Things You Should Be Reading

Three things you should be reading:

Two of them are from Daniel Larison. The first is this denouncement of the broad exception that Israel gets regarding international law and wars of aggression. I would advise Israeli hawks to listen to people like Drezner; we Americans know a thing or two about wars of aggression inspired by hyperbolic fears. I agree with his central assertion whole-heartedly though, and have made it somewhere on my blog before; essentially, that we should not concede to the hawks and neocons that the only argument is about the effectiveness of an invasion or assault. We should also be arguing about whether it's right or wrong to go to war. Old-fashioned notions I know.

Speaking of old-fashioned, perhaps you missed the revelation that former British Prime Minister Margeret Thatcher was secretly opposed to German re-unification. This is what Andrew Sullivan refers to as "staggering news", though as Drezner points out it made perfect sense at the time for British realists to be, if not opposed, then at least leery of German reunification. As Drezner explains, Britain had been opposed to the formation of a single strong continental power for centuries, and none of us had any reason to believe in 1989 (or 1991) that things would turn out as peaceful as they have. Of course now we associate Germany with economic progress and stability, but Margeret Thatcher was thinking of World War II. For my part, I was somewhat relieved to read about a nation's leader behaving in a manner that reflect caution and traditional interests. That sort of thing is passe around here these days.

Lastly, there's Glenn Greenwald on Bagram, the new "black hole" for terrorist detainees the world over:

No wonder they want to close Guantanamo: who wants to be bothered with irritating habeas reviews -- 28 out of 33 have resulted in judicial findings that insufficient evidence exists to justify the detention -- when you can just ship them off to the Black Hole of Bagram and imprison them for as long as you want with no court interference? Apparently, what the Bush administration did that was so terrible, the heinous "shredding of the Constitution" they perpetrated, wasn't about the fact that they imprisoned people indefinitely with no charges -- but that they did it in Cuba rather than somewhere else. Who knew that such grave Constitutional transgressions -- such severe denial of fundamental rights -- could be fixed so easily with a little change of scenery?

If I have written about the Obama administration's gradually worsening record on civil liberties and the "war on terror" (you thought it was over, didn't you?) it's only because of a blogging ennui in general, not because I'm giving the Obama administration a pass. As excited as I was about the Obama candidacy, not for one single instant did I believe that the Obama administration would easily surrender powers claimed by the Bush administration. To believe they would do so requires a willful ignorance of Presidential history. No President has ever surrendedered such power without a fight, and so the fight continues.

Saturday Morning Round-Up

1. A story in yesterday's Washington Post reveals that the Obama administration is considering drafting an executive order asserting the President's authority to detain terrorist suspects indefinitely without any judicial process. The White House denies that a draft order exists (via John Cole) thought there is no denial that they are considering such a move. I found this quote from the Post article to be particularly odd:

"...one administration official suggested that the White House is already trying to build support for an order. "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said.

First of all, I would like this official to find me one civil liberties group that has argued for such a thing. Perhaps what he/she meant is that they'd rather have an executive order than a Bush-like assertion of authority that merely cites the Constitution, but there's essentially no difference between the two approaches legally. Also, they are arguing that such an order would permit them to get Congress' acquiescence in the closing of Guantanamo, an effort stymied by the various Democratic and Republican bed-wetters on the Hill. Which basically would amount to Obama saying to Congress "I double-pledge to hold terrorists forever if you will please let me shut down Guantanamo." But it seems to me like sending them Bermuda an the South Pacific was working out alright.

2. Gays and Lesbiasn are-rightly-angered as well at the Obama administration's shuffling approach towards gay rights. Don't Ask, Don't Tell, remains in place, the Obama DOJ is arguing before the courts to retain DOMA, and Obama's decision to extend federal benefits to domestic partners was praised until advocates realized that those benefits didn't include health care (doubly ironic, considering the President's present political battle over a national health care plan.) Arnold King, while not citing specifically to the administration's approach to gay rights, makes the point that the Obama administration has many agendas, but appears satisfied to half-ass meeting their goals on any of them.

3. For some conservative Christians, Sanford's weeping and rending of garments is enough for them to get over his infidelity and bizarre behavior. I'm sure the fact that he's a Republican politician has absolutely no bearing on their attitudes. But stories like this make it clear that for all of Sanford's talk, he was determined to continuing playing his own staff, his own state, and especially his own wife, until he got caught. Politically connected religious leaders and politicians may be quick to forgive, but other conservatives? Not so much.

4. Bob Herbert takes a look at the economy and calls a spade (a jobless recovery) a spade (no recovery at all.)

5. The Iranian government appears to be gaining the upper-hand against the protesters, though it also seems clear that the massive protests have revealed divisions in the leadership that may indicate long-term change.

