Read this Now: 7 Years in Limbo

by matttbastard

Adam Serwer of the American Prospect has been doing yeoman’s work as of late doggedly covering US detainee issues. His recent feature on former child soldier Mohammed Jawad is truly essential reading:

The story is an old one for Jawad’s lawyers — they believe the government knows it cannot justify holding him, but it doesn’t want to let him go. More galling to Jawad’s defense counsel is the fact that the government sought to include Jawad’s confessions to Afghan authorities, obtained through torture, as evidence against his release. In July, his lawyers filed a motion to suppress the confessions, which made up about 90 percent of the evidence against him. This time, the government chose not to challenge the motion — but failed to commit to his release. Judge Ellen Segal Huvelle eviscerated the government for having little cause to continue holding him. “This guy has been there seven years — seven years,” Huvelle said. “Without his statements, I don’t understand your case. I really don’t.”

At the core of the dispute over the detention of suspects like Jawad is whether or not there are, as President Barack Obama claims, “detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people.” This is the so-called “fifth category” of detainees — exactly how many there are, the government has yet to determine. (Assistant Attorney General David Kris told Congress in July that half of the Guantánamo detainees’ cases had been reviewed, and none had yet been put into the “fifth category.”) “There will be some, who we have picked up and who are in Guantánamo ? who for a variety of reasons can’t be prosecuted,” says former CIA counsel Jeff Smith. “We have convincing intelligence information, but it is not enough to prosecute them.”

[Maj. David Frakt, one of Jawad’s lawyers] isn’t buying the administration’s assertion about the necessity of preventive detention — the practice of imprisoning suspected terrorists even in cases where the government cannot prove they have committed crimes. “When you look at the minimal amount of evidence required to convict someone of something like material support for terrorism, and they don’t even have that much, how is it that we know that these people are so dangerous?” he asks. Frakt’s concerns likely have a great deal to do with the way the government has treated his client — and not only because it tried to get his coerced confession admitted as evidence.
Montalvo says government officials “believe they have a guilty guy who tried to hurt Americans.”

But after seven years of failing to justify his detention, the government agreed on July 29 to release Jawad to return home to Afghanistan — though it implied he might still be subject to criminal prosecution.

Standard read-the-whole-damn-thing rules apply.

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Quote of the Day: Inevitable Consequences

by matttbastard

The Wichita Eagle:

Warren Hern, a Colorado physician and close friend of Tiller’s — who described himself now as “the only doctor in the world” who performs very-late-term abortions — said Tiller’s death was predictable.

“I think it’s the inevitable consequence of more than 35 years of constant anti-abortion terrorism, harassment and violence,” he said.

When Obama was elected last fall, Hern predicted that anti-abortion violence would increase, he said. Because Obama supports legalized abortion, Hern said, its foes “have lost ground…. They want the doctors dead, and they invite people to assassinate us. No wonder that this happens.

“I am next on the list.”

Related: Must-read article from the always-excellent Ann Friedman, in which she puts the assassination of Dr. George Tiller into the broader context of the concerted criminal harassment (sometimes deadly) of US abortion clinic workers:

It’s apparent that we need someone at the federal level who is paying attention. After all, Tiller’s assassin was not acting in vacuum. Even if no national anti-choice group directly ordered him to fire that gun, he is a product of a culture that thrives on systematically threatening reproductive health care providers and women who seek abortions. Militant anti-choice groups like Operation Rescue — which has endorsed intimidation tactics in the past — released statements yesterday condemning Tiller’s assassination.

But after years of sending the message to its avid base that Tiller was a sub-human monster, a press release expressing dismay at the killing does little good. On the sidebar of the Operation Rescue blog, near where the press release appeared, was a small image featuring Dr. Tiller’s face, some very sinister-looking flames, and the words “America’s Doctor of Death,” linking to a detailed dossier about all of Tiller’s offenses. Other groups keep databases of reproductive health providers’ addresses and phone numbers, all but daring their members to conduct harassment campaigns.

Elsewhere: Contra the disingenuous spin (h/t Mandos) from the forced-birth set, Jill Filipovic and former Religious Right icon Frank Schaeffer both join Friedman in placing the blame for Dr. Tiller’s murder squarely on the collective shoulders of the ‘mainstream’ anti-abortion movement. As Schaeffer (who readily acknowledges his role, along with his late father Francis and former US Surgeon General C. Everett Koop, in establishing the anti-abortion movement) puts it:

The same hate machine I was part of is still attacking all abortionists as “murderers.” And today once again the “pro-life” leaders are busy ducking their personal responsibility for people acting on their words. The people who stir up the fringe never take responsibility. But I’d like to say on this day after a man was murdered in cold blood for preforming abortions that I — and the people I worked with in the religious right, the Republican Party, the pro-life movement and the Roman Catholic Church, all contributed to this killing by our foolish and incendiary words.

