The Trick Was On Us
(GETTY)
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October 31, 2009 10:56 AM And so it came to pass that on the day before Halloween 2009 we all were reminded that most of the biggest tricks of the past decade were on us.
September 22, 2009 11:44 AM
The Latest Drafts of the History of Torture
Ninety years ago, in the shadow of the Great War, long before the invention of cable news and bloggers, the great American writer and journalist Walter Lippmann wrote in Liberty And The News that:
Americans could not go see for themselves the effects of the Bush Administration's torture policies. There are no commuter flights to Guantanamo Bay, Cuba and the train doesn't run on time to Baghdad's Abu Ghraib prison. The digital cameras that recorded the degradation of Iraqi prisoners at the prison were never supposed to see the light of day. And the video recordings of the Gitmo interrogations were improperly destroyed by the CIA so that they never would.
We were blind but now we begin to see. Slowly, a clearer picture is emerging of the legal and political path from the "torture memos" authorized by the Office of Legal Counsel (by men like John Yoo and Steven Bradbury and Alberto Gonzales) to the reported water-boarding (simulated death by drowning) of Khalid Sheik Mohammed not once or twice but 183 times. What began in 2002 as faux legal ambiguity (about the legality of torture) turned into official military policy and then into a moral and diplomatic disaster and now has become, as almost all facts always do, a part of history.
The world about which each man is supposed to have opinions has become so complicated as to defy his powers of understanding. What he knows of events that matter enormously to him, the purposes of governments, the aspirations of peoples, the struggles of classes, he knows at second, third or fourth hand. He cannot go and see for himself.
(CBS/AP)
We were blind but now we begin to see. Slowly, a clearer picture is emerging of the legal and political path from the "torture memos" authorized by the Office of Legal Counsel (by men like John Yoo and Steven Bradbury and Alberto Gonzales) to the reported water-boarding (simulated death by drowning) of Khalid Sheik Mohammed not once or twice but 183 times. What began in 2002 as faux legal ambiguity (about the legality of torture) turned into official military policy and then into a moral and diplomatic disaster and now has become, as almost all facts always do, a part of history.
September 14, 2009 11:11 AM 
The good news for detainees at Bagram Air Force Base is that the Obama Administration is set to implement new policies that will give them more due process rights. The bad news for the terror-law suspects in Afghanistan is that these new rules only raise their legal status to the lowly (and still largely undefined) one held by detainees currently held by American forces at Guantanamo Bay, Cuba. Be grateful for small favors, right?
Right -- especially after a particularly harsh summer of discontent at Bagram, where the once "secret" prison has become for some the latest symbol of overzealous American prosecution of the war on terrorism. There have been hunger strikes there, and allegations of abuse and other chaos, and most of all lawsuits brought by the detainees seeking to have some sort of independent and fair review of the government's rationale and evidence justifying their confinement.
The White House's reluctant (and, some say, belated) decision to overturn Bush-era policies toward the Bagram detainees, to give them equal rights with the Gitmo detainees, would make more sense if the military commission rules at Gitmo were stable, well-defined, and legally-recognized by the federal courts. They are neither of the three.
Gitmo detainees themselves continue to reside in a legal netherworld; so much so that one of the "worst of the worst" there, 9/11 conspirator Ramzi Binalshibh, got his lawyers to file a motion last week reminding the federal judiciary that the Gitmo pre-trial process is a mess.
The Bagram Rules
(AP)
Right -- especially after a particularly harsh summer of discontent at Bagram, where the once "secret" prison has become for some the latest symbol of overzealous American prosecution of the war on terrorism. There have been hunger strikes there, and allegations of abuse and other chaos, and most of all lawsuits brought by the detainees seeking to have some sort of independent and fair review of the government's rationale and evidence justifying their confinement.
The White House's reluctant (and, some say, belated) decision to overturn Bush-era policies toward the Bagram detainees, to give them equal rights with the Gitmo detainees, would make more sense if the military commission rules at Gitmo were stable, well-defined, and legally-recognized by the federal courts. They are neither of the three.