6. Upon the news of Michael Jackson's death, I found myself wondering what condition his estate was in and upon whom would fall the unfortunate task of trying to sort it out. It appears he had at least one will, though no one knows it's contents yet. I predict there will be a gargantuan battle over his estate given the value still attached to his name and his music and the massive debt attached to much of his property, but I doubt it will interest the public as much as Anna Nicole Smith's highly publicized probate did, what with the absence of a childhood custody dispute. There can be no doubt though of Jackson's status as a mega-star, as the reaction to his death was almost more than the internet could bear.

7. You might've missed this news, but Wednesday the United States pulled off a shocking upset and defeated the number one team in the world 2-0 to advance to the final game of the Confederations Cup. Spain is praised for their ability to possess the ball, and it was expected that the U.S. would entrench upon defense and wait for their opportunities to counter. Instead, Spain committed uncharacteristic errors as the U.S. went with a strategy of heavily pressuring the ball and looking for quick counters, and remaining incredibly well-organized (and frankly, a little lucky) on defense. The strategy paid off with huge dividends; quick movement up the field led to a goal by Jozy Altidore, and a Spanish turnover led to a goal by Clint Dempsey. Altidore (after keeper Brad Guzan) was clearly man of the match. No telling if his outstanding play makes him the future of American soccer or another Eddie Johnson, but American soccer fans will take what they can get. The United States plays Brazil tomorrow, a team they already lost to in the first round, but against whom they might have a better chance if they play as decisively as they did against Spain.

8. I thought this article about Grandparents University at UNT was interesting. Grandparents and their grand-children apparently spend a weekend at the school's dorm and taking classes together, in a program designed to give young teenagers and tweeners a taste of college life, and some bonding time with their grand-parents.

UPDATE: Spencer Ackerman finds at least one civil libertarian to whom the Obama administration official might be referring with the above quote from the Post story; Kate Martin of the Center for National Security Studies:

Martin thinks that established law holds that the administration doesn't require any additional legal authorization to hold anyone captured on the battlefields of Afghanistan without charge until the end of hostilities -- that comes from the September 2001 Authorization to Use Military Force, as does dispensation for the 9/11 plotters -- but would need to charge or release any detainee picked up outside either Afghanistan or Iraq. Martin thinks the reported executive order might be the only thing standing in the way of an even broader congressional effort of the sort seen in the war supplemental that Daphne critiqued yesterday. Martin has expressed her organization's longstanding perspective on detainee matters to the administration's detentions task force.

So Martin supports it, but only to the extent that something from Congress might be worse. Given the way Congress has handled the possible closing of Gitmo this may be true, though I happen to think that Congress should be forced to craft an indefinite detention policy if that's what they want in exchange for closing Gitmo.

Glenn Greenwald has more though, as I've pointed out once before, he has a tendency to criticize the "many defenders" of Obama on various issues where Obama replicates Bush doctrines, without actually linking to or naming any of these defenders. Greenwald is a very thorough blogger, which is why I don't understand why he so eagerly reaches for the "some say" approach to blogging.

Legislative Update XVII

After lots of arm-twisting on anti-war Democrats in the House of Representatives, Congress voted to approve funding for the wars in Iraq, Afghanistan in an emergency supplemental. This is supposed to be the last time such funds will be provided for outside of the normal budget. IMF funding and the "cash for clunkers" program made it into the final bill, but it does not include the $80 million the White House requested to start effort to close Gitmo. The bill also prohibits detainees from being released in the United States and allows the transfer of detainees for prosecution only after Congress receives a plan detailing the risks.

The Senate passed a separate bill to block the release of detainee abuse photos. President Obama had given his formal word to classify the photos to placate those who wanted to put the prohibition in the war funding bill, which would have further weakened its chances of passing. If and when it will come up for a vote in the House is unknown.

Senate Republicans blocked a resolution condemning violence against women's health-care providers. The Senate did pass a formal apology for slavery, and will be followed by the House next week. It's hard to believe this hasn't happened already. The House did pass a resolution knocking Tehran's crackdown on protesters, with Rep. Ron Paul being the only "nay" vote.

Lastly, on the health care front, House Dems presented a plan that does have a public option, but that was left out of the Senate version. What ultimate comes out of Congress is anyone's guess at this point, assuming that something does that is. The only thing we know for sure is that it appears it's a long road ahead...

UPDATE: For the first time in 20 years, the House unanimously approved four article of impeachment against U.S. District Judge Samuel Kent of Texas accusing him of sexually assaulting two female employees and lying to judicial investigators and Justice Department officials. This now sets up a trial in the Senate.

