Tag: Torture

We know that the Obama administration was determined to never prosecute any of the main architects of the Bush regime torture program, or close Guantanamo. Last week while everyone was focused on the Republican Party Convention in Tampa, the Department of Justice announced that it is formally ending its investigation of the CIA’s “enhanced interrogation” program with out bringing criminal charges:

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

Mr. Holder had stated that the DOJ would not charge any of the interrogators if they had acted strictly in accordance with the department’s legal advice. Thus giving legitimacy to the “we were just following orders” defense that was rejected when used by German war criminals at Nuremberg. Mr. Holder just thumbed his nose at established international law, as well.

The lame excuse that there is a lack of solid evidence is just ludicrous, as David Dayen wrote in his article at FDL News Desk:

This was the investigation headed by John Durham, the federal prosecutor selected in August 2009 to look into charges of torture in CIA interrogations during the Bush Administration. We know plenty about those charges. The Justice Department released a previously classified document around the same time that they named Durham to lead the investigation, detailing the methods they used to interrogate suspects, including plenty of metMr. Obamahods that a plain reading would consider to be torture. This included waterboarding, stress positions, mock executions, threatening with handguns and power drills, vowing to kill or rape members of a detainee’s family, and inducing vomiting. [..]

In July 2010, federal judge and former Bush-era Justice Department official Jay Bybee, who wrote many of the Administration’s guidelines on interrogation, admitted to a House committee that CIA personnel never asked for approval for many of the interrogation techniques they used, that they went further than the prescribed guidelines from him, and that the ones he did prescribe were used excessively. Even if you believe that Bybee’s techniques were legal and did not violate federal and international conventions against torture, his testimony revealed clearly that CIA interrogators broke the law. Despite this prima facie evidence of unauthorized interrogation, the investigation went nowhere.

From the very start of his administration Pres. Obama and his officials have shielded the Bush torturers from all accountability, despite his campaign promise to have his Justice Department thoroughly investigate any charge of torture because no one is above the law. Then, even before he was inaugurated Mr. Obama declared that he was apposed to any of these investigations declaring  “we must look forward, not backward.”

Glenn Greenwald writing for The Guardian, reviews the timeline of decisions that has lead to a whitewash of the “war on terror crimes.”

Throughout the first several months of his presidency, his top political aides, such as the chief of staff, Rahm Emanuel and his press secretary, Robert Gibbs, publicly – and inappropriately – pressured the justice department to refrain from any criminal investigations. Over and over, they repeated the Orwellian mantra that such investigations were objectionable because “we must look forward, not backward“. As Gibbs put it in April 2009, when asked to explain Obama’s opposition, “the president is focused on looking forward. That’s why.”

On 16 April 2009, Obama himself took the first step in formalizing the full-scale immunity he intended to bestow on all government officials involved even in the most heinous and lethal torture. On that date, he decreed absolute immunity for any official involved in torture provided that it comported with the permission slips produced by Bush department of justice (DOJ) lawyers which authorized certain techniques. “This is a time for reflection, not retribution,” the new president so movingly observed in his statement announcing this immunity. Obama added:

   “[N]othing will be gained by spending our time and energy laying blame for the past … we must resist the forces that divide us, and instead come together on behalf of our common future.” [..]

(I)n August 2009, Holder announced a formal investigation to determine whether criminal charges should be brought in over 100 cases of severe detainee abuse involving “off-the-books methods” such as “mock execution and threatening a prisoner with a gun and a power drill”, as well as threats that “prisoners (would be) made to witness the sexual abuse of their relatives.” But less than two years later, on 30 June 2011, Holder announced that of the more than 100 cases the justice department had reviewed, there would be no charges brought in any of them – except two.

Glenn goes on to discuss the evidence in those two brutal cases that the justice department has now closed without charges and how the Obama administration even shut down investigations by Spain and Germany:

Moreover, Obama’s top officials, as WikiLeaks cables revealed, secretly worked with GOP operatives to coerce other countries, such as Spain and Germany, to quash their investigations into the US torture of their citizens, and issued extraordinary threats to prevent British courts from disclosing any of what was done. And probably worst of all, the Obama administration aggressively shielded Bush officials even from being held accountable in civil cases brought by torture victims, by invoking radical secrecy powers and immunity doctrines to prevent courts even from hearing those claims.

