Update - A Few More Perspectives on GITMO

The Christian Science Monitor has an interesting article on what legal standards are rightfully binding on the prison at Guantanamo. To excerpt from the article here:

"Setting the stage for that anticipated policy debate, Mr. Obama issued an executive order last month directing the Pentagon to determine whether detainees at Guantánamo were being held 'in conformity with all applicable laws governing conditions of confinement.'

Adm. Patrick Walsh, the vice chief of naval operations, conducted a 13-day investigation and compiled an 81-page report. He announced his findings in a press conference on Monday. 'After considerable deliberation and a comprehensive review, it is our judgment that the conditions of confinement in Guantánamo are in conformity with Common Article 3 of the Geneva Conventions,' Admiral Walsh said."

More:

"According to the report, the Walsh team 'reviewed' the Geneva Convention on Prisoners of War and the Geneva Convention on Civilians. But there is no discussion of whether those laws were deemed applicable – or inapplicable – to the review of conditions at Guantánamo.

Some legal experts say that detainees who fought alongside the Taliban are entitled to the full protections of the Geneva Conventions and that others picked up as civilians should qualify for a higher level of protection than the bare minimum of Common Article 3."

....

"Mr. Kassem has been urging Pentagon officials to embrace a broader perspective on the legal restrictions that apply at Guantánamo. 'Conditions at Guantanamo are subject to both international law and US law, including the US Constitution,' he wrote in a Feb. 10 letter to Defense Department officials. 'US obligations under international law – both international law of war and international human rights law – are not limited to Common Article 3.'

Diane Marie Amann, an international law and military law expert at the University of California, Davis, School of Law, agrees. 'There are any number of laws that may apply,' she says.

'When the president said "all applicable laws,"' he meant that there should be an exhaustive review of all applicable laws," Professor Amann says. 'That would mean laws like the main Geneva Conventions, customary international law, the International Covenant on Civil and Political Rights, and any federal rules with regard to custody.'" [emphasis supplied]

Consider again that President Obama was voted in to change all this - to abandon the Bush way of thinking and fighting terrorism. The CCR has reported that conditions have worsened - as have the lawyers who defend the inmates at Guantanamo. This isn't just fantasy, or taking the word of the detainees there. Abuse leaves marks that a doctor can see - if someone's knee, shoulder, and thumb have been dislocated by guards, who can argue?

When presented with that kind of evidence, an investigation into abuse should be ordered. You install a process by which you find out the truth of such allegations. Especially in light of Obama's executive orders, the detainees deserve at least the ability to complain about abuse and have it actually investigated. Even better would be the sense that this investigation was public and available to the world, instead of lost in the shadows of Guantanamo. Did the detainee to this to himself? Of course it's possible. But wouldn't you want to know how the f*ck a man dislocated his knee, shoulder, and thumb?

Meanwhile, the AG Eric Holder had a very successful and of course pleasant trip to Guantanamo. For some reason...gosh, I can't imagine why...he didn't get the memo that conditions have worsened:

"Attorney General Eric Holder, just back from his first trip to Guantanamo Bay, Cuba, said Wednesday he is still determined to carry out President Barack Obama's order to close the prison, but admitted he was 'impressed by the people,' and said 'the facilities are good ones.'

Attorney General Eric Holder said he didn't witness any prisoner mistreatment during his trip.

Holder's positive assessment of 'professionalism' at the prison was in distinct contrast to claims by many critics who charge Guantanamo Bay stands as a world-wide symbol of the alleged U.S. mistreatment of enemy combatants.

'I did not witness any mistreatment of prisoners. I think to the contrary I saw a conscious attempt by those guards to conduct themselves in an appropriate way,' Holder told reporters."

Rah rah rah! Oh happy day, the DoJ agrees with the DoD. Holder evinces concern for conducting the process of determining each detainee's status - but what about the actual conditions of the prison? What about establishing a new type of prison, in which abuse is investigated and conditions are actually improved? There is no official curiosity about that whatsoever, and no signs the Obama administration will take steps to monitor and crack down on abuse.

Think about who you're holding and how you are holding them. Guantanamo is yours now, Obama. Do you want history to look back and say that the last year at Guantanamo was just like the years before? Such a verdict is already developing.

Update: Candace at Guantanamo Blog reports some improvements that ought to be appreciated:

"The horrors of Guantanamo and the treatment of these men needs to be examined
and the people responsible need to be held accountable... but the fact remains
that change is taking place... and it is a welcome change.For the first time in
more than two years my client Al-Ghizzawi is allowed to sit around and just
shoot the shit with the other men in camp 6. For the first time in seven years
he can actually sit and watch a movie and read a real newspaper (well except for
the fact that he can't see anymore ...but lets not go there). For the first time
in more than two years he can spend time totally outside camp 6, where he can
see the trees, mountains, sun. And that is because Obama announced that a team
was coming in to inspect.... and the military knew that it better get its
collective ass in gear... Obama has begun the process of fixing things and we
must encourage and demand the continuation of that process.Yeah, I want to see
the people responsible for this criminal enterprise prosecuted. But right now
what I really want to see is Mr. Al-Ghizzawi and the other men start to heal.
Socialization, nature, a semblance of normality will start the healing
process...... and for that I am grateful.I for one will focus my energy on
encouraging the change that must happen to help the men at Guantanamo... later I
will go after the criminals with a vengeance."

Chaos At Guantanamo - Abuse Continues

Binyam Mohamed's claim that he was abused - after Obama took office - at Guanatanamo is apparently just part of a larger, more disturbing problem. Reuters:

"LONDON (Reuters) - Abuse of prisoners at Guantanamo Bay has worsened
sharply since President Barack Obama took office as prison guards 'get their
kicks in' before the camp is closed, according to a lawyer who represents
detainees.

Abuses began to pick up in December after Obama was elected, human rights
lawyer Ahmed Ghappour told Reuters. He cited beatings, the dislocation of limbs, spraying of pepper spray into closed cells, applying pepper spray to toilet paper and over-forcefeeding detainees who are on hunger strike.

The Pentagon said on Monday that it had received renewed reports of
prisoner abuse during a recent review of conditions at Guantanamo, but had concluded that all prisoners were being kept in accordance with the Geneva Conventions."

...

"'Certainly in my experience there have been many, many more reported
incidents of abuse since the inauguration,' added Ghappour, who has visited
Guantanamo six times since late September and based his comments on his own
observations and conversations with both prisoners and guards.

He stressed the mistreatment did not appear to be directed from above,
but was an initiative undertaken by frustrated U.S. army and navy jailers on the
ground. It did not seem to be a reaction against the election of Obama, a
Democrat who has pledged to close the prison camp within a year, but rather a
realization that there was little time remaining before the last 241 detainees,
all Muslim, are released."

...

"Admiral Patrick Walsh, the review's author, acknowledged on Monday that reports of abuse had emerged but concluded all inmates were being treated in line with the Geneva Conventions.

'We heard allegations of abuse,' he said, asked if detainees had reported torture. 'And what we did at that point was to go back and investigate the allegation... What we found is that there were in some cases substantiated evidence where guards had misconduct, I think that would be the best way to put it.'

Walsh said his review looked at 20 allegations of abuse, 14 of which
were substantiated, but he did not go into details. Generally he said the abuse
ranged from 'gestures, comments, disrespect' to 'preemptive use of pepper
spray.'

Ghappour said he had spoken to army guards who, unsolicited, had
described the pleasure they took in abusing prisoners, whether interrupting
prayer or physical mistreatment. He said they appeared unconcerned about
potential repercussions.

He also saw evidence of guards pulling identity numbers off their
uniforms or switching them once they were on duty in order to make it more difficult for them to be identified.

Ghappour said he had filed two complaints of serious detainee abuse
since December 22 but received no response from U.S. authorities. In one case
his client had his knee, shoulder and thumb dislocated by a group of guards, Ghappour said."

...

"Another area of concern was evidence that detainees were being abused on the
way to meetings with their lawyers -- sometimes so badly that they no longer
wanted to meet with counsel for fear of the beatings they would receive, he
said.
'Some detainees are convinced they are going to be locked up there
forever, despite the promises to close the camp,' he said." [emphasis supplied]

So are we going to let the Guantanamo guards have a year to get their kicks in? Or are we going to provide a safer environment where they can visit lawyers without fear of bruality? How about guards disguising their identities? They'll get away with that and abuse?