Morning Links

Some Tuesday morning reading for you:

1. The protests and demonstrations in Iran continue, despite the government's agreement to a "partial recount" of the election results. The NY Times says Ayatollah Khamenei is blinking, but how much? And Glenn Greenwald wonders if Iran would have arrived at this point if the Iran hawks, now cheering on the demonstrations, had gotten their way and convinced the Bush adminitration to bomb Iran.

2. Abu Zubaydah said in a 2007 hearing that his interrogators with the CIA acknowledged they were mistaken about his role in Al Qaeda, according to transcripts obtained by the ACLU (h/t Adam.) If that's true, it merely means they admitted to him what the rest of us have already known about Zubaydah for awhile.

3. Netanyahu has proposed that Israel recognize the Palestinian right to a state, but only if the Palestinians recognize Israel's right to exist first.

4. The recently released Uighurs: life on the beach is great, except for the fact that they can never go home or see their families again.

5. Obama has appointed a new American Indian advisor. The Department of Justice has also announced efforts to boost its crime-fighting operations in Indian Country.

Wednesday Morning Round-Up

1. Iraq is moving ahead with a referendum on the Iraq-US security agreement. Such is the perils of democracy. Though Iraqi leaders would almost certainly prefer American troops stay in the country, they can't afford to oppose the referendum in an election year.

2. The Obama administration signals that they may move away from a policy of isolation with the regime in Burma. Since that hasn't worked to date, I think it's worth trying something new.

3. The Senate is moving ahead with a bill that would give the FDA the power to regulate tobacco products.

4. A profile of the guard killed in yesterday's shooting at the Holocaust Museum in D.C. It would be interesting to ask the murderer what he thought he might accomplish with his act, though fanatics always seem to have a grander view of their place in the world than most of the rest of us do. I visited the museum when I was at law school in D.C., and was surprised at the heavy security required to enter the museum. Now I understand.

5. Some local news: Dallas County meals on wheels needs help. They don't need your money, so much as they need volunteers to deliver meals so they won't have to pay drivers to do so. If you'd like to help, more information is here. Also, local residents know about the odd series of minor earthquakes the area has experienced in recent months. Scientists at SMU hope to get to the bottom of the mystery.

6. Two mentally disabled men in Texas have (separately) been given ridiculously long sentences for molesting young children. Even the jury in Hart's case was shocked by the 100-year sentence the man, reported to have an IQ of roughly 47, received. The question I would like to ask the prosecutors in this case is, if both men are reported to have IQs themselves that are roughly equivalent to those of young children, why are they sentenced as if they were fully functioning adults? And, the Hart story points out, repeat sex offenders routinely receive shorter sentences than these men did, which raises the question of whether there is some discrimination against the mentally disabled going on here, at least in my mind.

7. Perhaps you heard about the collapse of the Cowboy's practice facility in Valley Ranch, Irving, last month that paralyzed a Cowboys scouting assistant? It appears the Cowboys knew of a similar incident involving a canopy built by the contractor they hired. While this isn't exactly proof of negligence on the Cowboys part, it sure does make it easier to add the Cowboys to the lawsuit that I'm sure is being contemplated against the contractor.

Four of the Uighurs Released in Bermuda

Just yesterday I blogged about a report that American officials were attempting to resettle the 17 Uighur detainees who have been held at Guantanamo Bay since 2001 in Palau, in the South Pacific. Well, it looks like four of them have been resettled a little closer to home:

Four Guantanamo Bay detainees have been released and resettled in Bermuda, U.S. officials said Thursday.

The four are part of a group of 17 Chinese Muslims who have been in legal limbo at the military detention center in Cuba.

Abdul Nasser, one of the four detainees who landed in Bermuda early Thursday morning, issued a statement through his lawyers, saying: ''Growing up under communism we always dreamed of living in peace and working in free society like this one. Today you have let freedom ring.''

Why four and not all of them? And is the plan still to resettle the rest in Palau? No clue yet. However, somebody should probably tell Ed Morissey to scratch Bermuda off the list of future vacation spots.

Legislative Update XIV

Congress sent President Obama two bills this week aimed preventing foreclosures and regulating the credit card industry, though with the price of allowing guns in national parks.

Both chambers of Congress also quickly and unanimously passed and President Obama signed into law a bill aimed at saving billions of dollars in wasteful spending on weapons systems often delivered late and hit by ballooning cost overruns. The armed forces have also submitted to Congress their "wish lists" of spending priorities that did not make the president's Defense budget request, and the items on the list are about one-tenth as expensive as last year's.

The Senate passed $91 billion in war funding, including financing for the International Monetary Fund that may be a sticking point for the House. The Senate also voted 90-6 to strip funding to close the detention center at Guantanamo Bay from a supplemental spending bill and bar funding for the transfer of prisoners to the United States. However, many Democrats said they were just waiting on a more specific plan from the Obama administration that the president began to lay out on Thursday.

