for en banc review. And if we win that you will appeal for Supreme Court review. So you know and I know what is happening here. This won't be over in one month, or in six. It will be years.

And you know another thing. No other country is ever going to take them. Not ever. Not after some genius decided, in your overnight stay papers, for the first time ever, anywhere, to call these people "terrorists." That the charge is false, that you have now backed away from it in your brief, that doesn't matter. It will never happen now.

It was never going to happen anyway. State has been trying to resettle this for four years. China has blocked it everywhere. You know it will never happen. If you win your appeal these men will spend the rest of their lives as prisoners at Guantanamo.

So now I am on my way to Gitmo to tell them all of that on Monday.

And I asked for one simple thing of you. I said let me sit down with them together, as men, without them being chained to the floor. And the Defense Department said no.

So I said, let me meet them alone, as we always do. Let me meet them in the hut where we always meet. Station MPs outside that hut, as you always do. Just permit these men one shred of human dignity. Do not chain them to the floor.
And you said no.

Yesterday the court refused to intervene. But it doesn't end there. Because this isn't about courts or who wins a motion. This is really about just who in the hell you people are. What you see when you look in the mirror. Or who your clients are and what they see in the mirror. What kind of Americans treat innocent victims with this kind of reflexive, degrading cruelty? Americans don't treat criminals this way in a federal prison. Americans are not supposed to treat enemy prisoners of war this way under the service field manuals, or the Geneva Conventions, if anyone paid attention to the field manuals or the Geneva Conventions any more. And these people aren't criminals, and they aren't the enemy and you say the department of defense will not comply even with its own service field manuals, or with any basic human decency, and carry on like a bunch of small-minded, panicked little people. As an American, I don't understand that.

And that is what I am asking for you. I am asking you to request of the base commander that he look in the mirror. Tell him I will meet these men alone, one at a time, and I will sit in that hut, and he can station a whole platoon outside to make sure it is only one at a time, and I would like him to show these Uighurs the basic human respect of not having to be chained to the floor. That is my personal request of your client. As one American to another.

And if the base commander will not do that, not even that, then I would like him to meet me and look me in the eye and explain just what in the hell kind of American he is. Because I do not understand it. Whoever the narrow-chested bureaucrat may be who makes these legal decisions sitting in some political office in Washington , however small and un-American that execrable person may be, I am still willing to bet that the base commander is better than that.
I will be there Sunday night.

Thank you.

Sabin

Imagine if you had devoted your life to the law and were to receive such a letter. What would your reaction have been?

Inside the Bush administration, the reaction was to deny the request. Willett was told that he could not micro-manage the military's security measures over these dangerous prisoners and thus he would have speak to them through a chain link fence or, in smaller groups, with his clients shackled to the floor. Willett asked the DC Court for an emergency motion to grant what the US government denied, and the same DOJ lawyers filed a motion to deny that.

Petitioners have not alleged, let alone demonstrated, that they will be irreparably harmed if the Court were to deny their motion.

True enough, I suppose. The irreparable harm was done during the previous 7 years of illegal detention. What's another year or so of lawlessness among friends?

crossposted at unbossed.com

Advocacy vs. cheerleading

I wonder if this good news will help to convince some Democrats that hard-nosed advocacy is more effective than silent hand-wringing or wishful thinking or worst of all, mere cheerleading for Democratic rule? That demanding reform is a mark of loyalty to their principles, rather than an embrace of the opposite? That the time to raise one's voice is before, not after, disastrous 'compromises' have been set in stone? That Democratic politicians respond to pressure, not to its absence?

John Brennan, the deputy to George Tenet when the CIA was forging and implementing an array of illegal practices including the Bush administration's torture regime, a man who has since then defended and justified Bush's rendition, detention, and interrogation policies, was being widely touted as a likely choice to head the CIA under Barack Obama. This and several other liberal blogs decried the possibility, arguing that the next administration needed to break with the past and be seen to be doing so. And voila. Today Brennan announced that he was withdrawing his name from consideration for any intelligence posts in the next administration because of the opposition he has aroused. He did not want to be a distraction, he said.

Obama's advisers had grown increasingly concerned in recent days over online blogs that accused Brennan of condoning harsh interrogation tactics on terror suspects, including waterboarding, which critics consider torture.

His withdrawal was a concession to a political reality that Democratic activists created by concerted and principled opposition. It was not the result of an epiphany for Brennan or a sudden contrition over the positions he's adopted. Quite the opposite, in fact.

His letter of withdrawal, available here, shows that Brennan continues to deny any responsibility for the illegal policies. He says he "was not involved" in the decisions about the policies; and that his "criticism of these policies within government circles" was the reason he was passed over for promotion by the Bush administration. Those claims cannot easily be tested, of course, since they concern opinions and behavior manifested (if at all) only behind closed doors. Brennan even asserts now that he was (always?) "a strong opponent" of "coercive interrogation tactics" tout court. It's a claim that does not really measure up against his public statements - although Brennan later did renounce one specific technique, waterboarding. In any case, Brennan refuses to acknowledge that he was being criticized in particular for promoting and defending some of those policies after leaving the CIA. His public statements are the one arena in which we can assess his beliefs, and in that arena he looked rather shabby. Brennan can't bring himself in his letter to admit even this much, that he needed to explain his public positions on the CIA's legacy of controversial illegal policies.

Thus it's clear that what led to Brennan's withdrawal was not a sudden attack of conscientiousness. It was, instead, a concession to political reality. Activism creates such political realities.

crossposted at unbossed.com

Criminal neglect

No doubt by now you've seen the reports that say New Orleans is the city with the highest crime rate in America, with 19,000 reported crimes in 2007 according to FBI statistics. Among large cities, the three with the worst crime rates reportedly were Detroit, Baltimore, and Memphis, in that order.

