Barbara Herbert, a course director at Tufts University School of Medicine, made a short, but compelling plea in today’s New York Times. Herbert argued that the United States government should convene a truth and reconciliation commission, using the one in South Africa as a model, to investigate into possible crimes committed by the Bush administration.
Such a commission would allow a nation to (a) find the truth of what happened from multiple perspectives, (b) develop an understanding of how it happened and (c) heal.
A commission isn’t some kind of partisan booby trap thrown together in a frenzied quest for retribution as Harry Reid suggested last week. The formation of a nonpartisan commission also wouldn’t act as a nefarious tool to dismantle the foundation of The American Way (corrupting the sweet “mysteries” of life,) as Bush apologists like Peggy Noonan claim.
A truth commission would use the law as a compass, and its only goal would be to restore order in America. As Herbert wrote, “We need a chance for secular redemption and healing.”
On Tuesday, Jeremy Scahill reported that Rep. John Conyers, chair of the House Judiciary Committee, and Rep. Jerrold Nadler wrote to Attorney General Eric Holder officially requesting the appointment of an independent Special Prosecutor to “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In order to restore credibility to the Justice Department, Holder must adhere to the rule of law, and not partisan demands. He must investigate into possible crimes committed under the Bush administration.
The law is not a fringe issue. Progressives may be the ones demanding an investigative commission, but the issue at stake here is the law itself. That’s not a partisan issue. The law should be sacred to all Americans: Republicans and Democrats. And if Democrats are proven to have been complicit in torture, then they too must be punished according to the law.
Otherwise, Americans will learn only one lesson: the law does not apply to our leaders. What a terrible lesson to teach young Americans.
“There is no such thing as a little torture.” — Alfred M. McCoy, author of A Question of Torture
The Bush administration is really an impressive force of nature. Whenever I was absolutely certain that their dastardly deeds couldn’t possibly get any more nefarious, Dick Cheney shot a family friend in the face, or George W. Bush ordered the U.S. military to invade another country. When they finally left office, I assumed they couldn’t harm America’s reputation ever again.
I was wrong. The Justice Department finally made the infamous memos that sanctioned torture public this week. The details are horrific. Not only are barbaric measures like “walling” (slamming a person into a wall,) and stress positions deemed acceptable by legal experts, but also more inventive interrogation methods like placing live bugs in a confinement box (and telling the prisoner they’ll sting him).
Politicians repeatedly regurgitate the fairy tale that America is a Nation of Laws. Except, the laws get broken all the time, and the archetypes of anarchy usually aren’t held accountable. Barack Obama has sought to reassure CIA operates, who participated in torture, that they can use the same defense Nazis could not use during Nuremberg. Namely, that they were just “following orders.”
This doesn’t bode well for justice enthusiasts, who hoped that maybe (just maybe) the Big Guys would be help accountable this time. That maybe John Yoo, Douglas Feith, Jay Bybee, Dick Cheney, David Addington, George W. Bush, Donald Rumsfeld, and William Haynes would have to stand before the American people and explain why they thought sanctioning torture was acceptable.
That maybe they would finally have to explain why a little torture was okay.
We are a nation of laws only if the people in charge get to benefit from the rulings. We are a nation of laws only up until Lynndie England, but justice stops short of Donald Rumsfeld. We are a nation of laws for thieves and crooks, but justice can’t touch Goldman Sachs CEOs. The hypocrisy is rampant. It infests every facet of the justice system, and has left us with a broken two-tier system of justice.
The debate over torture is frequently aimed at Guantanamo. However, the problem is also domestic, although the victims are still the unprivileged. While the United States is home to just five percent of the world’s population, it contains 25% of the world’s prisoners. More than one in 100 adults are in prison. Most of those prisoners aren’t homicidal sociopaths. They’re nonviolent drug offenders. America is the only western industrialized country to still use the death penalty, but apparently injecting someone will a chemical that paralyzes their organs doesn’t constitute torture, even though the Nazis used the same method. Those that live inside our prison-industrial complex experience a form of torture every day. Prisoners face the threat of rape and are more likely to contract H.I.V., hepatitis and tuberculosis.
This kind of domestic torture is frequently overlooked because it’s the “right people” suffering. Bad guys. Bottom-tier justice types: poor people, immigrants, people of color. And after all, it’s only a little torture. Terrorists and criminals deserve whatever happens to them. Waterboarding doesn’t even count as torture! It’s just a light spritz in the face! (Of course, even Bush’s own legal team knew it was torture and expressed their concern in footnote form.)