The Senate confirmed President Obama's nominees for the FDA and the Bureau of Indian Affairs, while his pick to run the census moved toward confirmation as well. But Republicans, who used to believe in "up or down" votes for judicial nominees, blocked action on President Obama's first judicial appointment.

The House Energy and Commerce Committee voted in favor of the climate change bill currently under consideration by a 33-25 vote.

Finally, the full House rejected a GOP resolution that called for investigations into Speaker Pelosi's accusations against the CIA. Perhaps to mend fences, Pelosi is considering appointing a Republican on an economic crises panel. The Speaker will also be visiting China next week.

More Torture Revelations

You may recall that in December, the Senate Armed Services Committee released an executive summary containing the key conclusions of a report the committee authored on the treatment of terrorist suspects in American custody, specifically, the use of torture against those suspect detainees. This evening the Committee has released the full report, which provides more detail than ever about how the methods of torture used against detainees at Guantanamo Bay (and later against detainees in Iraq and Afghanistan) evolved and proliferated. I haven't yet read the full report myself (it totals 232 pages) but already the report is being processed by various media outlets. Time has a relatively short (but informative) summary here, which is as good a place to start as any. But for the best break down of the report I recommend Spencer Ackerman, who explains exactly how officials at the Pentagon "reverse-engineered" techniques first developed to train U.S. military personnel to resist torture, techniques which they then went on to apply detainees at Guantanamo Bay.

Throughout it all, it becomes clear that senior Bush administration officials were well aware of what was going on. Says Democrat Carl Levin of the report's conclusions:

“The record established by the Committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the Committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”

Coincidentally (I presume) the NY Times published an article today which reveals the apparent thoughtlessness with which senior officials of the Bush administration approved these various torture techniques, without-amazingly-ever being quite aware that many of these techniques were descended from methods that the Chinese used to extract false confessions from American prisoners during the Korean War:

Overwhelmed with reports of potential threats and anguished that the agency had failed to stop the Sept. 11 attacks, Mr. Tenet and his top aides did not probe deeply into the prescription Dr. Mitchell so confidently presented: using the SERE tactics on Qaeda prisoners.

A little research on the origin of those methods would have given reason for doubt. Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister “brainwashing” but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene.

“The Communists do not look upon these assaults as ‘torture,’ ” one 1956 study concluded. “But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture.”

Worse, the study found that under such abusive treatment, a prisoner became “malleable and suggestible, and in some instances he may confabulate.”

[...]

One former senior intelligence official who played an important role in approving the interrogation methods said he had no idea of the origins and history of the SERE program when the C.I.A. started it in 2002.

“The agency was counting on the Justice Department to fully explore all the factors contributing to a judgment about legality, including the surrounding history and context,” the official said.

But it was the C.I.A. that was proposing the methods, and John Yoo, the Justice Department official who was the principal author of a secret August 2002 memorandum that authorized the interrogation program, was mostly interested in making a case that the president’s wartime powers allowed for the harsh tactics.

In other words, the OLC gave the CIA exactly what they wanted, which was basically permission to employ whatever techniques they thought they needed to against the detainees. I think it's appropriate to excerpt this snippet from Brian Tamahana's post regarding the circular reasoning of the OLC memos:

Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.

Of course, this was all possible because the conclusion was already pre-ordained; the OLC's job was merely to find a way to "legalize" it all. The Bush administration "knew" that torture would work, so there was really no need to debate the issue; especially not with CIA Director George Tenet running around claiming that Al Qaeda was getting ready to deply biological, chemical or nuclear weapons. They just needed the methods, and they needed somebody to say that it was legal to employ them. And they got both, without too much trouble, and without any messy inquiry into whether the approved techniques were actually useful in getting real information out of detainees (as opposed to just convincing them to say whatever the interrogator wanted to hear)or whether there was actually any legal precedent that argued against the use of torture.

I think it's also interesting to note from both Spencer Ackerman and the NY Times' stories how eager some SERE interrogators and psychologists were to get in on the action, only to balk at the various methods being employed in the coming months and years. But the genie was already out of the bottle at that point, and the methods they had helped to devise were already being employed in places as far away as Abu Ghraib and Bagram and, presumably, the CIA's secret detention facilities the world over.

If this can be easily summarized in anyway, it would be to say that Pentagon staffers, members of the military, and agents and contractors for the CIA and the DOD, put much thought, time and consideration into the exact methods of torture they would employ against recalcitrant detainees. Senior members of the Bush administration on the other hand, did not. And thus were terrorists suspects being detained indefinitely in various facilities and black sites around the world tortured in the name of national security. 

Judge Sullivan Is Very, Very Mad

The government has, in two completely different cases, gotten themselves on the very bad side of D.C. District Judge Emmet Sullivan. Sullivan was the presiding judge over the now collapsed prosecution of Senator Ted Stevens, and he's demanding an investigation into what he calls the government's "intentional misconduct":

Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.”

Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith. He said he had witnessed “shocking and serious” violations of the principle that prosecutors are obligated to turn over all relevant material to the defense.

The judge appointed the attorney Henry Schuelke as special prosecutor to investigate possible criminal contempt charges against the prosecution team.

Mr. Stevens, who was defeated for re-election to the Senate in November after being convicted of ethics violations in the case, told the court that the episode had caused him to question some basic assumptions about American justice.

“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”

Brendan Sullivan, Mr. Stevens’s chief counsel, said it was clear to him that “the government engaged in intentional misconduct.”

That is one mad, mad judge. And he has a right to be. The bungling of the Stevens case was appalling. Prosecutorial misconduct denied Stevens a fair trial, and denied the American people justice, regardless of his actual innocence or guilt.

Last week Judge Sullivan also took aim at the government's prosecution of Aymen Saeed Batarfi, an accused Al Qaeda doctor whose habeas petition Sullivan has presided over:

The Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases, a federal judge has concluded.

The government censored parts of the records, but enough has been made public that it's clear that the witness, a fellow detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts. The witness provided information in the government's case for detaining Aymen Saeed Batarfi, a Yemeni doctor who the government announced last week it would no longer seek to detain.

In a little-noticed ruling last week, Judge Emmet Sullivan found that the witness's testimony in other cases could be challenged as unreliable.

During a hearing last week, Sullivan castigated the government for not turning over the medical records and ordered department lawyers to explain why he shouldn't cite them for contempt of court.

"To hide relevant and exculpatory evidence from counsel and from the court under any circumstances, particularly here where there is no other means to discover this information and where the stakes are so very high . . . is fundamentally unjust, outrageous and will not be tolerated," Sullivan said, according to a transcript of the hearing.

"How can this court have any confidence whatsoever in the United States government to comply with its obligations and to be truthful to the court?"

The Obama administration has dropped the prosecution of Batarfi but continues to hold him while they attempt to find a country willing to take him. But Judge Sullivan isn't letting them off the hook:

He also criticized the government for deciding at the last minute to drop the case against Batarfi, who's been held at Guantanamo for seven years, and questioned its motives for doing so. He suggested that the government didn't genuinely intend to seek a country that would take Batarfi.

"I'm not going to let this case drag on, or any of the other cases on my calendar, indefinitely while the government embarks on what it calls its diplomatic process, because I have seen in the past that that diplomatic process can indeed span months and years, and I have some serious concerns as to whether it's yet and still another ploy . . . to continue with his deprivation of his fair day in court."

Sullivan threatened to have government attorneys return to court in 14 days to report on the progress of freeing Batarfi "and every 14 days thereafter."

"I'm not going to continue to tolerate indefinite delay on the part of the United States government," Sullivan said. "I mean this Guantanamo issue is a travesty . . . a horror story . . . and I'm not going to buy into an extended indefinite delay of this man's stay at Guantanamo."

Judge Sullivan has a right to be angry, and I'm glad he's unloading on government prosecutors with both barrels. It's long been established that the prosecutions at Guantanamo Bay are a travesty; the government holds all the cards and apparently decides if and when they will make defendants and their attorneys aware of exculpatory, or even relevant, evidence that may aid in their defense. But it makes no difference whether the person being prosecuted is a Yemeni doctor or a U.S. Senator; each man is deserving of a measure of justice, as Judge Sullivan recognizes. And government prosecutors should be made to pay for their incompetence and malfeasance.

D.C. Circuit Overturns Uighur Decision

Yesterday the D.C. Circuit ruled that a federal district judge had exceeded his authority in ordering the release of seventeen Uighur detainees being held at Guantanamo Bay:

Only the political branches — the President and Congress — have the authority to decide when aliens may enter the U.S., the Circuit Court concluded by a 2-1 vote. A third judge on the panel found that the judge’s release order was premature, but did not join in the ruling against release at this time.

The majority concluded that “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.”

[...]

The Circuit Court said it was not deciding at this point whether the President “may ignore the immigration laws and release [the Uighurs] into the United States without the consent of Congress.”

[...]

Circuit Judge Judith W. Rogers, while voting to overturn the judge’s release order, denounced the majority’s reasoning. She said the majority’s analysis “is not faithful” to the Supreme Court’s ruling last June in Boumediene v. Bush on detainees’ rights, and “would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.” She also said the ruling’s analysis was unnecessary because the court could not yet know whether detention was justified under immigration law.

The Circuit Court decision appeared to be confined closely to the single issue of whether a federal judge may order release into the U.S. of non-citizens being held outside U.S. territory. The majority noted that the only claim by detainees that was before it was not “simple release” from Guantanamo, but whether a court could order the Executive Branch “to release them into the United States outside the framework of the immigration laws….The question here is not whether petitioners should be released, but where.”