Meanwhile, the Obama administration has prosecuted whistleblowers with a vigor that has surpassed all other presidents. In the NY Times article, Mr Holder noted one case in his announcement:

While no one has been prosecuted for the harsh interrogations, a former C.I.A. officer who helped hunt members of Al Qaeda in Pakistan and later spoke publicly about waterboarding, John C. Kiriakou, is awaiting trial on criminal charges that he disclosed to journalists the identity of other C.I.A. officers who participated in the interrogations.

Glenn appeared on Democracy Now with host Amy Goodman to discuss Mr. Holder’s announcement. During the seven minute interview they also discussed Clint Eastwood’s conversation with an empty chair at the RNC Convention,

Mr. Holder covers up the evidence, allows the real criminals to walk, instead prosecuting those who spoke out about the crimes.

Is this the change we are suppose to believe in and vote to reelect?  

President Barack Obama took this oath on January 20, 2009 as prescribed by the US Constitution, Article II, Section 1:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

That includes a legal obligation to enforce the laws of this country and prosecuting the criminals who break those laws, even if that criminal is another President.

Rachel Maddow tiptoed around a bit when she that Bush-era torture was “probably a war crime,” while discussing the recently released memo by Philip Zelikow, a former Bush counselor. I suspect she did so as to not find herself on the unemployment line.

Rachel Maddow relays the news that the original Philip Zelikow memo advising the Bush administration that waterboarding is torture and such, illegal, has been found despite Bush administration efforts to destroy every copy. Will new proof that the Bush administration did not act in good faith when it tortured detainees push the Obama administration to prosecute? Will the Republican Party, once principled against torture, outflank Obama and call for prosecutions?

It was probably a war crime, not to put a fine point on it. And that is something we are legally obligated to prosecute in this country. This opens the whole question of legal liability for torture that was administered by the previous administration. The Democratic Party will be split by this, because the White House politically doesn’t want to deal with this, even if it’s wrong and even if they know it’s wrong. And the Republican Party still has to figure out who it is. Is the Republican Party still the party of John McCain, which now has the opportunity to outflank the president on a matter of principle here? Where the Whit house knows what the right thing to do is, but they don’t want do it. Or is the Republican Party still the party of George W. Bush and Mitt Romney who think torture is OK?

Gaius Publius at AMERICAblog  doesn’t think this is going away. He also wonders why the Obama administration didn’t pursue it and links to an article written by Andrew Kreig, executive director of Justice Integrity Project, on September 13, 2011:

President-Elect Obama’s advisers feared in 2008 that authorities would “revolt” and that Republicans would block his policy agenda if he prosecuted Bush-era war crimes, according to a law school dean who served as one of Obama’s top transition advisers.

University of California at Berkeley Law School Dean Christopher Edley, Jr., the sixth highest-ranking member of the 2008 post-election transition team preparing Obama’s administration, revealed the team’s thinking in moderating a forum on 9/11 held by his law school (also known as Boalt Hall)[..]

When a citizen, Susan Harmon, who opposed torture, questioned Dean Ederly on the inclusion of Professor John C. Yoo, former Bush Justice Department attorney who authored a memo justifying torture, to Boalt Hall’s faculty, this is what happened:

Harman’s account of her actions at the Boalt Hall forum, which focused on such goals as human rights and the rule of law:

“I said I was overwhelmed by the surreality of Yoo being on the law faculty . . . when he was single-handedly responsible for the three worst policies of the Bush Administration. They all burbled about academic freedom and the McCarthy era, and said it isn’t their job to prosecute him.

Duh.

Dean Chris Edley volunteered that he’d been party to very high level discussions during Obama’s transition about prosecuting the criminals. He said they decided against it. I asked why. Two reasons: 1) it was thought that the CIA, NSA, and military would revolt, and 2) it was thought the Repugnants would retaliate by blocking every piece of legislation they tried to move (which, of course, they’ve done anyhow).”