This cartoonish, simplified scope of reality would be laughable had it not been the ideologies held by the Bush administration for eight years. Innocent people are accused of crimes all the time. That’s why our smart ancestors put in place that whole “justice system” in the first place. Ya’ know, that thing about being able to face one’s accusers and present evidence to defend one’s self.
If justice is to come to Guantanamo (and it should,) it must also come to the United State’s domestic prisons where draconian drug laws continue case overcrowding and strain stark resources, which then breeds inhumane conditions. If justice is to come to torture victims, it must mean than the archetypes of the torture memos will stand beside the CIA agents that carried out the orders.
The American two-tier justice system must end, and a good start would be for the Obama administration to recognize that a little torture is never okay, no matter who is doing it.
WASHINGTON — Two days after his re-election in 1864, with Union victory in the Civil War assured, Abraham Lincoln stood at a White House window to address a boisterous crowd of supporters. He spoke of the lessons of the nation’s calamitous recent history.
“In any future great national trial, compared with the men of this, we shall have as weak and as strong; as silly and as wise; as bad and as good,” Lincoln said. “Let us, therefore, study the incidents of this as philosophy to learn wisdom from, and none of them as wrongs to be revenged.”
Today there are new calls for such study, not universal but certainly loud enough, directed this time at the Bush administration’s campaign against terrorism. Interrogation techniques that the United States had long condemned as torture, secret prisons beyond the reach of American law and eavesdropping on American soil without court warrants are at the top of a lot of lists.
But as Lincoln knew, one man’s wisdom is another’s vengeance. Repeatedly in American history, and in “truth commissions” in some two dozen countries from Argentina to Zimbabwe since the 1980s, it has turned out to be a tricky business to turn the ferocious politics of recent events into the dispassionate stuff of justice and the rule of law.
A USA Today/Gallup poll this month found that 62 percent of Americans favor either a criminal investigation or an independent panel to look into allegations of torture. Still, many people, primarily Republicans, insist the Bush policies were vital to protect the country, and the Obama administration is treading gingerly. When Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee, proposed a commission to investigate torture and eavesdropping, President Obama didn’t embrace the idea.
Already grappling with two wars and an economic meltdown, Mr. Obama said he was “more interested in looking forward than I am in looking backwards.” But the door was ajar; he also declared that “nobody is above the law.”
Mr. Leahy is undeterred. In an interview, he laughed and described the president’s remarks as “an enthusiastic endorsement.” He said he would work to build support for the idea in Congress.
As a senator under seven presidents, Mr. Leahy said, he has learned that the temptation to abuse powers in a crisis is bipartisan, and the commission’s review should include the role of Democrats in Congress in approving the Bush policies. The work should be done in one year, he added, to avert accusations that it was being dragged out for political gain.
Mr. Obama’s most enthusiastic supporters remain passionate about “looking backwards,” arguing that the Bush policies darkened the United States’ reputation, to Al Qaeda’s benefit. They include Representative John Conyers of Michigan, the House Judiciary chairman, who has sponsored a bill to set up an investigative panel.
Many Republicans, however, say the lofty appeals to justice and history mask an unseemly and dangerous drive to pillory the Bush administration and hamstring the intelligence agencies.
That was precisely the view of an aide in Gerald Ford’s White House named Dick Cheney when a Senate committee led by Frank Church of Idaho looked into intelligence abuses in the mid-1970s. A quarter-century later, as vice president, Mr. Cheney would effectively wreak vengeance on that committee’s legacy, encouraging the National Security Agency to bypass the warrant requirement the committee had proposed and unleashing the Central Intelligence Agency he felt the committee had shackled.
If advocates of looking back have their way, what are the options? Some past inquiries offer models, each with different potential winners and losers.
A CRIMINAL INVESTIGATION (IRAN-CONTRA)
Attorney General Eric H. Holder Jr. said at his confirmation hearing that he, like Mr. Obama, did not want to “criminalize policy differences” by punishing officials for acts they believed were legal. The same language was used in 1992 by President George H. W. Bush when he pardoned six officials charged in the Iran-contra investigation. Mr. Bush called the charges “a profoundly troubling development in the history of our country: the criminalization of policy differences.”
The Iran-contra case illustrates the obstacles to any prosecution that unfolds in a polarized political atmosphere. An independent prosecutor, Lawrence E. Walsh, worked for six years to untangle shady arms deals, defiance of Congress and a cover-up. But because of the pardons and court rulings, the key figures escaped all punishment except large legal fees and damaged reputations.
