Tag: Guantanamo

There has been a lot of talk, now that the elections are over and the legislature has fallen into the hands of Republicans about what this will mean for President Obama’s agenda and the Democratic agenda generally. This election season my inbox was full of Democratic politicians begging for money to foreclose the possibility of voters choosing the wrong party at the polls, yours probably was, too.

A persistent theme in these begging emails that I was getting was that the (evil) obstructionist Republicans have gummed up our system of government and the Democrats (the good guys) can’t get anything done in order to enact Mr. Obama’s agenda.

Looking at the accomplishments of Mr. Obama and the governing elites, this narrative, of course, is utter rubbish. The government is working. Mr. Obama and the Republicans have been cooperating all along. Great bipartisan advances and accomplishments are indeed being made.

So, what can we expect of this new aggregation of powers? Probably more of what it created before. Hence, let us review the accomplishments that these allegedly competing forces have created together…

Mr. Obama’s bipartisan accomplishments

Two-tiered justice system, rewards for criminal bankers

Mr. Obama’s bipartisan efforts have kept the criminal banksters who crashed and looted our economy free, under-regulated, still dominating the political system, even larger than they were when they were “too big to fail” and paying the largest bonuses since their criminal activities crashed the economy. Mr. Obama’s efforts to prosecute financial frauds were even wimpier and less effective that George W. Bush’s.  Mr. Obama’s much ballyhooed relief program for homeowners injured by the criminal bankster’s behavior failed miserably; some Democrats claim that Obama sabotaged the program behind the scenes. The result of Mr. Obama’s efforts has been to fuel a new era of Wall Street wealth while screwing average citizens:

They didn’t just blow up finance, they oversaw the swiftest transfer of wealth to the very top the world has ever seen. They screwed workers out of their jobs, they screwed homeowners out of their houses, they screwed retirees out of their pensions, and they screwed municipalities out of their revenues and assets.

Financiers are forcing schools, parks, pools, fire departments, senior citizen centers, and libraries to shut down. They are forcing national governments to auction off their cultural heritage to the highest bidder. Everything must go in firesales at prices rigged by twenty-something traders at the biggest and most corrupt institutions the world has ever known.

And since they’ve bought the politicians, the policy-makers, and the courts, no one will stop it.

Austerity, benefitting the 1% at the expense of the rest of us

Mr. Obama’s bipartisan efforts (his budgets, the sequester) have imposed the austerity that enriches the 1% at the expense of the rest of us.  On Mr. Obama’s watch, taxes on the rich have decreased, shifting their burden onto everybody else. Mr. Obama was so intent on cutting social security benefits for older folks that the Progressive Change Committee characterized his dropping a particularly nasty proposal to cut benefits by miscalculating the effect of inflation on beneficiaries from his 2015 budget, a “huge progressive victory.” It’s a sad day when progressives consider it a “huge victory” when the depredations of an allegedly, progressive, liberal president and his partners in congress are diminished. You’d think that progressives would get excited about, um, progress rather than lack of regress. The economy delivered to us by Mr. Obama and his Republican colleagues took a lot of wrangling, but as one analyst put it:

Obama is the first President in post-war history (and maybe all of history) whose economy gave more money to the top 10% than the entire value of all productivity gains in his Presidency.  Even George W. Bush didn’t manage that.

Now that’s an accomplishment!

Not to be forgotten as well are Mr. Obama’s actions to crack down on those outraged by the bankster criminals and the impunity Mr. Obama created for those that crashed our economy.

Welcome to The Breakfast Club! We’re a disorganized group of rebel lefties who hang out and chat if and when we’re not too hungover  we’ve been bailed out we’re not too exhausted from last night’s (CENSORED) the caffeine kicks in. Join us every weekday morning at 9am (ET) and weekend morning at 10:30am (ET) to talk about current news and our boring lives and to make fun of LaEscapee! If we are ever running late, it’s PhilJD’s fault.  

(Truth be told, friends, we’re really not that disorganized; the fact that we’ve managed to put this series together and stick with it disabuses the notion that we’re disorganized, right?  Also, I wish I had a censored night once in awhile, but alas, this is something my producers made me say.)

This Day in History

In a Federal court in New York City, the son in law of Osama bin Laden was convicted on Wednesday of conspiring to kill Americans and providing material support to terrorists. Sulaiman Abu Ghaith, the most senior advisers to bin Laden, was captured in Aman, Jordan last year after leaving Turkey on his way back to his home in Yemen. Mr Abu Ghaith’s trial was one of the first prosecutions of senior al-Qaeda leaders on US soil.

Since 9/11, 67 foreign terror suspects have been convicted in US federal courts, according to data obtained by the group Human Rights First.

