Tag: Law

Recently in a series of articles here, Michael Kwiatkowski discussed Pres. Obama’s morality and the the immorality of supporting him, as well as, the immorality of not challenging his presidency and other Democrats in 2012. In a post at Echidne‘s blog, Anthony McCarthy picks up this theme of “A Moral Vacuum At The Top”:

Does Barack Obama have a moral center? Is there something that he, ultimately would be unable to compromise away because it is not a negotiable point? Is every value, every moral declaration fungible? An item of spiritual commerce to be bartered so he can, in the end, announce that he’s not lost due to him agreeing to something with the Republicans?

The idea of morality has been made unfashionable in what we, by default, must consider the modern Western intelligentsia. That is the only success that what got called “liberalism” in elite circles has entirely succeeded in over the last century. In the quest for personal liberty morality has been progressively de-emphisized, then redefined, then ignored. Morality has come to mean, not only self-righteous nagging, but an attribute of the unacceptably old fashioned and uncool. The elevation of cynical “realism” as a replacement for the genuinely liberal virtues might be the most obvious evidence of a genuine moral vacuum, an absence of real morality. After more than two years of watching the presidency of Barack Obama, I can’t believe he really believes in anything but his image as a savvy broker, a cool macho deal maker. Watching him trade away the enormous reserve of political power he was given by the voters in 2008, I have to conclude that the things he has bartered for the ability to say he won it seems as if the people who depend on those things aren’t that big a concern to him.

(emphasis mine)

This president’s policies which have expanded the worst of George W. Bush’s regime or torture, indefinite detention, the disregard of US Law, international treaties and law on human rights and war crimes lack any moral grounding, along with the stepped up attacks in Pakistan using unmanned drones that have killed hundreds of innocent women and children and targeting American citizens for assassination without due process. Consider his latest statement on Bradley Manning were he accepted the Defense Department’s assurances that Manning’s confinement as appropriate and meeting “basic standards” without question. These are all acts call in to question a moral center.

What really gives pause is China calling for the US to resign as a Human Rights judge after calling out China on its detention policies:

The United States is beset by violence, racism and torture and has no authority to condemn other governments’ human rights problems, China said on Sunday, countering U.S. criticism of Beijing’s crackdown. . . . “The United States ignores its own severe human rights problems, ardently promoting its so-called ‘human rights diplomacy’, treating human rights as a political tool to vilify other countries and to advance its own strategic interests,” said a passage from the Chinese report.

Ouch. But there’s more as

China “accused the U.S. . . . of pushing for Internet freedom around the world as a way to undermine other nations, while noting that Washington’s campaign against secret-spilling website WikiLeaks showed its own sensitivity to the free flow of information,” and further “lambasted the U.S. over issues ranging from homelessness and violent crime to the influence of money on politics and the negative effects of its foreign policy on civilians.”

h/t to Glenn Greenwald

And this is two years into Obama’s administration. His supporters can’t keep laying this at the feet of the Bush/Cheney regime.

No one seems to know what exactly is in the deal that was struck late Friday evening that ended the latest standoff with the hostage taking Tea Party. What is known id that it will target those who can least afford it. Despite all the claims that have been made that Social Security is “off the table”, that and other safety nets like Medicare and Medicaid are back on the chopping block. Considering Obama’s statement Friday night that touted the latest round of cuts to the 2011 budget as a victory, it leaves one to wonder what else he has bartered away to save his image and how much more the majority of American’s are going to pay for his capitulation to the extremists who have hijacked our government for their corporate masters. It is immoral to force those who can least afford it, to pay for more gluttony of the top 2%.

Not that I was ever in but I was willing to give Barack Obama the benefit of the doubt once he was elected but since kicking his base supporters off the bus in the middle of the desert, I can’t even hold my nose to vote for him. As was pointed out in a Raw Story article, these are just a few of the reasons:

1. Health care for all

If you’re an American making less than $30,000 a year, chances are you still have trouble seeing a doctor, despite the passage of President Obama’s health care reform plan. In 2007, then-Senator Obama said he wanted to make sure no American is without access to vital medical attention and proposed using revenues from the soon-to-expire Bush tax cuts to fund it. When the campaign laid out their specific plans in 2008, they included a “public option” that would be paid for by the public at large and made available to anyone who could not obtain coverage through their employer or other public program.