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Torture, Accountability and the Faux-Absolution of Collective Guilt

by matttbastard

In a must-read post, Dan Froomkin takes on recent attempts by OG ‘eventheliberal’ Michael Kinsley and pseudo-contrarian Slate guru Jacob Weisberg to whitewash the Bush Admin’s torture record by arguing that “the nation’s collective guilt for torture is so great that prosecution is a cop-out.”

Froomkin points out the elephant in the room–and it’s wearing a press pass:

While it’s true that the public’s outrage over torture has been a long time coming, one reason for that is the media’s sporadic and listless coverage of the issue. Yes, there were some extraordinary examples of investigative reporting we can point to, but other news outlets generally didn’t pick up these exclusives. Nobody set up a torture beat, to hammer away daily at what history I think will show was one of the major stories of the decade. Heck, as Weisberg himself points out, some of his colleagues were actually cheerleaders for torture. By failing to return to the story again and again — with palpable outrage — I think the media actually normalized torture. We had an obligation to shout this story from the rooftops, day and night. But instead we lulled the public into complacency.

Wait, you mean the corporate media may have collectively (and quite willingly) played the role of useful idiot in the tragicomic post-9/11 GWOT farce put on by the Bush-Cheney Review? NO WAIS, DUDE!

Froomkin continues:

Secondly, while it’s certainly worth exploring why any number of people were either actively or passively complicit in our torture regime — and I’m all for some national self-flagellation here — that has nothing to do with whether senior administration officials willfully broke the law, and whether they should be held accountable. It doesn’t change the law.

Froomkin’s case for accountability has since been inadvertently and unintentionally bolstered by–wait for it–former Bush AG John Ashcroft (h/t Think Progress):

The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money. Certainly, we should demand justice. But we must all remember that justice is a value, the adherence to which includes seeking the best outcome for the American people. In some cases it will be the punishing of bad actors. In other cases it may involve heavy corporate fines or operating under a carefully tailored agreement.

Ok, so Ashcroft is talking about the financial meltdown, not the widespread erosion of human rights and the complete subversion of the rule of law that occurred under, um, his watch.

Still, as Jack Balkin notes, the principle is universal:

According to this same logic, the government should demand a full accounting of what Bush Administration officials did and it should institute new methods for monitoring and preventing abuses in the future. It should find ways to hold individuals who broke the law accountable without jeopardizing our existing national security. What the government should not do is what Attorney General Ashcroft argues against in the financial context– to sweep illegal actions under the rug or to go easy on the individuals who broke the law because they work for the federal government.

Sen. Chris Dodd underscores the bottom line:

[N]ot to prosecute people or pursue them when these acts have occurred is, in a sense, to invite it again in some future administration.

Special prosecutor NAO.

Recommend this post at Progressive Bloggers

Losing My Religion

by matttbastard

Three must-reads on the consequences of embracing torture as official US policy at the expense of long-established (if not always consistently applied) American values.

Glenn Greenwald:

It’s certainly true that Reagan, like most leaders, regularly violated the principles he espoused and sought to impose on others, but still, there is an important difference between (a) affirming core principles of the civilized world but then violating them and (b) explicitly rejecting those principles.  Doing (a) makes you a hypocrite; doing (b) makes you a morally depraved barbarian.  We’re now a country where the leading “intellectuals” of the conservative movement expressly advocate torture on the pages of The Washington Post, and where most of the political and media class mocks as Far Leftism what Ronald Reagan explicitly advocated and bound the U.S. by treaty to do:  namely, “prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

Karen J. Greenberg:

One day, perhaps soon, much of the rest of the minutiae produced by the Bush administration’s torture-policy bureaucracy will come to light. Procurement lists, for example, will undoubtedly be found. After all, who ordered the sandbags for use as hoods, the collars with chains for bashing detainees’ heads into walls, the chemical lights for sodomy and flesh burns, or the women’s underwear? The training manuals, whatever they were called, will be discovered: the schooling of dogs to bite on command, the precise use of the waterboard to get the best effects, the experiments in spreading the fingers just wide enough in a slap to comport with policy. The Senate Armed Services Committee’s report, released last week, has already begun to identify the existence of training sessions in techniques redefined as not rising to the level of torture.