Harman says that she approached Edley privately after the forum closed and said she appreciated that Obama might have been in danger but felt that he “bent over backwards” to protect lawbreakers within the Bush administration. She recalled, “He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.”

The last I checked waterboarding was still considered torture and torture was still a crime. Obama could well become a target for impeachment proceedings should the Democrats lose control of the Senate and more seats in the House. So long as the Obama administration refuses to prosecute former Bush administration officials, as well as, Bush and Cheney, they themselves are complicit in war crimes as per established laws and treaties of this country and the oaths that they took to uphold those laws and the Constitution.  

” Others who say torture is a big deal but we have to move on are complicit not just in these crimes but also the ones that will inevitably occur in the future because nothing was done about these.” ~ Meteor Blades

In 2009, former counselor to Secretary of State Condoleezza Rice, Philip Zelikow revealed that he had written a memo in 2006, carefully arguing that the Geneva conventions applied to Al Qaeda. It was written to rebut a memo written by Stephen Bradbury (pdf) for the Department of Justice that argued the CIA’s “advanced interrogation techniques” were in compliance with the Convention against Torture. At that time, it was believed that all the copies had been destroyed by the State Department, until now. A copy had been preserved (pdf) by The National Security Archive and it has been released through  Freedom of Information Act request  by the National Security Archive, a group dedicated to real government transparency.

In the 5 page memo. Zelikow argued that techniques such as waterboarding, cramped confinement, stressed positions, slamming the prisoner’s head against a wall, and dousing with ice water were degrading and in violation of Article 16 of the Convention Against Torture.

According to Kevin Kosztola at FDL, ZElikow was prompted to write the memo after the McCain Amendment was passed that sought to prohibit the inhumane treatment of prisoners in US custody:

In the memo, he begins by noting the State Department agreed with the Justice Department in May 2005 that Article 16 of the CAT (“to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture”) “did not apply to CIA interrogations in foreign countries.” But, the McCain Amendment had “extended the application of Article 16 of the CAT to conduct by US officials anywhere in the world.”

   “The prohibitions of Article 16 of the CAT now do apply to the enhanced interrogation techniques authorized for employment by CIA. In this case, given the relationship of domestic law to the question of treaty interpretation, the responsibility of advising on interpretation is shared by both the Department of State and the Department of Justice.”

Zelikow’s State Department memo would not have been binding on the CIA, but he felt because of his history as a constitutional lawyer he had to put forward an argument that challenged the idea that these “enhanced interrogation techniques” were legal.

He told the Associated Press on April 3, “I believe that the Department of Justice’s opinion was an extreme reading of the law and because the Justice Department opinion was secret, the only way the president could hear an alternative interpretation was for someone like me to offer it.”

At least there were some people in the Bush government who had some common legal sense and humanity. So where does that leave us now? The Obama administration has conveniently hidden evidence against the guilty behind the cloak of state secrecy and refused to investigate many of the higher ups who were most agreeable to torture and actually authorized it. As Spencer Ackerman at the Danger Room points out:

Zelikow’s warnings about the legal dangers of torture went unheeded – not just by the Bush administration, which ignored them, but, ironically, by the Obama administration, which effectively refuted them. In June, the Justice Department concluded an extensive inquiry into CIA torture by dropping potential charges against agency interrogators in 99 out of 101 cases of detainee abuse. That inquiry did not examine criminal complicity for senior Bush administration officials who designed the torture regimen and ordered agency interrogators to implement it.

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

Also beyond the scope of Durham’s inquiry: The international damage to the U.S. reputation caused by the post-9/11 embrace of “cruel, inhuman and degrading” interrogation methods; and the damage done to international protocols against torture.

According to the Geneva Convention the covering up of torture and war crimes is a violation of the Principles.

Marcy Wheeler, aka emptywheel, has an in depth discussion here. The memo can also be read in Ackerman’s memo.