We all know how well that turned out, a massive sell out to the health insurance  and pharmaceutical industry and a cave ro extending the Bush (er, Obama) tax cuts. Yes, the consumer is forced to buy an inadequate insurance policy and still not have access to a doctor but hey, they’re insured. Now the Republicans are attacking Medicare and Medicaid so the government can fund more imperial wars and buy bigger and better weapons while giving the wealthy even more tax cuts.

2. Close Guantanamo

As a symbol of everything that liberals thought to be wrong with the Bush-era, closing the Guantanamo Bay military prison in Cuba should have been an easy target for the new and popular president and his Democratic super-majority in Congress — and, in fact, then-candidate Obama promised to do just that. But as he soon found out, strategic and political calculations have made it almost impossible to shuck.

Now we have even bigger and better military tribunals, no trials in civilian courts for those scary men in Guantanamo and for 47 of them, the possibility no trial ever and the rest of their lives in detention all in the name of the never ending War on Terror (On wait, we don’t call it that any more).

3. Defend labor rights

“Understand this,” Obama said during a campaign rally in 2007. “If American workers are being denied their right to organize and collectively bargain when I’m in the White House, I will put on a comfortable pair of shoes myself, I’ll will walk on that picket line with you as President of the United States of America.” (Watch.)

He can’t find his comfy shoes? Michelle must have tossed them when they moved into the executive mansion. Truthfully, at this  point, it’s is best he stay away and silent.

4. Reform the Patriot Act

Contrary to popular belief, Obama has never actually argued for a repeal of the Bush administration’s sweeping, post-9/11 security initiatives, which were passed with a mandatory “sunset” clause to overrule the concerns of civil libertarians at the time. Instead, Obama has consistently said he favors enhanced judicial oversight and a pullback from some warrantless searches — like the provisions that allow the FBI to access library records without a warrant.

Obama “reformed” it all right. Besides defending it in court, he got it extended even for even longer than the Republicans wanted without any changes. This extends the governments ability to spy on every private citizen until 2013, a non-election year, when it comes up for renewal again.

5. End the wars

Even as a candidate, Obama maintained that Afghanistan should be “the focus” of Bush’s terror war, and he pledged to make it so. But the president was also swept into power on a wave of anti-war fervor behind his calls to end the occupation of Iraq. Iraq has calmed down quite a bit as U.S. troops steadily stream out of the country, but Afghanistan is more violent than ever amid Obama’s own “surge.”

The US will have troops in Iraq and Afghanistan for years. But, but, his loyalist supporters say, they aren’t “combat troops”. I hate to tell them but ALL troops are “combat troops”. Not only this, now there is the bombardment of Pakistan, Yemen and Libya.

One day after announcing his bid for reelection, Obama’s poll numbers show less than half the country believes President Obama deserves reelection, with disaffected liberals now a fast growing demographic and independents split. Would the country have been better off with McCain or Hillary as President is useless speculation. All that is important now is Dick Cheney is pleased.

Again, Barack Obama changes his mind and does a complete reversal of doing what he said he would do. Surprised? You shouldn’t be. This is the “change you can believe in”.

In a Reversal, Military Trials for 9/11 Cases

By Charlie Savage

WASHINGTON – The Obama administration, ending more than a year of indecision with a major policy reversal, will prosecute Khalid Shaikh Mohammed and four other people accused of plotting the Sept. 11 terrorist attacks before a military commission and not a civilian court, as it once planned.

Attorney General Eric H. Holder Jr. announced on Monday that he has cleared military prosecutors at Guantánamo Bay, Cuba, to file war-crimes charges against the five detainees in the Sept. 11 case.

Mr. Holder had decided in November 2009 to move the case to a federal civilian courtroom in New York City, but the White House abandoned that plan amid a political backlash.

