(updated below - Update II)
According to The Associated Press, Eric Holder will announce later today that Khalid Sheikh Mohammed and four other 9/11 defendants will be brought from Guantanamo to New York to stand trial, in a real criminal court, for the crimes they are accused of committing. This is a decision I really wish I could praise, as it's clearly both politically risky and the right thing to do.
An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks. It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done -- I expect to have an interview later today with one of those family members -- and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism. So this component of the Obama administration's decision, standing alone, is praiseworthy indeed.
The problem is that this decision does not stand alone. Instead, it is accompanied by this:
Holder will also announce that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.
It was not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.
So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still -- those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.
A system of justice which accords you varying levels of due process based on the certainty that you'll get just enough to be convicted isn't a justice system at all. It's a rigged game of show trials. This is a point I've been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different "categories" of terrorism suspects who would be treated differently based on the category into which they fell:
If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).
Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).
Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.
That the Obama DOJ is now explicitly picking and choosing different levels of due process in the very same announcement -- we can give that defendant a trial because we know we'll win, but that one over there needs to go to a military commission because we're less sure -- highlights how manipulative this "justice system" is.
Former Air Force lawyer Morris Davis was the Chief Prosecutor of the Guantanamo Military Commissions system during the Bush years and resigned in 2008 to become one of its leading critics. Although he still believes that military commissions are a viable option for detainees captured on an actual battlefield -- and even believes the President has the right to detain terrorism suspects indefinitely with no trial -- he made the same point last week in a Wall St. Journal Op-Ed about the practice of picking and choosing the system of justice one receives based on how likely the state is to win:
In a preliminary report submitted to Mr. Obama in July, the Detention Policy Task Force recommended the approval of evaluation criteria developed by the Department of Defense and the Department of Justice. The task force stated its preference for trials in the federal courts, but added the decision would be based in part on "evidentiary issues" and "the extent to which the forum would permit a full presentation of the accused's wrongful conduct." A Washington Post editorial endorsed the proposal, arguing that there should be an alternative forum when a trial in federal court is "not an option because the evidence against the accused is strong but not admissible."
Stop and think about that for a moment. In effect, it means that the standard of justice for each detainee will depend in large part upon the government's assessment of how high the prosecution's evidence can jump and which evidentiary bar it can clear.
The evidence likely to clear the high bar gets gold medal justice: a traditional trial in our federal courts. The evidence unable to clear the federal court standard is forced to settle for a military commission trial, a specially created forum that has faltered repeatedly for more than seven years. That is a double standard I suspect we would condemn if it was applied to us. . . .
The problem is trying to have it both ways: the credibility that comes from using federal courts with admissible evidence under the very strict rules of civilian tribunals, and military commissions for cases that are often comparable except for the fact that they depend on evidence (such as hearsay testimony) that is not normally admissible in civilian courts. What if Iran proposed the same for the three American hikers it is currently holding? We would surely condemn what we now stand ready to condone. . . .
Double standards don't play well in Peoria. They won't play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.
Obama is certain to be bombarded with all sorts of right-wing idiocy and fear-mongering as a result of his decision to bring 9/11 defendants into the U.S. in order to give them trials. Doing that is clearly the right thing to do: trials and due process is how civilized countries treat people who are accused of engaging in terrorism. Given how Democrats and Republicans will talk about this decision, media coverage will almost certainly fixate on the narrow question of whether (a) 9/11 defendants should be given trials in the U.S. or (b) we're all now Endangered because these Omnipotent Monsters are being brought into our communities (in handcuffs, shackles, and maximum-security prisons). The AP article already includes this preview of the inane attacks on Obama certain to come:
It is also a major legal and political test of Obama's overall approach to terrorism. If the case suffers legal setbacks, the administration will face second-guessing from those who never wanted it in a civilian courtroom. And if lawmakers get upset about notorious terrorists being brought to their home regions, they may fight back against other parts of Obama's agenda.
In a just-posted New York Times article, Charlie Savage also notes that bringing an accused terrorist of Mohammed's notoriety to the U.S. for trial is unprecedented and likely to provoke intense political controversy. In that "debate," I'm squarely on Obama's side, as is any person who believes in the most basic Constitutional precepts.
But the more consequential impact of Obama's decision is likely to be overlooked: we're now formally creating a multi-tiered justice system for accused Muslim terrorists where they only get the level of due process consistent with the State's certainty that it will win. Mohammed gets a real trial because he confessed and we're thus certain we can win in court; since we're less certain about al-Nashiri, he'll be denied a trial and will only get a military commission; others will be denied any process entirely and imprisoned indefinitely. The outcome is pre-determined and the process then shaped to assure it ahead of time, thus perfectly adhering to this exchange from Chapter 12 of Alice in Wonderland:
"Let the jury consider their verdict," the King said, for about the twentieth time that day.