The sharpest critics of the Bush programs insist that only prosecution can restore the law to its proper place. They note that some 100 terrorism suspects have died in American custody and say a prosecution for conspiracy to torture could target both the high-level officials who approved the likes of waterboarding and lawyers who justified it.
But many legal experts believe that the Justice Department would be hard pressed to prosecute as torture methods that the department itself declared in 2002 not to be torture. And if an important goal is to determine who devised the policies, a push to prosecute might only persuade past officials to lawyer up and clam up.
A CONGRESSIONAL INVESTIGATION (CHURCH)
If there is a close precedent for the investigation now being debated, it is the inquiry led by Senator Church in 1975-76, which recorded in stunning detail some of the darkest chapters in American history. Its reports chronicled the C.I.A.’s bumbling attempts to assassinate foreign leaders; the N.S.A.’s watchlisting of civil rights and antiwar activists; and the F.B.I.’s campaign to drive the Rev. Dr. Martin Luther King Jr. to suicide.
The reports led directly to a series of reforms, including President Ford’s ban on assassinations, the creation of the Foreign Intelligence Surveillance Court to approve national-security eavesdropping and the establishment of Congressional oversight of the intelligence agencies.
But some Republicans saw Mr. Church as a showboat and his committee as overreaching. To Mr. Cheney, the Church legacy was a regrettable pruning of the president’s powers to protect the country — powers he and Bush administration lawyers reasserted after the Sept. 11, 2001, attacks.
A BLUE-RIBBON PANEL (9/11 COMMISSION)
Though Mr. Leahy praised the Church Committee, his own proposal would take the investigation away from Congress in favor of “a group of people universally recommended as fair minded.” He also suggested subpoena power and, perhaps most important, a South Africa-style trade-off: immunity for officials who testify truthfully.
Investigative commissions date at least to 1794, when George Washington used one to negotiate a settlement of the Whiskey Rebellion. The 9/11 commission, a recent example, largely overcame partisanship and drew generally positive reviews.
A commission would free Congress to focus on current problems, including the economic crisis. And promises of immunity might answer concerns expressed last month by the departing C.I.A. director, Michael V. Hayden — that any investigation would discourage intelligence officers from acting boldly for fear of later second-guessing.
Or more accurately, finishing up and rolling out the inquiries already under way. Even if the push for a broad investigation loses momentum, the Bush programs will not soon be forgotten. Among major inquiries expected to conclude soon: a report from the Justice Department’s ethics office on legal opinions justifying harsh interrogations; the criminal investigation of the C.I.A.’s destruction of interrogation videotapes; and a report by the Justice Department inspector general on the N.S.A.’s warrantless eavesdropping.
Meanwhile, thousands of documents relating to secrets of the Bush years are being sought by journalists and advocates. Mr. Obama has directed agencies to lean strongly toward disclosure.
Frederick A. O. Schwarz Jr., who served as chief counsel for the Church Committee and has called for a new commission, said there is no telling what a thorough investigation may turn up. He recalled his shock as he sat in a secure room at the C.I.A. in 1975 and read that the agency had recruited the Mafia in a scheme to kill Fidel Castro.
“It may seem that we already know a lot,” Mr. Schwarz said. “But based on my experience, I’m certain there’s a lot that went on the last eight years that we still don’t know.”
AND so on the 29th day of his presidency, Barack Obama signed the stimulus bill. But the earth did not move. The Dow Jones fell almost 300 points. G.M. and Chrysler together asked taxpayers for another $21.6 billion and announcedanother 50,000 layoffs. The latest alleged mini-Madoff, R. Allen Stanford, was accused of an $8 billion fraud with 50,000 victims.
No one knows, of course, but a bigger question may be whether we really want to know. One of the most persistent cultural tics of the early 21st century is Americans’ reluctance to absorb, let alone prepare for, bad news. We are plugged into more information sources than anyone could have imagined even 15 years ago. The cruel ambush of 9/11 supposedly “changed everything,” slapping us back to reality. Yet we are constantly shocked, shocked by the foreseeable. Obama’s toughest political problem may not be coping with the increasingly marginalized G.O.P. but with an America-in-denial that must hear warning signs repeatedly, for months and sometimes years, before believing the wolf is actually at the door.