Proverbial damned lies and statistics. These rankings are calculated based on just 6 categories of crime (murder, rape, robbery, aggravated assault, burglary and auto theft). Hence they neglect most categories of crime and in particular many of the most severe kinds of criminal activity. If these were included, one city would stand head and shoulders above the others in its single-minded devotion to criminal enterprises: Washington, DC.

What sorts of major crimes have been excluded from consideration? For starters, all manner of war crimes – things like invading a sovereign country without justification and then neglecting its internal security, killing or driving into exile millions in the process. That's a criminal enterprise on a vast scale, isn't it? All of it headquartered in Washington.

But that's just the beginning of the list, whose outer limits are unknown and probably unquantifiable. For example, the illegal electronic surveillance of Americans without warrant by the NSA - and who knows how many other federal agencies - very probably affects tens of millions of us. But the White House won't fess up and the FBI and Congress refuse to investigate so we're left to guess how many crimes have been perpetrated in this category. Of course some haters of liberty would not want to press charges anyway, but plenty of others would leap at the opportunity to put the criminals behind bars.

If violating the wiretap laws isn't considered sufficiently felonious in your household to merit much concern, then consider instead the crime of torture. At least 775 prisoners have been locked up in Guantanamo Bay prison during the last few years, every one of them subject to extensive and prolonged tortures. But an untold number of prisoners have been abused in other sites around the world as part of a criminal conspiracy directed from Washington. Torture's pretty big as felonies go, isn't it?

As for the lesser crimes committed by this same gang, they too may be beyond count. Who can really say how many documents they've destroyed or concealed, in the attempt to obstruct justice, just with regard to their torture network? And the tally for subpoenas they've flouted has been limited only by the number that were served on them.

But you know all this. I call it to mind because of the very misleading statistics I began with, which apparently exclude torture and a variety of related white collar crimes. If included, they would qualify Washington as the crime capital of the country - for several years running. By extraordinary coincidence, those statistics are compiled by the very same cabal's self-styled "Justice Department". Not only does it not maintain a tally for torture and such crimes, but neither does it seek to prosecute for them.

Which brings me to a subject much discussed in recent weeks. Any number of news reports have passed along a viewpoint being expressed by anonymous advisers to president-elect Obama. It would be inadvisable to prosecute the really big criminals in Washington, the sources will have us to know, so we should anticipate that they'll be let off the hook for all their crimes - even or especially the most egregious ones.

It's an argument from expediency. Prosecutions of well-connected criminals would prove unpopular seems to be the gist of it. There's also a second argument from expediency being circulated: that Obama won't be able to concentrate on his own agenda if he wastes time prosecuting torturers and such. Cleaning up the crime wave in Washington forms no part of Obama's agenda, these anonymous types would have us believe.

On the face of it, their suggestion is preposterous. Prosecuting federal criminals is part of the presidency, a job Obama has been seeking for two years. If the president refuses to do it, there is nobody else who can take it on. It's not a prerogative, it's a duty. These advisers seem to be implying that Obama can't walk and chew gum at the same time.

Instead, they've been promoting the idea that a body such as the 9/11 commission ought to investigate the criminals thoroughly and then just maybe do nothing to hold them accountable. You remember the 9/11 commission, the one that decided as soon as it convened "not to play the blame game". The anonymous sources have also been promoting specific proposals that Obama create a new set of kangaroo courts to try some of the torture victims and a new legal status, "preventive detention", to keep other victims locked away without trial. The purpose would be to prevent that unpleasant discovery process from exposing awkward facts in open court about crimes that might not be expedient to prosecute.

The kangaroo court idea quickly was taken back off the table by Obama after the suggestion provoked outrage. Yet it's tempting to conclude, as many have, that his advisers have fanned out under instructions to use the media to tamp down public expectations that the worst crimes will be punished as crimes. Because to fail to do that would be such a betrayal of the rule of law that one could hardly be expected to swallow it without the ground being prepared carefully in advance. And on the other hand, to let on that such a betrayal is in the works without any authorization from the president-elect would be, well, presumptuous.

But on the whole, I don't see much sense in the theory that the next president truly intends to let all these criminals off the hook. For one thing the legacy of lawlessness becomes permanent if such crimes are put off limits now. How unseemly would that be? It might lower the crime rate in Washington, true, but only because nobody's allowed to count a whole range of what used to classed as crimes. The pretense that they're really crimes sooner or later will have to be dropped.

And the criminals themselves, what will they get up to next?

But more's the point, you'd have to assume that legal chaos would ensue if laws of the utmost gravity go unenforced. For how could the government legitimately prosecute lesser crimes in the future if greater ones get written right off? It would be criminal neglect on a grand scale.

And if the criminal code starts to crumble, why should anybody assume the rest of the legal code would remain intact? Are contracts any longer enforceable if criminal laws are not?

Hmm...those anonymous advisers don't seem to have mentioned it yet, but could a cancellation of debts be in the works? As long as the next president is hollowing out the law as a favor to big time criminals, there ought to be something in it for all the rest of us. And come to think of it, I'm getting awfully tired of paying that mortgage.

How about it then, an amnesty for everyone and everything? That way we all win.

crossposted at unbossed.com

Michael Mukasey is unhappy

Attorney General Michael Mukasey is unhappy about losing the first two Guantanamo habeas corpus reviews. Yesterday's defeat was especially galling because the judge responsible for saying that the government's evidence against the prisoners was garbage, Richard Leon, is himself a reliable Republican partisan. In fact Leon's on record as being opposed to giving habeas review to Gitmo prisoners at all. Things must look pretty bleak for the Bush administration's Cuban dungeon policy when they're losing cases even before staunch national-security ideologues.

