"The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness." - John Kenneth Galbraith.
With a large amount of Republicans joining in the condemnation of Liz Cheney and William Kristol's disgraceful McCarthyite advert, it falls to Marc Thiessen and Fox News to attempt to defend the indefensible.
KILMEADE: First off, Marc, do you think -- do you think it's wrong to defend criminals? If you're a defense lawyer for a bad guy, whether it's Sammy the Bull or John Gotti, does that make you bad? Is that what they're doing?
THIESSEN: No, but they - I mean, well, first of all, what these people did, most of them, was not defend people who were in the criminal justice system. The sixth amendment says that if you're accused of a crime, you get to have legal representation. What these people were doing, most of them, was trying to spring terrorists out of Guantanamo who were held under the laws of war. Send them back out to the battlefield where they - where we have evidence they've killed Americans since. And one of these lawyers, Jennifer Daskal, has actually said even if we know that they will go out and kill Americans, we should still release them.
Again, Thiessen - like Liz Cheney - refuses to even acknowledge the presumption of innocence, which is a cornerstone of the American justice system. As far as he is concerned these men were battleground detainees who should never have had any trial whatsoever.
Not long after the Twin Towers fell, Dick Cheney declared the death of more than two centuries of American tradition. "It will be necessary for us to be a nation of men, and not laws," he said.
The then vice-president did his best to follow through by riding roughshod over the constitution and international laws by promoting torture, indefinite detention without trial and support for secretive military tribunals in which defendants were stripped of many of their rights.
I am stunned that after so many of the people held at Guantanamo Bay have had to be released due to a lack of evidence that there can still be people making this argument.
But that is essentially the argument that Cheney and Thiesen are still making. Anyone accused of terrorism is a terrorist and it therefore follows that anyone who defends such a person is "trying to spring terrorists from Guantanamo."
It's about as un-American a mindset as it is possible to imagine, it certainly rips up many of the laws and values which I would argue represent America's greatest strengths; and yet the people who espouse these notions consider themselves to be great patriots and, indeed, question the patriotism of anyone who disagrees with them.
“There’s something truly bizarre about this,” said Richard A. Epstein, a University of Chicago law professor and a revered figure among many members of the society. “Liz Cheney is a former student of mine — I don’t know what moves her on this thing,” he said.
But, maybe she is simply embracing her father's belief that this is a time for the US to be "a nation of men, and not laws".
I am pleased that so many Republicans also recognise this odious argument as the dangerous rubbish which it is.
Professor Epstein, however, said he found it “appalling” to see people equating work on detainee cases with a dearth of patriotism. He was a co-author of a brief in Hamdan v. Rumsfeld, the Supreme Court case argued by Neal Katyal, now the principal deputy solicitor general and a lawyer under scrutiny from Ms. Cheney’s group. The court ruled that the Bush administration’s initial plans for military commissions to try detainees violated the law.
“You don’t want to give the impression that because you oppose the government on this thing, that means you’re just one of those lefties — which I am not,” he said.
I spoke yesterday about my disgust at Wolf Blitzer giving credence to Cheney and Kristol's smearing of lawyers who defended people accused of terrorism.
Apparently many others have complained about this section and Blitzer has offered an apology of sorts:
Blitzer: I want to give our viewers a note. As we were going to a commercial break yesterday around this time we had a graphic on the screen that said "Department of Jihad?" followed by a question mark. Many of you tweeted me, said you found that graphic to be offensive. I agree. It was.
The graphic referenced a video that Liz Cheney's organization Keep America Safe. Their video features those words on screen questioning the loyalty of Justice Department attorneys who have previously worked on behalf of Guantanamo detainees.
CNN had no intention of suggesting that the Justice Department supports terrorism. Lawyers at the Justice Department are patriotic Americans, and we certainly regret any confusion that may have been caused by our graphic.
Blitzer is being disingenuous if he imagines that this was the only offensive thing about that particular segment. That viewers suffered "confusion" over that one graphic. For CNN also flashed the words, "Are Justice Dept. lawyers disloyal?" onscreen.
But what was actually most offensive was the fact that Blitzer debated the charges as if they might possibly be of merit, even though it had been revealed that the Bush administration had also employed lawyers who had previously defended Guantanamo detainees.
Blitzer's failing here was that he allowed this McCarthyism credence. He allowed Liz Cheney to smear the reputation of good men and women "unsupported by proof or based on slight, doubtful, or irrelevant evidence"; which is the dictionary definition of McCarthyism.
What was offensive to many was much, much, more than a graphic. It was as Atrios noted, the fact that "right wing lunatics can still push anything into the puke funnel." And that people like Blitzer will imagine that it merits "intense debate".
When a regime like the one of George W. Bush are in power, they can rip up the law and carry out the most egregious assaults on the Constitution, and it appears as if there is nothing anyone can do to stop them.
But, it is always at the moment when they lose power, that their chickens come home to roost.
A former US attorney general can be sued by an American citizen held as a witness suspected of having information in a terrorism case, a court has ruled.
Abdullah al-Kidd accuses John Ashcroft, attorney general from 2001 to 2005, of violating his constitutional rights in 2003, when he was held for 16 days.