This phenomenon could be seen in two TV exposés of the mortgage crisis broadcast on the eve of the stimulus signing. On Sunday, “60 Minutes” focused on the tawdry lending practices of Golden West Financial, built by Herb and Marion Sandler. On Monday, the CNBC documentary “House of Cards” served up another tranche of the subprime culture, typified by the now defunct company Quick Loan Funding and its huckster-in-chief, Daniel Sadek. Both reports were superbly done, but both could have been reruns.
The Sandlers and Sadek have been recurrently whipped at length in print and on television, as far back as 2007 in Sadek’s case (by Bloomberg); the Sandlers were even vilified in a “Saturday Night Live” sketch last October. But still the larger message may not be entirely sinking in. “House of Cards” was littered with come-on commercials, including one hawking “risk-free” foreign-currency trading — yet another variation on Quick Loan Funding, promising credulous Americans something for nothing.
This cultural pattern of denial is hardly limited to the economic crisis. Anyone with eyes could have seen that Sammy Sosa and Mark McGwire resembled Macy’s parade balloons in their 1998 home-run derby, but it took years for many fans (not to mention Major League Baseball) to accept the sorry truth. It wasn’t until the Joseph Wilson-Valerie Plame saga caught fire in summer 2003, months after “Mission Accomplished,” that we began to confront the reality that we had gone to war in Iraq over imaginary W.M.D. Weapons inspectors and even some journalists (especially at Knight-Ridder newspapers) had been telling us exactly that for almost a year.
The writer Mark Danner, who early on chronicled the Bush administration’s practice of torture for The New York Review of Books, reminded me last week that that story first began to emerge in December 2002. That’s when The Washington Post reported on the “stress and duress” tactics used to interrogate terrorism suspects. But while similar reports followed, the notion that torture was official American policy didn’t start to sink in until after the Abu Ghraib photos emerged in April 2004. Torture wasn’t routinely called “torture” in Beltway debate until late 2005, when John McCain began to press for legislation banning it.
Steroids, torture, lies from the White House, civil war in Iraq, even recession: that’s just a partial glossary of the bad-news vocabulary that some of the country, sometimes in tandem with a passive news media, resisted for months on end before bowing to the obvious or the inevitable. “The needle,” as Danner put it, gets “stuck in the groove.”
For all the gloomy headlines we’ve absorbed since the fall, we still can’t quite accept the full depth of our economic abyss either. Nicole Gelinas, a financial analyst at the conservative Manhattan Institute, sees denial at play over a wide swath of America, reaching from the loftiest economic strata of Wall Street to the foreclosure-decimated boom developments in the Sun Belt.
When we spoke last week, she talked of would-be bankers who, upon graduating, plan “to travel in Asia and teach English for a year” and then pick up where they left off. Such graduates are dreaming, Gelinas says, because the over-the-top Wall Street money culture of the credit bubble isn’t coming back for a very long time, if ever. As she observes, it took decades after the Great Depression — until the 1980s — for Wall Street to fully reclaim its old swagger. Not until then was there “a new group of people without massive psychological scarring” from the 1929 crash.
In states like Nevada, Florida and Arizona, Gelinas sees “huge neighborhoods that will become ghettos” as half their populations lose or abandon their homes, with an attendant collapse of public services and social order. “It will be like after Katrina,” she says, “but it’s no longer just the Lower Ninth Ward’s problem.” Writing in the current issue of The Atlantic, the urban theorist Richard Florida suggests we could be seeing “the end of a whole way of life.” The link between the American dream and home ownership, fostered by years of bipartisan public policy, may be irreparably broken.
Pity our new president. As he rolls out one recovery package after another, he can’t know for sure what will work. If he tells the whole story of what might be around the corner, he risks instilling fear itself among Americans who are already panicked. (Half the country, according to a new Associated Press poll, now fears unemployment.) But if the president airbrushes the picture too much, the country could be as angry about ensuing calamities as it was when the Bush administration’s repeated assertion of “success” in Iraq proved a sham. Managing America’s future shock is a task that will call for every last ounce of Obama’s brains, temperament and oratorical gifts.
The difficulty of walking this fine line can be seen in the drama surrounding the latest forbidden word to creep around the shadows for months before finally leaping into the open: nationalization. Until he started hedging a little last weekend, the president has pointedly said that nationalizing banks, while fine for Sweden, wouldn’t do in America, with its “different” (i.e., non-socialistic) culture and traditions. But the word nationalization, once mostly whispered by liberal economists, is now even being tossed around by Lindsey Graham and Alan Greenspan. It’s a clear indication that no one has a better idea.