GITMO is as bad as it's ever been. Spread the word.

h/t daring grace

Panetta Comments on Rendition

From FreeDetainees.org:

"WASHINGTON (AP) — President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will
be less inclined to hand prisoners over in general, to help make sure they are
not tortured or abused, CIA Director Leon Panetta said Wednesday.
'If it’s someone we are interested in, there is no purpose to rendering anyone,
particularly if it’s a high-value target,' Panetta said in his first
on-the-record meeting with reporters since his confirmation this month.
Panetta said he believes prisoners should only be handed over to
countries that would have a legal interest in them — their home country or one
where a prisoner has charges pending, for example."

That rendition is kind of pointless - for intelligence purposes - has been mentioned before. An earlier LA Times article that speculated rendition "might be poised to play an expanded role going forward" quoted a former CIA official as saying, "In some ways, [rendition] is the worst option." Even the architect of the Clinton-era renditon program, Michael Scheuer, said in a Congressional Hearing in April 2007 that "I personally don’t think that torture is a very good idea in terms of getting information" (p.34 of the document).

The article becomes more interesting:

"Panetta made headlines during a congressional hearing earlier this month
when he confirmed that Obama intended to continue rendering prisoners captured
in the war on terrorism. He said the administration would get assurances first
from the country that the prisoner would not be tortured or have his human
rights violated.

That has long been U.S. policy. The Bush White House also said it
required assurances of humane treatment from other governments. But some former prisoners subjected to the process during the Bush administration’s anti-terror war contend they were tortured. Proving that in court is difficult because
evidence they are trying to use has been protected by the president’s state
secret privilege.

Panetta said Wednesday that the Obama administration would 'make very
sure' that prisoners are not mistreated after they are rendered. Asked exactly
how that would be done, Panetta was cryptic.

'Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that,' he said. 'Number 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen.'” [emphasis supplied]

Well, I do appreciate the irony there. We promise to not conduct rendition to torture, but if a detainee claims otherwise, we will not let them have their day in court, protecting ourselves with the state secrets privilege. Reality is simply too difficult to accept. There's only policy - not individual cases, not evidence, not facts. Unfortunately, we still have a bit of that Bush rigmarole when it comes to rendition.

BUT - I am extremely interested to know the criteria that will determine where a detainee is rendered. Is it only countries with good human rights records? Or is rather the two criteria suggested by Panetta in the bolded quote above? Asking the country receiving the rendered person to essentially police their own behavior is not adequate in safeguarding the detainee from torture or otherwise inhumane treatment. Nor is diplomatic pressure, in my opinion. These two criteria come from the world of plausible deniability more than anything else.

If Obama intends to expand the rendition program, or present us with a believably new and more humane version, I would very much like to see some kind of standard set of criteria created and published that describes the countries that can receive a rendered suspect. Or he could rescind his absurd use of the state secrets privilege and we could find out case by case.

Here is a transcript of Panetta's comments in the press meeting yesterday. Some noteworthy sections:

QUESTION: Could you talk to us a little bit about the Obama rendition
program? You said that you'll continue doing it, but your focus will be on, you
know, making sure that nothing bad happens to the prisoners once they are handed
over. That's always been the U.S. policy. How will what you all do be different?
And, can you talk to us a little bit about the problem that we're seeing more
and more, which is people who have been rendered to other countries and released
and are returning to the battlefield? And can you tell us if any prisoners are
ever going back to Gitmo while it's still open? If not, where they're going.

DIR. PANETTA: All right, let me start — (chuckles).

DIR. PANETTA: Please, thank you. (Chuckles.) First of all, on the
rendition issue: Obviously, the executive order that was issued by the President
sets, you know, the ground rules for dealing with that issue. Number one, we are
obligated to follow the Army Field Manual, and we will do that. Secondly, we are
closing black sites, and we are doing that. And thirdly, rendition is still
permitted, but obviously — and it's been used in the past to obviously send
people to countries where there are jurisdictional issues for purposes of trying
individuals. If we render someone, we are obviously going to seek assurances
from that country that their human rights are protected and that they are not
mistreated. And we are going to make very sure that that does not happen. Well,
I guess, you know, A, make sure, first of all, the kind of countries that we
render will tell us an awful lot about that, number one. Number two, I think
diplomatically we just have to make sure that we have a presence to ensure that
that does not happen.

Q: Can I follow, please? Where do you personally stand on enhanced
interrogations? Do you believe there are situations where enhanced
interrogations, aggressive interrogations could be necessary?

DIR. PANETTA: You know, my position is pretty much in line with the
President's. It is in line with the President's. I think the Army Field Manual
gives us all of the capabilities we need in order to interrogate, and that's
based on my own military experience plus having talked to the FBI Director and
others who have direct experience with this. I think, you know, the purpose of
the review is to, obviously, determine how these interrogation techniques are
being used under the Army Field Manual, the quality of the information that's
provided, and whether or not in fact these other enhanced efforts produce that
kind of information, I don't know. I mean, I don't know the answer to that. And
that's why I'm going to participate in that review. But my personal view at this
stage is that the Army Field Manual gives us all of the tools we need.

We're going to do everything necessary to protect the safety of this
country. And as I mentioned in my testimony, obviously, you know, the President,
under Article II, is going to have to — if we ever have that kind of situation
that would require something beyond that, the President has the ability to
review that. But knowing this president and what he said, I think his position
would be we stand by the Army Field Manual.

Q: So would you personally be willing to order enhanced interrogation?

DIR. PANETTA: No.

Q: You would not. So that would have to go to the President?

DIR. PANETTA: Are you kidding me? You better believe it. (Chuckles.)
Under this executive order.

Q: Would you personally recommend to the president enhanced
interrogation?

DIR. PANETTA: No. No, I think at least from — the purpose of the review
process is to look at that and determine just how valid that is. And look, there
are views on both sides. But my sense right now from my position is, I think
what the President has provided in the executive order gives us more than enough
to derive the information.

There is some other interesting stuff in the transcript I will try to blog about later.

Updated - Obama, Bagram and Appendix M

I have not yet covered here last week's decision by the Obama DoJ to continue the position of the Bush DoJ regarding Bagram. In the words of Attorney General Michael Hertz, "Having considered the matter, the government adheres to its previously articulated position."

This is not good in itself, but the Obama DoJ's decision here raises questions about what they consider to be detainee categories. Bagram detainees are considered unlawful combatants. Does the Obama DoJ consider those at Bagram, held indefinitely, with no right to challenge their detention in the US courts, unlawful combatants? Are those held at Bagram in a world where Appendix M, applicable only to unlawful combatants, can be applied? To quote the CCR web article Valtin posts about here:

"Appendix M of the Army Field Manual - a new section introduced in 2006,
applicable only to
'unlawful combatants,' the category applied to detainees in Guantanamo, at
secret CIA prisons, and elsewhere - allows the use of techniques such as
prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear
and humiliation of prisoners. These techniques, especially when used in
combination as permitted by the AFM, constitute cruel, inhuman and degrading
treatment, and in some cases, torture. These techniques have caused documented,
long-lasting psychological and physical harm and were condemned by a bipartisan
congressional report released last month, as well as by the Bush-appointed head
of the military commissions at Guantanamo."

If Bagram can exist as is, can Appendix M? It is true, as Andy Worthington writes, that Obama's executive order Ensuring Lawful Interrogations:

"specifically revokes President Bush's Executive Order 13440
of July 20, 2007, which 'reaffirm[ed]" his "determination,' on February 7, 2002,
that 'members of al-Qaeda, the Taliban, and associated forces are unlawful enemy
combatants who are not entitled to the protections that the Third Geneva
Convention provides to prisoners of war,' sought to grant himself the right to
'interpret the meaning and application of the Geneva Conventions" as he saw fit,
and also sought to exclude the CIA from any oversight whatsoever.'"

Yet Obama confirmed the Bush position on Bagram. And that position is that those at Bagram were "unlawful combatants."

Are those at Bagram denied access to US courts because they are another category, aside from unlawful combatants? Are they denied the right to challenge their detention because they are unlawful combatants?

People at Bagram, picked up outside Afghanistan, are under Obama at least temporarily denied judicial review of their detention. And that makes them what?