"No, no!” said the Queen. "Sentence first -- verdict afterward."
"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"
"Hold your tongue!" said the Queen, turning purple.
"I won’t!" said Alice.
"Off with her head!" the Queen shouted at the top of her voice.
How is that remotely just or fair under any definition of those terms? As Davis wrote: "We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them." There's nothing "pragmatic" or "moderate" about creating a multi-tiered justice system where only some people get trials; it's both counter-productive and profoundly unjust.
UPDATE: Omar Khadr -- the Canadian "child soldier" imprisoned at Guantanamo for the last seven years, since he was 15 years old, for allegedly throwing a grenade at an American soldier in Afghanistan (that's apparently "terrorism") and the subject of a difficult-to-watch video of him weeping like the child he is while being interrogated -- will reportedly be one of those denied a trial and instead allowed only a military commission, according to Canada's Canwest News Service (h/t sysprog):
Canadian-born terror suspect Omar Khadr faces continued prosecution in the U.S. military tribunal established in Guantanamo Bay, Cuba. . . .
The federal system offers the full panoply of defendant rights available to U.S. citizens under the U.S. Constitution, while civil rights groups have argued the military commissions at the U.S. naval base in Cuba do not meet that standard.
The decision regarding Khadr means that the Obama administration has, for now at least, rejected calls by his U.S. and Canadian defence teams for the repatriation of the Canadian-born terror suspect" . . . My view is, he should be prosecuted," said navy Capt. John Murphy, chief prosecutor in the military commissions system.
So even for 15-year-olds who we imprison for seven years with no charges, we refuse to give them a trial. And note how the Canadian press account stresses our multi-tiered system of justice and how their citizen is receiving second-tier due process -- an observation that one can be sure will repeat itself worldwide.
UPDATE II: In his Press Release, Eric Holder says his decisions today were "based on a protocol that the Departments of Justice and Defense developed" whereby he "looked at all the relevant factors and made case by case decisions for each detainee." In other words, there's no categorical determination driving the process (e.g., all those who attack military targets get commissions and all those who attack civilian targets get trials). To the contrary, federal prosecutors choose, in their sole discretion, the level of due process each defendant gets (including "none" -- as in: indefinite detention with no trial), and Holder himself emphasized that "it is important that we be able to use every forum possible to hold terrorists accountable for their actions."
There's supposed to be one justice system for everyone -- not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ's investigation of al-Nashiri was originally classified as a standard criminal case, but -- as his counsel pointed out today -- he was assigned to a military commission because there simply isn't sufficient evidence to convict him in a real court.
Vividly illustrating the perverse mentality behind all of this, here's a question asked today of President Obama by AP's Jennifer Loven:
President Obama, how can you assure the American people that a trial of Khalid Sheikh Mohammed, now that your administration has now decided will take place in a civilian court in New York, will be safe and secure, but also not result in an innocent verdict for him?
Apparently, we're only supposed to give trials to people if we can assure in advance that it won't "result in an innocent verdict." Jennifer Loven -- and many of her media colleagues -- seems to yearn for the U.S. to be a lot more like North Korea.
And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is "tainted," or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration's use of military commissions on the same grounds that you're defending Obama today?
There is something of a master narrative of the early Obama administration currently emerging into view, issue by issue. It goes like this: A given situation is in a disastrous state of disarray when the new president and his staff take the reins. A rough and unsteady policy consensus forms among area experts and crucial political actors about how to move forward. At this point, the administration starts pushing a course of action designed to hold the political center. Those to the president’s left are consistently disappointed, but only sometimes outraged. While many Republicans are initially responsive, the party’s more conservative arm rallies its grass-roots base against cooperation.
The GOP then, like Lucy in "Peanuts," yanks the football away: Party leaders denounce the centrist compromise as radical and dangerous, and employ procedural tactics to stall while building their case with the electorate. By this point in the process, the compromise stance begins to wilt in the face of hardening public opinion. The emboldened opposition intensifies its attacks, the administration retreats, and whichever disastrous situation is being debated -- the job market, say -- continues to deteriorate. The administration, appearing ineffectual and counterproductive, loses much of its remaining purchase on public opinion on this particular issue.