The court said detention of witnesses without charge after the 9/11 attacks was "repugnant to the constitution".
The US Department of Justice said it was reviewing the court's order.
A three-judge panel of the 9th US Circuit Court of Appeals also said the government's policy was "a painful reminder of some of the most ignominious chapters of our national history."
Mr al-Kidd was detained in 2003 because the government thought he had information in a computer terrorism case against fellow University of Idaho student Sami Omar al-Hussayen.
He was never charged with a crime, and Mr al-Hussayen was acquitted after a trial.
The suspension of Habeas Corpus was, for me, one of the most outrageous acts which the Bush regime indulged in. The notion that the president, on his word alone, had the power to rob individuals of their liberty - without giving them any access to courts, or any right to be judged by a jury of their peers - was the most outrageous claim he made, during a presidency of many outrageous claims of power.
It was, as the court itself now appears to recognise, "repugnant to the constitution".
Mr al-Kidd filed the lawsuit against Mr Ashcroft and other officials in 2005.
He said his detention was part of an illedgal government policy to arrest and detain people - particularly Muslim men and those of Arab escent - as material witnesses if the government suspected them of a crime but had no evidence to charge them.
That last sentence contains everything which was wrong about the way the Bush regime reacted in the aftermath of 9-11. American courts and the entire legal system have always operated on what can be proven. It is incumbent on the prosecution to "prove beyond reasonable doubt" the case they sought to make against a defendant.
Bush changed all of that and, in doing so, ripped up hundreds of years of jurisprudence.
I honestly don't think I am exaggerating when I say that Bush gave himself the powers of a King.
People could be jailed on his word and his word alone, and they had no recourse to any courts to hear their side of the story. The judges are right to refer to this period as, "some of the most ignominious chapters of our national history."
I care not whether the case against Ashcroft succeeds, that matters not a jot. What is important is that the blatant illegality of the Bush regime is finally accepted as the stain on America's conscience that it was.
"It's a very big ruling, because qualified immunity is ordinarily a very robust form of protection," said Richard Seamon, a professor at the University of Idaho College of Law and a former assistant to the U.S. Solicitor General. "To overcome that immunity, you have to show that the defendant almost deliberately acted unconstitutionally to violate someone's rights – no innocent mistakes."
Judge Ellen Segan Huvelle has granted the habeas corpus petition of Mohamed Jawad, the young Afghan teenager accused of a grenade attack on a jeep containing two US soldiers in 2002. She has ordered that he be transferred back to Afghanistan where the Afghans have already announced that he will be released.
However, the Obama administration have stated that they might very well bring charges against Jawad in a US federal court.
The judge has made it very clear that, whilst the government have every right to carry out such an action, that it would be, in her opinion, a serious mistake:
“After this horrible, long, tortured history, I hope the government will succeed in getting him back home,” she said. “Enough has been imposed on this young man to date.”
It would not be an exaggeration to state that, if the Justice Department and the Defense Department decide to proceed with a criminal prosecution, it will demonstrate not only that they have, collectively, taken leave of their senses, but also that no one in a position of responsibility — President Obama, Attorney General Eric Holder or defense secretary Robert Gates — has either the courage or the awareness to step in to prevent a clear message being sent out to the world that, far from addressing the excesses of the Bush administration’s “War on Terror,” the Obama administration is, instead, pursuing exactly the kind of cruel, unjust and incompetent policies that would bring a smile to the lips of former Vice President Dick Cheney.
To understand the significance of the decision facing the government, it is important to understand that the case against Jawad was always tenuous, as I reported in October 2007, when he was first put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal), and that it unraveled spectacularly last September, when the prosecutor in his proposed trial, Lt. Col. Darrel Vandeveld, resigned.
Stating that he had once been a “true believer,” but had ended up feeling “truly deceived,” Lt. Col. Vandeveld explained, as I described it in an article two months ago, that he had come to regard the Commissions as “a dysfunctional system, which, both through accident and design, prevented the disclosure of evidence essential to the defense, thereby ensuring that no fair trial was possible.” He also “described how evidence proving that Jawad was a juvenile at the time of his capture, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed.”
It was several months ago when I read Andy's piece on Lt. Col. Vandeveld's conversion from a true believer to someone who had “even developed sympathy” for Jawad, that I began to wonder how anyone could continue to make the case for his continued detention.
Both of his "confessions" have been ruled to have been made under conditions of torture. And the "true believer" Vandeveld has recently stated that Jawad “should be released to resume his life in civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.”
And this is the extraordinary scene which played out in court two weeks ago when the government appealed for more time to decide how to proceed:
THE COURT: The motion to suppress is now going to be granted as conceded because the government filed on the 15th the respondent's, meaning the government, do not oppose petitioner's motion. Then you ask that we continue the status conference but I'm not willing to continue the status conference because I don't know what I'm continuing it for.Ms. Wolfe, what is it -- you say this additional time will allow respondents to consult internally to determine how respondents will proceed in connection with this habeas. I have now suppressed every statement attributable to the defendant as the government has failed to oppose. The way I look at this is your books of material facts upon which you are proceeding. If I calculate it right, about 90 percent of it is statements attributable to the petitioner. So they're out. So what is there to think about?