This decision by the Obama DoJ raises the real possibility that unlawful combatant exists as a category, and that Appendix M can be lawfully used. We need to know what is really going on. Thanks to the careful folks like Valtin and those at CCR for raising the troubling issues of Appendix M. Appendix M, unfortunately, may not be dead.

Update: Here is a definition of "unlawful enemy combatant" from Human Rights First:

"'Unlawful Enemy Combatant'
The United States government defines 'unlawful enemy combatant' as 'a
person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who is part of the Taliban, al
Qaeda, or associated forces).'[5]
The Bush Administration asserts that 'unlawful enemy combatants' can be held pursuant to the President's powers as commander-in-chief and under the laws of war until the end of hostilities. The administration argues that detaining enemy combatants prevents them from returning to the battlefield, thereby deterring further armed attacks, and allows the United States to gather intelligence through interrogation to prevent future attacks."[6]

More info on unlawful combatants is here and here.

We know that the Bush administration position is that (from Daphne Eviatar) "the prisoners at Bagram are 'enemy combatants' seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end – whenever that may be." We know also that none of the prisoners at Bagram are being held (from Jonathan Hafetz) as "prisoners of war." So unless Obama changes openly the status of those in Bagram, I would assume they are all being held as unlawful enemy combatants. And I would assume they are being treated as such - which means the AFM Appendix M is in play (it certainly can be used). As David Mizner writes here, "In upholding Bush's position, Bush [I believe he means to write "Obama" here] is reaffirming that these prisoners are enemy (or unlawful) combatants."

It seems, therefore, that Bagram is Appendix M territory. You can argue as Decline and Fall does here that the problem isn't the AFM. That's another perspective. I find the conditions at Bagram right now quite worrying.

Understanding & Binyam Mohamed

Andy Worthington has a great piece up now here about Binyam Mohamed as a person. It is of special interest I think because as we move to free those held, for literally no reason, at Guantanamo, it will be up to the Obama team to convey to the nation that these people are not dangerous. The Bush terror strategy was to crush anybody questionable. It was a totally unethical and inappropriate strategy, but now surely many in America believe Guantanamo is a scarlet letter - if you were there at all, you were there for a reason.

And the public will instinctually worry about recidivism - "the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior." If the people at Guantanamo were treated like terrorists, will they now become terrorists? It's inside the definition of recidivism. Innocents treated like those guilty can become guilty. And the actually guilty can return to what they used to do.

Preserving state secrecy will be of no help to Obama here. Shutting out sunlight doesn't make things easier. As Worthington writes, and quotes, Binyam Mohamed believes in the law apparently more than our Bush era officials did:

"Warming to his theme, as Col. Kohlmann 'was staring into the headlights of
Binyam’s speech and could see no way to cut him off,' he [Binyam
Mohamed] continued:

'When are you going to stop this? This is not the way to deal with this
issue. That is why I don’t want to call this place a courtroom, because I don’t
think it is a courtroom.

I am sure you wouldn’t agree with it, because if you was arrested
somewhere in Arabia and Bin Laden says, “You know what, you are my enemy but I
am going to force you to have a lawyer and I give you some bearded turban
person,” I don’t think you will agree with that. Forget the rules, regulations
and crap … you wouldn’t deal with that. That is where we are. This is a bad
place. You are in charge of it.'

Stafford Smith then proceeded to explain:

'It was an extraordinary lecture. Binyam finally came to a firm
conclusion. “I am done. You can stop looking at the watch,” he said. He then
turned away from Kohlmann, as if to ignore any response. He was holding up his
sign, "CON-MISSION," and waving it to the journalists behind him, just in case
they had missed it the first time.'"

As some Obama officials contemplate the possibility of new "national security courts" and deal with a legacy of evidence gained by torture, they may want to consider social science, and work hard to make public and perfect an understanding of what recidivism means when the crime is terrorism. They may want to ask themselves if it would be better to deal with terrorists in ONE legal language that we can all understand - simply the criminal justice system. They need to present the world with an understanding of how terrorism functions that is realistic and tactical - not fear-based. Take this quote from Ron Suskind's "The One Percent Doctrine" for example:

"'What we understood inside CIA is that al Qaeda just doesn't act out of
bloodlust, or pathological rage. Though their tactics are horrific,
they're not homicidal maniacs. They do what they do carry forward specific
strategic goals,' said a senior CIA official involved in highest-level debates
over bin Laden and Zawahiri during this period [2002-2004]." [p.304]

Jane Mayer in her recent article quotes newly appointed Principal Deputy Solicitor General Neal Kaytal. It begins with a quote from Kaytal:

“'What is needed is a serious plan to prosecute everyone we can in regular
courts, and a separate system to deal with the very small handful of cases in
which patently dangerous people cannot be tried.' This new system, he wrote,
would give the government the 'ability to temporarily detain a dangerous
individual,' including in situations where 'a criminal trial has failed.' There
are hundreds of legal variations that could be considered, he said. In 2007,
Katyal published a related essay, co-written with Jack L. Goldsmith, a
conservative Harvard Law School professor who served as the head of the Office
of Legal Counsel in the Bush Justice Department. The essay argued that
preventive detention, overseen by a congressionally authorized national-security
court, was necessary to insure the 'sensible' treatment of classified evidence,
and to protect secret 'sources and methods' of gathering intelligence. In his
Web post, Katyal wrote, 'I support such a security court.'”

Aside from the question of WTF Katyal is doing co-writing an article with Jack Goldsmith, you have to wonder, what the hell makes someone "patently dangerous" that cannot be proven in a court? If they are conspirators with other terrorists, that can be proven. Under the proposed Kaytal/Goldsmith system, "patently dangerous" is a category created by the executive branch, determined by the executive branch, and one from which you may not escape. It is Bush 2.0.

One of the details I find so significant about the Worthington quotes above is that Binyam Mohamed is waving to journalists - asking them to report his story. We don't do that enough here. Why do we let Obama hide behind the state secrets privilege in cases like Mohamed et al. v. Jeppesen? Why don't we ask as well exactly what happened?

It seems to me that you can let people out of Guantanamo with confidence if you bother to ask experienced social scientists what recidivism is (I mean, God, do you want Dick Cheney to be one of the few people with an authoritative voice on terrorist recidivism, and what that even means for our national security??). What can men in isolation for years really do upon returning home that could be so dangerous? If Obama does not cement the idea that the rule of law matters (as opposed to "safety and ignorance rule") then we will constantly return to a gray area, navigated only by our fears, where the little we know is enticing enough for us to trust the executive branch to make the important decisions (a branch often staffed by people less knowledgable on the law, and often less knowledgable on ethics, than our judicial system!). Sorry, that's not how I want it to be. We try people in the US court system, and there only. We enforce executive orders written to reign in abuses at places like Guantanamo (h/t Valtin).

So many aspects of our so-called "war on terror" - how to capture, how to detain, how to try - have been figured out over hundreds of years. Obama needs to bring this common knowledge to bear on our efforts to deal with people targeted for whatever reason (unfortunately, often racial) as terrorist suspects. I am not afraid of a free Binyam Mohamed, and I don't think Obama or the British are either. But if they don't make clear why they are not, and make the one process (the US criminal justice system) by which we learn to handle our fears clear and applicable to ALL, they will only feed into the imaginations of those in our nation who are consumed with fear and paranoia. They must increase the transparency of our trials of terrorists, and they must handle them inside the US Justice system ALONE. We undermine ourselves when we do not, and we unjustifiably, and criminally, ruin real lives.

Update: For an example of the fear argument I am referring to, go no further than Sean Hannity. Sure, what he says is pretty predictable, but people do watch this stuff on TV. Pres. Obama has gone on FOX before. He needs to be able to manage the crap that will come out of FOX with each prisoner release.

Safeguards

From The Guardian:

"The intelligence and security committee, whose job is to scrutinise the
activities of MI5, is looking at Mohamed's case, having received further
information from his lawyers.

The committee, which has recently come under mounting political
pressure over claims it failed to adequately investigate allegations of
collusion in torture by British agents, met with Stafford Smith in private this
month.

Mohamed's lawyer told them it would have been 'absolutely impossible'
for it to have cleared MI5 of involvement in torture had it seen the secret documents. The committee is likely to hear further evidence relating to Mohamed, although his lawyers maintain that access to the documents will be key to its ability to conduct effective scrutiny." [emphasis supplied]

Access is huge. How is it possible that Bush was able to shut out so many members of the Congressional intelligence committees and get away with it? It shouldn't be up to the executive branch to write laws, and then decide themselves when they are crap (as Goldsmith did withdrawing a Yoo memo). As is becoming clear, if insane loyalty to Bush was not altering your literary comprehension, then you should've been able to see that the Bush torture memos were total crap. Sadly, no one was there - no one independent - to call that out.