This story is an obviously recognizable one on many of the signal issues of Barack Obama’s presidency thus far. The healthcare fight is the one that fits this pattern most tightly -- and painfully -- but conflicts over stimulating the economy, slowing climate change, and stabilizing and regulating Wall Street have all looked more or less like this. A bit more surprisingly, so has the increasingly vicious debate on what the legal response to terrorism ought to be.
Politico today reports that Senate Minority Leader Mitch McConnell, ever a sly political fox, has found his wedge issue for the midterm elections: the trial of Khalid Sheikh Mohammed, and the president and administration’s incomprehensible (partial) commitment to the rule of law. He's launching what is described as a "relentless, blistering" attack on the administration. Says McConnell, "The core question is whether the attorney general of the United States ought to be in charge of the war on terror. And the answer is no."
This is the end stage of the process. In an excellent article in the current New Yorker, reporter Jane Mayer traces the whole unpleasant business up to this point. When Obama came into office, there was widespread, if not universal, agreement that President Bush’s legal approach to terrorism and detention had to change. Washington wise men like former Secretary of State Colin Powell had largely turned against the administration’s harsh methods, which were of questionable effectiveness and dubious legality. The Supreme Court had rebuked Bush and his aides several times, and even Bush himself said of the prison at Guantánamo, "I’d like it to be over with." Sen. John McCain, R-Ariz., repeatedly called for closing the base while running for president. (However, foreshadowing what lay ahead, then-candidate Mitt Romney responded to McCain by saying Guantánamo should be doubled.)
But once the president and Attorney General Eric Holder tried to implement the plan they thought had gained the consensus position, everything came apart. The efforts to transfer detainees to the United States provoked a "not-in-my-backyard" backlash in Congress. Then a pair of attacks on Americans, at Fort Hood and on a flight to Detroit, unnerved politicians and, apparently, voters. The parallel idea of trying Khalid Sheikh Mohammed in lower Manhattan -- a location chosen because of its high security -- caught fire in the Massachusetts special election for Senate, and according to a consultant for eventual winner Scott Brown, became the most potent issue the Republican had to run on. Moderates like New York Mayor Mike Bloomberg and California Sen. Dianne Feinstein, once supportive of the idea of trying Mohammed in New York, got the willies. Sen. Chuck Schumer, D-N.Y., who had once pledged his support to Holder, called the idea of moving the trial away from New York "obvious."
Even within the administration, attacks on Holder have mounted as he’s pursued an agenda that seems to be weakening the president politically. White House Chief of Staff Rahm Emanuel, as always concerned with keeping a friendly majority in Congress, accused the attorney general of endangering his relationship with key Sen. Lindsey Graham, R-S.C. Said Emanuel, "If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!"
The rule of law is different from, say, healthcare, in that the attorney general doesn’t have to -- and isn’t supposed to, bow to political necessity. Holder seems to believe that he can just push through what is, by his judgment, the best legal course. He told Mayer last month,
This is something that can get a rise out of me, the notion that somehow Eric Holder and Barack Obama, this administration, is not tough. We have the welfare of the American people in our minds all the time. We’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.
Maybe, over time, heat from the public and from the Republicans will dissipate on this, as it did slowly over the course of the last decade before resurging this year. For the moment, though, the GOP is planning to score every point it can. Don’t take it from me -- take it from McConnell: "I’d be the last one to suggest that absolutely everything the administration does is incorrect. When we think that they’re on the right path, they’ll find Republican support." The minority leader continued, "Would I love to have the election tomorrow? I sure would. Early signs are that this could be a good year, but we have a long way to go."
Glenn Greenwald laid it out well today: It's astonishing how many Republicans, and even some Democrats, have decided that controversial Bush-Cheney detention and interrogation policies, even some widely repudiated during the 2008 presidential campaign, didn't go far enough.
Although would-be shoe bomber Richard Reid was read his Miranda rights in 2001, the Obama team is being trashed for doing the same with would-be underpants bomber -- who is now, according to NBC News, providing useful information to interrogators. The Bush administration tried Reid, as well as the so-called 20th hijacker Zacarias Moussaoui, in federal criminal court, and convicted both; Obama's plan to try 9/11 mastermind Khalid Sheikh Muhammed in New York is being attacked by most Republicans as well as some New York Dems, who should know better.
Has anyone else noticed that the once-fierce GOP, which used to be (ickily) considered the "Daddy party," strong enough to protect us (the sexist formulation had Democrats as "Mommy," always wanting to take care of us and wipe our noses), lately seems like a bunch of bed-wetters, afraid to let our Democratic institutions work to keep us safe? We've tried hundreds of terrorists in criminal court and convicted them, and they sit in supermax American prisons. Not one has gotten out to terrorize again. But now Republicans are claiming that the policies pursued by Bush and Cheney regarding criminal trials for terrorists aren't enough. We have to be kept even safer! But if we agree to be terrorized by the thought of using our institutions to protect us from terror, well, haven't the terrorists won? I'm confused.