MS. WOLFE: Well, there is other evidence in the factual return and in the statement of material facts that is not comprised of petitioner's statements. At this juncture we're consulting internally to determine how we'll proceed.
THE COURT: There are 11 statements attributed to Afghanistan officials and to the Americans. The Americans did not see anything and there may or may not be an Afghani who saw something. You can't prevail here without a witness who saw it. I mean, let's be frank. You can tell your superiors that. You can't. There is no evidence otherwise. You have nothing here other than statements attributable, there are potentially three people. So that's your only way to proceed. And I don't see how you can do it. Who do you have to consult with about this? Who are the powers that be?
MS. WOLFE: The relevant decision-makers, Your Honor, are both within our client agencies as well as within the Department of Justice.
THE COURT: It is a very short trial, you don't have any witnesses. Without a witness, I don't understand this case.
Plainly, as Huvelle has granted habeas corpus, the government have produced nothing two weeks later. So what the Hell is Obama's administration thinking about?
The judge made her anger quite plain a fortnight ago about what she clearly sees as a miscarriage of justice:
THE COURT: We're having a merit proceeding very swift here. I'm not putting it off. This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there. Without his statements, I don't understand your case. I really don't.
[...]
Let him out. Send him back to Afghanistan.
[...]
But seven years and this case is riddled with holes. And you know it. I don't mean you. The United States Government knows it is lousy. If you can't rely on the guy's statements, you have a lousy case.
The question now before the Obama administration is whether they can get this guy on something else before a federal court. Why they would want to do that I have no idea.
The case against Mohamed Jawad was "lousy" from the beginning. I see no purpose in continuing this miscarriage of justice any further.
Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.
The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future…
Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.
Few people come out of this sordid tale well, but Major David Frakt, Lt. Col. Vandeveld and Judge Ellen Segan Huvelle are the notable exceptions.
UPDATE II:
Glenn Greenwald tells us that, "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison."
The only reason why these hearings are even taking place is because, in June, 2008, the Supreme Court -- by a 5-4 vote in Boumediene -- struck down the MCA's denial of habeas corpus as unconstitutional and held that detainees are entitled to a hearing before a federal judge to contest the validity of their accusations. John McCain called that decision "one of the worst decisions in the history of this country."
If the members of Congress who voted for the MCA had their way -- and that includes all GOP (except Chafee) plus 12 Democratic Senators, as well as all GOP House members (except 7) and 34 Democratic House members -- then all of these detainees against whom there is virtually no evidence (including Jawad) would still be sitting in a cage, possibly forever, with no mechanism to secure their release. One should be hesitant to attribute bad motives to someone based on political disagreements, but some positions are so morally depraved and just plain tyrannical that a rational person has no choice but to do so. Voting to empower the President to imprison people for life with no charges and no judicial review -- particularly where the individuals were not captured on any "battlefield," thus ensuring a very high risk of error and/or abuse -- falls squarely into that category.
Every time a federal judge orders another Guantanamo detainee released on the grounds of insufficient evidence (and that does not mean "insufficient evidence to convict"; it merely means: "insufficient evidence even to justify their detention"), just remember that the vast majority of the current members of Congress voted to deny those detainees any opportunity to have a court review their imprisonment, the most basic and defining right of Western justice. Put simply, they knowingly voted to deny innocent people the right to have a court review their indefinite imprisonment. If that isn't morally depraved, what is?
People like John McCain - and the others who voted to keep these people locked up without trial - should be forced to publicly account for what they supported.
They were wrong. And yet, if they had had their way, innocent people would have remained incarcerated for years to come. They should hang their heads in bloody shame.
Three terror suspects have won their legal battle in the House of Lords to prove that the governments policy of holding them under virtual house arrest - without even telling them what crime they are accused of - is illegal.
Nine Law Lords unanimously ruled it was unfair individuals should be kept in ignorance of the case against them.
They did not quash the men's orders, but one warned the ruling could spell the end of the control orders system.
The home secretary called the decision "disappointing" but said all control orders would remain in force for now.
The Home Office uses control orders against terror suspects who cannot be tried because of secret intelligence.
In practical terms, the ruling means the cases must return to the High Court lower courts to be reheard.
In turn, the Home Office will need to decide either to release more material to the men and to the public - or rescind the orders.
It has always been one of the most controversial aspects of New Labour's anti-terrorist policies because the suspect is given no opportunity to defend themselves at all as they are never quite sure of what it is they are actually suspected of planning.
Ruling in favour of the men Lord Phillips of Worth Matravers, the senior Law Lord on the case, said: "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.
"If the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.
"The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations."
It simply astounds me that in the wake of 9-11, at the very time when both the British and the American governments were telling us that our very way of life was at stake, they they - of all people - were the ones making the most drastic changes one could imagine to the way we live and to what most of us consider fair.
As Lord Phillips rightly points out, they have really simply being asking us to trust them.
That was almost exactly what the Bush regime demanded and the things that we are finding out since they fell from power - Cheney ordering people be tortured in a crude attempt to falsify a link between Iraq and 9-11 and many others - were simply disgraceful.