If we reinvigorate our system of checks and balances, I will have more faith in our government's ability to turn away from torture permanently. But right now we have a lot of holes to plug before I am confident. And Obama's apparent unwillingness to give up executive power in national security areas is troubling.

Follow Up on the Pentagon Gitmo Report

Glenn Greenwald wrote an excellent post today contrasting the Pentagon's report finding Gitmo compliant with the Geneva Conventions and the reality - Binyam Mohamed was beaten by guards there "right up to the point of his departure from Guantánamo Bay."

If you believe that an integral part of stomping out terrorism is the war for hearts and minds, this type of reporting has to end now. Accounts of mistreatment - the mistreatment of someone to boot that we determined we cannot try in a court - will have the same undermining effect as all other previous documents showing US brutality. The photos of Abu Ghraib showed us as monsters. Don't you think photos of a brutalized Binyam Mohamed would do the same?

Investigations should be launched into this behavior, by an outside authority. It would be one way for Obama to maintain credibility on this. But he may need the prodding of the UK government to do so, a possibility raised by former attorney general Lord Goldsmith.

It would be very interesting to know why the emergency reaction force at Guantanamo continues to behave in such a brutal manner. Did they not get the memo? Or was the memo from the top - stop torture - interpreted in a "special way" by DoD authorities for them?

In any case, some type of action is called for in this situation.

The Pentagon Declares Gitmo Is Humane

The report President Obama commissioned to investigate conditions at Guantanamo has been finished, and apparently Gitmo rates highly:

"A Pentagon review of conditions at the Guantanamo Bay military prison has
concluded that the treatment of detainees meets the requirements of the Geneva
Conventions but that prisoners in the highest-security camps should be allowed
more religious and social interaction, according to a government official who
has read the 85-page document.

The report, which President Obama ordered, was prepared by Adm. Patrick
M. Walsh, the vice chief of naval operations, and has been delivered to the
White House. Obama requested the review as part of an executive order on the
planned closure of the prison at the U.S. naval base at Guantanamo Bay, on the
southeastern tip of Cuba."

Well, that's a refreshing dose of...dishonesty. The report comes only a few weeks after Lt Col Yvonne Bradley described deteriorating conditions at Guantanamo (The Guardian) - painful forcefeeding, 20 inmates on a "critical list" due to health problems, and beatings for those inmates who resist forcefeeding.

But I suppose I shouldn't distrust the Pentagon reporting on itself...I think the definitive report will come from the International Red Cross. The Center for Constitutional Rights is soon to put out a report on conditions at Guantanamo. Here is a preview from the Washington Post article cited above of what the CCR will find:

"'We do think conditions are in violation of U.S. obligations to treat
prisoners humanely, and prisoners are at a physical and mental breaking point,'
said Pardiss Kebriaei, a staff lawyer at the center. 'These are not the
conclusions we had hoped for under Obama. It's very disappointing.'

Attorneys representing detainees singled out force-feeding as
particularly abusive.

Ahmed Zaid Salem Zuhair, a Saudi who has been on a hunger strike since
the summer of 2005, has lost so much weight during his time at Guantanamo Bay
that a federal judge has ordered an independent medical evaluation of him.
Zuhair's attorney, Ramzi Kassem, said his client has been strapped to an
uncomfortable chair for hours at a time during feedings and described the
procedure as very painful.

'They deliberately use this brutal method that has no medical
justification to put pressure on people like my client to give up the hunger
strike,' he said.

Kassem added that his client, who has been cleared for release, was
recently moved to Camp 6, where he is on nearly round-the-clock lockdown in a
frigid cell.

Walsh, however, found that the temperature in cells is comfortable and
urged officials to continue to use climate controls correctly."

There is simply no way we can trust the Pentagon to run Guantanamo humanely, IMO. And they certainly cannot be trusted to conduct oversight on themselves. There haven't been enough indications from the Obama Administration that Guantanamo has changed since he assumed office. We've heard "nothing's wrong with Guantanamo" for years and it flew in the face of reality. We are hearing the same thing - and not learning enough about the reality there to believe it this time. I want to see evidence that President Obama is enforcing his executive orders. Commission a report to tell us all about how things have improved there. What are the guards that once beat detainees doing now? If you're going to take so long to close it, at least show us that this hellhole has changed.

Binyam Mohamed Will Return to UK Next Week

Telegraph UK says next week is likely, and their headline suggests as early as Monday. Mohamed ended his hunger strike a little over a week ago.

Clive Stafford Smith in Spiegel Online

Spiegel Online has a great interview with Binyam Mohamed's lawyer Clive Stafford Smith.

One of his most interesting comments relates to the letter he sent to President Obama. The letter was covered by Valtin at his blog here and here.

SPIEGEL ONLINE: You have even sent a letter to President Obama containing
evidence that Mohamed has been tortured. The president, however, has not
received that letter.

Stafford Smith: Oh God, this letter story is just incredible. As a
defense team, we had access to intelligence papers, and we tried to provide the
president with the evidence of torture we obtained. We wanted him to know that.
But all the substantial parts of my letter were blacked out so the president
could not read them. Under the bizarre laws the Americans have, they are
preventing their commander-in-chief from knowing things that he should. I wrote
to him that he is being denied access to material that would help prove that
crimes have been committed by US personnel and that these decisions have been
made by the very people he commands.

I am not sure what the legal framework is for this kind of thing. What Stafford Smith is suggesting, I think, is that it is legal to censor such material from the President. Rather disturbing - and stupid. If someone (the DoD) is blacking out material in an attempt to shield President Obama from criminal liability - as The Guardian suggests (h/t Valtin) - well, that issue isn't going away anytime soon. Obama is going to be constantly confronted (or constantly shielded) by evidence of American wrongdoing. He can't simply spend the next 4-8 years in denial of that.

If covering up torture makes President Obama criminally liable, I have some advice for him - don't do it. It may not be the most noble motivation, but at least get the torture off your hands, and CYA.

Tell the Truth: The Obama DoJ

Recently the Obama DoJ seriously misstepped by maintaining Bush's position on Mohamed et al. v. Jeppesen, invoking the state secrets privilege and attempting to get the case dismissed. What followed was a great deal of rationalization and interpretation.


Ambinder, for instance, saw what the Obama DoJ did and thought it wise:

"It wouldn't be wise for a new administration to come in, take over a case from a
prosecutor, and completely change a legal strategy in mid-course without a more
thorough review of the national security implications."

In another article he quoted an anonymous Obama administration official:

"Officials decided that it would be imprudent to reverse course so abruptly
because they realized they didn't yet have a full picture of the intelligence
methods and secrets that underlay the privilege's assertions, because the
privilege might correctly protect a state secret, and because the domino effect
of retracting it could harm legitimate cases, both civil and criminal, that are
already in progress.


'If you decide today precipitously to waive this privilege, you can't
get it back,' an administration official said. 'If you decide to assert it, you
can always retract it in the future.'"

Which basically echoed the statement of DoJ spokesperson Matt Miller, who said this at the time:

"'It is the policy of this administration to invoke the state secrets
privilege only when necessary and in the most appropriate cases,' he said,
adding that Attorney General Eric H. Holder Jr. had asked for a review of
pending cases in which the government had previously asserted a state secret
privilege.


'The attorney general has directed that senior Justice Department
officials review all assertions of the state secrets privilege to ensure that
the privilege is being invoked only in legally appropriate situations,' he said.
'It is vital that we protect information that, if released, could jeopardize
national security.'"

Well, of course that sounded like B.S. then, but it certainly is now. Charlie Savage this morning quotes White House counsel Greg Craig, who justified invoking the state secrets privilege, and suggested that the Obama DoJ did so for reasons that they are not likely to reverse:

"Mr. Craig said Mr. Holder and others reviewed the case and 'came to the
conclusion that it was justified and necessary for national security' to maintain
their predecessor's stance. Mr. Holder has also begun a review of every open
Bush-era case involving state secrets, Mr. Craig said, so people should not read
too much into one case.