The Obama White House may come up with euphemisms for nationalization (temporary receivership, anyone?). But whatever it’s called, what will it mean? The reason why the White House has been punting on the new installment of the bank rescue is not that the much-maligned Treasury secretary, Timothy Geithner, is incapable of getting his act together. What’s slowing the works are the huge political questions at stake, many of them with consequences potentially as toxic as the banks’ assets.
Will Obama concede aloud that some of our “too big to fail” banks have, in essence, already failed? If so, what will he do about it? What will it cost? And, most important, who will pay? No one knows the sum of the American banks’ losses, but the economist Nouriel Roubini, who has gotten much right about this crash, puts it at $1.8 trillion. That doesn’t count any defaults still to come on what had been considered “good” mortgages and myriad other debt, whether from auto loans or credit cards.
Americans are right to wonder why there has been scant punishment for the management and boards of bailed-out banks that recklessly sliced and diced all this debt into worthless gambling chips. They are also right to wonder why there is still little transparency in how TARP funds have been spent by these teetering institutions. If a CNBC commentator can stir up a populist dust storm by ranting that Obama’s new mortgage program (priced at $75 billion to $275 billion) is “promoting bad behavior,” imagine the tornado that would greet an even bigger bank bailout on top of the $700 billion already down the TARP drain.
Nationalization would likely mean wiping out the big banks’ managements and shareholders. It’s because that reckoning has mostly been avoided so far that those bankers may be the Americans in the greatest denial of all. Wall Street’s last barons still seem to believe that they can hang on to their old culture by scuttling corporate jets, rejecting bonuses or sounding contrite in public. Ask the former Citigroup wise man Robert Rubin how that strategy worked out.
We are now waiting to learn if Obama’s economic team, much of it drawn from the Wonderful World of Citi and Goldman Sachs, will have the will to make its own former cohort face the truth. But at a certain point, as in every other turn of our culture of denial, outside events will force the recognition of harsh realities. Nationalization, unmentionable only yesterday, has entered common usage not least because an even scarier word — depression — is next on America’s list to avoid.
WASHINGTON (Reuters) – The Obama administration on Friday told a federal judge it would not deviate from the Bush administration’s position that detainees held at a U.S. air base in Afghanistan have no right to sue in U.S. courts.
In one of his first acts in office, President Barack Obama ordered the closure within one year of the Guantanamo Bay detention centre, which has been widely criticized by rights groups and foreign governments. About 245 people are currently held at Guantanamo, according to the Pentagon.
However, Obama has not yet decided what to do about the makeshift prison at the U.S. military base in Bagram, where the U.S. government is holding more than 600 prisoners, or whether to continue work on a $60 million prison complex there.
In late January, Obama directed a task force to study the government’s overall detainee policy and report back to him in six months.
But the new administration faced a February 20 deadline to tell U.S. District Court Judge John Bates whether it would “refine” the Bush administration’s position on four men being held at Bagram who have filed suit against their detention.
In a brief filing with the court on Friday, the Justice Department said it would stick to the previous government’s position, which argued the four men — who have been detained at Bagram for over six years — had no right to challenge their detention in a U.S. court.
Barbara Olshansky, lead counsel for three of the four detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to “adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people’s human rights.”
She said she hoped that the Obama administration was merely signalling it was still working on its position regarding the detainee issue.
The U.S. District Court held a hearing in early January on four separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan.
At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.
After Obama’s executive order indicating changes to the government’s detention policy for Guantanamo, the district court asked the new administration if it wished to change its position on the prisoners at Bagram.
Now that the government has responded, the federal judge is expected to rule in coming weeks on whether his court has jurisdiction to hear the cases.
(Reporting by Andrea Shalal-Esa; editing by Todd Eastham)
WASHINGTON (AP) — The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.
In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.
“The hope we all had in President Obama to lead us on a different path has not turned out as we’d hoped,” said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. “We all expected better.”
The Supreme Court last summer gave al-Qaida and Taliban suspects held at the U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.
Three months after the Supreme Court’s ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system.
The military has determined that all the detainees at Bagram are “enemy combatants.” The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.
After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush’s legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.
“They’ve now embraced the Bush policy that you can create prisons outside the law,” said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.
The Justice Department argues that Bagram is different from Guantanamo Bay because it is in an overseas war zone and the prisoners there are being held as part of a military action. The government argues that releasing enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.
The government also said if the Bagram detainees got access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.
It’s not the first time that the Obama administration has used a Bush administration legal argument after promising to review it. Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets.
The same day, however, Justice Department attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a suit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.
Letter said that Obama officials approved his argument.