The extent of the victory for the Bush administration's detention policies depends on which side you're one I suppose. From one angle, the appellate decision checks the authority of the judiciary to order the release of detainees. The majority tries to confine the issue merely to whether the judiciary has the authority to order the release of detainees into the United States against the wishes of the executive and outside the scope of immigration law, but the dissenting judge seems to think that the ruling is in the vein of prior rulings that have upheld executive authority to hold detainees without reason indefinitely. Either way they demurred on the question of whether the Uighurs could be released into the United States under present immigration laws were they to apply for admission.

Really?

Glenn Greenwald points to a NY Times piece by noted journalist Charlie Savage as evidence that the more things change, the more they stay the same:

Savage lists several other examples of controversial Bush/Cheney "War on Terror" policies which have been either fully embraced or preliminarily welcomed by the Obama administration, all of which have been previously discussed here (though one episode Savage didn't mention which is one of the most disturbing yet is the Obama DOJ's ongoing and increasingly aggressive efforts to keep Bush's NSA warrantless spying program shielded from judicial review, by invoking Bush's State Secrets argument).
Concerning the pending dispute over Bush's wildly broad assertions of executive privilege in order to prevent his aides (such as Karl Rove) from having to disclose information to Congress, Savage quotes Obama's White House counsel Greg Craig as follows:

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."

That may be the most revealing quote of the article. If -- as virtually all Bush critics agree -- the Bush presidency ushered in a massive and dangerous expansion of executive power, isn't it necessary, by definition, to scale back some of those powers -- i.e., to "undermine or weaken the institution of the presidency" -- if those abuses are to be reversed? The cynical view has long been that Obama will not, on his own, meaningfully uproot Bush's executive power expansions because political officials do not get into office and then start voluntarily giving up their own power. Craig's statement constitutes a virtual affirmation of the cynic's view of Obama's intentions.

But then he goes on to say this:

Having said all of this, and while believing that Savage's article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly). Additionally, it is all but certain that media stars and right-wing Bush followers will dishonestly exploit Savage's article to make claims about "vindication of Bush policies" that go far beyond the cautious statements Savage makes.

As Savage notes, there was a flurry of Executive Orders issued by Obama in the first week which are indisputably positive and constitute genuine reversals of some key Bush policies -- banning CIA black sites, guaranteeing International Red Cross access to all detainees (i.e., no more secret detentions), freezing all military commissions, increasing some Executive Branch restrictions on presidential secrecy powers, substantially limiting the interrogation techniques which (at least for now) the CIA is authorized to employ. All of those orders were, by design, preliminary, incomplete and reversible -- and their value is therefore limited -- but they were clearly important steps in the right direction.

So Obama will not "meaningfully uproot Bush's executive power expansions", except for dismantling Gitmo, ensuring Red Cross access to detainees, freezing military commissions, banning "black" sites and....well, everything else Greenwald lists above.

Greenwald is a thorough, methodical and logical writer, so anytime he seems to so boldly contradict himself, your first thought should be that you might be missing the point. Which I thought in passing. But I think Greenwald is bogged down, as I discussed the other day, by the idea of going after Obama supporters who would diminish or belittle legitimate criticism of Obama's policies. He acknowledges that there's been both good and bad to the Obama administration's approach on detention and terrorism thus far, but spends most of his blog upbraiding those "people who believe that Barack Obama is kind, just and good, and thus are going to have a hard time believing that he's embracing some of the most abusive Bush/Cheney policies even when he does it right in front of their faces." But he doesn't actually link to anybody as an example. Now I certainly have no doubt that there are some liberals/progressives out there belittling critics of the Obama administration, but everybody I read (and I read some noteworthy magazines, newspapers and blogs) seems to think-just like Greenwald-that there's some good and some bad to what the Obama administration has done so far. I don't deny that those who would enable the Obama administration to defy the Constitution must be criticized, but who are they?

Former Prison Guard Details Conditions at Gitmo

In the category of "this would've been useful a few years ago", a former prisoner guard at Guantanamo Bay recounts abuses he witnessed at the detention camp (h/t Adam):

...as Neely put it in an interview with The Associated Press this week, "The stuff I did and the stuff I saw was just wrong."

Neely, a burly Texan who served for a year in Iraq after his six months at Guantanamo, received an honorable discharge last year, with the rank of specialist, and now works as a law enforcement officer in the Houston area. He is also president of the local chapter of Iraq Veterans Against the War.

An urge to tell his story led him to the University of California at Davis' Guantanamo Testimonials Project, an effort to document accounts of prisoner abuse. It includes public statements from three other former guards, but Neely was the first to grant researchers an interview. He also spoke extensively with the AP.