So today in the Republican propaganda flagship, the Wall Street Journal, Mukasey issued a call to action. Congress, he believes, needs to act quickly to pull Bush's ashes out of the fire. Otherwise courts will continue to interpret literally the Supreme Court's ruling (Boumediene v Bush) that Gitmo prisoners may appeal for their release – by actually releasing those prisoners!

Of course Mukasey's opinion is essentially worthless. He's the man who still can't determine whether waterboarding constitutes torture, and doesn't care to find out. But what is he up to in this op-ed?

Well, the illustration that accompanies his piece speaks volumes about the intent. It portrays a robed federal judge gaveling flagrantly unreconstructed terrorists out through the gates of Guantanamo. In other words, the existence of habeas reviews (despite SCOTUS) are per se a national security breach that needs to be closed.

Mukasey can't quite bring himself to ask that Congress overrule SCOTUS, however, so he argues instead that it's the (inevitable) lack of uniformity in court findings that endangers the country. You'd have thought that the possibility of judicial differences of interpretation was an argument against the courts hearing any kinds of cases whatever. But no, apparently it's just a concern when the cases concern the rights of prisoners held at Gitmo for years without trial. Here's Mukasey's lament:

But as different judges reach different answers -- and as some of those answers, I fear, create risks for our national security -- there remains a pressing need for Congress, working with the administration, to establish one set of rules that is both consistent with the Supreme Court's decision and recognizes the important national security and intelligence interests of the United States.

The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an "enemy combatant" during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee "released"? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won't accept him or because we fear he might be mistreated upon his return?

The answer to the last question already was established by Judge Ricardo Urbina's ruling on Uighur prisoners: yes. As for what "release" means, that's just another way of saying Congress should prohibit the release of prisoners into the US. But Urbina was ruling on prisoners that the US admitted were not enemy combatants, and he ordered their release into the US because he and the administration could identify no other place they could be released to. Congress cannot legislate to prevent a judge from enforcing a prisoner's right to release just because some people wouldn't care to see it happen. So that part of Mukasey's appeal to Congress is asinine.

Furthermore, the Bush administration already defined "enemy combatant". Their definition was "anybody we say is an enemy combatant". It's the fact that their definition turned out to be unsatisfactory that now requires judges to determine whether these prisoners really are "enemy combatants". Is Mukasey really suggesting that Congress can step in to define away the 'problem' of the courts investigating whether the government may continue to hold people as "enemy combatants"? Unless it's a self-policing definition, one that leaves no room for interpretation, then it will still come down to a judge determining whether the government has evidence to show a prisoner is an enemy and a combatant. Again, it's asinine for Mukasey to suggest that the problem is Congress has never donned its lexicographical cap.

Ah, but there's still this question buried in Mukasey's plaint:

What evidence may the government rely on when making that determination?

That's what Mukasey is really aiming at in this op-ed. Forget the other distractions. What Mukasey hopes is that Congress can be persuaded to rewrite the rules of evidence in these cases. In other words, he wants to preserve some of the kangaroo-court quality that was built by the Bush administration into the tribunals and commissions at Guantanamo. The rest of Mukasey's op-ed repeatedly returns to the question of how to bolster the administration's power with regard to evidence.

But even with his real goal out in the open, Mukasey continues to camouflage it. In particular, he complains that federal courts aren't able to handle the government's evidence. Thus he'd have us believe it's not the ridiculous lack of evidence that keeps causing the government to lose these habeas cases. No, according to Mukasey it's just the inability of the courts to know what the government knows. So presumably the right of these defendants to know the evidence against them needs to quashed by Congress.

More importantly, in many cases, the government has faced great difficulty in collecting and presenting evidence in a manner that protects the vital sources and methods upon which our national security depends. Indeed, lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court.

All this ignores the plain fact that federal courts have long been permitted to adopt special measures to review secret evidence. Mukasey's evidentiary crisis is a non-issue...another distraction.

Let's look at his conclusions, the three things he calls on Congress to do:

1. Prevent release of prisoners into US. As noted, a non-issue because it's infeasible.

2. Devise new rules for using classified evidence in court. As noted, a non-issue.

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.

Devising a legal framework to review our military's detention decisions is an unprecedented challenge. It should not be left to the courts alone.

Bingo. Mukasey's really calling on Congress to create yet another kangaroo court system that will look a lot like federal court, but not actually be permitted to act independently or "interfere with the mission of our armed forces" or give the prisoners, you know, real trials.

Mukasey must figure that if Congress was daft enough to make him Attorney General, then it's capable of falling for any line of nonsense he dishes out.

crossposted at unbossed.com

Federal judge rejects enemy combatant charges against Guantanamo prisoners

Today the Bush administration suffered its fourth major defeat since June in litigation over detentions at Guantanamo. This ruling by US District Judge Richard Leon, a Bush appointee, is the most devastating yet. He'd been expected to favor the government, not least because in 2005 Leon had ruled that the detainees have no habeas rights. And these are not low-profile prisoners. In his 2002 State of the Union address, George Bush had accused them of planning to bomb the US embassy building in Sarajevo. (As with other such garish accusations, the Bush administration subsequently and very quietly changed its allegations to something considerably more mundane – planning to fight in Afghanistan.)

Yet Leon rejected the administration's argument that five Algerian nationals formerly resident in Bosnia are enemy combatants and ordered their release "forthwith".

The text of his ruling is here (PDF).

It's the first time that a federal court has investigated the merits of a Bush administration claim that it possesses sufficient evidence to continue detaining a prisoner as an enemy combatant. Thus there's great significance in the fact that the administration's evidence has finally been put to the test and, right off the bat, found to be lacking. In fact, the evidence upon which these prisoners were held for the last 7 years, and treated horrifically, was ridiculously weak. Just like the 'evidence' against so many of the remaining prisoners at Gitmo, it depends upon hearsay or unverified/unverifiable allegations of a vague nature from unnamed or shadowy figures.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many of the detainees.