Of course this decision is being praised by the fear mongering cowards like Sen. Chuck Schumer (D-NY) and Sen. Lindsay Graham who opposed the trials being held in New York City because it was too dangerous, major trials are too expensive, too many secrets will be spilled, public trials will radicalize the enemy, the public doesn’t want it and on and on.

This has been handled badly by Holder from the start. Instead of meeting with NYC officials, the mayor, police commissioner, etc, before he announced his plan last year to hold civilian trials in the city, the announcement came with little warning and no discussion. Of course they were all taken aback. There were hundreds of questions and no answers from the Obama DOJ. “Don’t worry, I’ve got this” is the typical Obama response to any concerns. Now Obama and all the his loyal supporters are laying the blame on congress for passing a bill that refused to fund the closing of Guantanamo and prevented bringing any of the detainees to the United States for trial. But did they challenge this law in the courts as being unconstitutional restriction on the ability of the Justice Department to prosecute these men fairly? No, Obama and Holder did not. Instead, as is typical of this administration, they dithered for a year and then caved.

Dahlia Lithwick roundly criticizes this decisions that creates a “two-tiered system of justice”.

Of course, exactly the same unpersuasive claims could have been made about every major criminal trial in Western history, from the first World Trade Center prosecution to the Rosenberg trial to the Scopes Monkey trial to Nuremburg. Each of those trials could have been moved to some dark cave for everyone’s comfort and well-being. Each of those defendants could have been tried using some handy choose-your-own-ending legal system to ensure a conviction. But the principle that you don’t tailor justice to the accused won out, and, time after time, the world benefited.

But make no mistake about it: It won’t stop here. Putting the administration’s imprimatur on the idea that some defendants are more worthy of real justice than others legitimates the whole creeping, toxic American system of providing one class of legal protections for some but not others: special laws for children of immigrants, laws for people who might look like immigrants, different jails for those who seem too dangerous, special laws for people worthy of wiretapping, and special laws for corporations. After today it will be easier than ever to use words and slogans to invent classes of people who are too scary to try in regular proceedings.

There may also be some ulterior motive for thees military commissions since the rules of evidence are different than in a civilian court that would exclude any evidence obtained through torture and the fruit of that poisoned tree. The National Association of Criminal Defense Lawyers released a statement titled The National Association of Criminal Defense Lawyers “At Guantanamo, “Detainees Are Presumed Guilty” that enumerates the faults of these commissions despite the so-called revamping :

“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “

David Kaye at FDL gives some interesting argument for what may well have been a ruse by this administration that intends to use the tribunals as a propaganda tool and never challenged congress.

What no commentator has stated thus far is the plain truth that the commissions’ main purpose is to produce government propaganda, not justice. These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to.

This is such a farce that further exploits the victims of 9/11 when Holder dared claim “today’s decision as one of fairness to the 9/11 victims, who should have to wait no longer for their day in court”. Really? Then what took them two years? Human Rights First’s Daphne Eviatar said

True respect for the 9/11 victims would have meant bringing the men suspected of the most heinous attack on U.S. soil in American history to trial in a public U.S. federal courthouse, for the victims and all the world to see. It would have meant securing solid verdicts that wouldn’t later be vulnerable to reversal by the Supreme Court, as would their convictions in a military commission. It would have meant presenting the voluminous evidence that prosecutors had amassed over the past decade detailing the crimes that each man had allegedly plotted and carried out. And it would have meant showcasing that the United States not only preaches about the importance of the rule of law around the world, but actually believes in and follows it here at home.

snip

But the administration had more than two years during which it could have transferred these men to federal courts and begun their prosecutions, and it didn’t. If the administration had moved these cases forward when it had ample opportunity, the convictions and sentences would likely have already been pronounced. Military commissions trials, meanwhile, will take at least twice that time to resolve, with the very possible result that either conviction or sentences will be overturned, given the commissions’ shaky legal grounding.

There is no excuse for the tribunals. Human Rights First point out the fact that “civilian federal courts have have convicted more than 400 terrorists since the 9/11 terrorist attacks. The discredited military commissions at Guantanamo Bay have convicted only 6, almost all via plea bargains that resulted in much lighter sentences due to the shaky legal ground of many of the military commission charges and procedures”.