Mr. Abu Ghaith, a 48-year-old Kuwaiti-born cleric known for his fiery oratory, had recorded impassioned speeches for Bin Laden after Sept. 11, in which he praised the attacks and promised that future attacks would be carried out.

His conviction on all three counts – and the lightning speed from his arrest to verdict – would seem to serve as a rejoinder to critics of the Obama administration’s efforts to try suspected terrorists in civilian court, rather than before a military tribunal. [..]

The jury returned its verdict on its second day of deliberations in the trial, which had entered its third week in United States District Court in Manhattan. Mr. Abu Ghaith was convicted of conspiracy to kill Americans, for which he could face life in prison; and providing material support to terrorists, as well as conspiring to do so, counts that each carry maximum terms of 15 years.

Mr. Abu Ghaith was asked to rise as the judge’s deputy clerk, Andrew Mohan, read the verdict aloud, and the defendant appeared impassive as the word “guilty” was repeated three times.

Mr. Abu Ghaith is being held in the Manhattan federal detention facility awaiting sentencing.

Who was it that said that terrorists should not be tried in civilian courts?

Some US lawmakers disagreed with the decision to try Mr Abu Ghaith in New York.

“When we find somebody like this, this close to Bin Laden and the senior al-Qaeda leadership, the last thing in the world we want to do, in my opinion, is put them in a civilian court,” said Republican Senator Lindsey Graham on Thursday.

“This man should be in Guantanamo Bay,” he said.

Lindsey? We can’t hear you. Oh! And crickets from fear mongering in chief Rep. Peter King (R=NY) and Sen. Chuck Schumer (D-NY) who poo-pooed the idea that any of the 9/11 terrorists should be tried in any civilian court,let alone one in New York City.

The system works. Now, close the Guantanamo detention facility and end the sham military tribunals.  

The prisoners on trial before military tribunal at Guantanamo for their attacks on the United States are unable to present evidence that they were tortured by the CIA even though they are facing the death penalty. This is what has been happening:

On Tuesday, October 22, the lawyers for the September 11 accused argued that the Guantanamo military commissions’ protective order (pdf) violates the United Nations Convention Against Torture. The protective order states that the defendant’s “observations and experiences” of torture at CIA black sites are classified. Defense counsel say that this violates the Convention Against Torture’s requirement that victims of torture have “a right to complain” to authorities in the countries where they are tortured, and makes the commission into “a co-conspirator in hiding evidence of war crimes.”

It is not only the defendants’ lawyers who object to the protective order. The ACLU has called the restrictions on detainees’ testimony “chillingly Orwellian.” Earlier this year, the Constitution Project’s bipartisan, independent Task Force on Detainee Treatment (for which I served as staff investigator) found that the military commissions’ censorship of detainees’ descriptions of their own torture could not be justified on grounds of national security, and violated “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.” This month, the European Parliament passed a resolution that called on the United States “to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe.”

The reason the prisoners are being denies their rights to present the evidence of torture, even though they are facing the death penalty, is this:

In April 2009, over the CIA’s objections, Obama declassified four Office (pdf) of Legal (pdf) Counsel (pdf) (OLC) (pdf) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was “required by the rule of law.”

But today, the administration takes the position (pdf) that the release of the OLC memos only declassified the CIA’s use of torturous interrogation techniques “in the abstract.” The details of any individual detainee’s treatment in CIA custody are still top secret. The CIA claims this is necessary because disclosures about individual interrogations would “provide future terrorists with a guidebook on how to evade such questioning,” and “provide ready-made ammunition for al-Qa’ida propaganda.”

The one thing that the defense lawyers, the prosecutors and the judges all agree on, President Barack Obama could fix this.

Paul Kiel – January 30, 2008, 4:12 PM EST

Sen. Joe Biden (D-DE) said that he’d been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden — the Jack Bauer scenario — but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was “not simply a relative issue,” but there “is a statute where it is a relative issue,” he added, citing the Detainee Treatment Act. That law engages the “shocks the conscience” standard, he explained, and you have to “balance the value of doing something against the cost of doing it.”

What digby said:

So basically, while we “do not torture” we have admitted “in the abstract” that we did torture, but if any of those tortured reveal the details of that torture the terrorists of the future will know how we torture and learn how to evade it. So we’re obviously still torturing. Am I missing something?>

No, digby, you didn’t miss a thing.

At a press conference, Pres. Obama answered questions about the closing of Guantanamo detention center and the hunger strike that started almost a month ago and now involves 100 of the 166 detainees. “I don’t want these individuals to die,” Obama said, “Obviously the Pentagon is trying to manage the situation as best as they can. But I think all of us should reflect on why exactly are we doing this? Why are we doing this?”