Gitmo detainees themselves continue to reside in a legal netherworld; so much so that one of the "worst of the worst" there, 9/11 conspirator Ramzi Binalshibh, got his lawyers to file a motion last week reminding the federal judiciary that the Gitmo pre-trial process is a mess.
August 6, 2009 11:50 AM 
It's hard for most people to conceptualize the legal difficulties and contradictions that now have plagued the efforts of two successive administrations to process and prosecute the terror suspects at Guantanamo Bay, Cuba. And this lack of imagination, borne of the vacuum of solid facts, has resulted in prejudgment, prejudice and even the frequent expression of outright stupidity about the status of the men and our government's right to continue to hold them.
Fortunately, however, the curtain is beginning to draw back. Last week, a federal judge in Washington, D.C. ordered the release of a Kuwaiti detainee named Khalid Al Mutairi, who first challenged the terms of his confinement at Gitmo back on May 1, 2002. Earlier this week, the judge released a heavily-redacted ruling that offers rare insight into the facts of the Al Mutairi case, the way the government approached it, and the skepticism with which the allegations were met by a seasoned member of the federal judiciary.
Al Mutairi's habeas corpus petition was the first of hundreds of similar motions filed by the prisoners. All of them have sought some sort of independent review of the allegations against them. The fact that it took more than seven years for a substantive ruling on the merits of Al Mutairi's case—and surely there will be appeals to come-- reveals much of what you really need to know about the government's failure to timely process and prosecute the detainees out of Gitmo. Do yourself a favor. Read the ruling.
Weak Detainee Case Begets Strong Ruling
(CBS/AP)
Fortunately, however, the curtain is beginning to draw back. Last week, a federal judge in Washington, D.C. ordered the release of a Kuwaiti detainee named Khalid Al Mutairi, who first challenged the terms of his confinement at Gitmo back on May 1, 2002. Earlier this week, the judge released a heavily-redacted ruling that offers rare insight into the facts of the Al Mutairi case, the way the government approached it, and the skepticism with which the allegations were met by a seasoned member of the federal judiciary.
Al Mutairi's habeas corpus petition was the first of hundreds of similar motions filed by the prisoners. All of them have sought some sort of independent review of the allegations against them. The fact that it took more than seven years for a substantive ruling on the merits of Al Mutairi's case—and surely there will be appeals to come-- reveals much of what you really need to know about the government's failure to timely process and prosecute the detainees out of Gitmo. Do yourself a favor. Read the ruling.
July 6, 2009 9:50 AM 
President Barack Obama is said to be troubled by executive branch plans to indefinitely detain without trial the “worst of the worst” terror suspects currently held at Guantanamo Bay, Cuba. “It gives me huge pause," the President told The Associated Press last week. "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."
A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give “huge pause” to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad “state secrets” doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the Administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama’s noble terror law speeches would have predicted he would follow the same course.
But the Bush White House failed only in the execution of its tribunal system. The ginned-up rules at first were patently unconstitutional and are now, several Supreme Court rulings later, still only marginally acceptable (and legally dubious). However, the concept of tribunals for dangerous men — part criminal, part warrior, part terrorist — is a sound one, rooted in the military and legal history of America. So perhaps the most disturbing part of the Obama Administration’s “indefinite detention plan” is that it concedes defeat before a real effort has been made, by current leaders, to come up with a workable, legitimate way to process unrepentant men like Mohammed.
Obama Waffles on Indefinite Detention
(AP)
A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give “huge pause” to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad “state secrets” doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the Administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama’s noble terror law speeches would have predicted he would follow the same course.
But the Bush White House failed only in the execution of its tribunal system. The ginned-up rules at first were patently unconstitutional and are now, several Supreme Court rulings later, still only marginally acceptable (and legally dubious). However, the concept of tribunals for dangerous men — part criminal, part warrior, part terrorist — is a sound one, rooted in the military and legal history of America. So perhaps the most disturbing part of the Obama Administration’s “indefinite detention plan” is that it concedes defeat before a real effort has been made, by current leaders, to come up with a workable, legitimate way to process unrepentant men like Mohammed.
