Obama Backs Bush On Bagram Detainees
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)
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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.
Obama’s War on Terror May Resemble Bush’s in Some Areas
Update: Greenwald has written an excellent companion post to this article. Highly recommended.
Charlie Savage, New York Times
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.
Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month. (Michael Temchine for The New York Times)
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.”
Former Gitmo Guard Tells All
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.
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Choosing Between Our Safety and Ideals
During his inauguration, Barack Obama defiantly rejected the notion that America must choose between its safety and its ideals. However, immediately following the signing of an executive order to close Guantanamo Bay within the year, the media began a campaign to choose between those non-exclusive essentials. They depicted the closing of Gitmo as an epic struggle between our safety and our ideals, the very battle Obama labeled false. The negated variable in this debate appears to be proportionality. If there is a conflict between our safety and our ideals, the weight of morality surely favors the side of our Constitution and human rights legislation. Additionally, the media suggests that every Gitmo prisoner is guilty, and if released, will surely scamper off to do terroristy things.
In today’s New York Times, a front page story entitled Freed by U.S., Saudi Becomes a Qaeda Chief portrays the possibility of a released Guantanmo prisoners returning to the battlefield as an inevitability rather than a minimal risk. If, for every one hundred innocent men released from the detention island, one returns to fight with the enemy, is this really an epic battle between our safety and our ideals? The mainstream press never considers the danger that imprisoning innocents in fact creates new terrorists out of men that would have otherwise gladly lived out their days as farmers, or politicians, or police officers in Iraq’s rebuilding society.
The real risk exists in keeping a terrorist factory like Guantanamo open. There is no way to legally or morally convict prisoners using evidence gained through “coercion” i.e. torture. Therefore, America would either have to illegally convict men with evidence gained through torture, or detain possibly innocent men indefinitely, which also violates international law and a basic pillar of our own Constitution.
It’s also essential that we examine the concept of “risk” and “safety.” America can never be 100% safe — ever. No matter how many phones we tap, no matter how many “bad guys” we torture, we can’t secure our boarders everywhere. There will always be the remote possibility that one looney will slip through the cracks and throw anthrax in the faces of schoolchildren. We must choose between if we value our freedom more, or some elusive concept of security. Personally, I would rather build bridges with our international brothers and sisters than burn a million bridges by locking up young men based on shoddy rumors. Making friends is a pretty good way to secure our future. Bombing villages and indefinitely detaining 15-year-old farmer boys is a good way to make a lot of enemies that may grow up and try to destroy the country that robbed them of their freedom and dignity.
As I write this, I just popped over to the maddeningly articulate Glenn Greenwald’s site, and see he has posted yet another beautifully polished summation of the same article. Glenn describes this assertion that every released Gitmo prisoner will become a Lex Luthor-like master villain as a fantasy. The fear-mongering hypotheticals do appear to be largely speculative, and numbers of these released super villians fluctuate greatly depending on who you ask.
America has the ability to gather intelligence and convict terrorists in a court of law. America has done this for hundreds of years, so there’s no need for a sudden exception to the rule, even when Condoleezza Rice tries to scare the crap out of us with talk about mushroom clouds. The Executive branch will always tried to expand its power, and it’s up to the Congress to tell them to back off, and that our system of justice works just fine with the tools of Habeas Corpus and public courts. Otherwise, we get a lawless mess like Guantanamo, which will act as a catalyst for future conflict, domestic and abroad.
Blowback with a capital “B.”
Dennis Blair Refuses to Say Waterboarding is Torture
Note from Allison: Add this to Blair’s connection with the East Timor massacre and the question becomes glaringly obvious: is this really the best person we can find for the Director of National Intelligence? Blair disobeyed his orders from Washington and informed top Indonesian general Wiranto that he had unwavering U.S. support. The ruthless attacks in East Timor resulted in hundreds dead and thousands displaced.