Force feeding isn’t the answer, it violates their human rights. In a letter to Defense Secretary Chuck Hagel, the American Medical Association stated that “force feeding of detainees violates core ethical values of the medical profession.”

In the letter (AMA President Dr. Jeremy) Lazarus advised Hagel that the AMA opposes force-feeding a detainee who is competent to decide for himself whether he wants to eat.

“Every competent patient has the right to refuse medical intervention, including life-sustaining interventions,” Lazarus said, adding that the AMA took the same position on force-feeding Guantánamo prisoners in 2009 and 2005.

“The AMA has long endorsed the World Medical Association Declaration of Tokyo, which is unequivocal on the point: ‘Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially.’

The procedure is carried out by corpsmen, enlisted sailors trained to carry out medical procedures, usually supervised by a doctor or a nurse. It is unknown who determines which prisoner is to be force fed. The prisoner is strapped to a chair and his head, arms and legs restrained. A feeding tube is forced through the nose into the stomach and liquid nutrient (Ensure) is poured through the tube. This can be quite painful since it is being done involuntarily.

In an article at FDL’s Dissenter, Kevin Gosztola enumerated the actions Pres. Obama could have taken and didn’t

At any moment in the past months, Obama could have, according to Human Rights First, appointed “a high-level White House official with responsibility to ensure timely and effective implementation of the president’s plan to close Guantanamo.” It has not been done. Obama could have directed the secretary of defense, in “concurrence with the secretary of state and in consultation with the director of national intelligence, to certify detainee transfers and issue national security waivers, to the fullest extent possible consistent with applicable law.” To the public’s knowledge, that has not been attempted.

Obama tied his hand behind his back when the executive branch issued a moratorium on releasing Yemeni prisoners. Ninety of the 166 prisoners in Guantanamo are Yemeni. Twenty-five of the Yemeni prisoners have been cleared for release by Obama’s own review task force he had setup by executive order in 2009.

The Yemen government is demanding Yemeni prisoners be returned to Yemen. Abed Rabbo Mansour Hadi, president of Yemen, has said, “We believe that keeping someone in prison for over 10 years without due process is clear-cut tyranny. The United States is fond of talking democracy and human rights. But when we were discussing the prisoner issue with the American attorney general, he had nothing to say.”

Obama could direct the secretary of defense to initiate Periodic Review Board (PRB) hearings that were supposed to take place to determine if prisoners no longer posed a threat. As HRF described, “The executive order mandated that each detainee shall have an initial review, consisting of a PRB hearing, no later than March 7, 2012. Yet, nearly nine months after the deadline, not even a single PRB hearing is known to have been completed.”

Amy Goodman at Democracy Now! spoke with Carlos Warner, an attorney with the Federal Public Defender of the Northern District of Ohio, who represents 11 Guantánamo prisoners.

“Unfortunately, they’re held because the president has no political will to end Guantánamo,” Warner says. “The president has the authority to transfer individuals if he believes that it’s in the interests of the United States. But he doesn’t have the political will to do so because 166 men in Guantánamo don’t have much pull in the United States. But the average American on the street does not understand that half of these men, 86 of the men, are cleared for release.”

More from Marcy Wheeler at emptywheel:

Now, Obama does need Congress’ help to close Gitmo. He needs Congress’ help (though didn’t, when Eric Holder initially decided to try the 9/11 plotters in NY) to try the actual terrorists in civilian courts, to get them in Florence SuperMax in cells down the hall from Faisal Shahzad and Umar Farouk Abdulmutallab, whom he cites.

But most of the detainees at Gitmo won’t ever be tried in civilian courts, either because they were tortured so badly they couldn’t be tried without also admitting we tortured them (and, presumably, try the torturers), or because we don’t have a case against them.

Trying detainees who don’t pose a threat in civilian courts won’t solve the problem as they’re not guilty of any crime.

Moreover, Obama dodges what his Administration has done himself to keep detainees in Gitmo, notably the moratorium on transferring detainees to Yemen and the appeals of Latif and Uthman’s habeas cases so as to have the legal right to keep people based solely on associations and obviously faulty intelligence documents.

Obama doesn’t mention that part of Gitmo’s legacy. Obama says 10 years have elapsed and we should be able to move beyond the fear keeping men at Gitmo.

3 years have elapsed since he issued the moratorium on Yemeni transfers; 19 months have elapsed since he killed Anwar al-Awlaki, purportedly (though not really) the big threat in Yemen. It’s time to move on in Yemen, as well as generally.