Leon found the government's case to be extremely flimsy, based as it was upon one undocumented allegation by a single unnamed source.

Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces. That secret document, the judge said, was too “thin a reed” on which to base detention.

Their detention has been so outrageously without merit that, very unusually, the judge urged the Justice Department lawyers not to appeal his ruling. The prisoners had waited seven years "for our legal system to give them an answer", Leon argued, and it wouldn't be useful to prolong the injustice with a pointless appeal. He found that a sixth prisoner was being held on the basis of sufficient evidence, and Leon suggested that the DoJ had plenty of opportunity to contest the broader legal issues in the appeal of his continued detention without delaying the release of the other five prisoners any longer.

In June the Supreme Court handed down a landmark ruling about these prisoners in Boumediene v. Bush, which upheld their right to challenge the basis for their detention in federal court. It was an unusually strong ruling against the Bush administration's policies of open-ended detention. What was most remarkable was the Supremes' intervention into the appellate process in order to expedite the habeas review it was ordering for the Guantanamo prisoners. The concurrence written by Justice Souter in particular argued that the prisoners had been held for far too long without habeas review to allow the government to continue to drag things out through the appeals court. The government's allegations against Boumediene and the other prisoners in that case were on the face of pretty ridiculous on their face, though no court had yet examined them. Hence Judge Leon's ruling today that the government has no credible basis for imprisoning these men was the predictable outcome of the SCOTUS ruling.

Let's not forget that these prisoners had already been arrested, investigated, and ordered freed by the Bosnian Supreme Court before the US, ignoring that finding, demanded custody of the Algerians. Like a number of other prisoners held at Tuzla air base in Bosnia after the September 11 attacks, they were tortured while in US custody. At a minimum, they were treated to the sensory deprivation that became a standard part of the "exploitation" of prisoners at Guantanamo, Bagram, and elsewhere. As the European Parliament report (PDF) by Dick Marty stated:

While still on Bosnian soil, the six men were kept shackled in painful positions. They were forced to wear goggles to prevent them from seeing, headphone-like covers over their ears to make it impossible for them to hear, and face masks making it impossible to be understood and very difficult to breathe. They were subsequently transported to the U.S. Naval Base at Guantanamo Bay.

It should be stressed that Judge Leon's ruling frees the men and urges the US to arrange for their return to Bosnia, but does nothing to redress the torture inflicted on them during seven years of captivity.

A similar pair of rulings in June and October regarding the Uighur prisoners at Gitmo came to a similar result as the rulings on the Bosnians. In June the DC Court of Appeals rejected sarcastically the Bush administration's claims about the Uighur prisoners, mocking the government's reliance upon hearsay and unvetted evidence at Combatant Status Review Tribunals, as well as its claims of secrecy in withholding evidence. The administration has to actually prove in court that the evidence supports the allegations.

Well, they thought about the difficulty of proving the nonsensical charges they were leveling against the Uighurs and decided to drop them instead. So in October, at a habeas review for the Uighurs in DC District Court, judge Ricardo Urbina ordered their immediate release. The government managed to get a stay of that order, but that could be reversed before the month is out.

Four cases in six months, each of them devastating to the Bush administration's pretense that it holds prisoners at Guantanamo based on overwhelming evidence of terrorist activities.

crossposted at unbossed.com

Sorting out Bush's torture techniques

To find a vocal critic of the Bush administration's torture regime stumbling around while discussing its components is a little disconcerting. It confirms what I've long suspected - that even as bits of the torture program have been exposed little by little, the Bush administration managed never the less to sow confusion over those revelations. People really need to sort this out before the Obama administration comes to grip with its predecessor's vile record.

Briefly, the background is this: James Gordon Meek reported that Democrats like the "anti-torture views" of John Brennan, Barack Obama's chief adviser on intelligence matters. Brennan was the deputy to former CIA director George Tenet at the time that Bush's torture regime was implemented. It does seem strange to describe Brennan as "anti-torture" just because he's renounced waterboarding in the last few years and allowed that "the dark side has its limits". Glenn Greenwald documents how Brennan has advocated or made excuses for extraordinary rendition specifically and Bush's detention and interrogation policies generally.

Meek and Greenwald then got into a back and forth over Brennan's anti-torture credentials. Meek argues faux-naively that extraordinary rendition per se can be dissociated from the torture that awaits prisoners handed over to countries that routinely practice torture. Meek says nothing about the spiderweb of America's own secret prisons where Bush administration prisoners have been flown to be tortured.

In any case, Greenwald responded to Meek's tendentious argument with a certain degree of confusion about what is what in Bush's torture regime:

The most incriminating aspect of Brennan's views, in my opinion, is his support for the Bush administration's "enhanced interrogation techniques." Since he says he opposes waterboarding and isn't on record opposing anything else, one can reasonably assume that must include some combination of things like stress positions, forced nudity, hypothermia, sleep deprivation, exploitation of paranoias, extreme isolation, hanging by the wrists, threats, and other previously forbidden techniques authorized by the Bush administration.

This needs sorting out. Several of the things Greenwald lists are not, apparently, part of what the Bush administration terms "enhanced interrogation techniques".

To judge by published reports, these consisted of a discrete and detailed list of coercive techniques, including waterboarding, to be used only with high-level authorization against specific prisoners...those who are described typically as "hardened" or "high-value" al Qaeda suspects. The CIA has claimed that "enhanced interrogation techniques" have been used against only about 30 prisoners. The list of "enhanced techniques" originally was approved at a White House meeting (in 2002, it seems) of Dick Cheney, Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft. During the next year or more, requests for authorization to use "enhanced" techniques against specific prisoners were, reportedly, discussed at several further meetings of the National Security Council Principals Committee.