The administration's decision to put money in next year's budget to fund closing Guantánamo is likewise producing some hilarious moments of hypocrisy. One of the biggest hypocrites is John McCain, who called for the closing of Guantánamo on the campaign trail, in March 2008. That was the McCain of integrity; the former prisoner of war and torture victim who could see that Guantánamo had become a symbol of an America gone wrong, a symbol that was hurting us on the battlefields of Iraq and Afghanistan, and among Muslims generally.
Back then McCain wanted to transfer the Guantánamo detainees to Fort Leavenworth in Kansas, but a funny thing happened: Both the state's GOP senators, Sam Brownback and Pat Roberts, said no. Now the plan is to house them in the near-empty Thomson Correctional Facility, 150 miles outside of Chicago. Local leaders are on board, Ill. Sen. Dick Durbin backs the plan -- but it's become controversial, because Obama's behind it.
So now, his Leavenworth plan scotched by members of his own party, McCain is blasting Obama's Thomson plan. "I have always stated that we need a comprehensive plan to close Guantánamo safely and legally," he said in a statement last month. "The Administration still has not crafted such a plan, and I do not think we should transfer any detainees into the United States until such a plan is presented to the American people and approved by the Congress." Of course, part of developing "such a plan" would involve selecting a site for the detainees and getting it ready, which Obama is doing in his budget. He's not shuttling detainees to Illinois this weekend on Air Force One (stopping maybe at the Super Bowl in New Orleans on the way. "Who dat?" indeed).
And while I'm all for the president conferring with Congress, it should be noted that Bush didn't ask Congress for permission to begin to house captured prisoners, with no charges, at Guantánamo. There are two different sets of rules for Democratic and Republican presidents, and of course the media play along. (Glenn captures my MSNBC friends Chuck Todd, Savannah Guthrie and Mark Whitaker chortling and tsk-tsking over Obama's "self-inflicted wound" in doing with Muhammed what Bush did with Moussaoui. They each know better.)
McCain has changed course on two military issues of late, Guantánamo and "don't ask, don't tell." I'm sure it has nothing to do with having a crazy birther challenger from the right, former Rep. J.D. Hayworth. I'm sure he's just being all mavericky again.
On MSNBC's "The Ed Show" Tuesday, I got to respond to Wyoming Sen. John Barrasso, who was kvetching about Miranda rights for Umar Farouk Abdulmutallab, a New York trial for Muhammed and moving Guantánamo detainees to the U.S. Most of it was standard GOP talking points, but he took a nasty swing at Obama, echoing Dick Cheney's vicious claim that Obama is making the country less safe.
I shouldn't be surprised, but I'm always surprised when these people level what is perhaps the worst charge you can against Obama -- that he's making us less safe -- with absolutely zero evidence. Obama called it "rank politics," but it's worst than usual, because it really is playing politics with American security. Ed Schultz said Barrasso's position "floored" him; I replied we shouldn't be floored by anything anymore, because even formerly sane Republicans will do anything to undermine this president.
(updated below)
One of the most intense controversies of the Bush years was the administration's indefinite imprisoning of "War on Terror" detainees without charges of any kind. So absolute was the consensus among progressives and Democrats against this policy that a well-worn slogan was invented to object: a "legal black hole." Liberal editorial pages routinely cited the refusal to charge the detainees -- not the interrogation practices there -- in order to brand the camp a "dungeon," a "gulag," a "tropical purgatory," and a "black-hole embarrassment." As late as 2007, Democratic Senators like Pat Leahy, on the floor of the Senate, cited the due-process-free imprisonments to rail against Guantanamo as "a national disgrace, an international embarrassment to us and to our ideals, and a festering threat to our security," as well as "a legal black hole that dishonors our principles." Leahy echoed the Democratic consensus when he said:
The Administration consistently insists that these detainees pose a threat to the safety of Americans. Vice President Cheney said that the other day. If that is true, there must be credible evidence to support it. If there is such evidence, then they should prosecute these people.
Leahy also insisted that the Constitution assigns the power to regulate detentions to Congress, not the President, and thus cited Bush's refusal to seek Congressional authorization for these detentions as a prime example of Bush's abuse of executive power and shredding of the Constitution.