President Barack Obama once again has gone after a whistle blower while letting the criminals completely off the hook or walk away with a slap on the wrist. Since taking office Obama has waged unprecedented war on whistleblowers despite campaign promises to have a transparent government.

Former CIA Officer John Kiriakou Charged with Disclosing Covert Officer’s Identity and Other Classified Information to Journalists and Lying to CIA’s Publications Review Board

   A former CIA officer, John Kiriakou, was charged today with repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities, Justice Department officials announced.

   The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Like she did with the outing of CIA operative Valerie Plame-Wilson, Marcy Wheeler, along with Jim White at emptywheel, dissects this case exposing the hypocrisy of the government and the cover up of the real crime, a war crime, torture, here, here, here, here and here. In those articles they expose the weakness of the DOJ’s case against Kiriakou and that Obama has covered for and refused to prosecute war crimes committed by CIA agents and covers up military war crimes by hiding the evidence under the guise of national security.

A prime example of this hypocrisy it outrageous that has allowed war criminal to get off with just a tap on the wrist while the commanding officers were not even mentioned:

January 23, 2012 – CAMP PENDLETON, Calif. (AP) – A Marine sergeant who told his troops to “shoot first, ask questions later” in a raid that killed unarmed Iraqi women, children and elderly pleaded guilty Monday in a deal that will carry no more than three months confinement and end the largest and longest-running criminal case against U.S. troops from the Iraq War.

The agreement marked a stunning and muted end to the case once described as the Iraq War’s version of the My Lai massacre in Vietnam. The government failed to get one manslaughter conviction in the case that implicated eight Marines in the deaths of 24 Iraqis in the town of Haditha in 2005.[..]

Kamil al-Dulaimi, a Sunni lawmaker from the Anbar provincial capital of Ramadi, called the plea deal a travesty of justice for the victims and their families. “It’s just another barbaric act of Americans against Iraqis,” al-Dulaimi told The Associated Press. “They spill the blood of Iraqis and get this worthless sentence for the savage crime against innocent civilians.”

This is a disgrace.

Obama is not upholding his oath of office and that is an even bigger disgrace.

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.

Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

   The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:

Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:

(starting at 15:50):

President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.

Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.

You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]

I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …

h/t Washington’s Blog

How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

           

The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)

           

Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF

           

Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission

           

Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

   In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.

The late George Carlin said it several years ago, “this country is circling the drain“.  

Up Date: The Senate voted for final passage for the NDAA conference report (H.R. 1540). The vote was overwhelming: 86-to-13. It now goes to President Obama for his signature.

President Obama has not yet signed the NDAA. It is not to late to tell him to veto this bill which will have a devastating effect on civil liberties and give unprecedented powers to the military and the Executive Branch. Send Obama a strong message sign the petition and send a letter:

President Obama: Veto the National Defense Authorization Act!

VETO the National Defense Authorization Act

This House passed the revised National Defense Authorization Act 283 – 136 with 93 Democrats and 43 Republicans voting against the bill. The Senate is scheduled to take up the bill later today. It inevitably pass with an overwhelming majority and be sent to President Obama to sign. Since the White has stated that they are satisfied with the minor changes, Obama will sign the bill which, as Human Rights Watch said in a press release, “a historic tragedy for rights:

(Washington, DC, December 14, 2011) – US President Barack Obama’s apparent decision to not veto a defense spending bill that codifies indefinite detention without trial into US law and expands the military’s role in holding terrorism suspects does enormous damage to the rule of law both in the US and abroad, Human Rights Watch said today. The Obama administration had threatened to veto the bill, the 2012 National Defense Authorization Act (NDAA), over detainee provisions, but on December 14, 2011, it issued a statement indicating the president would likely sign the legislation.

“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.”

The far-reaching detainee provisions would codify indefinite detention without trial into US law for the first time since the McCarthy era when Congress in 1950 overrode the veto of then-President Harry Truman and passed the Internal Security Act. The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.