Government shouldn't be taken on trust. That was never the way the system was designed to operate. And, as the crimes of the Bush regime slowly come to light, one realises that there are very good reasons why the system demands accountability.
As Obama attempts to close Guantanamo Bay, he reminds us that the Bush administration only prosecuted three people from the hundreds that they held on that Cuban island.
So, it's impressive that Obama has decided to prosecute Ahmed Ghailani in a New York court, especially since he has only been in office for a couple of months.
But one gets the feeling that this case will be scrutinised by a Republican party who are playing the incredibly stupid, but perhaps highly effective card, that it is dangerous for ordinary Americans to have terrorists held on US soil.
Ghailani, known as "Foopie", was one of 14 so-called "high-value detainees" brought to Guantánamo Bay in 2006, having been held for two years in secret prisons run by the CIA abroad.
He is accused of having helped to transport TNT explosives and oxygen tanks used in the al-Qaida bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania, on 7 August 1988. The attacks killed more than 200 people, including 12 Americans, and wounded thousands. The Clinton administration responded two weeks later with missile attacks on al-Qaida camps in Afghanistan.
According to prosecutors, Ghailani, then in his 20s, fled Africa shortly before the bombings and joined the al-Qaida leadership in Pakistan, becoming Osama bin Laden's bodyguard. He was captured by the CIA in Pakistan in 2004.
Thirty-three international terrorists, many with ties to al-Qaeda, reside in a single federal prison in Florence, Colo., with little public notice.
Detained in the supermax facility in Colorado are Ramzi Yousef, who headed the group that carried out the first bombing of the World Trade Center in February 1993; Zacarias Moussaoui, convicted of conspiring in the terrorist attacks of Sept. 11, 2001; Ahmed Ressam, of the Dec. 31, 1999, Los Angeles airport millennium attack plots; Ahmed Omar Abu Ali, conspirator in several plots, including one to assassinate President George W. Bush; and Wadih el-Hage, convicted of the 1998 bombing of the U.S. Embassy in Kenya.
Inmates in Florence and those at the maximum-security disciplinary barracks at Fort Leavenworth, Kan., rarely see other prisoners.
So, it is against this hysterical opposition that Obama seeks to prove that these suspects can be dealt with through the federal courts.
Which leads one to believe that Obama must think he has a high rate of success by prosecuting Ghailani in this way.
The biggest problem as far as I can see will be whether or not Ghailani was ever tortured.
A crucial part of Ghailani's defence is likely to be his claim that he was subjected to cruel interrogation methods and deprived of a lawyer while being held in CIA secret prisons.
This is what is wrong with the entire Republican approach to the war on terror and federal courts. They appear to have removed the notion that a suspect could be innocent completely from their agenda.
Should Ghailani be set free, they will say that this proves that suspects from Guantanamo cannot be tried in federal courts. Nothing other than a guilty verdict will satisfy them and, even if they get that verdict, they will fear holding Ghailani on American soil.
So, this case will come under ridiculous scrutiny. Obama, I am sure, will have picked his strongest case first, because politically he simply can't afford to lose this one. The hysterical Republican cry babies would make too much of this were Obama to ever lose this case.
UPDATE:
Keith Olbermann on the Republican hysteria machine which is cranking up.
UPDATE II:
Talking of Republican hysteria on this issue, here comes their King, Bill O'Reilly, making the case - with the help of Karl Rove - that "do-gooders and the ACLU and others" prevented military tribunals from taking place and that the Obama administration's plan represents a "dangerous mindset".
Notice how the notion of a fair trial is utterly obnoxious to O'Reilly who actually abhors how much it might cost and how long it might take.
Risking the wrath of his liberal base, Barack Obama yesterday unveiled plans that will revive the Bush administration's military commissions to try terror suspects being held at Guantanamo Bay.
Although his plan will modify the tribunals in an effort to expand the legal rights of the defendants, the decision has already proved controversial. One of Mr Obama's first acts as President was to announce the closing of Guantanamo Bay within a year and the suspending of the tribunals which drew criticism around the world. As a candidate, he favoured turning to America's federal courts or the traditional military judicial system to try the cases.
But pressure has been building on Mr Obama to explain what he planned to do with the roughly 241 detainees at Guantanamo – and particularly how he would proceed with the 20-odd cases due to be handled under the commission system set up by an act of Congress in 2006. He remains squeezed by competing priorities: to repudiate the past Bush policies while not compromising national security.
His statement yesterday reflected that balance: "This is the best way to protect our country, while upholding our deeply held values," he said. And while acknowledging that he had "objected strongly" to the Bush approach, he insisted that military tribunals "are appropriate for trying enemies who violate the laws of war".
Obama campaigned against these military commissions and, whilst he might never have specifically promised to abandon them, he certainly gave the impression that the Bush style military commissions were an area of progressive anger which he understood and shared.
First, it is necessary to note that Obama is improving the rights of the defendants in these commissions, it would be unfair of me not to acknowledge that this is obviously welcome.