June 14, 2009 12:26 PM
Judge White And Wrong
He'll probably get overturned on appeal, but if and when he does, at least U.S. District Judge Jeffrey White will have gone down fighting and with candor.
The federal trial judge in Northern California declared late Friday in a 42-page ruling that a civil lawsuit against John Yoo could proceed, at least for the time being, to determine whether the torture-memo scoundrel can be held legally accountable for his role in authorizing and enabling the Bush Administration's odious torture policy.
The federal trial judge in Northern California declared late Friday in a 42-page ruling that a civil lawsuit against John Yoo could proceed, at least for the time being, to determine whether the torture-memo scoundrel can be held legally accountable for his role in authorizing and enabling the Bush Administration's odious torture policy.
June 11, 2009 4:00 PM 
When the Obama Administration announced this week that it was sending, or had sent, a group of detainees from Guantanamo Bay, Cuba to far-off Palau and to Bermuda the feds were doing nothing more or less than they had promised when they took office in January. The terror suspects have to go somewhere, after all, if the current administration is going to finish the business of depopulating Gitmo; a job that was earnestly started by the Bush Administration.
Immediately, however, the snide and the snark began. The men—Uighurs held captive for years without charges-- were going to "vacation paradises;" the detainees—who never should have been apprehended in the first place and who were long ago de-classified from "combatant" status—were costing taxpayers $11 million each, the price that Palau had imposed upon the White House for hosting the refugees. They were "terrorists" who were destined to come back and get us, even from so far away, which is why it was a good thing that we didn't just let them settle here in the first place.
They're Off On The Road From Gitmo
(AP Photo/Brennan Linsley)
Immediately, however, the snide and the snark began. The men—Uighurs held captive for years without charges-- were going to "vacation paradises;" the detainees—who never should have been apprehended in the first place and who were long ago de-classified from "combatant" status—were costing taxpayers $11 million each, the price that Palau had imposed upon the White House for hosting the refugees. They were "terrorists" who were destined to come back and get us, even from so far away, which is why it was a good thing that we didn't just let them settle here in the first place.
May 19, 2009 9:29 AM 
Having established many years ago my bona fides as a critic of the Bush Administration's ham-handed approach to the use of military tribunals against alleged terrorists, I have earned the right to declare now that the American Civil Liberties Union and its allies are wrong, dead wrong, to so quickly and ferociously denounce the Obama Administration's new military commission rules or the government's recommitment to using tribunals for terror suspects.
The administration's suggested changes will not make terror trials perfectly fair to the detainees — no rules of law anywhere for anyone achieve that goal. But from what little we now know about the details of the Obama Administration's revamped policies (tougher hearsay rules, banning the use of evidence obtained through torture, allowing the defendants more leeway in using defense attorneys), the new standards are significantly fairer to terror suspects than were the restrictive rules stubbornly implemented by the last regime.
Gitmo Trials: Time To Do 'Em Right
(AP Photo/Janet Hamlin)
The administration's suggested changes will not make terror trials perfectly fair to the detainees — no rules of law anywhere for anyone achieve that goal. But from what little we now know about the details of the Obama Administration's revamped policies (tougher hearsay rules, banning the use of evidence obtained through torture, allowing the defendants more leeway in using defense attorneys), the new standards are significantly fairer to terror suspects than were the restrictive rules stubbornly implemented by the last regime.
May 9, 2009 9:26 AM
Finally! Terror Trials That Might Work
Can it be that they are finally going to get it right? The Washington Post this morning reports that the Obama Administration is going to re-start military commissions to process and prosecute many of the remaining terror detainees currently held at Guantanamo Bay, Cuba.
Here’s the nut graph from the piece by the Post's Peter Finn: "The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly."
Here’s the nut graph from the piece by the Post's Peter Finn: "The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly."
Author Thomas Friedman on Obama's Afghanistan plan and the war on terror.