For now, however, we have far more than we need to know that what the United States started when, in 1948, it led the effort to create the Universal Declaration of Human Rights and became the moral figurehead for human rights concerns worldwide for more than a half-century, has come to an end. Eleanor Roosevelt, who led the commission that drafted that 1948 Declaration, remarked at the time that the United States was “the showcase” for the principles embodied in the declaration. Sixty-one years later, that is no longer true.

Gary Kamiya:

Ever since 9/11 we have been living in a twilight country, one where it is not clear whether laws apply or not, a morally relativist place in which unembarrassed emotionalism has replaced adherence to ethical and legal principles. When one of the country’s leading pundits, the New York Times’ Thomas Friedman, can argue that the Bush administration torturers should suffer no legal consequences because “Al Qaeda truly was a unique enemy, and the post-9/11 era a deeply confounding war in a variety of ways,” and that Americans “would have told the government (and still will) ‘Do whatever it takes,'” he is basically saying that the inchoate fears and primal emotions of the people should override morality and law.

This widely shared attitude is like a dormant virus: It may appear to be harmless now, but it could come to life at any time.

DJ rewind — what Frank Rich said:

President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won’t vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don’t need another commission. We don’t need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

Yes, this.

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Judge Orders Release of Unlawfully Held Uighur Prisoners

by matttbastard

Well, it’s about goddamn time:

In a dramatic setback for the Bush administration, a federal judge ordered the U.S. government Tuesday to immediately transfer to the U.S. and release 17 Chinese-born Muslims detained for seven years at Guantanamo.

Reading his decision from the bench, Judge Ricardo Urbina declared the continued detention of the group from the ethnic Uighur minority to be “unlawful” and ordered the government to transfer the detainees to the U.S. by Friday.

The decision marked the first time a court has ordered the release of Guantanamo detainees into the U.S.

[…]

Dozens of members of a Uighur-American organization attending the hearing reacted to his words with applause.

“The American system has given us justice,” said Rebia Kadeer, president of the World Uighur Congress.

While I am relieved that the Uighur prisoners have finally been released, I have little confidence that the Bush admin will, for once, heed Judge Urbina’s warning “not to attempt to circumvent [the Uighur’s] release once they arrive in the U.S. by detaining them on immigration holds.” Using the past 8 long years as a benchmark, it seems the one thing you can always count on from the Bush/Cheney White House is a demonstrative, at times spiteful, contempt for the rule of law. According to a Bloomberg News report on the ruling, the Bush admin claimed “it has wartime authority to hold the men indefinitely even if they aren’t enemy combatants [emph. mine].”

Indeed, as noted by Matt Corley of Think Progress, “NBC News Justice Correspondent Pete Williams reports that the Bush administration doesn’t want the detainees coming to the U.S. because “that sets a legal precedent.””

Williams:

[T]his is a big deal because for the first time in the six plus years that Guantanamo Bay has been a detainee center for enemy combatants picked up overseas a federal judge has ordered that some of them should be released and released into the U.S., a step that the Justice Department and the Bush administration have continually opposed.

[…]

And you know, that does raise a larger question about Guantanamo Bay because as the U.S. tries to get other countries around the world to accept some of the detainees that the U.S. itself believes should no longer be held there. Many of those countries are saying, “hey, you set up Guantanamo Bay, you, you know, you should take some of them too.” So this is a very key issue in the history of Guantanamo Bay.

According to Bloomberg News, there are “an estimated 225 detainees still at Guantanamo Bay,” none of whom, it’s safe to say, the Bush admin would want seeking sanctuary in the US (and, potentially, speaking to US media outlets about what happened to them during their Gitmo tenure.)  I find it hard to imagine we’ll see a humble concession to this court-ordered check on executive authority, based on, as skdadl puts it, “the continuing perversity of the Bush administration in its insistence before the courts that the president’s political decisions about justice trump the powers of the judiciary”.  Still, one can’t help but hope that, finally, some small inkling of justice has been achieved for these 17 victims of imperial hubris and willful indifference.

Related: Background on the illegally detained Uighur prisoners from Hilzoy, The Washington Post (h/t skdadl), Joanne Mariner of Human Rights Watch, David Bario, and Justin Rood, who cites a Justice Department report (PDF) that claims “U.S. military personnel at Guantanamo Bay allegedly softened up [the] detainees at the request of Chinese intelligence officials who had come to the island facility to interrogate the men — or they allowed the Chinese to dole out the treatment themselves”.  The Center for Constitutional Rights has more on foreign interrogators at Guantanamo.

Also see this recent HRW report on remaining Guantanamo prisoners, Locked up Alone: Detention Conditions and Mental Health at Guantanamo.