But "enhanced interrogation techniques" are far from the only forms of abuse meted out to prisoners under Bush. They shouldn't be confused with the underlying programs of abusive treatment that were inflicted on many or all detainees abroad. For the latter, the Bush administration has used the term "exploitation". It was partly to clarify the distinction between the much-discussed "enhanced interrogation techniques" and the less understood but more widespread "exploitation" that I wrote this Abbreviated History of Exploitation Processes.

Abuse of prisoners in Bosnia and Afghanistan began shortly after the Sept. 11 attacks. By December 2001 at the latest, the Bush administration began to try to systematize that abuse by reverse-engineering techniques used in the military's SERE training schools. These existed to train US military personnel in techniques they'd need if captured by an authoritarian regime. The training included systematic psychological abuse of the kind practiced on American POWs during the Korean War. It was these "exploitative" practices in particular that the Bush administration decided in 2001 to adapt and apply against terrorism suspects. They became the baseline standard of abuse meted out to nearly all detainees held in secret prisons or transferred to Guantanamo. "Exploitation" focuses principally on prolonged isolation, sensory deprivation/overload, disorientation, stress, extremes of noise, light, and heat, forced nakedness, sexual humiliation, and generally creating psychological confusion and a state of infantile dependency. The result frequently is extreme mental degradation. Prisoners often become suicidal.

A few of these methods were later incorporated into the "enhanced interrogation techniques" so there was some overlap with baseline "exploitation". But it's absolutely vital to keep them distinct. Because the Bush administration and its apologists have tried to minimize the extent of their crimes by focusing all attention on the victims of "enhanced" techniques – who are few in number and can be depicted more easily as dangerous terrorists.

"Exploitation" is used to establish mental conditions favorable to manipulative interrogations. Many of the prisoners "exploited" were never in fact interrogated, or only in a very cursory way. Even after the US military and CIA lost interest in prisoners or concluded that they had no connection to terrorism, the prisoners often continued to be subject to "exploitation" for months or years on end. More to the point, "exploitation" has continued to be the standard for mistreating prisoners at Guantanamo down to this day. It's not the exception, it's the rule.

And since John Brennan has sought to justify extraordinary rendition flights, during which prisoners are "exploited" most repulsively, then it's very difficult to see how he has done anything other than align himself with the Bush administration's policy of torture.

crossposted at unbossed.com

The 'debate' about Gitmo

Either Barack Obama will show strength by adopting the core of Bush's policy regarding the prisoners held at Guantanamo Bay and continue to detain them without trial, or the next president will give in to political pressure from crazy civil libertarians, release known terrorists and endanger the US.

That's the message of much of the commentary on Gitmo churned out in the traditional media since the election, including this NYT report by William Glaberson. It has relied not so much on the staunchest critics of Bush's detention and torture policies – no surprise that - but instead on Washington establishment types with axes to grind or interests to protect. Their notion is that, while Obama remains most malleable, he needs to be gulled into thinking that the central issues concern political leadership and the need to protect America from dangerous terrorists.

They don't. The central issue is whether to restore the rule of law. Much to their regret, that's not a very complicated issue.

As a result, the 'serious' people (who generally did nothing under Bush to stop his illegal policies) are straining to find ways to complicate the question of what to do - now that Bush won't any longer be an impediment to change. The most intractable complication of any change in essential policy, we're told, is that restoring due process means - horribile dictu - that some prisoners might go free.

What if some detainees are acquitted or cannot be prosecuted at all?

In most constitutional states, that's considered a feature of due process rather than a bug: People whom the government cannot charge and convict of crimes should not be held in prison.

Apologists for Bush's Gitmo policies are worried principally about three things: (i) That the government has little evidence to charge most of the prisoners with crimes, and much of that is laughably weak or acquired by illegal means such as torture. (ii) The government's manipulation of evidence, of charges, and of the kangaroo courts it created would be exposed in real court proceedings. (iii) All the prisoners have been tortured through a system of "exploitation" crafted by the Bush administration.

Under those circumstances, few if any prisoners could be convicted of crimes. None could be charged without exposing government wrongdoing to public scrutiny in the US. In the civilized world, both those things would be welcomed: the release of prisoners long detained without adequate evidence, and the exposure of government crimes.

But Glaberson's cohort of experts is urging Obama to circumvent the imaginary 'problem' of due process by creating a new system of "preventive detention".

Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.

“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.

That is to say, because of Mr. Wittes' fearfulness and his disdain for human (i.e. legal) rights, Obama is supposed to restore the rule of law by creating a parallel system of injustice to cover the people the president (or Mr. Wittes) doesn't wish to put into the justice system (or prisoner of war camps).

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

Let me demonstrate that Mr. Cole is wrong: There is no circumstance in which a democratic society can preventively detain someone. I just said what he claimed could not be said.

Proponents of a president's 'right' (or 'duty' as some would have it) to incarcerate 'dangerous' people without trial 'preventively' point to our willingness to lock lunatics away in insane asylums. Just as in the Soviet Union, I guess, criminal charges are supposed to be likened to mental disorders. By this confusion of criminal charges with medical diagnoses, the presumption of innocence would no longer apply. That sort of argument might appeal to fools and Brookings fellows, but I won't waste further time on it.

The other main reason that Glaberson's cohorts favor a new law on 'preventive detention' is that they assume it will never be invoked against people like themselves. To the smart set, the presumption that presidents with monarchical power would lock up only 'truly dangerous people' makes the long-term damage to the very foundations of our legal system seem trivial. Indeed for them there's a considerable benefit if Obama cooperates in drawing a veil over the past by not exposing it to judicial discovery: the unpleasant business of prosecuting the worst crimes of the Bush administration can be pushed aside indefinitely.