The President is asking for changes that would give detainees greater leeway in choosing their own defence team, protect them from court prejudice if they refuse to testify, restrict the use of hearsay in the cases against them and would ban the introduction of all evidence gleaned through cruel or inhuman treatment.
However, at a time when Obama is attempting to improve America's image across the globe and restore the notion that the US is "a nation of laws" this comes across as a dreadful perversion of justice.
The most obvious improvement which Obama has made has been to say that evidence obtained through torture is inadmissible. That's to be applauded. But I thought that was the main reason why some people couldn't be brought in front of a normal civilian court; because the evidence against them would be thrown out because of the methods which were used to obtain it.
If such evidence is not going to be relied upon anyway, then what's to stop bringing these people in front of a jury of their peers and letting that jury arrive at a decision regarding their innocence or guilt? I don't think that many American juries would feel safe releasing terrorists back into the community, so one could be sure that they would examine the evidence put in front of them with the most clinical eye.
Nonetheless, the overwhelming bulk of the objections to what the Bush administration did was to the very idea of military commission themselves. The controversy -- one of the most intense of the Bush era -- was grounded in the argument that there was absolutely no reason, other than to pervert justice and enable easy and due-process-free convictions, to create a separate tribunal rather than use our extant judicial processes.
This was my problem when Bush proposed this and this is my problem with Obama taking this stance, albeit with some small improvements.
I simply don't understand, and neither Obama nor anyone else seems able to explain to me, why these people can't simply be tried in a normal court of law.
Especially as one of the main reasons that they are held in Guantanamo Bay in the first place is because Bush insisted that they were not prisoners of war and that the Geneva Conventions did not apply to these men. If they are not prisoners of war then they are civilians, as Rumsfeld's famous phrase "enemy combatants" was one which he pulled out of his asshole. There is certainly no such term recognised under international law. Indeed, Rumsfeld invented this status as a way to deny these men both civilian status and the rights of a normal POW. It's distressing in the extreme to see Obama apparently continue this practice.
One of the main problems with these military commissions is enunciated here by Tom Fleener and William Kuebler, two military lawyers working at Guantanamo, who had the task of defending Guantanamo detainees:
Fleener added, “I hated the fact, still hate the fact, that we were making up a trial system to convict people after we’d already decided they’re guilty. I hated that, as a country, we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just … wrong.” Kuebler reached a similar conclusion. “It took me a while to figure out the system is rigged,” he told Flynn. “When it hit me how ridiculous and unjust and farcical this is? That was it. That was the moment I realized it was all a sham.”
That's my problem with this and that's where, no matter how many times Obama tries to improve the rights of the prisoners tried under this system, Obama is actually violating his own wish to restore the image of the US across the globe: This looks RIGGED. This will do NOTHING to restore the US's image in the world and will, in fact, cause the kind of outrage which Obama was elected promising to subdue.
It looks, as Fleener stated, as if this system is being constructed to arrive at a pre-ordained conclusion. It looks like the US has decided these men are guilty and is building a system for trying them which will bring in that desired verdict.
This, like Obama's failure so far to investigate the Bush regime's war crimes, makes a mockery of his claim that the US is, "a nation of laws".
If Obama or anyone else could tell me why these men cannot be tried in front of a jury of their peers, I would listen with an open mind, but I have never heard any reason given so far which doesn't come down to the fact that they might be found not guilty and they might "get away".
And without a chance that the accused might "get away", the system being applied can be called many things, but you can't call it justice.
UPDATE:
A quick observation from across the pond regarding how this story reveals the myth of the US "Liberal media".
I notice that Obama is always applauded when he resists his base and that this is portrayed as showing that he is, indeed, "a moderate". However, whenever the Bush regime veered towards the right, this was always explained by insisting that he had to, "appease the base".
So the base of the Democratic party are always to be resisted and this shows great courage, and the base of the Republican party are always to be appeased and this shows great sense.
And this is the mindset of a "Liberal media"? That's a joke surely?
President Obama's endorsements of Bush-Cheney antiterror policies are by now routine . . . . Mr. Obama deserves credit for accepting that the civilian courts are largely unsuited for the realities of the war on terror. He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney . . . Meanwhile, friends should keep certain newspaper editors away from sharp objects. Their champion has repudiated them once again.
No-one supported Obama louder than I did, but, when it comes to civil liberties, I can no longer pretend to myself that he's cutting the mustard. The reason the right wingers are celebrating is because he is embracing positions which will "be identical in every material way" to the policies of Dick Cheney.
Why do we even bother pretending to ourselves that there is any chance that he is going to prosecute Bush and the other war criminals? There's nothing he has done so far which even gives one the faintest hope that he's serious about what he says. The US is, "a nation of laws"? On this evidence that claim is simply palpably false.
Clifford D. May can't get away with his usual shit, even on Fox News anymore. Shep Smith reacts furiously when May attempts to imply that he is saying that everyone at Guantanamo Bay is innocent.
What's extraordinary about May's argument is that he is perfectly willing to concede that, in some cases, the US have no proof against the people that they are detaining, and May appears willing to reject the entire legal precedent of assuming people are innocent until proven guilty:
The courts haven't said that they are innocent, what the courts have said is that we don't have proof and in a lot of cases we don't proof because soldiers are not detectives who gather evidence. When I was in Guantanamo, I would be shown a terrorist and told "we don't have evidence on him". He said he was going to a wedding party but he had $400,000 in mixed bills in various currencies and he had AK47's as well on him.