(emphasis mine)

Glenn Greenwald at Salon wrote in his article this morning that there are “several persistent myths that circulating about this bill and President Obama’s position on it that need to be clarified once and for all:

First, while the powers this bill enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). [..]

With a couple of exceptions, this bill just “clarifies” – and codifies – the powers President Obama has already claimed, seized and exercised. [..]

This is the reason why civil libertarians have been so harshly critical of this President. It’s the reason civil liberties groups have been saying things like this even when saying them was so unpopular: it’s because Obama has, for three years now, been defending and entrenching exactly the detention powers this law vests, but doing it through radical legal theories, warped interprations (sic) of the 2001 AUMF, continuities with the Bush/Cheney template, and devotion to Endless War and the civil liberties assults (sic) it entails.

Second, as I documented at length last week, Obama’s veto threat was never about substantive objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama, as I documented last week and again below, is not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his contiuous (sic), multi-faceted embrace of that policy.

Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution. It had everything to do with Executive power. The White House’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects (the FBI or the CIA). Such decisions, insisted the White House (pdf), are for the President, not Congress, to make. In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.

Third, the most persistent and propagandistic set of myths about President Obama on detention issues is that he tried to end indefinite detention by closing Guantanamo, but was blocked by Congress from doing so. It is true that Congress blocked the closing of Guantanamo, and again in this bill, Congress is imposing virtually insurmountable restrictions on the transfer of detainees out of that camp, including for detainees who have long ago been cleared for release (restrictions that Obama is now going to sign into law). But – and this is not a hard point to understand – while Obama intended to close Guantanamo, he always planned – long before Congress acted – to preserve Guantanamo’s core injustice: indefinite detention.

I need to say that again: long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. That’s what makes the apologias over Obama and GITMO so misleading: the controversy over Guantanamo was not that about its locale – that it was based in the Carribean (sic) Ocean – so that simply closing it and then  re-locating it to a different venue would address the problem. The controversy over Guantanamo was that it was a prison camp where people were put in cages indefinitely, for decades or life, without being charged with any crime. And that policy is one that President Obama whole-heartedly embraced from the start.

All the evidence is that debunks the myth that Obama is concerned about the Constitution are there in Glen’s article.

Ironically today 220 years ago in 1791, Virginia became the last state to ratify the Bill of Rights. If the Senate passes this horrendous assault on our civil liberties, most of that historic document will be undermined. I don’t believe this that is what our Founding Fathers intended.

Welcome to the new America. With the “last minute” changes to the National Defense Authorization Act, the White House Press Sectary announced that President Obama will sign it contrary to his earlier threat to veto the bill. The bill would deny suspected terrorists, even U.S. citizens seized within the nation’s borders, the right to trial and subject them to indefinite detention.:

We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Benjamin Wittes at Lawfare gives a quick and dirty analysis from conference report for the NDAA (pdf):