'Every president in my lifetime has invoked the state-secrets
privilege,' Mr. Craig said. 'The notion that invoking it in that case
somehow means we are signing onto the Bush approach to the world is just an
erroneous assumption.'"

To me, this isn't just about triangulation anymore. The Obama DoJ wants this case tossed out and wants to hide the details of the extraordinary rendition flights conducted by Jeppesen. They do actually think this is justified and necessary. We've heard all their B.S. but it seems like reality is that the Obama DoJ wants to continue down the tyrannical path of the Bush DoJ. And now that the Obama DoJ is justifying their position not in terms of "we need further review," but in terms of "we need this for national security," it is hard to imagine how they even could reverse their position. National security in their eyes was endangered yesterday, but not today? In front of this court, but not the next? Now reversing their position would be political suicide.


It is time to hold Obama accountable.



[Crossposted at TalkLeft]

Binyam Mohamed & UK Scandal

An editorial from Louise Christian in response to revelations that the UK Foreign Office requested the "threatening" letter from the US State Dept was published in the Guardian today. The sleight of hand here raises some very serious questions for citizens of both the UK and the US. How much B.S. are you willing to accept from your government? At some point, a citizen's shell games - guessing what the government is really up to, anticipating, using your political intelligence, speculating on a blog - need to be abandoned. If we are to trust our governments, with all their magnificent checks and balances, at all, the documents detailing Binyam Mohamed's treatment must be published. We need to demand accountability and information. Our taxes pay for Guantanamo. Our taxes pay for torture flights. But we allow ourselves to be duped by the government as regards what is actually happening - and we allow ourselves to be duped by the intelligence community, as to what their budget is spent on. The effort to hide torture, driven by political elites, is poisoning our political system. Bush, Cheney, and Rumsfeld deserve to feel at least the risk of a trial for their crimes.

Anyway, Christian's article:

The court's agreement to reopening consideration of whether the documents about Binyam Mohamed should be disclosed came before the further revelation that the US government had only written the letter containing the "threat" at the request of the Foreign Office. Even if, as the prime minister's office tried to claim yesterday, the request was simply to confirm the known position of the US government, there is a very nasty smell about it. The judicial review of the failure to prosecute BAE for bribery was halted because of a similar "threat" from the Saudi government. We cannot help but wonder if such threats are now seen by governments as their alibi for avoiding the rule of law.

Obama needs to make good on his promises to make government more transparent - and do so when it matters (Mohamed et al v. Jeppesen). Deeds, not words. Otherwise they risk what seems to me to be a monumental loss of faith not just in US politics, but in US law.

Binyam Mohamed & Government Cover-Ups

This is news:

"Mohamed claims he confessed to being a terrorist only after he was
brutally abused and tortured, and that both American and British intelligence
officers were at least complicit in the torture.

Lt. Col. Bradley says there is evidence to support his claims of torture
and that it is in 42 classified documents held by the British government.

Mohamed's lawyers and British media have sued in the British High Court to
make those documents public.

The British - and American - governments are fighting that on national
security grounds. As the British Foreign Secretary David Miliband told
Parliament that Britian's intelligence relationship with the United States is
vital to the security of the United Kingdom.

'It is essential that the ability of the U.S. to communicate such material
in confidence to the UK is unaffected,' Miliband said.

Miliband pointed to a letter received from the U.S. State Department,
authored by The Legal Advisor, John Bellinger III, on Aug. 21, 2008, to bolster
his argument. The letter said, '…the public disclosure of these documents or of
the information contained therein is likely to result in serious damage to U.S.
national security and could harm existing intelligence information arrangements
between our two governments'.

That last sentence was interpreted as a threat by the British media and by the British High Court, which ruled that Mohamed’s lawyers, with security clearances, could have access to the documents, but that they must not be made public. The court harshly criticized the American government for what it characterized as U.S. interference in British affairs.

But a former Bush administration official with specific knowledge of the
case, who requested anonymity, has told CBS News the letter was written at the request of the British government and that both the U.S. and British government wanted to ensure the documents remained secret. The British Foreign Office declined to comment on the record.

The British court also said the documents contained 'evidence of serious
wrongdoing by the United States which had been facilitated, in part, by the UK
government.'

Lt. Col. Bradley has a security clearance, and has seen the documents. She
cannot say what's in them. But she did say, 'this is not a matter of national
security, this is a matter of national embarrassment. The U.S. and other
countries may not want to be embarrassed by what happened to Mr. Mohamed and the full story and information and account coming out of what happened to Mr.
Mohammed.'

The British government’s public position on torture has always been that it
does not practice or condone it. The existence of the letter, and the court’s
statement, raise the question of what the British knew about torture in
Guantanamo and other secret prisons, including some run by the CIA, when they
knew it, and what, if any, concerns were raised with the American
government." [emphasis supplied]

That's a lot of funny business to end court proceedings. It's possible this "former Bush administration official" providing the quote just wants to throw a wrench into the new Administration. But it seems just as likely that this screams COVER-UP. And what role is the Obama Administration playing now? The British requested, from Bush, a letter that would cover their @sses - and Obama, joining this cover-up game, thanks the British for their compliance?

The letter was deceptive, the threat apparently a lie.

Time to make a stink.

Update: Let's go over this one more time. From the BBC:

"The judges said they wanted the full details of the alleged torture to be
published in the interests of safeguarding the rule of law, free speech and
democratic accountability.
The details, believed to amount to just seven paragraphs, relate to the circumstances of Mr Mohamed's detention and his treatment while he was being held.
But they said they had been persuaded it was not in the public interest to do this due to the potential impact on UK national security of US stopping intelligence sharing.
By doing so, the US government could 'inflict on the citizens of the UK a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains', they said." [emphasis supplied]

The entire basis for the court's decision to block the publication of the documents detailing Mohamed's treatment was a lie. Kind of sounds like somebody should get in trouble for this, no?

More from the BBC article:

The Conservatives said the ruling raised 'serious questions' and urged ministers
to make a statement on the issue on Thursday.
'No British government should participate in or condone torture under any circumstances,' said shadow foreign secretary William Hague.
'We hope that the new US administration will look again at this decision, particularly since the judge concerned that there were no security reasons for the material not to be made public.'"

These documents should be released and published immediately. It seems like they are now but the beginning of a much broader scandal.

Update 2: The British press is all over this story, and confirms the account of the former Bush Administration official. Guardian, Telegraph. And here, a second story from the Guardian:

"The shadow foreign secretary [William Hague] wrote to David Miliband
demanding urgent clarification on a number of specific allegations about whether
the UK was complicit in the mistreatment or torture of Guantánamo detainee
Binyam Mohamed.

The move followed reports that a Foreign Office official solicited a
letter from the previous US administration asserting that the disclosure of
information relating to Mohamed's detention would harm the intelligence sharing
relationship.

Today Downing Street rallied to Miliband's defence, insisting that the
Foreign Office had merely asked the US to 'set out its position in writing' when
it solicited a letter for the American authorities to back up its claim that, if
the evidence was disclosed, Washington could stop sharing intelligence with
Britain.

The claim persuaded two high court judges earlier this month to
suppress what they called "powerful evidence" relating to the ill treatment of
Mohamed, a British resident being held in the US's Guantánamo Bay
detention camp in Cuba."

So IOW...the Foreign Office asked the United States to threaten them, in writing?

"'The Foreign Office has made clear that they asked the US to set out their
position in writing for us and the court,' a spokesman for Gordon Brown
said.

In response to the British request, John Bellinger, the US state
department's chief legal adviser, said in a letter to the Foreign Office last
August: 'We want to affirm the public disclosure of these documents is likely to
result in serious damage to US national security and could harm existing
intelligence information-sharing arrangements between our two governments.'"

The case will be reopened next month, due to previous conflicting claims on the part of the UK - in one hand, Miliband carries the manufactured August threat letter of Bellinger, on the other hand he denied that the US threatened to stop sharing intel with the UK. It's hard to imagine that the high court judges will continue to surpress this evidence. After all, their basis for doing so just disappeared. Unless the United States would like to continue the charade of empty threats vis-a-vis intelligence sharing, and Britain would like to comply, I think it's game over. Though currently in the process of getting screwed by the Obama DoJ stateside, (Mohamed et al v Jeppesen), it seems like Binyam might score a victory in the UK. Perhaps, a victory in the UK might encourage the Ninth U.S. Circuit Court of Appeals to reject the state secrets privilege claim of the Obama DoJ. Let's hope so.