Firstly, I don't think there is any jury who would not read something into a person holding $400,000 in mixed currencies along with AK47's, so May is surely being apocryphal when he tells that tale?
But, more importantly, if trial and imprisonment are not to be determined by evidence, what does May suggest we use to determine innocence or guilt?
He really appears quite unconcerned with the fact that he is turning the entire judicial process on it's head. He's not bothered about locking people up without evidence because "soldiers are not detectives."
Every so often a reminder pops up about just how insane the Bush regime really was when it came to all this stuff.
I just find this so bloody depressing it makes me want to scream:
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.
In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.
Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.
“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.
It is undeniable that Obama is now making the same arguments that Bush did regarding executive power and that he is now explicitly making the case that habeas corpus should not apply to certain prisoners, something which he abhorred when he was running for office.
When, at the height of the presidential campaign, the Supreme Court released it's Boudemiene ruling and McCain called it "one of the worst decisions in the history of this country," Obama had this to say:
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
Obama campaigned arguing that he rejected the "false choice" between fighting terrorism and rejecting habeas corpus and yet now, finds himself arguing that habeas corpus shouldn't apply.
Even worse, here is what Obama said on the floor of the Senate in September, 2006, when he argued in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees. I defy anyone to read this and reconcile what he said then to what he is doing now:
The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary.
I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.
This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:
"Sometimes, we just didn't get the right folks."
We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria--through a rendition agreement--tortured, only to find out later it was all a case of mistaken identity and poor information. . . .
This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .
But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance--even one chance--to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
In Sunday's New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe "actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay."
This is not just unhelpful in our fight against terror, it is unnecessary. We don't need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.
I am simply astonished that Obama is now making arguments which are so contrary to all that he has previously told us that he believes. And, when he stated:
I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary.
He is actually expressing perfectly the way I feel at this moment. I want Obama to step up and publicly to make his case. I want him to explain why he is now asking for the very thing which he campaigned so passionately against.
Because I find it impossible to condone actions which I have spent the last eight years condemning simply because it is Obama who is now doing them.
Habeas corpus is a principle which Barack Obama ran for office declaring that he wanted to restore. The least Obama can do is explain to us why his actions in office are so contrary to what he led us to believe they would be.
As President, I will end the war in Iraq. We will have our troops home in sixteen months. I will close Guantanamo. I will restore habeas corpus.
I am finding it impossible to square those comments with his present actions. Perhaps the president might care to explain...
Rachel Maddow gives her take on the newly released Bush memos.
It's also fascinating to hear that the CIA did not destroy 2 tapes showing possible torture occurring during interrogations as they previously claimed, they actually destroyed 92 such tapes. So the number has gone from zero tapes, to two tapes, to suddenly 92 tapes.
And, as even the Bush administration found it impossible to stand by John Yoo's, literally, tortured logic; one has to wonder how long it will be before this man is struck off and forbidden from practising law. It's becoming harder and harder to believe that these legal opinions were given "in good faith".
Now that they are no longer in office the actions which they engaged in are becoming apparent and some of it is quite staggering. There really is a drip, drip effect taking place here which might eventually make prosecution inevitable.
Now that Bush is no longer in office, the memorandums which his administration passed are finally becoming public, and they make for scary reading. As John Dean states, these memos come very near to establishing Bush as an, "unconstitutional dictator".
Bush, or anyone he delegated, had the power to say that any American citizen was a terrorist suspect and detain them without giving them any of the rights established under habeas corpus.
What's even more damning is that, in his final days in office, Bush finally published a memo stating that, "certain provisions stated in several opinions issued by the Office of Legal Council in 2001 - 2003" "do not reflect the current views of this office."
He was trying, even in his final days in office, to write himself a "get out of jail free" card. He was trying to put a distance between himself and the opinions which he had used to justify many of his actions whilst he was president. Stating, on January the 15th 2009 - five days before Obama's inauguration - that he didn't really believe the opinions stated in the very memos which he had used to justify many of his actions.
It's almost as if, whilst leaving office, he's finally realised how damning those memos are and has attached a note saying, "I no longer believe this bullshit and I certainly don't wish to be held responsible for it."
Five days before he left office? That's contemptible.
There are two things notable about the reports into the release of Binyam Mohamed, the last Briton to be freed from Guantanamo Bay. The first is that his family have been warned that they might not immediately recognise him. And the second is that, unlike the other Brits released from that place, he is not expected to make the journey to Paddington Green’s high-security police station in west London, but will be released immediately.
It says something that the British police won't even ask him the most routine questions about his supposed involvement in terrorism which caused him to be held in American custody for seven long years. There is literally nothing to be cleared up in this case, no final assurances which the British authorities need to seek. They will simply cut off his plastic handcuffs and release him immediately.