• The Senate has prevailed on the question of AUMF reaffirmation. The House bill, recall, would have contained a general reaffirmation of the AUMF, whereas the Senate language would only have reaffirmed that the existing AUMF authorized detention operations. The conference report has adopted the Senate approach. (See Sec. 1021.)
• A watered-down version of the Senate’s mandatory detention provision remains in the bill. (See Sec. 1022.) On the quickest of reads, it seems to apply only to those who are “members of” or “part of” (not supporters of) Al Qaeda and those associated forces that act in coordination with it or at Al Qaeda’s direction, not to the Taliban. It does not extend to citizens and applies to permanent resident aliens only for conduct in the United States to whatever extent the Constitution permits. And it contains the following new disclaimer: “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless of whether such covered person is held in military custody.” To put it simply, what has emerged is mush.
• The conferees have adopted the Senate’s approach to codifying the Guantanamo review process. (See Sec. 1023.) The House had laid out detailed procedures to replace those in President Obama’s executive order. The Senate, by contrast, had merely required the promulgation of procedures that tweaked aspects of the executive order around the edges. The final bill, with very minor adjustments, looks like the Senate version.
• The Senate’s requirement for new procedures for status determinations for “long-term detention” has survived-with slight tweaks. (See Sec. 1024.) The House got inserted language that clarifies that these procedures-which include counsel and a hearing before a military judge-are not required for detainees who have access to habeas. And the definition of “long term detention” is left to the Defense Department. So the provision, depending on how the executive branch implements it, could be important or could apply to a null-set of detainees.
• The House bill’s requirement that the administration create a national security protocol governing detainee interactions with the outside world has survived-but with an important change. (See Sec. 1025.) The House version required a national security protocol for each detainee. The conference report, by contrast, requires a single national security protocol governing the Guantanamo population at large.
• The conference report unsurprisingly contains language forbidding the expenditure of fiscal year 2012 money building detention facilities in the United States to house Guantanamo detainees. (See Sec. 1026.)
• It also contains language forbidding the use of fiscal year 2012 money to bring Guantanamo detainees to the United States-including for trial. (See Sec. 1027.)
• It also contains the Senate version of the overseas transfer restrictions for Guantanamo detainees. (See Sec. 1028.)
• The House’s requirement for consultation between prosecutors and the Pentagon before initiating a terrorist prosecution has survived for foreign Al Qaeda figures and detainees abroad. (See Sec. 1029.)
• It also contains the uncontroversial clarification of the right to plead guilty in military commission capital trials. (See Sec. 1030.)
• The House’s prohibition of civilian trials is gone.

h/t David Dayen at FDL

As per Sen. Karl Levin, Obama requested that the language barring the indefinite detention of US citizens be removed from the National Defense Authorization Bill. This doesn’t exonerate Levin or the other 93 Senators who voted “aye” on this travesty of legislation.

We have only a few days to speak up to Congress before the President signs NDAA Section 1031, permitting citizen imprisonment without evidence or a trial. Congress plans to give it to him to sign by Dec 9. But if we act urgently to raise awareness among our friends, family, and colleagues, we can still prevent this. Here is what we can do:

1) Americans must know about this to stop it. Urgently pass this petition as widely as possible: http://www.change.org/petition… … – Contact the media by any means available to you. ZERO news stories have covered this Chairman Levin clip yet!

2) Congress can still block the law before December 9. Write and call your Representative and Senator telling them to stop NDAA Section 1031.

Contact your Representative: http://writerep.house.gov/writ…

Contact your Senator: http://www.senate.gov/general/…

3) Write and call the White House to tell the President you won’t sit by and watch NDAA Section 1031 become law: http://www.whitehouse.gov/cont…

4) Stay smart — To slow down journalists and concerned citizens, it appears Section 1032 was deliberately crafted to distract from Section 1031. However, section 1032 is NOT the citizen imprisonment law. Disturbingly, this confusion is helping Section 1031 to slip by the American people. Do NOT fall for the misdirection, stay informed and urgently work to stop NDAA Section 1031.

We need to stop Obama and Congress from trashing the Constitution.

Up Date 12.8.2011: The web site Lawfare has an excellent two part analysis and side by side comparison of the House and Senate versions of NDAA. Written by Benjamin Wittes, it is an enlightening read on the flaws of both bills:

As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk about the NDAA as though both houses are on the same track. And there are some similar themes. But the two bills are also quite different. And these difference give rise to opportunities in conference: opportunities to emerge with far better policy than either bill presents on its own, and opportunities for mischief as well.

In this pair of posts, which is organized thematically and loosely according to the sequence of provisions in the House version of the bill, I am going to do a kind of side-by-side analysis. In each section that follows, I will start with a discussion of the House bill, which is longer and more involved, then describe how the analogous Senate provision (if one exists) differs. I will then discuss what I think the optimal realistic policy outcome looks like given the two versions. I am not going to rehash the merits or lack thereof of the specific provisions, all of which we have discussed elsewhere. My point is simply to highlight where the Congress has a clear position and where the houses are reading from different playbooks.

The Senate version of the bill is available here (pdf), with the relevant section running from pp. 426-445. The House version of the bill is available here (pdf) and runs from pp. 567-603. As this will get long, I will break it up into two posts.