At the very least, Blair is an accessory to war crimes if his complacency in this massacre doesn’t directly link him to war crimes. Now, he refuses to call waterboarding torture, which is a pretty huge prerequisite for someone who will serve as the head of the intelligence community.
During his confirmation hearings, Attorney General Eric Holder clearly expressed that “waterboading is torture.” But President Obama’s nominee to be Director of National Intelligence, ret. Adm. Dennis Blair, refused to call waterboarding torture in his confirmation hearing today. “There will be no waterboarding on my watch. There will be no torture on my watch,” Blair said, “refusing to go further,” according to Reuters. Sen Carl Levin (D-MI) told Blair, “If the attorney general designee can answer it, you can too.”
Media Desperately Tries to Assure Us That Obama Loves Torture
In his post today, Glenzilla thoroughly parses the new Washington Post poll which indicates that solid majorities of the American people believe that torture should not be used in any circumstances, that terrorist suspects should be tried in regular courts and that there should be official investigations into the Bush era torture regime. It would seem that the beltway elite’s characterization of people who hold such opinion as being “liberal score settlers” would both indicate that a majority of the country is liberal and that they actually believe that torture is wrong. Imagine that.
This brings up an interesting dilemma for our old pal Christopher Hitchens who held a fabulous village gala the other night at his place andsaid:
“I know something for a sure thing,” Hitchens continued. “The demand for torture and other methods I would describe as illegal, the demand to go outside the Geneva conventions — all this came from below. What everyone wants to say is this came from a small clique around the vice-president. It’s not educational. It doesn’t enlighten anyone to behave as if that were true. This is our society wanting and demanding harsh measures.” Therefore, he went on, the demand for prosecution or other measures against Bush administration officials would likewise have to come from below, via the grassroots. “Otherwise it’s just vengeful, I suppose, and partisan.”
But, as I wrote earlier, when Hitchens talks about coming from below he really means the media elite who “represent” Real Americans. They don’t listen to the polls, they listen to their guts, which are a far more reliable gauge of what the grassroots really believe than polls or elections.
Meanwhile, here’s Town Crier Chuck Todd reassuring us all that these new executive orders won’t allow the terrorists to kill us all in our beds:
Todd: There are still some loopholes. Those who are worried that somehow there isn’t going to be a way to get intelligence out of them… for instance, while there is a mandate, one of these executive orders says that the Army Field Manual is what needs to be used to decide how to interrogate these folks, there is also going to be an allowance by this new commission to come up with a protocol to deal with intelligence, you know detainees that are detained from the intelligence battlefield, not necessarily the actual combatant, you know, one that would be soldier to soldier.
Now the administration says this does not mean they will invite new methods of interrogation back into the fold, but like I said Andrea, you could go through here with a fine tooth comb and could find plenty of loopholes that would allow certain things to happen.
Now, it’s hard to make sense out of that, and I don’t know specifically what loopholes he’s talking about, but it’s clear that Chuck Todd is seeking to reassure everyone that some kind of torture will be allowed if it’s really necessary. (Boy that’s a relief, huh?)
In fact, the whole tenor of the coverage of today’s executive orders seems to be about how Obama has done this because Guantanamo and torture “look bad” but that he’s got to find some legal means to circumvent constitutional principles because well … he just does:
Pete Williams: The most controversial aspect of this is that there will still be a category of detainees that can’t be released but can’t be put on trial because there isn’t enough evidence or because the evidence was obtained in some way that couldn’t be used in court and they seem to say in this document, “we’re still probably going to have to hold those people if they’re dangerous, we just don’t know how,” so one of the things this document says is to the government, look at our legal options, there must be some legal way to do this.
And, of course, human rights groups have been saying “you can’t have it both ways” you can’t both detain them and not put them on trial.
Where do those human rights groups get those crazy ideas?