Obama is determined to continue with the Bush policies that have taken this country down the path that covers up war crimes and makes a mockery of our justice system.

Shortly after taking office, the Barack Obama’s Attorney General announced new Department of Justice guidelines for medical marijuana in states that had laws permitting its dispensing.

U.S. Atty. Gen. Eric H. Holder Jr. said Wednesday that the Justice Department has no plans to prosecute pot dispensaries that are operating legally under state laws in California and a dozen other states — a development that medical marijuana advocates and civil libertarians hailed as a sweeping change in federal drug policy

Well, apparently the word didn’t get out to the field and in the last two weeks there have been 28 raids on medical marijuana clinics in Montana where 26 raids took place:

GREAT FALLS, Mont. – Federal agencies conducted 26 raids on medical marijuana facilities in 13 Montana cities this week, as agents seized thousands of marijuana plants and froze about $4 million in bank funds.

The raids stunned medical marijuana advocates, many of whom believed the Obama administration’s policy was to leave states with medical marijuana laws alone.

That belief stemmed from Attorney General Eric Holder’s announcement in October 2009 that the pursuit of “individuals whose actions are in clear and unambiguous compliance” with existing state medical marijuana laws would be the lowest priority of U.S. law enforcement.

and California:

Federal drug enforcement agents Tuesday raided two West Hollywood medical marijuana stores in the first such action in the city since the Obama administration decided two years ago to take a hands-off approach to dispensaries that abide by state laws.

The dispensaries — Alternative Herbal Health Services and Zen Healing on Santa Monica Boulevard — are among four that the city has authorized to operate. West Hollywood was one of the first California cities to regulate medical marijuana sales and is often cited as a model.

In the tradition of the previous administration, the DOJ and the IRS began the raids after new memo (pdf) was issued that is up front about the new policy. The memo issued on February 1st by US Attorney Melinda Haag (who, ironically, represents Northern California) directly contradicts Holder’s edict. She declares that ANYONE engaging in the buying or selling of marijuana, regardless of their protection under state laws, will be punished by the federal government.

As the Department has stated on many occasions, Congress has determined that marijuana is a controlled substance. Congress placed marijuana in Schedule I of the Controlled Substances Act (CSA) and, as such, growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities.

The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the Department. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana. Accordingly, while the Department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the October 2009 Ogden Memorandum, we will enforce the CSA vigorously against individuals and organizations that participate in unlawful

manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department’s investigative and prosecutorial resources will continue to be directed toward these objectives.

Schedule I drugs are determined to have “no currently accepted medical use in treatment in the United States.” and carry the harshest penalties resulting in a prison population in which 1 in 8 prisoners in the U.S. is locked up for a marijuana-related offense. However, recently a federal agency has determined that marijuana does have a medicinal purpose. The National Cancer Institute (NCI), a division of the National Institute of Health, which is itself one of the 11 component agencies that make up the U.S. Department of Health and Human Services, added to its treatment database a summary of marijuana’s medicinal benefits, including an acknowledgment that oncologists may recommend it to patients for medicinal use:

The potential benefits of medicinal Cannabis for people living with cancer include antiemetic effects, appetite stimulation, pain relief, and improved sleep. In the practice of integrative oncology, the health care provider may recommend medicinal Cannabis not only for symptom management but also for its possible direct antitumor effect.

The Supreme Court ruled in 2001 that medical use of marijuana cannot be considered in any federal court deliberating on a marijuana possession or distribution case. While a solution to this would be to reschedule marijuana and put it under the regulation of the FDA but the possibility of this Congress acting on this anytime soon is nil to zero.

That leads to the question of the administrations policies which are conflicting to say the least and appear to have some political motivation to molify the criticism of the hard right wing that is now dominating the conversation. It begs to question whether Holder is being dishonest and hypocritical? Or does he simply lack strong leadership among US Attorneys General? Either way, this isn’t the way this administration is winning any support.

The Just Say Now campaign at FDL has a petition telling Holder to enforce his memo and stop raiding marijuana clinics.