Testimony from the other guards echoes some of Neely's concerns. One of the other guards, Sean Baker, described in an interview with CBS' "60 Minutes" how he was beaten and hospitalized by fellow soldiers in a January 2003 training drill in which he wore an orange jumpsuit to play the role of a detainee.

Terry C. Holdbrooks Jr. told the Web site cageprisoners.com in an interview this month that he saw several abuses during his service at Guantanamo in 2003, including detainees subjected to cold temperatures and loud music, and he later converted to Islam.

Neely, 28, describes a litany of cruel treatment by his fellow soldiers, including beatings and humiliations he said were intended only to deliver physical or psychological pain.

Only months had passed since the Sept. 11 attacks, and Neely said many of the guards wanted revenge. Especially before the first Red Cross visit, he said guards were seizing on any apparent infractions to "get some" by hurting the detainees. The soldiers' behavior seemed justified at the time, he said, because they were told "these are the worst terrorists in the world."

He said one medic punched a handcuffed prisoner in the face for refusing to swallow a liquid nutritional supplement, and another bragged about cruelly stretching a prisoner's torn muscles during what was supposed to be physical therapy treatments.

He said detainees were forced to submit to take showers and defecate into buckets in full view of female soldiers, against Islamic customs. When a detainee yelled an expletive at a female guard, he said a crew of soldiers beat the man up and held him down so that the woman could repeatedly strike him in the face.

Neely says he feels personally ashamed for how he treated that elderly detainee the first day. As he recalls it, the man made a movement to resist on his way to his cage, and he responded by shoving the shackled man headfirst to the ground, bruising and scraping his face. Other soldiers hog-tied him and left him in the sun for hours.
Only later did Neely learn — from another detainee — that the man had jerked away thinking he was about to be executed.

"I just felt horrible," Neely recalled.

A former Army spokesman for the base says the guards had "strict direction from the start" (the reporter's words) but that's bullshit. This sort of thing only happens with the explicit or implicit approval of commanders, and commanders only give that approval when civilian leadership wants it or doesn't care to stop it.

Files in "Disarray"

Following up on former Gitmo Prosecutor Darrel Vandeveld's complaints, the team Obama has charged with undoing Guantanamo are finding that case files on detainees are disorganized, haphazard and incomplete:

President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.

[...]

In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."

Right. Never mind that they had years, and any moron could see which way the wind was blowing up at the Supreme Court. The truth is the Bush administration never had any intent of seriously trying these detainees (kangeroo courts hardly need well-organized evidence) and and so preparation for such was completely absent. The Obama team will spend the next year just trying to clean up after some the former administration's wastefulness and incompetence.

Gitmo and "Black" Sites To Be Shut Down

President Obama is expected to issue an order today that will require the closing of the detention camp at Guantanamo Bay within a year, and the shuttering of the CIA's secret prisons around the world:

The orders, which would be the first steps in undoing detention policies of former President George W. Bush, would rewrite American rules for the detention of terrorism suspects. They would require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders would bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

But the orders would leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

Dramatic, and welcome, change.

Obama Orders Halt to Gitmo Trials

Or as Nat-Wu put in an email to me, "The times, they are a'changing'!"

Legislative Update II

Given incoming-President Obama some early victories, Congress approved the release of the final $350 billion of bailout money and the House passed the SCHIP expansion which President Bush had vetoed. The Senate also passed a bill outlawing the sale and counterfeiting of inaugural tickets and several Obama cabinet picks went before Senate committees. Secretary of State-designate Hillary Clinton got a 16-1 vote out of the Senate Foreign Relations Committee, and even Attorney General-designate Eric Holder (who exclaimed that "waterboarding is torture" and that President Obama will follow through on closing Gitmo) looks like he will not have the opposition once predicted due to his approval of President Clinton's pardon of Marc Rich.

Impeachment?

Not for Bush obviously, but for Jay Bybee, former Asst. Attorney General and presently sitting on the 9th Circuit Court of Appeals, or so says Bruce Ackerman:

Bybee has never been held accountable for his distortions of the law. At the time of his confirmation hearing, news of the torture memos had not yet leaked to the public. When asked about his role in national security matters at his Senate hearing, Bybee stonewalled: "As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice."

If the Senate had known the truth, it would have rejected him. The story of William Haynes offers a cautionary tale. As general counsel of the Department of Defense, Haynes also played a key role in authorizing torture; and he was also rewarded by a nomination to a leading appellate court. But before he could be confirmed, the Bush administration's involvement in torture became a matter of public record, and the Senate refused its consent to the nomination. Bybee is a judge today only because of timing and the administration's assertions of executive privilege.