I honestly don’t know why we shouldn’t apply this logic across the board. If the authorities “know” that someone is guilty of murder but they don’t have any evidence or coerced an unreliable confession out of them under torture, why isn’t there some legal way to hold this alleged murderer anyway? Indeed, it would save a lot of time and money if we could just dispense with the whole trial process at all — if the government just “knows” when someone is dangerous and that they’ve committed crimes then what’s the point of all this “proof” business in the first place?
I have no idea what Obama really has in mind with these orders — although they are certainly a welcome step in the right direction this commission he’s forming to assess interrogation techniques seems superfluous to me. The Geneva Conventions aren’t obscure on these points and neither is the scholarship on effective interrogation techniques. I assume that he’s simply trying to appease the intelligence community by not being unequivocal in the first few days.
But regardless of his intentions, it’s clear that the media has decided that he’s trying to have it both ways. I’m sure that’s very reassuring to them — they all love torture and indefinite detention (except for themselves and their friends, who “suffer enough” if they are simply publicly embarrassed.) But if Obama’s intention is to send a clear signal that America is not going to torture and imprison people in violation of the law and the constitution, the media that’s supposed to convey that view isn’t getting the message.
Let’s hope they are just being myopic and stupid as usual. If they aren’t, or this “confusion” is allowed to stand, then it’s likely that the foreign policy benefit of changing the policies are going to be compromised. I hear that the foreigners have the internet these days.
Here’s the Center For Constitutional Rights’ statement on today’s orders.
The Washington Establishment’s Plans for Obama’s Executive Orders
“The case against Clevinger was open and shut. The only thing missing was something to charge him with.”
– Joseph Heller, Catch-22
Barack Obama will have spent his first several days in office issuing a series of executive orders which, some quibbling and important caveats and reservations aside, meet or actually exceed even the most optimistic expectations of civil libertarians for what he could or would do quickly — everything from ordering the closing of Guantanamo to suspending military commissions to compelling CIA interrogators to adhere to the Army Field Manual to banning CIA “black sites” and, perhaps most encouragingly (in my view): severely restricting his own power and the power of former Presidents to withhold documents and other information on the basis of secrecy, which was the prime corrosive agent, the main enabler, of the Bush era. As a result, establishment and right-wing figures who have been assuring everyone (most of all themselves) that Obama, in these areas, would scorn “the Left” (meaning: those who believe in Constitutional safeguards) and would continue most of Bush’s “counter-Terrorism” policies are growing increasingly nervous about this flurry of unexpected Bush-repudiating activity.
The Washington Post‘s Fred Hiatt has an Editorial today purporting to praise what he claims is Obama’s “appropriate prudence in taking things slowly — at least for now.” Hiatt further praises Obama for his intention to scrap the current military commissions system, because, as Hiatt puts it, “a deeply flawed and unjust legal process such as the one in place at Guantanamo is untenable.” Yet this is what Hiatt says about what should replace the Guantanamo military commissions system:
Mr. Obama should order trials in federal court when possible. For those for whom traditional prosecutions would not be feasible, he should ensure robust due process, whether in courts-martial or aversion of existing military commissions. If there are dangerous detainees who cannot be tried— a possibility that Mr. Obama has acknowledged — the president should consider creation of a specialized court, akin to the Foreign Intelligence Surveillance Court, in which such detainees would be guaranteed periodic review of their detentions by a federal judge empowered to order their release.
This paragraph, which more or less embodies the conventional wisdom about what should be done with Guantanamo detainees once that camp is closed, is about as ironic a claim as can be imagined. Just think about what Hiatt, masquerading (as always) as the defender of democracy and Western justice, is actually saying:
In the name of due process, we should give Guantanamo detainees a trial in our normal civilian courts, using our normal rules of justice —but only if we’re certain ahead of time that we can win and convict them. For those we’re not certain we can convict using our normal standards of due process (because the evidence against them is “tainted”), we should re-write the rules of justice and create a whole new tribunal (similar to the Guantanamo military commissions that Hiatt pretends to decry, which advocates, in Orwellian fashion, typically call “national security courts”) in order to make it easier for us to win against them and keep them incarcerated. And then, for those who we can’t convict even in the new, “looser” tribunals, we’ll just create a wholly separate, new, presumably secret tribunal that has the power to keep people detained indefinitely without having to prove that they violated any laws at all.