Congress may have blocked Pres. Obama from closing the prison, which he signed into law, it didn’t stop him from treating those who are there humanely with dignity, especially those who have been held with no trails because there is no evidence to charge them. But force feeding the hunger strikers because he doesn’t want them to die? Outrageous. How about stop treating those who can be released as prisoners, let them contact their families through the Red Cross. Better yet let those who can go home.

On Sept. 11, 2001, Marine Lt. Col. Stuart Couch’s friend died co-piloting the second plane to hit the World Trade Center. Soon after, Couch became one of the first military prosecutors assigned to the U.S. military base at Guantánamo Bay to prosecute men alleged to have carried out the terrorist plot. He ultimately would refuse to prosecute one detainee: Mohamedou Ould Slahi. “It became clear that what had been done to Slahi amounted to torture,” Couch says. “Specifically, he had been subjected to a mock execution. He had sensory deprivation. He had environmental manipulation; that is, cell is too cold, or the cell is too hot. … He was presented with a ruse that the United States had taken custody of his mother and his brother and that they were being brought to Guantánamo.” Couch says he concluded Slahi’s treatment amounted to illegal torture. “I came to the conclusion we had knowingly set him up for mental suffering in order for him to provide information,” Couch said. “We might very well have a significant problem with the body of evidence that we were able to present as to his guilt.”

The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001

The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]

The ruling called into question whether other Guantanamo detainees  accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.

The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.

Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the  government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.

This should come as no surprise to the administration since, as Marcy Wheeler at emptywheel noted in her analysis, this had been predicted (pdf) by an assistant attorney general over three years ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

The DC court agreed:

   First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

   Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

   Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

   Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.

Another right further diminished by the Supreme Court.

Supreme Court Denies 7 Detainee Cases, Leaving Crippling Limits On Detainee Rights In Place

One day before the fourth anniversary of Boumediene v. Bush, which held that detainees being held indefinitely at Guantanamo Bay have the right to challenge their confinement in federal court, the Supreme Court denied review (pdf) of seven detainee cases that were pending before the court. The decision not to review any of the cases essentially makes the U.S. Court of Appeals for the D.C. Circuit the last stop for detainees seeking habeas corpus. While many detainees won their habeas corpus cases at the trial court level, no detainees have been released from Guantanamo due to these decisions because the DC Circuit has a perfect record of reversing these decisions.

Although today’s action does not have any precedential force, it undercuts the extent to which detainees can seriously challenge their detention by leaving the D.C. Circuit’s pro-detention decisions in place [..]

Marcy Wheeler @ emptywheel explains what the Supreme Court has just blessed:

   

Holding a person indefinitely for being in the wrong place at the wrong time-including a school, a road, and a guest house-where suspect people are.

   

Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.

   

Holding a person indefinitely based on pattern analysis.

   

Completely upending the role of District Court judges in the fact-finding process.

The Justices have abdicated their responsibility  to an ever more powerful Executive branch:

Especially deserving of review was a petition by Adnan Latif, a Yemeni who was captured near the border between Afghanistan and Pakistan in December 2001. Latif said he had traveled to Pakistan to seek medical treatment; the U.S. government insisted that he was a fleeing Taliban fighter.

A federal district judge ruled in Latif’s favor, concluding that, because of possible transcription and other errors, a government report of an interview with him was “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban.” Overturning that finding, the D.C. Circuit ruled that the government’s evidence was entitled to “a presumption of regularity” and that lower court judges should require that a detainee’s “self-serving account must be credible – not just plausible.” In her opinion, Circuit Judge Janice Rogers Brown (a former California Supreme Court justice) approvingly cited dissents in the Boumediene case and referred snidely to its impracticality and “airy suppositions.” [..]

Dissenting in the Latif case, Judge David Tatel described the decision as an “assault on Boumediene.” At the very least, the ruling called for a full-fledged review by the Supreme Court. Instead, the justices have abdicated their authority and devalued their own achievement.

On Saturday MSNBC’s Chris Hayes aired an exclusive taped interview with former Guantanamo detainee Lakhdar Boumediene. Boumediene, , a citizen of Bosnia and Herzegovina, was arrested with five Algerian men in Bosnia in October, 2001 and charged with plotting to blow up the American embassy in Sarajevo. He was held for seven years at Guantanamo without charges or explanation. Boumediene was the lead plaintiff in Boumediene v. Bush, a 2008 U.S. Supreme Court decision that Guantanamo detainees have the right to file writs of habeas corpus in U.S. federal courts. He and the five other detainees were released from Guantanamo on May 15, 2009 after a US Federal Judge found that “the Bush administration relied on insufficient evidence to imprison them indefinitely as ‘enemy combatants.

Through a translator, Boumediene explains life as a Guantanamo prisoner, about his torture, and his life after his release.