I don't know why, but this gets me really angry. Why was this man held for seven years if there is so little evidence against him that the British police can't think of a single question that they need to ask him? And the Guardian are reporting that he continued to be brutalised until the very moment that he departed that place:
Binyam Mohamed will return to Britain suffering from a huge range of injuries after being beaten by US guards right up to the point of his departure from Guantánamo Bay [on Saturday], according to the first detailed accounts of his treatment inside the camp.
Mohamed's British lawyer, Clive Stafford Smith, said his client had been beaten "dozens" of times inside the notorious US camp in Cuba with the most recent abuse occurring during recent weeks. He said: "He has a list of physical ailments that cover two sheets of A4 paper. What Binyam has been through should have been left behind in the middle ages."
[U.S. Army] Lieutenant colonel Yvonne Bradley, Mohamed's US military attorney, added: "He has been severely beaten. Sometimes I don't like to think about it because my country is behind all this." . . .
And the stupidity of those who support Bush's "enhanced interrogation techniques" - what the rest of the planet knows by it's more common name of "torture" - is highlighted by the reason Mohamed gave for the confession which he made. He said he had confessed, “to anything those inflicting that treatment on him wanted him to say”.
This is the problem of information gained in this way, it is notoriously unreliable.
People subjected to it will say whatever their assailant wishes them to say in the hope that the torture will stop.
So yet another British resident who has been brutalised, beaten and illegally detained for seven years without charge will return to Britain today. The people who ordered his torture and who decided to hold him, without charging him with any crimes, are enjoying their new retirement arrangements pretty sure that they will never pay any price for what they have done.
His lawyer, Clive Stafford Smith said: “What Binyam has been through should have been left behind in the Middle Ages.”
Indeed it should have. And the politicians who ordered that these crimes be committed in the first place deserve to be hauled in front of a court to answer for what they have done.
But what of those countries that tender for torture? Who calls them to account? The expert interrogators abroad practice on their own citizens. Egypt does this par excellence. Factories somewhere make the instruments too. Again there is little information of where these job opportunities are. And so torture spreads, endorsed by messianic democrats and activated by barbarians whose services are essential to keep us civilised. It works for both sides. The US and the UK can claim ignorance of what goes on in those dark cells pierced by screams; and obliging nations can do their business efficiently in countries without any transparency. There is a long history of such mutuality in evil. Apartheid had willing black operators; the transatlantic slave trade depended on black suppliers. These colluders always get away with it.
But they shouldn't. What has been done to this man is disgraceful. Simply disgraceful. And it should be a source of disgrace to all of us that we all know who the people were behind this dreadful miscarriage of justice, and that we are going to allow them to walk away, never having to answer for their crimes.
I was not naive enough to think that Barack Obama was going to come to power and be able to instantly sweep away the nightmare of the Bush years. He promised to prosecute the struggle against terrorism “in a manner that is consistent with our values and our ideals” and I am more than willing to give him longer than his first few weeks in office to set about accomplishing that.
However, I am troubled by his decision to keep prisoners at Bagram air base in a state of legal limbo and can only hope that this is a holding decision until he has worked out what to do with them, rather than a decision to carry on with some of Bush's most contentious policies.
Less than a month after signing an executive order to close the Guantanamo Bay prison camp, President Barack Obama has quietly agreed to keep denying the right to trial to hundreds more terror suspects held at a makeshift camp in Afghanistan that human rights lawyers have dubbed “Obama’s Guantanamo”.
In a single-sentence answer filed with a Washington court, the administration dashed hopes that it would immediately rip up Bush-era policies that have kept more than 600 prisoners in legal limbo and in rudimentary conditions at the Bagram air base, north of Kabul.
Now, human rights groups say they are becoming increasingly concerned that the use of extra-judicial methods in Afghanistan could be extended rather than curtailed under the new US administration. The air base is about to undergo a $60m (£42m) expansion that will double its size, meaning it can house five times as many prisoners as remain at Guantanamo.
The closing of Guantanamo Bay will be nothing more than an empty gesture if the US is to continue the process of holding prisoners indefinitely and without trial elsewhere.
“Guantanamo Bay was a diversionary tactic in the ‘War on Terror’,” said the lawyer. “Totting up the prisoners around the world – held by the US in Iraq, Afghanistan, Djibouti, the prison ships and Diego Garcia, or held by US proxies in Jordan, Egypt and Morocco – the numbers dwarf Guantanamo. There are still perhaps as many as 18,000 people in legal black holes. Mr Obama should perhaps be offered more than a month to get the American house in order. However, this early sally from the administration underlines another message: it is far too early for human rights advocates to stand on the USS Abraham Lincoln and announce, ‘Mission Accomplished’.”
I think that lawyer sums up how most of us feel perfectly. We are neither declaring that Obama has sold us out, nor are we blindly supporting actions which we previously condemned simply because he is the man now pursuing them.
We are going to give him more than a few weeks to correct the abuses of the Bush administration, but correct them he must. And, if he does not, then our disappointment in him will be profound.
We want the change which Obama promised and still have faith that he can deliver it. But that change involves the US returning to within the boundaries of international law and that can't be achieved as long as the US is holding thousands of suspects with no apparent plan to ever try them for any crime.