But all year along, Barack Obama -- even as he called for the closing of Guantanamo -- has been strongly implying that he will retain George Bush's due-process-free system by continuing to imprison detainees without charges of any kind. In his May "civil liberties" speech cynically delivered at the National Archives in front of the U.S. Constitution, Obama announced that he would seek from Congress a law authorizing and governing the President's power to imprison detainees indefinitely and without charges. But in September, the administration announced he changed his mind: rather than seek a law authorizing these detentions, he would instead simply claim that Congress already "implicitly" authorized these powers when it enacted the 2001 AUMF against Al Qaeda -- thereby, as The New York Times put it, "adopting one of the arguments advanced by the Bush administration in years of debates about detention policies."
Today, The New York Times' Charlie Savage reports:
The Obama administration has decided to continue to imprison without trials nearly 50 detainees at the Guantánamo Bay military prison in Cuba because a high-level task force has concluded that they are too difficult to prosecute but too dangerous to release, an administration official said on Thursday.
The Washington Post says that these decisions "represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion." Once that rationale is accepted, it necessarily applies not only to past detainees but future ones as well: the administration is claiming the power to imprison whomever it wants without charges whenever it believes that -- even in the face of the horrendously broad "material support for terrorism" laws the Congress has enacted -- it cannot prove in any tribunal that the individual has actually done anything wrong. They are simply decreed by presidential fiat to be "too dangerous to release." Perhaps worst of all, it converts what was once a leading prong in the radical Bush/Cheney assault on the Constitution -- the Presidential power to indefinitely imprison people without charges -- into complete bipartisan consensus, permanently removed from the realm of establishment controversy.
There are roughly 200 prisoners left at the camp, which means roughly 25% will be held without any charges at all. Using the administration's perverse multi-tiered justice system, the rest will either be tried in a real court, sent to a military commission or released. What this means, among other things, is that the President's long-touted policy of closing Guantanamo is a total sham: the essence of that "legal black hole" -- indefinite detention without charges -- will remain fully in place, perhaps ludicrously and dangerously shifted to a different locale (onto U.S. soil) but otherwise fully in tact. The U.S. Supreme Court ruled in 2008 that the Military Commissions Act unconstitutionally denied the right of habeas corpus to Guantanamo detainees -- a principle the Obama administration has vigorously resisted when it comes to Bagram detainees -- but mere habeas corpus review does not come close to a real trial, which the Bill of Rights guarantees to all "persons" (not only "Americans") before the State can keep them locked in a cage.
Numerous Democrats have spent the year justifying Obama's desire for indefinite detention with dubious excuses that would have been unthinkable to hear from them during the Bush years. I addressed all of those excuses in full back in May, here. As but one example, the claim most commonly cited to justify Obama's actions -- these detainees can't be convicted because the evidence against them is "tainted" by torture -- is: (a) completely unproven; (b) completely immoral (it's one of the longest-standing principles of Western justice that tortured-obtained evidence can't be used to justify imprisonment); and (c) completely contradictory (Democrats spent years claiming, and still do, that torture doesn't work and produces unreliable evidence; if that's true, who could possibly justify indefinitely imprisoning someone based on torture-obtained -- i.e., inherently unreliable -- evidence?). Whatever else is true, both Obama's policy and the rationale -- we must imprison Terrorists without charges because there's no evidence to convict them but they're somehow still deemed too dangerous to release -- is exactly what the Bush/Cheney faction endlessly repeated to justify its "legal black hole."
But no matter. If there's one thing we've seen repeatedly all year long, it's that many Democrats simply do not believe in the axiom best expressed by The New York Times' Bob Herbert when he said that "Americans should recoil as one against the idea of preventive detention." As Herbert wrote: "policies that were wrong under George W. Bush are no less wrong because Barack Obama is in the White House." That precept should be too self-evident to require expression and yet is widely rejected. Hence, exactly that which very recently was condemned as "a dungeon, a gulag, a tropical purgatory, and a black-hole embarrassment" is now magically transformed into a beacon of sober pragmatism from a man -- a Constitutional Scholar -- solemnly devoted to restoring America's Standing and Values.
* * * * *
Yesterday, prior to this decision being announced, I conducted a 20-minute interview with ACLU Exeuctive Director Anthony Romero regarding that group's newly released report on Obama's civil liberites record after the first year in office, pointedly entitled: "America Unrestored." I'll post that discussion later today. Additionally, I will have an analysis of the Supreme Court's obviously momentous decision in Citizens United -- invaliding restrictions on corporate and union election spending -- posted later.