This is unacceptable. The president can rightly claim privilege for his conversations with his confidential advisers. He needs their candid opinions and won't get them if they aren't assured of confidentiality. But Bybee wasn't a presidential confidant. He was the head of a division of the Justice Department that gives authoritative legal guidance to the entire bureaucracy. It goes too far to suggest that the opinions he issued in this role are privileged. This would permit the creation of a world worthy of Franz Kafka—in which the bureaucracy operated under secret rules that bore no obvious relationship to the statutes passed by Congress. Bybee's refusal to reveal his role at his Senate hearing should not insulate his actions from further scrutiny.

Plausible? I don't know. Intriguing? Certainly.

More on the Military Commissions

In a related vein to our earlier post on Susan Crawford, another former prosecutor at Gitmo indicts the military commissions system:

Darrel Vandeveld, a former lieutenant colonel in the Army Reserve, filed the declaration in support of a petition seeking the release of Mohammed Jawad, an Afghan who has been held at the military prison in Cuba for six years. Jawad was a juvenile when he was detained in Kabul in 2002 after a grenade attack that severely wounded two U.S. Special Forces soldiers and their interpreter.

Vandeveld, who has served in Iraq and Afghanistan, was the lead prosecutor against Jawad until he asked to be relieved of his duties last year, citing a crisis of conscience. He said the case has been riddled with problems, including alleged physical and psychological abuse of Jawad by Afghan police and the U.S. military, as well as reliance on evidence that was later found to be missing, false or unreliable.

Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

As the former prosecutor of Jawad, Vandeveld would certainly be in the position to know what was going on with the case. Unlike Crawford, Vandeveld objected strongly enough to what was going on to resign from prosecuting the case. Vandeveld's statement only adds to the avalanche of information suggesting the commissions are unfair, unjust and ineffective. And soon to be scuttled.

Qahtani Tortured

Susan Crawford, the Bush administration official charged with overseeing overseeing the military commissions in Guantanamo Bay calls a spade a spade:

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

This of course is in contrast to very public statements made by both Bush himself and Cheney, very recently, who stated that we do not torture:

President Bush and Vice President Cheney have said that interrogations never involved torture. "The United States does not torture. It's against our laws, and it's against our values," Bush asserted on Sept. 6, 2006, when 14 high-value detainees were transferred to Guantanamo from secret CIA prisons. And in a interview last week with the Weekly Standard, Cheney said, "And I think on the left wing of the Democratic Party, there are some people who believe that we really tortured."

Well, not just the left wing apparently. Allegations that Qahtani had been tortured surfaced in 2005 when Time published excerpts of his interrogation log, and we knew that the charges against him had been dropped last year, with many speculating it was because of his treatment at the hands of U.S. personnel, so the real surprise here is hear that Crawford concluded that Qahtani's treatment met the legal definition of torture. Defense department officials insist they will bring charges again based on evidence obtained that doesn't rely on the tainted evidence obtained by torturing Qahtani, but Crawford insist that she won't permit the prosecution to go forward, and the Obama administration is likely to drop the use of military commissions completely. Crawford has some other choice things to say as well:

"It did shock me," Crawford said. "I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it."

The harsh techniques used against Qahtani, she said, were approved by then-Defense Secretary Donald H. Rumsfeld. "A lot of this happened on his watch," she said.

While I applaud Crawford for being willing to air what she witnessed publicly, I can't help but point out that her statement may have had considerably more impact on the system back in 2008 when she refused to go forward with charges against Qahtani. At this point she's merely confirming, belatedly, what most of us already knew, and she's doing so on the eve of what is likely to be a scrapping of the entire system that she has overseen. Crawford has come under fire for her role in the commissions as well. Morris Davis, the former chief prosecutor, had this to say about her:

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something – use specific evidence to bring specific charges against a specific person at a specific time, for instance – and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

So once again we have a "stunning" admission from a Bush administration official, who was herself up to her eyeballs in a in a blatantly unjust process, long after the incident being referred to occurred and past the point at which such an admission (or confession) can be useful. Thanks for nothing Susan Crawford. 

Obama to Close Gitmo

Finally, that travesty at Guantanamo Bay will come to an end:

President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.

But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.

Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”

The president-elect drew criticism from some human rights groups Monday who said his remarks suggested that closing Guantánamo was not among the new administration’s highest priorities. But even if the detention camp remains open for months, the decision to address Guantánamo on the day after his inauguration seemed intended to make a symbolic break with some of the most controversial policies of the Bush administration.

I couldn't care less of Guantanamo is actually shuttered this January or next, so long as the Obama administration makes real, substantial efforts to close it, which they appear to be doing here. It is also heartening to see the Obama administration reject the military commissions, as well as further expansions of presidential power, since only a dramatic change in our policies can signal to the world that fully intend to abandon the ideas of indefinite detention and extra-judicial process.