Time Is Of The Essence - Close Gitmo Now

You know, sometimes it amazes me that the Obama transition team, widely hailed for getting its act together quickly and being well-organized and efficient, is now dragging its feet on a number of truly life-or-death issues relating to torture and Guantanamo. They have begun their review of the detainee case files there - but it is completely unclear as to what the conditions are at Guantanamo now. If Lt Col Yvonne Bradley's account is true, the prison guards should be behind bars for the way they are STILL treating detainees. If they're still operating under Bush policy, these abusive guards are now, simply enough, criminals (seriously, this is pretty cut and dry)- and we should be able to read about their arrests in the papers. So where are those stories? When will the Obama administration's so-called commitment to transparency and accountability include letting us know if detainees are being treated humanely? When do the human rights monitors go in - or when is some type of team dedicated to investigating prison guard misconduct announced, assembled, and put to work? There is no reason why the situation at Guantanamo should be so vaguely presented to Americans. Saying "give Obama time, it's only been x number of days" is an inadequate response.

While Obama & co. fiddle around in Washington, their legal representatives in the Justice Department have taken recent steps elsewhere that suggest the review of Guantanamo detainees will not result in real, fair criminal trials for detainees. Is the same Obama DoJ that wants Mohamed v. Jeppesen Dataplan, Inc. dismissed for state security reasons going to allow fair trials of Gitmo detainees? At present, the logical answer to that question is no. Get ready for that fight.

The key to ending torture is not waiting on Obama. Hell, in two years, he will be facing a Republican opponent and readying for re-election. He will doubtless be challenged on each of his anti-torture policies, and it seems likely (based on today's GOP, anyway) that a Republican administration open to "coercive interrogation" will be presented as an alternative to whatever he does. We aren't out of the woods yet. What we need to do is push for legislation that is more effective than Obama's executive orders. There must be a concerted outcry each time Obama reverts to Bush policies, like unnecessarily invoking the state secrets privilege.

We can and should support Obama when he is right. But right now, he is going too slowly to be right - we must press him to be faster. Some Obama supporters may not yet feel comfortable protesting his administration - but trust me, he needs the pressure and our country needs to keep the torture/war crime discussion in the forefront.

Greg Bruno has a Gitmo overview here.

Who is Lt Col Yvonne Bradley?

Binyam Mohamed's lawyer has attracted attention in recent days, as she visits the UK to make the case for Mohamed's' immediate release from Guantanamo.

Here are two articles on Lt Col Bradley - McClatchy and BBC. Some snippets from McClatchy:

"Bradley, 45, who calls herself 'a lawyer and a soldier' and a 'lifelong
Republican,' told McClatchy in an interview that she blames the Bush
administration for Mohamed's arrest and for his treatment in captivity. Asked if
she thinks her client is innocent, Bradley replied that he 'was in the wrong
place at the wrong time.'

'If 9/11 never happened, this whole series of events would never have
happened,' Bradley said. 'This was an experiment that failed. It is a shame and
a legacy that will follow (the United States) in its history.'

...

Her views have changed dramatically since she joined Mohamed's legal team
in 2005. She said that when she was assigned to his case, she was 'a true
believer' in America's campaign against terrorism.

Bradley recalled that after she got a call to defend Mohamed at
Guantanamo Bay in 2005, she was ready to shut down her law practice in suburban
Philadelphia. 'I knew these were war crimes,' she said of the charges against
her client.

Then she received orders that her assignment would last 90 days. 'That
should have been my first warning that something was wrong,' she said. 'I can't
try a small possession of marijuana (case) in 90 days, let alone a major war
crime.'

When Bradley first visited Mohamed at Guantanamo Bay, she recalled, she
was 'scared,' although as a federal public defender she'd represented a serial
killer and other murderers on Death Row. 'I believed my government when they
told me he was a terrorist,' she said.

A review of Mohamed's charge sheet raised more questions. 'I was waiting
for the blood on his hands, the trigger finger, links to the dirty-bomb plot,'
she said. Instead, over time, she came to believe that 'his story was all spun
out by the CIA' after Mohamed was held in several countries, including
Afghanistan and Morocco — and, he alleges, tortured.

Bradley's defense of Mohamed has ruffled feathers and nearly landed her
in trouble."

Lt Col Bradley's dedication and ability is a testament to the potential of our legal system. Our refusal to try terrorist suspects in our existing criminal justice system discredits the work people like Lt Col Bradley do. And want to do.

We need more people like her - and we are not going to get them if we set up a separate criminal justice system for terrorist suspects, if we continue to invoke the state secrets privilege to completely dismiss cases that might reveal government corruption and criminal behavior.

We need to change course, drastically. Jerrold Nadler's legislation is a good step. The best step, of course - to investigate and prosecute Bush, Cheney, and Rumsfeld.

Glenn Greenwald's Answer to "A Few Weeks"

I asked below if Obama will change his mind in a few weeks on invoking the state secrecy privilege vis-a-vis Mohamed et al. v. Jeppesen. Glenn Greenwald says today, more or less, are you kidding me? To quote:

What makes Ambinder's uncritical, mindless, one-sided recitation
particularly galling is that the excuses he is passing on for the Obama DOJ's
behavior are so patently frivolous. Let's just consider each of them in
order:
1. The Obama DOJ, and Eric Holder specifically, had insufficient time to review the issues here and therefore embraced the pending Bush position as a "holding pattern."

I'd be willing to bet that 90% of non-lawyers know what parties do in
situations when there is a court deadline approaching and, for whatever reasons,
they need more time. The Obama administration has certainly shown in
the past that they know what to do:

"President Obama’s Justice Department is asking a federal judge
for at least two more weeks to answer the thorny question of who is and
who isn’t an 'enemy combatant.'

In a filing in federal court in Washington Wednesday, government lawyers asking for the delay cited Obama’s inauguration last week and the executive order he signed ordering a review of the cases of the roughly 245 war-on-terror detainees presently held at Guantanamo Bay. . . .

'The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases, in light of the change in Administrations and the requirements of the Executive Order,' Justice Department lawyers wrote in their new motion. 'Time is needed to make that assessment and determination. Accordingly, the Government requests a two-week extension…to allow the new Administration to assess the Government’s position in this matter.'

Or this:

"In his one of his first acts in office yesterday, President Barack Obama instructed prosecutors to seek 120-day delays in all cases now before U.S. military tribunals at Guantanamo Bay in Cuba while his administration evaluates the situation."

If, as Obama's Atlantic spokesman claims, this were really the problem
-- that the Obama DOJ needed more time to review what they wanted to do --
then the solution is easy and obvious: you ask the court for more
time. You don't march into court and explicitly advocate a Bush weapon
that you've spent the last several years excoriating as a dangerous abuse of
power -- thus risking that this tyrannical weapon becomes judicially approved
and torture victims forever denied the right to a day in court.

Greenwald goes through the litany of other reasons why the use of state secrecy privilege is unnecessary here, but this I thought was most important - calling out the Obama administration on their bullshit. "Pledges" to "ask for secrecy 'only in legally appropriate situations'" are worthless, as are statements by DoJ spokespeople.

A little scary no?

A Few Weeks

From the LA Times:

At the same time, Justice Department officials in Washington pledged to
review all cases in which the Bush administration invoked the right to protect
state secrets and pledged to ask for secrecy "only in legally appropriate
situations."

The Obama administration's assertion of the so-called state secrets
privilege in a San Francisco courtroom -- the first instance since President
Obama took office -- reflected the continuing debate among national security and
Justice officials about what clandestine operations should be shielded from
public scrutiny.

...

The randomly drawn appeals court panel, consisting of three Democratic
appointees, appeared skeptical of the government's claims."I can understand the
government saying we have secrets and you the court can't pry them open," said
Judge William C. Canby Jr., a Carter appointee. But noting that disclosure of
rendition details has been made in other litigation, Canby said of the Jeppesen
case, "So what?"

...

The American Civil Liberties Union, which brought the suit on behalf of the
five terrorism suspects, told the 9th Circuit panel that there was no basis for
branding the entire case secret and urged the judges to allow trial.

ACLU lawyer Ben Wizner said foreign governments have been "very open" about
their roles in the covert operations. By permitting a trial, "the court is not
exposing the government to any harm," he told the judges.