UPDATE: Just to add some thick irony to all of this, today is the one-year anniversary of President Obama's Executive Order to close Guantanamo within one year -- an anniversary the administration decided to celebrate not by fulfilling its terms, but instead by announcing that the central feature of Guanatanamo -- indefinite detention with no charges -- will continue indefinitely.
(updated below)
In early December, a report from Seton Hall University cast serious doubt on the government's claims regarding the alleged simultaneous "suicides" of three Guantanamo detainees in June, 2006. I wrote about that report here. Yesterday, Harper's Scott Horton published an extraordinary new article casting even further doubt on the official version of events, compiling new, stomach-turning evidence (much of it from Guantanamo guards) strongly suggesting (without proving or concluding) that those detainees were tortured to death, and those acts then covered-up by making their deaths appear to be suicides. Scott's article should be read in its entirety, though Andrew Sullivan has highlighted some of the critical revelations, including the motives of the whistle-blowing guards and the details of the torture to which these detainees were subjected.
I want to note two points from all of this:
(1) The single biggest lie in War on Terror revisionist history is that our torture was confined only to a handful of "high-value" prisoners. New credible reports of torture continuously emerge. That's because America implemented and maintained a systematic torture regime spread throughout our worldwide, due-process-free detention system. There have been at least 100 deaths of detainees in American custody who died during or as the result of interrogation. Gen. Barry McCaffrey said: "We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A." Gen. Antonio Taguba said after investigating the Abu Ghraib abuses and finding they were part and parcel of official policy sanctioned at the highest levels of the U.S. Government, and not the acts of a few "rogue" agents: "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Despite all of this, our media persists in sustaining the lie that the torture controversy is about three cases of waterboarding and a few "high-value" detainees who were treated a bit harshly. That's why Horton's story received so little attention and was almost completely ignored by right-wing commentators: because it shatters the central myth that torture was used only in the most extreme cases -- virtual Ticking Time Bomb scenarios -- when there was simply no other choice. Leading American media outlets, as a matter of policy, won't even use the word "torture." This, despite the fact that the abuse was so brutal and inhumane that it led to the deaths of helpless captives -- including run-of-the-mill detainees, almost certainly ones guilty of absolutely nothing -- in numerous cases. These three detainee deaths -- like so many other similar cases -- illustrate how extreme is the myth that has taken root in order to obscure what was really done.
(2) Incidents like this dramatically underscore what can only be called the grotesque immorality of the "Look Forward, Not Backwards" consensus which our political class -- led by the President -- has embraced. During the Bush years, the United States government committed some of the most egregious crimes a government can commit. They plainly violated domestic law, international law, and multiple treaties to which the U.S. has long been a party. Despite that, not only has President Obama insisted that these crimes not be prosecuted, and not only has his Justice Department made clear that -- at most -- they will pursue a handful of low-level scapegoats, but far worse, the Obama administration has used every weapon it possesses to keep these crimes concealed, prevent any accountability for them, and even venerated them as important "state secrets," thus actively preserving the architecture of lawlessness and torture that gave rise to these crimes in the first place.
Every Obama-justifying excuse for Looking Forward, Not Backwards has been exposed as a sham (recall, for instance, the claim that we couldn't prosecute Bush war crimes because it would ruin bipartisanship and Republicans wouldn't support health care reform). But even if those excuses had been factually accurate, it wouldn't have mattered. There are no legitimate excuses for averting one's eyes from crimes of this magnitude and permitting them to go unexamined and unpunished. The real reason why "Looking Forward, Not Backwards" is so attractive to our political and media elites is precisely because they don't want to face what they enabled and supported. They want to continue to believe that it just involved the quick and necessary waterboarding of three detainees and a few slaps to a handful of the Worst of the Worst. Only a refusal to "Look Backwards" will enable the lies they have been telling (to the world and to themselves) to be sustained. But as Horton's story illustrates, there are real victims and genuine American criminals -- many of them -- and anyone who wants to keep that concealed and protected is, by definition, complicit in those crimes, not only the ones that were committed in the past, but similar ones that almost certainly, as a result of Not Looking Backwards, will be committed in the future.
* * * * *
Horton was on Countdown last night, and he and Keith Olbermann did a rather good job of laying out the facts, including the Obama administration's refusal to investigate any of this:
UPDATE: On his Harper's blog, Horton describes the stonewalling and non-responsive denials issuing from military authorities and the Justice Department.
Since the attempted bombing of Northwest Flight 253 on Christmas, the Obama administration has been getting some pressure about the detainees held at Guantanamo Bay. Much of that pressure has focused on transfers of those detainees to Yemen, where the suspect in the bombing had been and where some former detainees suspected of involvement in the attack had previously been sent.