It's generally an unspoken rule of the Washington establishment that very important people do not have to answer for their abuse of power. In particular, according to this viewpoint, each successive administration is supposed to give its predecessor a pass for any and all crimes it committed. That's considered the height of bi-partisanship. Prosecuting important criminals, by contrast, "could be perceived as vindictive". "It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," says former federal prosecutor Robert Litt – whose own law firm's clients specifically stand not to benefit by spending time in that fashion.

You see, for the Washington elite the benefits of upholding our legal tradition hinge upon whether or not the legal system is brought to bear upon oneself and one's friends and clients.

Interwoven into this shameless assault on accountability and the rule of law are several preposterous (and therefore unstated) assumptions. In particular we're supposed to accept that certain prisoners are indescribably dangerous...more dangerous than the attack on our legal tradition...and that the Bush administration has lots of reliable information that "someone is a threat" though it can't be proved in court. An essential corollary is the assumption that these somebodies are critical operatives in the machinery of terrorism. Their release, we're to suppose, would lead inevitably to further acts of terror, whereas their continued detention prevents terrorism.

Now, I don't accept the specious view that Common Law stops applying whenever an allegation of terrorism is made. Neither should anybody. It's authoritarianism presented in legal raiment, very much in the tradition of the infamous Sedition Act of 90 years ago.

The imperative of Panic does not trump all. But even if I did accept that cowardly notion, there are many good reasons for rejecting the assumption that prisoners at Gitmo are dangerous in ways that no other actual or potential criminal suspects can ever be. Because unless you accept that the rules, laws, or precedents set in this instance can never be applied to anybody other than the terrorism suspects already held at Gitmo or in George Bush's other secret prisons, then you're stuck with an extra-legal system of imprisonment ruled over by the president. Far from solving any problems, you've just created (or institutionalized) a big one.

In any event, a single reason for rejecting that assumption is sufficiently devastating that there's little point in dwelling upon any others. And that is this: The Bush administration has shown again and again that it does not truly believe the inflated allegations it directs against Gitmo prisoners.

For example, obscured in the 'debate' thus far concerning what to do about Guantanamo is the Seton Hall study delivered in August to the Senate Judiciary Committee. That's a huge omission. This meticulous study (PDF) documents how many former prisoners have been released to their home countries, and how little correlation there has been between the rate and speed of their release, on the one hand, and the gravity of the Bush administration's allegations against them on the other.

In his written testimony to the Committee, Professor Mark P. Denbeaux, director of Seton Hall Law’s Center for Policy and Research stated, “…the Center sought to determine how evidence gathered against any given detainee influenced the decision whether to release him. Center researchers expected to find that the detainees who presented the greatest threat would have been released last, or would still be held at Guantánamo.

“Center analysis shows that was not the case. The only significant correlation to one’s being released, the date of his release, and status upon release, is the nationality of the detainee. Those from Afghanistan, Pakistan, or Saudi Arabia were more likely to be released, and more quickly.”

In other words, the allegations stop mattering once the Bush administration decides it wants to stop detaining a given prisoner. That makes perfect sense, of course, under the circumstances. Everybody involved knew that many of these prisoners had been purchased in the first place under a program so bizarre that the sales prices had to be euphemized as so-called "bounties". The allegations applied to the prisoners, once purchased, came straight off a menu of hyperbolic and simplistic tropes - as an earlier Seton Hall study (PDF) had shown conclusively.

Thus before the advocates for creating a new system of "preventive detention" ever get a hearing, they ought to be required to explain why we should give credence reflexively to allegations by a Bush administration that has a credibility gap. I really don't think they have an answer to that.

Federal judge rules that prisoners' detention at Guantanamo is unconstitutional

A federal court has for the second time in a little over three months delivered a stunning rebuke of the US government's justification for detaining suspects without trial at Guantanamo Bay prison. The first case concerned a single Uighur prisoner, Huzaifa Parhat, who brought suit under the Detainee Treatment Act of 2005 for a habeas-like court review of his own detention at Gitmo. Today's ruling concerns all the Uighurs held at Guantanamo.

The Bush administration's outlandish imprisonment of Uighurs at Guantanamo, at the behest of China, has been the weakest of weak points for its policies there. The US government admits that the Uighurs have never engaged in attacks or conspiracies against the US. It has held the Uighurs without charge for some 7 years at Gitmo merely as a favor to the Chinese as they attempt to crush dissent in the Uighur region of western China. The Bush administration has claimed for a few years that it would like to release the remaining Uighur prisoners from Gitmo but cannot find any countries willing to accept them.

In June of 2008 the DC Court of Appeals ruled on Parhat's case. It rejected with brutal sarcasm the findings of one Combatant Status Review Tribunal that had declared there was sufficient evidence against Parhat to continue holding him indefinitely at Guantanamo. The Appeals Court mocked the government's reliance upon hearsay and unvetted evidence at CSRTs, as well as its claims of secrecy in withholding evidence. The Court declared that the allegations needed to be proven and not simply assumed to be true. Therefore it ordered the administration either to release Parhat or hold a new hearing and attempt to actually prove its charges against him.

As a result, the US decided not to retry Parhat and to stop treating him as an enemy combatant. Later it did the same with another 4 Uighur prisoners, and then in late September with the remaining 12 Uighurs.

The June ruling was devastating because it pinned the Bush administration down over its reckless disregard for due process.

It was the first time a court has reviewed the military's decision-making and considered whether a detainee should be held. The ruling provides guidance to federal district judges, who are about to begin reviewing dozens of such cases now that the Supreme Court [in the Boumedienne decision] says detainees can challenge their detention in federal court.

Today's ruling by federal judge Ricardo Urbina went even farther in condemning Bush's policies of indefinite detention without trial. It is arguably the strongest rebuke yet of the government's lawlessness.

The hearing was initiated by lawyers for five of the seventeen Uighur prisoners, who argued that the government had inadequate evidence against the men to keep detaining them. Bush administration lawyers had argued in response that US courts have no power to order the release of prisoners held at Guantanamo. Originally today's hearing was supposed to concern whether the court had the authority to order their release.