"The notion that you must close your eyes and ears to what the whole world
knows is absurd," Wizner said.

A federal trial judge ruled in favor of the Bush administration last year
and dismissed the suit. The ACLU appealed to the 9th Circuit, arguing that the
men should be given the opportunity to prove their case without classified
material.

At one point during the hearing, Judge Michael Daly Hawkins, a Clinton
appointee, told the government's lawyer that he was not convincing.

"So any time the executive branch of the government says the fact is
classified, it means it cannot be examined?" Hawkins asked Letter.

Letter, noting that national security was at stake, told the court it
should "not play with fire" by permitting the suit to go forward.

"Nor should the government in asserting [secrecy] privilege," Hawkins shot
back.

Judge Mary M. Schroeder, a Carter appointee, said the court had not yet
read the classified information about the government's case and noted that the
law "may really preclude" the court from permitting the case to go to
trial.

A ruling is not expected for several weeks.

You think Obama will change his mind in a few weeks?

Devil in the details [updated]

From Democracy Now (h/t Invictus):

Scott Horton: "Of course, the proof is in the details. I mean, we’re going
to have to see how these rules actually are applied by the CIA, and we’re going
to have to look and see how the commitment not to render torture is applied. The
legal standard is that someone cannot be rendered if it is more likely than not
that the person would be tortured. We saw in the last administration all sorts
of evasions used to get around that. I think we see a break in these executive
orders, but we’re going to have to see, on the basis of individual cases, how
these orders are understood and implemented."

Panetta, Confirmation Hearing, Feb 5 2009:

"If we had the ticking bomb situation and I felt that whatever we were
using wasn't sufficient, I would not hesitate to go to the president and request
any additional authority that we would need."

There's your details - the loopholes were there for a reason. More details:

The Obama administration will not prosecute CIA officers who participated in
harsh interrogations that critics say crossed the line into torture, CIA
Director-nominee Leon Panetta said Friday.
Asked by The Associated Press if that was official policy, Panetta said, "That is the case."
It was the clearest statement yet on what Panetta and other Democratic officials had only strongly suggested: CIA officers who acted on legal orders from the Bush
administration would not be held responsible for those policies. On Thursday, he
told senators that the Obama administration had no intention of seeking
prosecutions for that reason.
Panetta, in an interview with the AP after a second day of confirmation hearings with the Senate Intelligence Committee, said that he arrived at that conclusion even before he began meeting with CIA officials.
"It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could be in danger of prosecution, he said.

So before Panetta met with CIA officials, or had read the memos and internal documents dealing with the work done by the CIA for the executive government...he says, investigation and prosecution is off the table. Details, details.

More details to consider:

"Panetta told the committee that the Obama administration will continue to hand
foreign detainees over to other countries for questioning, but only if it is
confident the prisoners will not be tortured in the process.
That has long been U.S. policy, but some former prisoners subjected to the process — known as 'extraordinary rendition' — during the Bush administration's anti-terror
war contend they were tortured. Proving that in court has proven difficult, as
evidence they are trying to use has been protected by the president's state
secret privilege.
'I will seek the same kind of assurances that they will not be treated inhumanely,' Panetta said during his second day before the Senate Intelligence Committee. 'I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries.'
Some critics worry that any gray area in delineating policy on renditions could allow for abuses."

How is what Panetta says here at all different for what we ripped John Brennan for saying?

From Glenn Greenwald:

"Then there is Brennan's December 5, 2005 appearance on The News Hour
with Jim Lehrer, in which he vehemently defended the Bush administration's use of rendition -- one of the key tools to subject detainees to torture:

'JOHN BRENNAN: I think over the past decade it has picked up some
speed because of the nature of the terrorist threat right now but essentially
it's a practice the United States and other countries have used to transport
suspected terrorists from a country, usually where they're captured to another
country, either their country of origin or a country where they can be
questioned, detained or brought to justice. . . .
MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?
JOHN BRENNAN: I think it's an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.
MARGARET WARNER: So is it -- are you saying both in two ways -- both
in getting terrorists off the streets and also in the interrogation?
JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . .
Also I think it's rather arrogant to think we're the only country that respects human
rights. I think that we have a lot of assurances from these countries that we
hand over terrorists to that they will, in fact, respect human rights.
And there are different ways to gain those assurances. But also let's say an
individual goes to Egypt because they're an Egyptian citizen and the Egyptians
then have a longer history in terms of dealing with them, and they have family
members and others that they can bring in, in fact, to be part of the whole
interrogation process.'

Even when CBS News -- for which Brennan was serving as an intelligence analyst -- was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the
Bush administration abducted at JFK Airport and rendered to Sryia for 10 months
to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

'CBS NEWS: Despite Arar's experience, this former counterterrorism official says
"rendition" does have its place.
Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.'"

As Greenwald himself put it, the centerpiece of the anti-Brennan argument was "his emphatic advocacy for rendition and 'enhanced interrogation tactics.'"

At present, we have a CIA Director willing to seek "additional authority" in interrogations - despite the fact that the current Army Field Manual approves tactics that can amount to torture. Based on Obama's executive order Ensuring Lawful Interrogations, you might be able to argue, as based on this post, one thinks BTD might, that Appendix M is nothing to worry about - if Appendix M is only applicable to 'unlawful combatants,' as the Center for Constitutional Rights says, then Obama's prohibition against relying upon interpretations of the law "issued by the Department of Justice between September 11, 2001, and January 20, 2009" means 'unlawful combatant' is no longer a category for any detainee. Unless Obama's DoJ restores the category, Appendix M means nothing. [UPDATE: Even if Obama were to maintain the status of unlawful combatant for detainees, they would still under the Geneva Conventions be covered - they could not be subjected to physical or moral coercion, nor "tortured either psychologically or physiologically" - Jane Mayer "The Dark Side" p.83 ]

But why then does Panetta say he will without hesitation seek additional authority, if needed? He believes he will be rejected, but we learned today that the Obama Administration is invested in preserving at least some of Bush's legal labyrinths. In Daphne Eviatar's words, "the new administration today stood up in a federal appeals court and reiterated the Bush administrations’ arguments that victims of 'extraordinary rendition' and torture should not be allowed to bring their claims in federal court because doing so would reveal 'state secrets' and harm national security."

Where does it end? If the Obama administration wants to preserve massive amounts of executive power, we will not escape from the shadow of torture. Torture could be, torture could not be. It's the executive branch's call.

What does the Obama administration expect? That four years of a Democratic presidency will get us all "used to" not relying on torture? It'll just go away? If you don't punish the people that brought us here, illegally, how is it that it will go away?

If the Obama administration wants to cover its anti-torture bases, it has to do better. Since Obama issued his executive orders, things have all been downhill. Conditions worsening in Gitmo. State secrecy preserved. A once strongly anti-torture CIA nominee within steps of being confirmed, claiming in the same language used by past torturers by proxy that he will "gain assurances;" an almost newly minted CIA Director saying he will ask for additional authority if necessary.

If the plan is to render detainees to third countries, where they can be tried, the plan is not necessarily a good one - as former CIA Michael Scheuer says, “What was clever was that some of the senior people in Al Qaeda were Egyptian.” Ok...so Egypt has an oustanding warrant for these people. What on God's earth are we going to do to get them not to torture? The US legal system allows for renditions into itself - and these renditions are already against international law. We can arrest via "extraterritorial jurisdiction."

The anti-torture left needs to call for immediate clarification into Obama's policy regarding torture. Bush bastardized our language. If you're not going to prosecute, at least let us know in clear words your intentions.

Or I guess we can keep getting surprised, as we were today with the Obama admin's support of state secrecy. But that won't do a damn thing.

Something New

My past three posts have been on the same statement by Leon Panetta - that he would with no hesitation seek "additional authority" from the President if he thought it was required in a "ticking time bomb" situation.

Later I want to address Jeff Stein's blog post up now, Former Head of CIA's Bin Laden Unit Contradicted Panetta Testimony. The contradictory testimony of Michael A. Scheuer is here. There are quite a few interesting pieces of testimony (some of it demonstrably false), for example when Scheuer says "I have said that I personally don’t think that torture is a very good idea in terms of getting information. I also said that I don’t care if it happens."