Some of this is just really depressing. Where is this country headed?

• From Michael Moore: The Forbes 400 vs. Everybody Else
  

  According to the most recent information, the Forbes 400 now have a greater net worth than the bottom 50% of U.S. households combined.

  In 2009, the total net worth of the Forbes 400 was $1.27 trillion.

  The best information now available shows that in 2009 the bottom 60% (yes, now it’s 60%, not 50%) of U.S. households owned only 2.3% of total U.S. wealth.

  Total U.S. household net worth — rich, middle class and poor combined — at the time the Forbes list came out was $53.15 trillion. So the bottom 60% of households possessed just $1.22 trillion of that $53.15 trillion, less than the Forbes 400.

  Thus the Forbes 400 unquestionably have more wealth than the bottom 50%.

  By contrast, in 2007 the bottom 50% of U.S. households owned slightly more wealth than the Forbes 400; the economic meltdown has hurt the bottom more than the top. (And in fact, in 2010 the net worth of the Forbes 400 jumped to $1.37 trillion.)

• From TPM: Republicans Move To Strip Detainee Authority From Holder And Future Attorneys General
  

  Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) are teaming up with Republicans on the House Armed Services Committee to write legislation that would take decisions about trying detainees out of the attorney general’s hands and hand that power to the secretary of defense.

  In the wake of the White House’s new executive order allowing Guantanamo detainees to be held indefinitely, House Armed Services Committee Chairman Buck McKeon (R-CA) unveiled legislation that would, among other things, affirm the military’s right to detain, hold and interrogate detainees at its discretion without Department of Justice or Attorney General Eric Holder involvement.

  What digby said about the above:

  Are these guys under the misapprehension that the Secretary of Defense doesn’t serve at the pleasure of the president, exactly as the Attorney General does? What’s the point of this?

• From the New York Times: AARP Sues U.S. Over Effects of Reverse Mortgages
  

  Reverse mortgages, which pay older homeowners a regular sum against the equity in their house, are supposed to shield borrowers from economic upheaval. But the popular loans have become tangled up in the real estate collapse.

  AARP, the seniors’ organization, filed suit Tuesday against the Department of Housing and Urban Development, which regulates reverse mortgages. The suit asserts that policy changes by HUD are pushing older homeowners into foreclosure.

  The case was filed in Federal District Court for the District of Columbia by the AARP Foundation, the organization’s charitable arm, and the law firm of Mehri & Skalet on behalf of the surviving spouses of three homeowners who had bought reverse mortgages. All three are facing eviction, the suit says.

  “HUD has illegally and without notice changed the rules in the middle of the game at the expense of vulnerable older people,” said Jean Constantine-Davis, a senior lawyer at the AARP Foundation.

  This is happening with a Democrat in the White House?

Here’s some of the other news that gets missed or relegated to the inner pages by our ratings fixated media and what some of the loonies have been “plotting”.

Obama continues to make Dick Cheney proud.

U.S. Prepares to Lift Ban on Guantánamo Cases

WASHINGTON – The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.

Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.

Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

The rules for admissible evidence that these commission operate under are far loser than a civilian court.

Jerralyn Merrick at Talk Left explains:

One of those expected to be recharged and tried is Abd al Rahim al Nashiri, who was captured in 2002. Al-Nashiri was originally charged by the Bush Administration with participating in the 2000 bombing of the U.S.S. Cole. He was facing the death penalty. The Obama Administration moved to dismiss the charges against in in 2009. Al-Nashiri’s co-defendants were moved to federal court. Why wasn’t Al-Nashiri? The obvious answer is because the evidence against him was obtained by torture. His lawyer, Lt. Com. Stephen Reyes says:

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

Most of those who will be charged and face the death penalty are not prosecutable in a civilian court because not only is all of the evidence against them was obtained through torture but the detainees themselves were tortured. President Obama and Attorney General Holder are prosecuting the wrong people. They should be trying Bush and Cheney who have both publicly confessed to personally authorizing torture.