House-Senate Side-by-Side of NDAA Provisions: Part I

House-Senate Side-by-Side of NDAA Provisions: Part II

If anyone thought for a second that Barack Obama’s threatened veto of the Senate’s passage of legislation that would allow for indefinite detention of Americans, think again. From Washington Blog via naked capitalism:

And at first, I – like many others – assumed that Obama’s threat to veto the bill might be a good thing. But the truth is much more disturbing.

As former Wall Street Street editor and columnist Paul Craig Roberts correctly notes:

   The Obama regime’s objection to military detention is not rooted in concern for the constitutional rights of American citizens. The regime objects to military detention because the implication of military detention is that detainees are prisoners of war. As Senate Armed Services Committee Chairman Carl Levin put it: Should somebody determined “to be a member of an enemy force who has come to this nation or is in this nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes.”

   Detainees treated according to the laws of war have the protections of the Geneva Conventions. They cannot be tortured. The Obama regime opposes military detention, because detainees would have some rights. These rights would interfere with the regime’s ability to send detainees to CIA torture prisons overseas. (Yes, Obama is still apparently allowing “extraordinary renditions” to torture people abroad.) This is what the Obama regime means when it says that the requirement of military detention denies the regime “flexibility.”

   The Bush/Obama regimes have evaded the Geneva Conventions by declaring that detainees are not POWs, but “enemy combatants,” “terrorists,” or some other designation that removes all accountability from the US government for their treatment.

   By requiring military detention of the captured, Congress is undoing all the maneuvering that two regimes have accomplished in removing POW status from detainees.

   A careful reading of the Obama regime’s objections to military detention supports this conclusion. (See http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf)

   The November 17 letter to the Senate from the Executive Office of the President says that the Obama regime does not want the authority it has under the Authorization for Use of Military Force (AUMF), Public Law 107-40, to be codified. Codification is risky, the regime says. “After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.”

   In other words, the regime is saying that under AUMF the executive branch has total discretion as to who it detains and how it treats detainees. Moreover, as the executive branch has total discretion, no one can find out what the executive branch is doing, who detainees are, or what is being done to them. Codification brings accountability, and the executive branch does not want accountability.

  Those who see hope in Obama’s threatened veto have jumped to conclusions if they think the veto is based on constitutional scruples.

Even if Obama’s threatened veto was for more noble purposes, the fact is that it would not change anything, because the U.S. government claimed the power to indefinitely detain and assassinate American citizens years ago. [..]

The Obama administration has also said for more than a year and a half it could target American citizens for assassination without any trial or due process. [..]

It’s hard to believe that any genuine democracy would accept a claim by its leader that he could have anyone killed simply by labeling them an “enemy.” It’s hard to believe that any adult with even the slightest knowledge of history or human nature could countenance such unlimited, arbitrary power, knowing the evil it is bound to produce. Yet this is what the great and good in America have done. Like the boyars of old, they not only countenance but celebrate their enslavement to the ruler.

(emphasis mine)

I had not read Dahlia Lithwick’s article at Slate on military detentions when I wrote about Obama’s veto threat of the NDAA because he objected to military making the decision:

Now, perhaps you suspect these thorny questions about the handling of terrorists are best left to the experts, and that the Senate was simply listening to them. Such suspicions would be unfounded. The secretary of defense, the director of national intelligence, the director of the FBI (pdf), the CIA director, and the head of the Justice Department’s national security division have all said that the indefinite detention provisions in the bill are a bad idea. And the White House continues to say that the president will veto the bill if the detainee provisions are not removed. It sees the proposed language as limiting its flexibility.

There may be no good outcome here. It could be an unholy victory for both the prospect of unbridled executive power and for the collapse of any meaningful separation between domestic law enforcement and military authority. The law manages to expand the role of the military in domestic terror prosecutions and also limit the authority of the civilian justice system to thwart terrorism. These were legal principles to which even the Bush administration said they adhered.

No good will come of this no matter what Obama and Congress do or don’t do. This “war on terror” has now become the “war on liberty” by our own government.