To which Representative Markey replies:

Mr. MARKEY. I appreciate that. You know, Wernher von Braun used to say, you
know, my job is to get the missiles in the air. Where they come down is not my
responsibility. And so I mean taking that approach of course has a certain
exculpatory—self-exculpatory—but it doesn’t in and of itself, though, deal with
the essential, you know, theological question here, which is whether or
not a moral wrong is being engaged in.

It's not a new struggle.

Falling Short: Panetta Wavers on Torture

Just a few weeks ago, liberals hailed the selection of Leon Panetta for Director of the CIA - mcjoan described him as "a[s] much of a departure from torture as you could want." It looked like the ticking time bomb hypothetical was on its way out. Obama at the announcement of Panetta for D/CIA said "We must adhere to our values as diligently as we protect our safety with no exceptions."

Unless, that is, someone asks us a hard question in a confirmation hearing.

Panetta said a few problematic things at his confirmation hearing - he suggested that in performing renditions, we will continue to "seek assurances" of humane detainee treatment from the third country receiving the detainee - a process that has been largely discredited (basically, if you render someone to Egypt, it is highly doubtful they will be treated humanely - as we know, John Brennan tried that line). Panetta also suggested prolonged detention for some detainees. But this is the comment I want to focus on. From The Guardian:

Pressed by Democrat Ron Wyden of Oregon about a "human ticking time-bomb"
scenario, in which a terrorist knows of an imminent attack on the US, Panetta
said he believed torture would not be necessary to extract information.
"I'm of the view that when you look at the FBI and the US military, that they have
been able to show that it is possible to get the information that's needed to
protect our nation's security," he said.
However, he added: "If we had the ticking bomb situation and I felt that whatever we were using wasn't sufficient, I would not hesitate to go to the president and request any additional authority that we would need." [emphasis supplied]

"Would not hesitate!" "Any additional authority we would need." Hey, thank goodness our intelligence agencies are so thoroughly anti-torture and would never recommend something like that, huh? What Panetta said, IOW, is torture may not be necessary, but the door is open. To me, this isn't change. This makes the fear of loopholes in Obama's executive orders meaningful. For example, from his executive order Ensuring Lawful Interrogations:

c) Interpretations of Common Article 3 and the Army Field Manual. From
this day forward, unless the Attorney General with appropriate consultation
provides further guidance, officers, employees, and other agents of the United
States Government may, in conducting interrogations, act in reliance upon Army
Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any
interpretation of the law governing interrogation -- including interpretations
of Federal criminal laws, the Convention Against Torture, Common Article 3, Army
Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52 --
issued by the Department of Justice between September 11, 2001, and January 20,
2009. [emphasis supplied]

This is what Panetta is referring to. In a letter to Sen. Leahy, former AG Michael Mukasey laid out the process by which waterboarding could be reapproved - the D/CIA would determine it was necessary, the AG would find it lawful or unlawful, and the President would have to approve. This process has apparently been kept in place by the Obama administration.

Something's got to give. That three people (and two of those political appointees of the President) can change the torture policy of the United States so freely is disturbing to me. I don't see how we end torture permanently with this process of legal authorization in place.

I wouldn't be so worried about it if Obama was more eager to prosecute Bush for dropping us in a moral abyss and instituting US torture policy. If arrest, investigation, and prosecution of Bush administration officials isn't in the cards, then there's no consequence for ordering torture, and no incentive to do otherwise. The road to breaking away from torture in a lasting, meaningful way is much more difficult if we let Bush off scot-free.

I wish Obama would realize this, and act accordingly.

[cross-posted at TalkLeft]

Panetta's Answers

While Obama's selection of Leon Panetta for CIA Director was initially hailed by liberals as a rather impressive move, it appears that we all should've waited for Panetta's confirmation hearing to get too excited. The Panetta who wrote that "there is no middle ground" on torture issues said at his hearing “If we had a ticking bomb situation, and obviously, whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need.” The man who wrote "We are sworn to govern by the rule of law, not by brute force" trotted out the same tired BS used to make the US seem to have clean hands when it comes to renditions - from the LA Times:

"The agency no longer will send prisoners to its own secret detention
sites, which are being closed, Panetta said. But, 'there is a second kind of
rendition, where individuals are turned over to a country for purposes of
questioning,' he said. 'There were efforts by the CIA to seek and to receive
assurances that those individuals would not be mistreated.'
Panetta made clear that those renditions would continue, largely unchanged from Bush-era policies."

Panetta's willingness to waver on these issues - and commitment to asking for legal authorization of coercive interrogation if he wants to - is nothing like an end to torture. The Obama administration reserves the right to revert to the past. Panetta's wavering points us to structural problems in the process by which torture is authorized that make it difficult to end torture for good in the US.

The first issue, as I see it, is that the decision to torture rests with three people - the President, the D/CIA, and the AG. The process former AG Mukasey described in a letter to Sen. Leahy (read here) still exists. Obama's executive order does nothing to alter this -

"There is a defined process by which any new method is proposed for
authorization. That process would begin with the CIA Director's determination
that the addition of the technique was required for the program. Then, the
Attorney General would have to determine that the use of the technique is lawful
under the particular conditions and circumstances proposed. Finally, the
President would have to approve of the use of the technique as requested by the
CIA Director and as deemed lawful by the Attorney General."

And in fact reinforces it (from the Executive Order Ensuring Lawful Interrogations):

"(c) Interpretations of Common Article 3 and the Army Field
Manual. From this day forward, unless the Attorney General with
appropriate consultation provides further guidance, officers,
employees, and other agents of the United States Government may, in conducting
interrogations, act in reliance upon Army Field Manual 2-22.3, but may
not, in conducting interrogations, rely upon any interpretation of the law
governing interrogation -- including interpretations of Federal criminal
laws, the Convention Against Torture, Common Article 3, Army Field
Manual 2-22.3, and its predecessor document, Army Field
Manual 34-52 -- issued by the Department of Justice between
September 11, 2001, and January 20, 2009." [emphasis supplied]

Three people in the US government can change torture policy, whenever they so choose. And our national lack of interest in prosecuting Bush shows those in power that they have nothing to fear if they do choose to torture. We will defend poorly written legal opinions - as Panetta did - as long as they come from the people in the right positions inside the halls of power.

Vesting three individuals with the power to abuse and torture detainees is not an effective end to torture. We must agitate for:

1. transparency. As a state Senator, Obama pushed for a law requiring all police interrogations to be videotaped. This would be a great device by which to ensure our operatives are in compliance with the law.

2. prosecutions. Sorry, my faith in "the rule of law" has been kind of busted over the past 8 years. The efforts people in the Obama administration have been making to legitimize Bush policy and Bush legal opinion give me little confidence in their commitment to the rule of law - for example, Panetta: “Those individuals operated pursuant to a legal opinion… [and they] ought not to be prosecuted or investigated, [since] they acted pursuant to the law as it was presented by the attorney general.” Protecting Bush legal opinions only makes me wonder if you are doing so to preserve that type of power for yourself, in the future. Investigations and prosecutions of our little band of torturers are necessary to dispel these doubts.

3. new process. I believe that a law must be passed in Congress providing for the use of the AFM, minus its coercive provisions and Appendix M, in all of our federal agencies. Executive orders - which can be reversed at will - are not sufficient. Let Congress pass a law dictating anti-torture interrogation policy - and when a President wants to go against it, they can have it out in the courts. The right wing isn't going anywhere - and I do not want to see them undo Obama's executive orders (nor do I want to see Obama undo his own orders) in 2012, or 2016. Whether we torture or not should not be a political question - D/CIA and AG are both political appointees, and the President is of course elected.

There is much, much more to be said about Panetta's confirmation hearing. Guantánamo has apparently gone to shit: see Invictus and TalkLeft. Who in the Obama administration is going to step up and enforce the executive orders? Because this:

"But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a 'critical list', according to Bradley."

Does not sound like this:

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all
circumstances be treated humanely and shall not be subjected to violence to life
and person (including murder of all kinds, mutilation, cruel treatment, and
torture), nor to outrages upon personal dignity (including humiliating
and degrading treatment), whenever such individuals are in the custody or
under the effective control of an officer, employee, or other agent of the
United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.

(Force-feeding detainees has also been described here, amongst other places).

There needs to be immediate action on the part of the Obama administration to investigate these allegations and prosecute those who continue to mishandle detainees. The conduct of the Joint Task Force at Guantánamo appears to be in flagrant violation of US law.