The last “enemy combatant” being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolina—a tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nation’s terrorism policies, Marri—who claims that he is innocent—will likely spend the rest of his life in prison.
On September 10, 2001, Marri, a citizen of Qatar, who is now forty-three, came to America with his family. He had a student visa, and his ostensible purpose was to study computer programming at a small university in Peoria, Illinois. That December, he was arrested as a material witness in an investigation of the September 11th attacks. However, when Marri was on the verge of standing trial, in June, 2003, President George W. Bush ordered the military to seize him and hold him indefinitely. The Bush Administration contended that America was in a full-fledged war against terrorists, and that the President could therefore invoke extraordinary executive powers to detain Marri until the end of hostilities, on the basis of still secret evidence. That day, Marri was put on a military jet to Charleston, and since then he has been living as the only prisoner in an eighty-bed high-security wing of the brig, with no visits from family, friends, or the media.
Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role in Marri’s legal defense, says that the Bush Administration’s decision to leave him in sustained isolation was akin to stranding him on a desert island. “It’s a Robinson Crusoe-like situation,” he told me. In 2005, Hafetz challenged the constitutionality of Marri’s imprisonment. A lower court affirmed the government’s right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of “the most far-reaching use of detention powers” ever asserted by an American President.
The Court’s calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is taken—such as sending Marri home to Qatar, or working out a plea agreement—the Court’s schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism.
John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, “They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory.”
Among the issues to be decided, Hafetz says, is “the question of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President?” Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bush’s executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released.
Update: Greenwald has written an excellent companion post to this article. Highly recommended.
Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.
“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.
Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.
Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”
To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.
But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.
Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.
Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.
Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”
He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”
Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.
For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.
Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”
Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.
“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”
Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.
The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.
Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.
Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”
Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.
“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”
On Friday in Salon, Joe Conason argued that there should be no criminal investigations of any kind for Bush officials “who authorized torture or other outrages in the ‘war on terror’.” Instead, Conason suggests that there be a presidential commission created that is “purely investigative,” and Obama should “promis[e] a complete pardon to anyone who testifies fully, honestly and publicly.” So, under this proposal, not only would we adopt an absolute bar against prosecuting war criminals and other Bush administration felons, we would go in the other direction and pardon them from any criminal liability of any kind.
I’ve already written volumes about why immunizing political officials from the consequences for their lawbreaking is both destructive and unjust — principally: the obvious incentives which such immunity creates (and, for decades, has been creating) for high-level executive branch officials to break the law and, even worse, the grotesque two-tiered system of justice we’ve implemented in this country (i.e., the creation of an incomparably harsh prison state for ordinary Americans who commit even low-level offenses as contrasted with what Conason calls, approvingly, “the institutional reluctance in Washington to punish political offenders”). Rather than repeat those arguments, I want to focus on an issue that pro-immunity advocates such as Conason simply never address.
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compelall signatories — in language as clear as can be devised — to “submit the case to its competent authorities for the purpose of prosecution“ (Art. 7(1)). And the treaty explicitly bars the standard excuses that America’s political class is currently offering for refusing to investigate and prosecute: ”No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” and “an order from a superior officer or a public authority may not be invoked as a justification of torture” (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention’s obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that — just as is true for any advance promises by the Obama DOJ not to investigate or prosecute – issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can’t be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to “submit the [torture] case to [our] competent authorities for the purpose of prosecution.” Those two acts — the granting of immunity and submission for prosecution — are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn’t even a pretense of an effort to reconcile what they’re advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention — as valid and binding as every other treaty — don’t even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
What was all the sturm und drang about in 2003 over Bush’s invasion of Iraq without U.N. approval, in violation of the U.N. charter? Wasn’t it supposed to be a bad thing for the U.S. to violate its own treaties? What happened to that? Conason himself was actually one of the clearest and most emphatic voices presciently highlighting the deceit on which the pro-war case was based, stridently warning of ”ruined alliances and damaged institutions.” Why, then, is it acceptable now to ignore and violate our treaty obligations with regard to torture and other war crimes committed by high-level Bush officials? What’s the argument for simply pretending that these obligations under the Convention don’t exist?
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On a related note, Conason, in the very first paragraph of Friday’s article, plainly misstated the results of a new Gallup poll on the question of whether Bush officials should be prosecuted and/or investigated. I have no doubt it was unintentional, but his error highlights a very important point about how this debate has proceeded. Here’s what Conason wrote in his first paragraph (emphasis added):
More than 60 percent of Americans believe that alleged abuses and atrocities ordered by the Bush administration should be investigated either by an independent commission or by federal prosecutors, according to a poll released yesterday by the Gallup Organization. A significant minority favors criminal sanctions against officials who authorized torture or other outrages in the “war on terror” — yet a considerably larger minority of nearly 40 percent prefers that the Obama administration leave its wayward predecessors be.