And if you the average American citizen thought you were safe from this abuse, think again:

Obama administration keeps new policy on Miranda secret

The Justice Department has a new policy for terrorism interrogations — but officials won’t publicly release it

The Obama administration has issued new guidance on use of the Miranda warning in interrogations of terrorism suspects, potentially chipping away at the rule that bars the government from using information in court if it was gathered before a suspect was informed of his right to remain silent and to an attorney.

But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.” So we don’t know the administration’s exact interpretation of Miranda, even though it may have significantly reshaped the way terrorism interrogations are conducted.

If Bush was bad, Obama is taking it to new levels.

Human Rights First, a non-profit, nonpartisan international human rights organization, has issued it report card for President Obama on issues of human rights and the rule of law. The report overall is not encouraging for a President who as a candidate purported to restore the rule of law. His overall grade is “D”.

The President did garner two “A-“‘s with caveats. While he has denounced torture, detainee abuse and secret detention sites, there are still major concerns about “various interrogation techniques that are permitted by Appendix M of the Army Field Manual that are inconsistent with the Geneva Conventions requirement of humane treatment” and “the Joint Special Operations Command detention facility in Parwan, Afghanistan operates outside the authority of the Joint Task Force established to oversee detention.” “B” and  “C-” are given for transferring GTMO detainees cleared for release and trying terror suspects in Federal courts, respectively. He gets a “C” for establishing accountability and oversight of U.S. private security and other contractors but didn’t go far enough holding “private security contractors in zones of armed conflict and elsewhere accountable for violations of international and domestic law, including incidents involving allegations of torture.” The rest of the report is damning.

The President gets a failing grade for not closing Guantanamo although he promised to do that two years ago. Even though the President has publically argued for closure of Guantanamo, he has failed to do so.

The continued use of military commissions to prosecute detainees gets an “F”. The commissions constitute a war crime under international law for a number of reasons:

. . . (the commissions) prosecute as war crimes conduct that was not a violation of the laws of war at the time the conduct occurred. They fail to ensure exclusion of evidence gained through torture or other abuse. They do not ensure that an accused or defense counsel will be able to see all relevant inculpatory and exculpatory evidence. Permissive hearsay rules fail to ensure that an accused or defense counsel will be able to confront witnesses. New rules governing procedure were introduced in the spring. While the rules are an improvement over the past iterations, they do not cure the fundamental flaws of the commissions. The only way to ensure that detainee trials comport with applicable law is to end military commissions and transfer prosecutions to federal criminal court.

An “F” is given for not holding accountable those who authorized and perpetrated torture against prisoners in U.S. custody:

In November 2010, the Justice Department announced that there would be no prosecutions for destruction of CIA tapes that allegedly recorded acts of torture committed by employees or agents of the United States. Special Prosecutor John Durham has yet to release his report on the investigation into whether crimes were committed by U.S. officials during any interrogations that included “enhanced interrogation techniques,” such as waterboarding, a well-known form of torture. The failure to hold accountable those responsible for acts of torture and to provide redress to victims (see “State Secrets” below) is a violation of international law and diminishes the credibility of the United States as standard-bearer for human rights worldwide.

The abuse of states secrets privilege also gains an “F”:

The Obama Administration has repeatedly asserted the “state secrets privilege” to obtain dismissal of legal claims by victims of U.S.-sponsored torture. Although federal courts have procedures they can use to protect the disclosure of classified information, the Administration has instead successfully convinced courts to dismiss these cases in their entirety on state secrets grounds. This has made it impossible for victims of U.S.-sponsored torture to obtain any form of accountability and redress.

“D”‘s are given for:

Not ending indefinite detention:

It was reported on December 22, 2010 that the Obama Administration plans to issue an Executive Order that would provide for legal representation and a review process for the 48 Guantanamo detainees who have been designated to be held indefinitely without trial.

Not articulating a rule of law for targeted killings:

The Obama administration over the past year dramatically stepped up its secret program of targeted killings, particularly along the Afghanistan-Pakistan border, but has failed to adequately articulate the legal basis for the program and how its choices of targets meet the requirements of international law.