In this case, Urbina had only two options: leave the Uighurs at Guantanamo Bay or order them released into the United States.

Justice Department lawyers have argued in court papers and at hearings that only the president has the authority to allow the men into the country. They also said the judge is barred from ordering their entry if they have ties to terrorist groups.

But judge Urbina accepted the Uighurs' argument that they're friendly toward the United States. He emphatically rejected the argument that courts have no power to uphold the habeas rights of prisoners just because the president wants to hold them under his own say so. Urbina frankly declared Bush's policies to be unconstitutional, and decided that instead of ruling merely on the question of jurisdiction, or narrowly on the five original plaintiffs, he would order the immediate release of all 17 Uighur prisoners.

A federal judge on Tuesday ordered the Bush administration to immediately release 17 Chinese Muslims who have been held for seven years at Guantánamo Bay, and to allow them to stay in the United States, because they are no longer considered enemy combatants.

The ruling, handed down by Federal District Judge Ricardo M. Urbina, marked the first time that any United States court rejected government arguments and ordered the release of detainees from Guantánamo Bay, an American naval base in Cuba, since the detention center there opened in 2002.

[...]

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for the detention,” he said.

The Washington Post adds:

Urbina said in court that he ordered the release "because the Constitution prohibits indefinite detention without cause." He added, "The separation of powers do not trump" the prohibition against holding people indefinitely without trial.

A sweeping ruling and a magnificent victory for due process in the US. The Justice Department asked for a stay of his ruling, which Urbina rejected. The Uighurs, he said, had been held long enough and the Bush administrations' defense strategy had been to drag out proceedings in order to delay the day of justice for these prisoners.

"All of this means more delay," he said, "and delay is the name of the game up until this point."

That is in line with the Supreme Court's stunning ruling this summer in the Boumediene case, which famously argued that “the costs of delay can no longer be borne by those who are held in custody.” So Urbina orded the US government to produce the 17 Uighurs in his court on Friday so that he could release them. Then DOJ lawyer John O'Quinn played what he thought was his Executive-powers trump card.

O'Quinn said the legal ramifications from the order are complex and that he wants time to consult with officials from the Department of Homeland Security. Under existing U.S. law, immigration authorities may be forced to take the Uighurs into custody shortly after they arrive in the United States, O'Quinn said. The Justice Department alleges they have ties to a group that has been designated a terrorist organization by the government.

"I won't take that kindly," Urbina said. Threats by Bush's lawyers don't seem to work any longer.

The judge reacted angrily, saying he did not want the detainees molested by anyone in the government, in what he called an urgent matter.

“There was a pressing need to have these people, who have been incarcerated for seven years — to have those conditions changed,” Judge Urbina said.

Urbina added that DOJ and Homeland Security officials will get a chance at an Oct. 16 hearing to weigh in on whether and how the Uighurs should be monitored. But by the end of the week, the 17 men should be released in the custody of DC area Uighurs.

Since large numbers of habeas reviews are already underway for Guantanamo prisoners, today's ruling by Urbina will probably exert great influence in the dismantling of George Bush's obscenity at Guantanamo.

crossposted from Never In Our Names and unbossed.com

Bush gives meaning to words

In a pair of interviews with foreign journalists during the 10 o'clock hour on Friday (h/t WIIIAI), George Bush showed once again why we cannot permit another such dope to occupy the White House. First he spoke to Israeli reporters:

Q Mr. President, you just mentioned Iraq. Can you clarify to us whether there was any Israeli involvement in your decision to invade Iraq?

THE PRESIDENT: No, not at all. None whatsoever. My decision was based upon U.S. intelligence, based upon the desire to provide security for our peoples and others. It was based upon my willingness to work with the international community on this issue. Remember, if you look back at the history, there was a unanimous vote in the Security Council: disclose, disarm, or face serious consequences. And when he defied, when he refused to allow the inspectors in, when he made a statement by his actions that he didn't really care what the international community said, that I decided to make sure words meant something.

The words "refuse" and "in", however, have no meaning for Bush. Just see if you can follow the logic as he proceeds to explain how he gave meaning to words.

And so I acted based upon our own security interests. And -- but it also fit into this notion of -- and remember, Zarqawi, there was some terrorist connections -- not with the 9/11 attacks, but terrorist connections; Abu Nadal; he had been using -- he'd been funding families of suicide bombers. In other words, as far as we were concerned, he had weapons of mass destruction which could have been used in a deadly way. It turns out he didn't have the weapons, but he had the know-how on how to make weapons, which could easily have been reconstituted. The sanctions regime turns out to have been corrupt and wasn't working. In other words, there's a variety of aspects to my decision, all of which were aimed at making sure that U.S. security, first and foremost, was enhanced.

Hussein had the weapons "as far as we were concerned". Ok he didn't have them, but he did have something else. Thus behind Bush's decision to create a quagmire in Iraq there were "a variety of aspects", otherwise called "delusions" (when words are given their meaning).

In a second interview with Arab reporters, Bush made an even greater ass of himself, if that's possible. The opening is like an Abbott and Costello routine:

Q ...Mr. President, I wanted to ask you, your visit to the region will not include the Maghreb Arab.

THE PRESIDENT: Will not include --

Q The Maghreb Arab --

THE PRESIDENT: Yes, that's right.

Q -- Morocco, Algeria and Tunisia. Those countries actually played a very important role in the peace process in the past and I think that they are willing to do it again. And my question, Mr. President, if there is any reason for excluding the Maghreb Arab from your visit?

THE PRESIDENT: Only because I ran out of time. It's certainly not as a result of any lack of respect or understanding that the contribution of those -- of that area would be a significant contribution to achieving peace. ...