That last assertion (the one I bolded) is simply untrue. As Jim White notes here, the Gallup poll asked about three different acts of Bush lawbreaking: (1) politicization of DOJ prosecutions, (2) warrantless eavesdropping on Americans, and (3) torture. For each crime, it asked which of three options respondents favored: (1) a criminal investigation by the DOJ; (2) a non-criminal, fact-finding investigation by an independent panel; or (3) neither. The full results are here.
For all three separate acts of alleged crimes, the option that receives the most support from Americans is criminal investigations (i.e., the exact opposite of what Conason wrote). And the percentage that favor that nothing be done is in every case less than the percentage that want criminal investigations, and the “do-nothing” percentage never reaches 40% or close to it (the highest it gets is 34% — roughly the same minority of pro-Bush dead-enders that continue to support most of what was done).
As White notes, the breakdowns are even more revealing. For all three areas of lawbreaking, majorities of Democrats (which, by the way, is now the majority party) favor criminal investigations. For each of the three areas, more independents favor criminal prosecutions than favor doing nothing, and large majorities of independents — ranging from 59% to 71% — want either a criminal investigation or an independent fact-finding investigation. A Washington Post poll from a couple weeks ago found very similar results: majorities of Americans (and large majorities of Democrats) favor investigations into whether Bush officials broke the law and, by a wide margin, oppose the issuance of pardons to Bush officials.
Imagine what those numbers would be in a world where virtually every establishment political pundit — literally: whether Democratic or Republican, liberal or conservative — weren’t uniting together to oppose prosecutions for torture and war crimes. Even with that unified anti-prosecution stance from a trans-partisan rainbow of Beltway opinion-makers, criminal investigations remain the leading position among Americans generally and among majorities of Democrats specifically. Those are just facts.
As is always the case, the mere fact that majorities of Americans believe X does not mean that X is right or true. But pundits, journalists and politicians should stop claiming that they’re speaking for most Americans when they argue that we should just “move on” — or that the belief in investigations is the province of the leftist fringe — because that claim is demonstrably false.
Recall when opposition to the Iraq War and a demand for a withdrawal timetable was routinely depicted by the Beltway class as a “liberal” or even Far Left position – even though large majorities of Americans held exactly those views. Apparently, the Far Left encompassed more than 60% of the country. Or recall when Time‘s Managing Editor, Rick Stengel, went on national TV andclaimed that Americans don’t want Bush officials and Karl Rove investigated for the U.S. Attorney scandal even when polls showed that large majorities of Americans favored exactly those investigations (a false claim which, to this day, Stengel refuses to retract).
That is the same flagrant distortion of public opinion that one finds here in the debate over investigations. The Washington Post‘s David Ignatius claims that a desire for investigations of Bush crimes is confined to “liberal score-settlers.” Lindsey Graham asserts that only the “hard Left” wants criminal investigations. Newsweek‘s Jon Barry is certain that the desire for investigations is only about “vengeance, pure and simple.”
Apparently, huge numbers of Americans — majorities, actually — are now liberal, vengeance-seeking, score-settlers from the Hard Left. What we actually have is what one finds again and again: establishment journalists who will resort to outright distortions about American public opinion in order to render it irrelevant, by claiming that “most Americans” believe as they believe even where, as here, that claim is categorically false. It’s hardly surprising (except to an insular Beltway maven) that Americans, who know that they will be subjected to one of the world’s harshest and most merciless criminal justice systems if they break the law, don’t want political elites exempted from the rule of law. Imagine that.
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Finally, Newsweek‘s Michael Isikoff – echoing a report from John Yoo’s Berkeley colleague, Brad DeLong – reports that an internal DOJ probe (initiated during the Bush administration) has preliminarily concluded that Bush DOJ lawyers who authorized torture (John Yoo, Jay Bybee, Stephen Bradbury) violated their professional duties as lawyers by issuing legal conclusions that had no good faith basis, and that this behavior will be referred to their state bar associations for possible disciplinary action. Those conclusions so infuriated the allegedly honorable Michael Mukasey that he refused to accept the report until changes were made. Now it is up to Eric Holder to accept and then release that report.
The implications of this event can’t be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions – i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).