President Obama heard from both sides of the aisle about the issue. Sens. Lindsey Graham, Joe Lieberman and John McCain joining to write one letter urging him not to send one group of detainees to Yemen, though it turned out the six people in question had already been transferred. And Sen. Dianne Feinstein, D-Calif, who chairs the Senate Intelligence Committee called Yemen "too unstable" to host former detainees.
Now, the administration has decided to halt, at least temporarily, the movement of any detainees from Guantanamo to Yemen.
We are not going to make decisions about transfers that, to a country like Yemen that would, that they're not capable of handling. And I think that, while we remain committed to closing the facility, the determination has been made that right now any additional transfers to Yemen is not a good idea," White House Press Secretary Robert Gibbs said Tuesday.
I was wondering if someone could reconcile these three things:
From Obama terrorism adviser John Brennan, on this weekend's Meet the Press:
MR. GREGORY: Why isn't [Umar Farouk AbdulMutallab] being treated as an enemy combatant instead of a criminal?
MR. BRENNAN: Well, because, first of all, we're a country of laws, and what we're going to do is to make sure that we treat each individual case appropriately. In the past Richard Reid, the former shoe bomber; Zacarias Moussaoui; Jose Padilla; Iyman Faris; all of them were charged in criminal court, were sentenced some in -- in some cases to life imprisonment.
From The New York Times, September 24, 2009:
The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.
Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.
In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.
Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.
So in order to justify giving a civilian trial to AbdulMutallab, John Brennan cites the fact that we are "a nation of laws." Progressives defending the decision to treat AbdulMutallab as a civilian criminal are similarly invoking "the rule of law." The Washington Monthly's Steve Benen, for instance, cites The American Prospect's Adam Serwer to argue that "'it's really remarkable that we've gotten to a point in American history where the Republican Party has managed to make fair trials for people who commit crimes 'controversial'" and adds: "that Brennan has to mount a 'defense' for following the rule of law, the same exact way the Bush administration did, suggests just how far the discourse has strayed from reality."
Benen is right that the Obama administration is essentially doing what the Bush administration did with regard to terrorism suspects, but what does that have to do with "the rule of law"? How can anyone possibly argue simultaneously that (a) the "rule of law" requires civilian trials and (b) the Obama administration is following the "rule of law," when: (c) the Obama administration is explicitly denying civilian trials to numerous terrorism suspects whenever it feels like doing so? If someone actually believes that "the rule of law" requires civilian trials for terrorism suspects, then it cannot be rationally argued that the Obama administration is upholding the "rule of law," since providing civilian trials -- which the "rule of law" supposedly requires -- is a policy they are explicitly rejecting.
In order to explain this glaring contradiction, many Obama defenders -- following the administration itself -- have started to distort rather significantly what the "rule of law" means and what it requires, in order to squeeze Obama's hybrid approach into it. Here's what Josh Marshall said in defending a civilian trial for AbdulMutallab:
The truth is, until President Obama got into office and Republicans needed a new political attack angle, the idea barely occurred to anyone that you wouldn't do a regular trial with someone you had plenty of evidence against.
I was always under the impression that "the rule of law" requires charges for all people accused of crimes whom we want to imprison -- not only those against whom "you had plenty of evidence." If the "rule of law" only requires a trial when the State is absolutely certain it can convict someone because it has "plenty of evidence against them" -- and then allows the use of military commissions or indefinite detention when the evidence is weak -- then "the rule of law" is a ludicrous joke. Criminally charging people only when you know in advance you can win -- and imprisoning the rest without the benefit of criminal charges -- is a sham system of show trials that is the opposite of "the rule of law." What uncontroversial precept of justice ever suggested that the level of due process to which one is entitled is in any way dependent upon the amount and strength of evidence the State has to convict you? None that I've ever heard of -- at least not until this year. If anything, isn't it even more imperative under "the rule of law" to give a real trial to someone when -- unlike KSM or even AbdulMutallab -- the evidence against them is weak and/or they deny the accusations against them?
In order to suggest that the Obama administration is following some sort of time-honored and uncontroversial precept of justice, Marshall claims that the Bush administration used this same standard: namely, that they gave civilian trials to everyone the knew they could convict. Benen says the same thing when discussing the Richard Reid prosecution: "Military tribunals existed at the time, but they were used when officials didn't have enough evidence to try terrorist suspects in a federal criminal court." But that is really not true. The Obama DOJ insists -- as did the Bush DOJ -- that there is a mountain of evidence against Khalid Sheikh Mohammed and his co-defendants such that a conviction is basically 100% guaranteed. Despite that, the Bush administration placed Mohammed and the others before a military commission, not a civilian trial.