Rather obviously, if you afford due process safeguards only to those people you’re sure you can convict anyway, but then deny them at will to whomever you think can’t be convicted under the normal rules, that isn’t “due process.” That’s a transparent sham, a mockery of justice. You can’t have different due process standards and entirely different courts that you pick and choose from based on how many rights you think you can afford to extend and still be assured of a conviction (e.g.: “we’ll probably lose in a real court against this detainee because the prime evidence we have against him is a coerced confession, so let’s stick this one in a national security court where we can use the coerced confession and don’t have to extend other rights and safeguards that will get in our way, and thus be assured of winning”).
More obviously still, the U.S. will not, as Hiatt puts it, “end the discredited practices for handling foreign detainees that have blemished the United States’ reputation worldwide” if we simultaneously, as Hiatt advocates, create a new court that is empowered to keep accused Terrorists in cages indefinitely without having to give them a trial at all (i.e., a “preventive detention” scheme). If all we end up doing is re-creating the travesties of Guantanamo inside the U.S., we will not have taken a step forward. One could plausibly argue that replicating Guantanamo inside the U.S. will be to do the opposite.
This is why the understandable enthusiasm (which I definitely share) over Obama’s pleasantly unexpected commitment in the first few hours of his presidency to take politically difficult steps in the civil liberties and accountability realms should be tempered somewhat. There is going to be very concerted pressure exerted on him by establishment guardians such as Hiatt (and the Brookings Institution, Jack Goldsmith and friends), to say nothing of hard-line factions within the intelligence community and its various allies, for Obama to take subsequent steps that would eviscerate much of this progress, that render these initial rollbacks largely empty, symbolic gestures. Whether these steps, impressive as they are, will be symbolic measures designed to placate certain factions, or whether they represent a genuine commitment on Obama’s part, remains to be seen. Much of it will depend on how much political pressure is exerted and from what sides.
Obama deserves real praise for devoting the first few days of his presidency to these vital steps — and doing so without there being much of a political benefit and with some real political risk. That’s genuinely encouraging. But ongoing vigilance is necessary, to counter-balance the Fred Hiatts, Brookings Institutions and other national security state fanatics, to ensure that these initial steps aren’t undermined.
Obama’s Draft Order Calls For Closing Gitmo Within Year
WASHINGTON (AP) — The Obama administration is circulating a draft executive order that calls for closing the detention center at Guantanamo Bay within a year.
The draft order also would declare a halt to all trials currently under way at the facility, where roughly 800 detainees in the war on terror are held.
The Associated Press obtained a copy of the draft order.
It is not known when President Barack Obama intends to issue it.
The Bush administration created the detention facility after the Sept. 11 attacks.
A President Forgotten but Not Gone
We like our failed presidents to be Shakespearean, or at least large enough to inspire Oscar-worthy performances from magnificent tragedians like Frank Langella. So here, too, George W. Bush has let us down. Even the banality of evil is too grandiose a concept for 43. He is not a memorable villain so much as a sometimes affable second banana whom Josh Brolin and Will Ferrell can nail without breaking a sweat. He’s the reckless Yalie Tom Buchanan, not Gatsby. He is smaller than life.
The last NBC News/Wall Street Journal poll on Bush’s presidency found that 79 percent of Americans will not miss him after he leaves the White House. He is being forgotten already, even if he’s not yet gone. You start to pity him until you remember how vast the wreckage is. It stretches from the Middle East to Wall Street to Main Street and even into the heavens, which have been a safe haven for toxins under his passive stewardship. The discrepancy between the grandeur of the failure and the stature of the man is a puzzlement. We are still trying to compute it.