The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith — with the deliberate intent to knowingly legalize what was plainly criminal behavior — will gut the primary political excuse for treating Bush officials differently than common criminals.
UPDATE: Citing numerous leading international law authorities, Valtin has an excellent discussion of the obligations the U.S. has to criminally investigate Bush crimes, not only under the Convention Against Torture but also under the Geneva Conventions. If we don’t consider ourselves bound by the treaties we sign, we should just say so and abrogate them. Those demanding criminal immunity for Bush officials are advocating that we can and should violate our treaty obligations; they really ought to be honest about it.
UPDATE II: On June 28, 2004, George Bush commemorated the U.N. Day to Support Torture Victims and vowed that the U.S. “will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.” In doing so, he specifically cited the U.S.’s binding obligation under the Convention to do so (h/t leftydem):
To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . .
The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. . . . [W]e will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.
If George Bush, citing our obligations under the Convention Against Torture and the Geneva Conventions, can publicly vow that “we will investigate and prosecute all acts of torture,” why can’t Democratic politicians and liberal pundits simply cite the same treaty obligations and make the same commitment?
Army Private Brandon Neely served as a prison guard at Guantánamo in the first years the facility was in operation. With the Bush Administration, and thus the threat of retaliation against him, now gone, Neely decided to step forward and tell his story. “The stuff I did and the stuff I saw was just wrong,” he told the Associated Press. Neely describes the arrival of detainees in full sensory-deprivation garb, he details their sexual abuse by medical personnel, torture by other medical personnel, brutal beatings out of frustration, fear, and retribution, the first hunger strike and its causes, torturous shackling, positional torture, interference with religious practices and beliefs, verbal abuse, restriction of recreation, the behavior of mentally ill detainees, an isolation regime that was put in place for child-detainees, and his conversations with prisoners David Hicks and Rhuhel Ahmed. It makes for fascinating reading.
Neely’s comprehensive account runs to roughly 15,000 words. It was compiled by law students at the University of California at Davis and can be accessed here. Three things struck me in reading through the account.
First, Neely and other guards had been trained to the U.S. military’s traditional application of the Geneva Convention rules. They were put under great pressure to get rough with the prisoners and to violate the standards they learned. This placed the prison guards under unjustifiable mental stress and anxiety, and, as any person familiar with the vast psychological literature in the area (think of the Stanford Prison Experiment, for instance) would have anticipated produced abuses. Neely discusses at some length the notion of IRF (initial reaction force), a technique devised to brutalize or physically beat a detainee under the pretense that he required being physically subdued. The IRF approach was devised to use a perceived legal loophole in the prohibition on torture. Neely’s testimony makes clear that IRF was understood by everyone, including the prison guards who applied it, as a subterfuge for beating and mistreating prisoners—and that it had nothing to do with the need to preserve discipline and order in the prison.
Second, there is a good deal of discussion of displays of contempt for Islam by the camp authorities, and also specific documentation of mistreatment of the Qu’ran. Remember that the Neocon-laden Pentagon Public Affairs office launched a war against Newsweek based on a very brief piece that appeared in the magazine’s Periscope section concerning the mistreatment of a Qu’ran by a prison guard. Not only was the Newsweek report accurate in its essence, it actually understated the gravity and scope of the problem. Moreover, it is clear that the Pentagon Public Affairs office was fully aware, even as it went on the attack against Newsweek, that its claims were false and the weekly’s reporting was accurate.
Third, the Nelly account shows that health professionals are right in the thick of the torture and abuse of the prisoners—suggesting a systematic collapse of professional ethics driven by the Pentagon itself. He describes body searches undertaken for no legitimate security purpose, simply to sexually invade and humiliate the prisoners. This was a standardized Bush Administration tactic–the importance of which became apparent to me when I participated in some Capitol Hill negotiations with White House representatives relating to legislation creating criminal law accountability for contractors. The Bush White House vehemently objected to provisions of the law dealing with rape by instrumentality. When House negotiators pressed to know why, they were met first with silence and then an embarrassed acknowledgement that a key part of the Bush program included invasion of the bodies of prisoners in a way that might be deemed rape by instrumentality under existing federal and state criminal statutes. While these techniques have long been known, the role of health care professionals in implementing them is shocking.
Neely’s account demonstrates once more how much the Bush team kept secret and how little we still know about their comprehensive program of official cruelty and torture.
The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.
On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.
Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.
Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.
The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
President Obama has taken some important steps to repair Mr. Bush’s damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.