The reality is that the Bush administration used a discretionary multi-tiered justice system for terrorism suspects: they gave civilian trials to some, put others before military commissions, and held the rest indefinitely without charges. That's exactly what the Obama administration's policy is. Back then, virtually no progressives claimed that the Bush administration was "upholding the rule of law" by granting civilian trials to some terrorism suspects and denying them to the rest. How can it possibly be the case that the Obama administration is upholding "the rule of law" when, to use Benen's words, it is according rights to terrorism suspects "the same exact way the Bush administration did" (albeit with some improvements to the military commissions and some new discretionary guidelines to use for who gets a civilian trial and who does not)?
It is perfectly fair and accurate to point out that Cheneyite Republicans are being partisan hypocrites for attacking the Obama DOJ for doing exactly that which the Bush administration did: namely, trying some terrorism suspects in civilian courts and holding the rest without trials. But what about progressives who spent eight years accusing the Bush administration of "shredding the Constitution" and gravely assaulting our political system as a result of its detention policy, yet who are now venerating the Obama administration as "upholding the rule of law" even as they deny trials to scores of detainees?
* * * * *
A new article on Obama's terrorism policies in The New York Times Sunday Magazine by Peter Baker received substantial attention, though not enough, in my view, on the most important point Baker documented. Matt Yglesias, for instance, notes that "a half-dozen former senior Bush officials involved in counterterrorism" told Baker that they approve of Obama's counter-terrorism approach but, for cowardly reasons, won't say so on the record. I agree with Yglesias that this refusal bespeaks very poorly of the character of those individuals, though fear of alienating powerful people and potential future employers is hardly unusual for Washington. I think the far more interesting question is why so many top-level Bush officials would find so much to love in Obama's approach, and multiple passages in Baker's long article provide the answer:
In fact, the new president, during his first year, has adopted the bulk of the counterterrorism strategy he found on his desk when he arrived in the Oval Office, a strategy already moderated from the earliest days after Sept. 11, 2001. . . . The policies themselves, though, have not changed nearly as much as the political battles over closing the prison at Guantánamo Bay and trying Khalid Shaikh Mohammed in New York would suggest. "The administration came in determined to undo a lot of the policies of the prior administration," Senator Susan Collins of Maine, the top Republican on the homeland-security committee, told me, "but in fact is finding that many of those policies were better-thought-out than they realized -- or that doing away with them is a far more complex task." . . . Michael Hayden, the last C.I.A. director under Bush, was willing to say publicly what others would not. "There is a continuum from the Bush administration, particularly as it changed in the second administration as circumstances changed, and the Obama administration," Hayden told me. James Jay Carafano, a homeland-security expert at the Heritage Foundation, was blunter. "I don’t think it’s even fair to call it Bush Lite," he said. "It’s Bush. It's really, really hard to find a difference that’s meaningful and not atmospheric. You see a lot of straining on things trying to make things look repackaged, but they’re really not that different" . . . . A senior Obama adviser scoffed at the idea that Bush advisers see continuity, arguing that they are trying to launder their reputations by claiming validation. But it is true that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama.
As Baker notes, the "tone" Obama uses to talk about these things is different (and that, in my view, matters). Moreover, Obama explicitly banned several Bush policies that were already discontinued by the time he was inaugurated ("enhanced interrogation techniques," CIA black sites, circumvention of Congressional statutes on detention and surveillance). And, though Baker does not note this, Obama has also recently taken some potentially meaningful steps to increase government transparency. But as Adam Serwer has explained, the most important point of Baker's discussion is that there are very few real policy differences between the two administrations in these areas, and Dick Cheney's embittered attacks on Obama (and the media's obsession with them) have done a favor for the administration by casting the false appearance that there are.
Indeed, as demonstrated by the progressive praise of Obama for "upholding the rule of law," the most significant consequence of his first year in office, in the area of civil liberties, is that -- with a few exceptions (most notably torture) -- he has transformed what were once highly controversial Republican "assaults on the Constitution" into bipartisan consensus which both parties now embrace, thus ensuring -- as Baker put it -- "that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama." Thus, a President who imprisons people with military commissions or even no charges at all -- and constantly invokes secrecy claims to shield the Executive Branch from judicial review over allegations of lawbreaking -- is now hailed -- by progressives -- as a stalwart defender of "the rule of law."
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