And having said that, one of my great trips as a civilian -- I guess you'd call me a civilian -- non-President, non-political figure -- was when I went to Morocco. I had the great pleasure of going to Marakesh, for example, and I'll never forget drinking crushed almond milk, and enjoyed the wonders of the desert, and then was able to see snow-capped mountains shortly in the distance, in the short distance. And so it's -- I threw snowballs in Morocco one time in the Atlas mountain range. So I had a wonderful experience there. Not to be kind of nostalgic, looking back, but -- you know, it's interesting -- for example, there are a lot of Moroccan Jews in Israel.

Q And in Morocco also.

THE PRESIDENT: What?

Q And in Morocco.

THE PRESIDENT: Yes, and in Morocco, which provides the King an interesting opportunity to be a healer and a unifier. And I believe he's committed to that.

Seven years into his presidency, and Bush still has a child's perspective on the wider world, one in which it's nifty that Moroccan Jews should live in Israel...and if in Israel, then why not in Morocco as well?!

The most disturbing part of these interviews, however, comes later when Bush is asked by a Kuwaiti reporter about prisoners held in Gitmo:

Q ...Now, back in Kuwait, as your visit is approaching, the Kuwaitis are actually wondering if there will be an end to the four Kuwaiti detainees in Guantanamo. There are four of them; to the best of our knowledge all paperwork has been done, all security assurances have been --

THE PRESIDENT: To be transferred back to --

Q To Kuwait.

THE PRESIDENT: -- from Guantanamo to Kuwait. We'll look at it. Our strategy, by the way, is to transfer as many Guantanamo detainees back to their countries of origin as possible, subject to the no torture agreement.

Q The security assurances and the paperwork --

THE PRESIDENT: Security assurances -- right, as well as the assurances that the people will be treated humanely. I just will have to look into this.

Q That will be great news, Mr. President, actually.

Doesn't that just make you cringe? Foreign nationals pleading with the President to intervene personally to liberate men who should have been freed a long time ago. There's an imperial president enjoying the feel of raw, unchecked power.

Nice touch, to worry that Kuwait might torture the men after the U.S. is through working them over.

America’s slave ships

Last year I argued in America’s slaves that the networks created by Bush’s CIA for purchasing (or seizing), for transporting, brutalizing, and holding without trial undifferentiated masses of foreign men, should not be rationalized as just a different form of imprisonment. They aren’t being treated as either war captives or criminals. Instead, I believe, the closest analogue for this system is slavery. It’s not the slavery of economic exploitation, of course, but the display of raw, unchecked power, of domination, of authority. Under Bush, when you get right down to it, this new slavery came into existence in order to crush out the very idea of resistance to his will.

Today, the Guardian newspaper highlights another dimension to the vile network created by George W. Bush: slave ships.

The Guardian reports that there is finally some movement in the British Parliament to investigate the longstanding allegations that the British island of Diego Garcia, where the US leases an air base, is one of the CIA’s black sites where men are held secretly and tortured. From the Guardian:

The all-party foreign affairs committee is to examine long-standing suspicions that the agency has operated one of its so-called "black site" prisons on Diego Garcia, the British overseas territory in the Indian Ocean that is home to a large US military base.

Lawyers from Reprieve, a legal charity that represents a number of detainees at Guantánamo Bay, including several former British residents, are calling on the committee to question US and British officials about the allegations. According to the organisation's submission to the committee, the UK government is "potentially systematically complicit in the most serious crimes against humanity of disappearance, torture and prolonged incommunicado detention".

Clive Stafford Smith, the charity's legal director, said he was "absolutely and categorically certain" that prisoners have been held on the island. "If the foreign affairs committee approaches this thoroughly, they will get to the bottom of it," he said.

The government of Tony Blair was pressed many times by MPs about these allegations, but always fell back upon the Bush administration’s denials. The British have never actually looked into the matter—even though Gen. Barry McCaffrey said that prisoners are held at Diego Garcia; even though the torture flight logs amassed by investigators identified a CIA flight from Washington to Diego Garcia on Sept. 11, 2002 (shortly after Ramzi Binalshibh was captured); even though the report to the European Council by investigator Dick Marty stated …

"We have received concurring confirmations that United States agencies have used Diego Garcia, which is the international legal responsibility of the UK, in the 'processing' of high-value detainees."

And even though the island in the Indian Ocean retains a small force of British military personnel as customs officers and police, the British government has until now never bothered to discover whether its territory is being used to violate international laws on human rights.

If allegations of secret imprisonment and torture aren’t sufficient to embarrass the British government into action, then perhaps talk of slave ships might be.

One possibility which the foreign affairs committee may explore is that suspects have been held on a prison ship off the coast of Diego Garcia. The UN special rapporteur on torture, Manfred Nowak, has said that he has heard from reliable sources that the US has held prisoners on ships in the Indian Ocean. There have also been second-hand accounts from detainees at Guantánamo of prisoners being held on US naval vessels.

One detainee told a researcher from Reprieve: "One of my fellow prisoners in Guantánamo was at sea on an American ship with about 50 others before coming to Guantánamo. He told me that there were about 50 other people on the ship; they were all closed off in the bottom. The people detained on the ship were beaten even more severely than in Guantánamo."

Until now, there have been only a few stray comments in print about the allegations that the US Navy is keeping torture vessels afloat, allegations that even the U.N. felt obliged to describe as rumors.

The United Nations says it has learned of serious allegations that the US is secretly detaining terrorism suspects, notably on American military ships.

The special rapporteur on torture, Manfred Nowak, said the claims were rumours at this stage, but urged the US to co-operate with an investigation…

He said that according to the reports, the ships were believed to be in the Indian Ocean.

The British were actively involved in the Indian Ocean slave trade until 1807. Two hundred years later, they seem to be back in business.

crossposted from unbossed.com