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21st Century Law Enforcement at its Finest

by matttbastard

Because the presumption of innocence is, like, so September 10th, dude:

The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.

Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: Root out terrorists before they strike.

Yes, we all know just how successful the doctrine of prevention has worked out so far–hey, how is that crusade to forcefully spread democracy across the Middle East going?

Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious.

Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person’s race or ethnicity.

[…]

Critics say the presumption of innocence is lost in the proposal. The FBI will be allowed to begin investigations simply “by assuming that everyone’s a suspect, and then you weed out the innocent,” said Caroline Fredrickson of the American Civil Liberties Union.

Oh, come on. Who needs actual, y’know, specific ‘evidence‘ that illegal activity is occurring, when everybody knows that those swarthy Arabmuslimdarkies (especially the ones who dare to rack up frequent flyer mileage) have pure, undistilled terror flowing through their steely veins 24/7? (What? ‘IRA’ stands for ‘Indo-Republican Army’. Srsly.)

Update: Also see I Need To Calm Down, Threat Level, and, representing the silly side of Blogtopia’s *cough* main street, Tammy “everybody knows” Bruce and Allahpundit, who wonders if we should “[b]e on the lookout for English-speaking caucasians with light-colored eyes“.

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“It’s an experience our country should not subject people to.”

by matttbastard

Another SERE swim lesson veteran uses the ‘T’ word to describe waterboarding:

I remember that the blindfold was heavy and completely covered my face. As the two men held me down, one on each side, someone began pouring water onto the blindfold, and suddenly I was drowning. The water streamed into my nose and then into my mouth when I gasped for breath. I couldn’t stop it. All I could breathe was water, and it was terrifying. I think I began to lose consciousness. I felt my lungs begin to fill with burning liquid.

Pulling out my fingernails or even cutting off a finger would have been preferable. At least if someone had attacked my hands, I would have had to simply tolerate pain. But drowning is another matter.

Even though I knew that I was in a military facility and that my “captors” would not kill me, no matter what they threatened, my body sensed and reacted to the danger it was in. Adrenaline helped me to fight out of the position the men were holding me in. I can’t really explain how I managed to stand up, still with one man clinging to each arm. I only know how horrible it was. The experience was probably only a few minutes, but to me it seemed much longer.

Waterboarding has, unfortunately, become a household word. Back then, we didn’t call it waterboarding — we called it “water torture.” We recognized it as something the United States would never do, whatever the provocation. As a nation, we must ask our leaders, elected and appointed, to be aware of such horrors; we must ask them to stop the narrow and superficial thinking that hinges upon “legal” definitions and to use common sense. Waterboarding is torture, and torture is clearly a crime against humanity.

Unfortunately, ‘common sense’ was buried beneath the rubble of the World Trade Center, alongside those other outdated September 10th concepts, ‘accountability’, ‘irony’ and ‘international law‘.

h/t Gary Farber

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Quote Of The Day: Moving Targets

by matttbastard

In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror.

Charting that progression is almost not worth doing anymore, so familiar are the various feints and steps. First, the administration breaks the law in secret. Then it denies breaking the law. Then it admits to the conduct but asserts that settled law is not in fact settled anymore because some lawyer was willing to unsettle it. Then the administration insists that the basis for unsettling the law is secret but that there are now two equally valid sides to the question. And then the administration gets Congress to rewrite the old law by insisting it prevents the president from thwarting terror attacks and warning that terrorists will strike tomorrow unless Congress ratifies the new law. Then it immunizes the law breakers from prosecution.

That’s how Americans have come to reconcile themselves to illegal warrantless eavesdropping and to prisoner abuse at Guantanamo Bay. It’s why we’re no longer bothered in the least by the abuse of national-security letters or extraordinary rendition or by presidential signing statements. Deny, admit, codify, then immunize. The law as quickstep.

– Dahlia Lithwick, Anybody’s Guess (h/t War in Context)

More from Charles Pierce (h/t Chet Scoville), Hilzoy @ ObWi and skdadl-with-one-‘sk’, who charts the logical next step in the Left-Hand Path that has been eagerly undertaken by the Bush administration:

If torture is situational ethics, then we are on to Dostoevsky territory. Torture is an assault on the body, yes – the body may recover; it may be maimed; or it may be destroyed. But torture is aimed most profoundly at the mind, at destroying the mind, at driving the victim mad. And in that madness, what any of us will see is the vision that is the exact opposite of civilization, especially of democracy. The tortured and the torturer both know that once all the rules are conditional, there are no more rules. Civil society ends. Everything is permitted.

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