But the case for respecting human rights remains unanswerable. Brutality, torture and long detention without trial are all not just morally repugnant but counterproductive. That is an argument President Obama himself made when he was running for office. Yet he has said nothing about the disappointing retreats from those high principles made on his behalf by subordinates in the past three weeks.
Gregory Craig, the White House counsel, said last week that the new President intended to avoid “bumper sticker slogans” in deciding what to do with the counterterrorism policies he inherited. Human rights and the rule of law are not bumper sticker slogans. For the sake of the struggle against extremism, Mr Obama needs urgently to deploy his thoughtfulness and great eloquence in explaining just where he stands.
Obama has been silent whilst certain Bush policies have been allowed to rumble on. I hope that silence is coming from someone deep in thought about what to do next. It is far too early to call this acquiescence, but there is a time limit before that would be what one is forced to do.
A U.S. District Judge Richard J. Leon, a Bush appointee, has ordered the Bush administration to release five men held at Guantanamo Bay for seven years "forthwith" because the US government has failed to provide sufficient evidence to justify a continuation of their detentions.
He has even told the Bush administration that they shouldn't appeal his decision as "seven years of waiting for our legal system to give them an answer" was long enough.
This is simply scandalous. Bush, acting as if he had the power of a King, declared these men "enemy combatants" and - when asked to provide the evidence on which this decision was made - could produce nothing more substantive than a single source.
It boggles the brain to consider that these men have been held for seven years without trial and without there being any credible evidence that they had ever done anything wrong.
At first Bush, in his State of the Union Address claimed that they had plotted to bomb the U.S. Embassy in Sarajevo, but this claim was quickly dropped to be replaced by a claim that they had intended to attack U.S. forces in Afghanistan.
The very fact that the initial charge and the later ones are so far apart leads one to conclude that a certain amount of creativity was involved here.
Leon said the government did not provide enough credible and reliable evidence during a series of closed hearings to justify the detentions of the five Algerians: Lakhdar Boumediene, Mohamed Nechla, Mustafa Ait Idir, Hadj Boudella and Saber Lahmar. He said the allegations were provided by a single source in an intelligence document. The government did not provide enough information about the source to determine whether he or she was credible or reliable, Leon ruled.
They have held these men for seven years without the Bush regime ever gaining any corroborating evidence which would hold up in a court of law. This is the exact same single sourcing technique which led this regime to come to so many erroneous conclusions regarding Iraq and Saddam's WMD.
Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power. He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments. That Judge Leon -- of all judges -- ruled that there was no credible evidence to suggest that these detainees are "enemy combatants" is as compelling a sign as one can imagine that there is no such evidence.
The Bush regime appear to have been holding these people without having any evidence that they ever did anything wrong.
This really has been one of the darkest periods in America's history when it comes to respect for the rule of law and for persons detained to be tried by a jury of their peers. Bush has suspended Habeas Corpus and decided instead that he would be judge and jury regarding the guilt or innocence of those he chose to detain.
In this case it is clear that he had done so without even requiring that there should be any corroborating evidence to support the initial charge. The charge alone was sufficient to convict.
That's reminiscent of the bad old days of the Soviet Union.
And yet that's been the official policy of the US for the past seven years from a party who claim to be anti-Communist.
And Republican supporters have argued, some of them - Tommy, Jason - on this site, that they had full faith that the government knew things that we didn't and that we should not ask questions and simply take the government at their word.
Today, one of Bush's most ideological judges has found that they were wrong. Bush had no evidence to justify holding these people and he deprived them of their liberty for seven long years. I'd say Bush and some of his supporters should be ashamed of themselves, but I am, by this point, well aware that they are incapable of such an emotion.
The fact that the military trials taking place in Guantanamo Bay are laughable and unjust is best illustrated by the verdict handed out to bin Laden's driver:
A Guantánamo Bay prisoner who served as Osama bin Laden's driver could be eligible for release in as little as five months after a jury handed down an unexpectedly light sentence at a much-derided US military tribunal.
A panel of six military officers at the US naval base in Cuba ruled that Yemen-born Salim Hamdan should serve five and a half years, shunning prosecutors' demands for a stretch of at least 30 years.
Hamdan will get credit for the 61 months he has already spent in Guantánamo so his sentence will be completed early next year - although US authorities say they will not set free anybody who represents a threat.
That last sentence really says it all. What was the bloody point of having a trial in the first place if you have decided that certain people held by you will never be released?
It's blatant that bin Laden's driver is not a threat and will probably be released in five months, as even the judge made clear.
"I hope the day comes when you return to your wife and your daughters and your country," said the judge, navy captain Keith Allred.
But what makes these trials a total farce is the fact that Bush can decide that people have to remain at Guantanamo Bay even if the jury acquit them. That's what makes them show trials worthy of some tinpot dictatorship. They are essentially meaningless unless they deliver the verdict that Bush wants.
That is why the greatest danger of all is to allow new walls to divide us from one another.
The walls between old allies on either side of the Atlantic cannot stand. The walls between the countries with the most and those with the least cannot stand. The walls between races and tribes; natives and immigrants; Christian and Muslim and Jew cannot stand. These now are the walls we must tear down.