The continued use of extraordinary rendition and lack of diplomatics assurances:

The Obama Administration continues to assert the right to transfer detainees to other countries without the protections of legal process based on diplomatic assurances from the receiving country that the detainee will not be abused, even where that country is known to abuse and torture detainees.

The report gives the President an “Incomplete” on establishing due process in Afghanistan and the remainder of the report enumerates eight things the President can do in the future to improve his “grades”. I wouldn’t hold my breath.

Most of us remember the novel by Alexander Dumas’s, “The Count of Monte Cristo“. The novel’s hero, Edmond Dantès, is falsely accused of being a traitor, denied a trial and imprisoned at the château on the Isle d’If off the coast of France.

This same fictional scenario has been the reality for the detainees at the detention camp at the US Naval base in Guantanamo, Cuba. As of November, 2010, there are 174 detainees many of whom have yet to see the evidence against them. There are 48 detainees that President Obama the Obama administrative wants to hold indefinitely and that number may increase as The White house drafts an executive order that should be ready for President Obama to sign early on January.

(The) order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.

After taking office, the Obama administration reviewed the detainee population at Guantanamo Bay and chose 48 prisoners for indefinite detention. Officials, who spoke on the condition of anonymity, said that number will likely increase in coming months as some detainees are moved from a transfer category to a continued detention category.

As David Dayen st FDL noted

I would rather this remain as an executive order than through a statute; at least it would be easier to overturn that way. But I don’t think any future President would choose to overturn it, and a statute could come anyway in a new, more conservative Congress. This is basically indefinite detention, an unheard-of policy prior to 9-11, with a bit of a smiley face. And to those who say this is limited to the 48 detainees designated for indefinite detention right now, here’s Tom Malinowski:

Tom Malinowski, the Washington advocacy director for Human Rights Watch, said such an order could provide additional safeguards for those prisoners who are already being held in as wartime detainees, but worried that it could be used to entrench the idea of detention without trial.

   “My sense and my hope is that it would be limited to the detainees whom Obama inherited from the Bush administration, rather than serving as a permanent regime for the detention of anyone the government may decide is dangerous in the future,” he said.

Consider the detention of Bradley Manning, in solitary confinement without being charged with a crime. There’s been credible speculation that Manning is being held to break him and give up some information about Julian Assange. I just think this will become more of the norm, especially with a codified indefinite detention standard.

Cenk Uygur had a live interview on Dylan Ratigan Show with Julian Assange who denied any contact with Pvt. Manning, or that he was even the source of the information.

How far down will this country go? Apparently this far

(Washington, DC) – The US Senate’s passage on December 22, 2010, of a ban on the use of government funds for the transfer of Guantanamo detainees to the US, even for prosecution, will severely undermine US efforts to fight terrorism, Human Rights Watch said today.

“The Senate vote banning the transfer of Guantanamo detainees is a reckless and irresponsible affront to the rule of law and efforts to protect the US from terrorism,” said Tom Malinowski, Washington director at Human Rights Watch. “By hindering the prosecution of Guantanamo detainees in federal court, Congress has denied the president the only legally sustainable and globally legitimate means to incarcerate terrorists.”

The provision in the National Defense Authorization Act changes a prior funding ban that blocked the transfer of Guantanamo detainees to the US except for prosecution, thereby preserving the Obama administration’s option of trying Guantanamo detainees in US federal courts. The new provision completely strips the government of the federal court option until September 2011 or until a new authorization bill is passed, effectively blocking closure of the Guantanamo detention facilities in the near future. The House of Representatives passed a similar provision on December 17, 2010. The Senate made unrelated changes to the bill, requiring it to be sent back to the House where it is expected to be passed immediately.

Democracy Now hosted a debate about WikiLeaks and Julian Assange. The guests were Glenn Greenwald, a constitutional law attorney and legal blogger for Salon and Steven Aftergood, senior research analyst at the Federation of American Scientists. He directs the Project on Government Secrecy and runs Secrecy News. The transcript is in this link to Democracy Now.

Is WikiLeaks’ Julian Assange a Hero? Glenn Greenwald Debates Steven Aftergood of Secrecy News