The one indisputable talent of his White House was its ability to create and sell propaganda both to the public and the press. Now that bag of tricks is empty as well. Bush’s first and last photo-ops in Iraq could serve as bookends to his entire tenure. On Thanksgiving weekend 2003, even as the Iraqi insurgency was spiraling, his secret trip to the war zone was a P.R. slam-dunk. The photo of the beaming commander in chief bearing a supersized decorative turkey for the troops was designed to make every front page and newscast in the country, and it did. Five years later, in what was intended as a farewell victory lap to show off Iraq’s improved post-surge security, Bush was reduced to ducking shoes.
He tried to spin the ruckus as another victory for his administration’s program of democracy promotion. “That’s what people do in a free society,” he said. He had made the same claim three years ago after the Palestinian elections, championed by his “freedom agenda” (and almost $500 million of American aid), led to a landslide victory for Hamas. “There is something healthy about a system that does that,” Bush observed at the time, as he congratulated Palestinian voters for rejecting “the old guard.”
The ruins of his administration’s top policy priority can be found not only in Gaza but in the new “democratic” Iraq, where the local journalist who tossed the shoes was jailed without formal charges and may have been tortured. Almost simultaneously, opponents of Prime Minister Nuri al-Maliki accused him of making politically motivated arrests of rival-party government officials in anticipation of this month’s much-postponed provincial elections.
Condi Rice blamed the press for the image that sullied Bush’s Iraq swan song: “That someone chose to throw a shoe at the president is what gets reported over and over.” We are back where we came in. This was the same line Donald Rumsfeld used to deny the significance of the looting in Baghdad during his famous “Stuff happens!” press conference of April 2003. “Images you are seeing on television you are seeing over, and over, and over,” he said then, referring to the much-recycled video of a man stealing a vase from the Baghdad museum. “Is it possible that there were that many vases in the whole country?” he asked, playing for laughs.
The joke was on us. Iraq burned, New Orleans flooded, and Bush remained oblivious to each and every pratfall on his watch. Americans essentially stopped listening to him after Hurricane Katrina hit in 2005, but he still doesn’t grasp the finality of their defection. Lately he’s promised not to steal the spotlight from Barack Obama once he’s in retirement — as if he could do so by any act short of running naked through downtown Dallas. The latest CNN poll finds that only one-third of his fellow citizens want him to play a post-presidency role in public life.
Bush is equally blind to the collapse of his propaganda machinery. Almost poignantly, he keeps trying to hawk his goods in these final days, like a salesman who hasn’t been told by the home office that his product has been discontinued. Though no one is listening, he has given more exit interviews than either Clinton or Reagan did. Along with old cronies like Karl Rove and Karen Hughes, he has also embarked on a Bush “legacy project,” as Stephen Hayes of The Weekly Standard described it on CNN.
To this end, Rove has repeated a stunt he first fed to the press two years ago: he is once again claiming that he and Bush have an annual book-reading contest, with Bush chalking up as many as 95 books a year, by authors as hifalutin as Camus. This hagiographic portrait of Bush the Egghead might be easier to buy were the former national security official Richard Clarke not quoted in the new Vanity Fair saying that both Rice and her deputy, Stephen Hadley, had instructed him early on to keep his memos short because the president is “not a big reader.”
Another, far more elaborate example of legacy spin can be downloaded from the White House Web site: a booklet recounting “highlights” of the administration’s “accomplishments and results.” With big type, much white space, children’s-book-like trivia boxes titled “Did You Know?” and lots of color photos of the Bushes posing with blacks and troops, its 52 pages require a reading level closer to “My Pet Goat” than “The Stranger.”
