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.
US Drops Charges Against 5 Gitmo Prisoners
Isn’t this called Double Jeopardy?
SAN JUAN, Puerto Rico (AP) — The Pentagon announced Tuesday it dropped war-crimes charges against five Guantanamo Bay detainees after the former prosecutor for all cases complained that the military was withholding evidence helpful to the defense.
America’s first war-crimes trials since the close of World War II have come under persistent criticism, including from officers appointed to prosecute the alleged terrorists. The military’s unprecedented move was directly related to accusations brought by the very man who was to bring all five prisoners to justice.
Army Lt. Col. Darrel Vandeveld had been appointed the prosecutor for all five cases, but at a pretrial hearing for a sixth detainee earlier this month, he openly criticized the war-crimes trials as unfair. Vandeveld said the military was withholding exculpatory evidence from the defense, and was doing so in other cases.
The chief prosecutor at Guantanamo Bay has now appointed new trial teams for the five cases to review all available evidence, coordinate with intelligence agencies and recommend what to do next, a military spokesman, Joseph DellaVedova, said in an e-mail.
DellaVedova said the military might renew the charges against the five later.
Clive Stafford Smith, a civilian attorney representing detainee Binyam Mohamed, said he has already been notified that charges against his client would be reinstated.
“Far from being a victory for Mr. Mohamed in his long-running struggle for justice, this is more of the same farce that is Guantanamo,” Stafford Smith said. “The military has informed us that they plan to charge him again within a month, after the election.”
Army Lt. Col. Bryan Broyles, who represents one of the prisoners whose charges were dropped, said the military might be preparing the tribunals to face increased scrutiny following next month’s presidential election. John McCain and Barack Obama have both said they want to close Guantanamo.
The five detainees are Noor Uthman Muhammed, Binyam Mohamed, Sufyiam Barhoumi, Ghassan Abdullah al Sharbi and Jabran Said Bin al Qahtani.
Allison Kilkenny: Unreported 
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