This document is the literary correlative to “Mission Accomplished.” Bush kept America safe (provided his presidency began Sept. 12, 2001). He gave America record economic growth (provided his presidency ended December 2007). He vanquished all the leading Qaeda terrorists (if you don’t count the leaders bin Laden and al-Zawahri). He gave Afghanistan a thriving “market economy” (if you count its skyrocketing opium trade) and a “democratically elected president” (presiding over one of the world’s most corrupt governments). He supported elections in Pakistan (after propping up Pervez Musharraf past the point of no return). He “led the world in providing food aid and natural disaster relief” (if you leave out Brownie and Katrina).
If this is the best case that even Bush and his handlers can make for his achievements, you wonder why they bothered. Desperate for padding, they devote four risible pages to portraying our dear leader as a zealous environmentalist.
But the brazenness of Bush’s alternative-reality history is itself revelatory. The audacity of its hype helps clear up the mystery of how someone so slight could inflict so much damage. So do his many print and television exit interviews.
The man who emerges is a narcissist with no self-awareness whatsoever. It’s that arrogance that allowed him to tune out even the most calamitous of realities, freeing him to compound them without missing a step. The president who famously couldn’t name a single mistake of his presidency at a press conference in 2004 still can’t.
He can, however, blame everyone else. Asked (by Charles Gibson) if he feels any responsibility for the economic meltdown, Bush says, “People will realize a lot of the decisions that were made on Wall Street took place over a decade or so, before I arrived.” Asked if the 2008 election was a repudiation of his administration, he says “it was a repudiation of Republicans.”
“The attacks of September the 11th came out of nowhere,” he said in another interview, as if he hadn’t ignored frantic intelligence warnings that summer of a Qaeda attack. But it was an “intelligence failure,” not his relentless invocation of patently fictitious “mushroom clouds,” that sped us into Iraq. Did he take too long to change course in Iraq? “What seems like an eternity today,” he says, “may seem like a moment tomorrow.” Try telling that to the families of the thousands killed and maimed during that multiyear “moment” as Bush stubbornly stayed his disastrous course.
The crowning personality tic revealed by Bush’s final propaganda push is his bottomless capacity for self-pity. “I was a wartime president, and war is very exhausting,” he told C-Span. “The president ends up carrying a lot of people’s grief in his soul,” he told Gibson. And so when he visits military hospitals, “it’s always been a healing experience,” he told The Wall Street Journal. But, incredibly enough, it’s his own healing he is concerned about, not that of the grievously wounded men and women he sent to war on false pretenses. It’s “the comforter in chief” who “gets comforted,” he explained, by “the character of the American people.” The American people are surely relieved to hear it.
With this level of self-regard, it’s no wonder that Bush could remain undeterred as he drove the country off a cliff. The smugness is reinforced not just by his history as the entitled scion of one of America’s aristocratic dynasties but also by his conviction that his every action is blessed from on high. Asked last month by an interviewer what he has learned from his time in office, he replied: “I’ve learned that God is good. All the time.”
Once again he is shifting the blame. This presidency was not about Him. Bush failed because in the end it was all about him.
Maureen Dowd and Thomas L. Friedman are off today. (Thank God.)
The public editor’s column will return next week. (Booooo.)
Autopsy Reports Reveal Homicides of Detainees in U.S. Custody
(released by the ACLU 10/24/05 | More Torture Documents Released Under FOIA)
Note: Numbers indicate the beginning page of the document. Many documents span multiple pages.
(These documents can be viewed using Acrobat Reader)
3128, 3134, 3140, 3146, 3156, 3164, 3171, 3178, 3183, 3192, 3198, 3204, 3208, 3212, 3228, 3235, 3242, 3250, 3252, 3254, 3260, 3262, 3265, 3267, 3269, 3271, 3273, 3282, 3290, 3293, 3296, 3331, 3534, 3549, 3551, 3554, 3565, 3573, 3582, 3588, 3600, 3611, 3612, 3614, 3618, 3619, 3658, 3659,3670, 3672, 3674, 3728, 3737, 13279, 13289, 13297, 13303, 13309, 13315, 13321, 36022, 36026, 36192, 36925, 36953, 37445
Allison Kilkenny: Unreported 
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