You might not know it from the asleep at the wheel major media, but the Bush/Cheney war on terror foundation has taken some serious hits recently, from news of the murder of Gul Rahman at the Salt Pit, to the selective prosecution of David Passaro, to the finding by Judge Walker that the wiretapping was illegal, to widely acclaimed terror pros Steve Kappes and Phil Mudd both suddenly bailing from their high ranking intelligence jobs. You can add to the list a hard slap down by a Federal Court of the government’s continued use of bogus evidence obtained by brutal torture to try to justify continued detention of detainees at Guantanamo.

On Wednesday, Judge Henry H. Kennedy of the DC District Court issued his written opinion in the Habeas Petition by Uthman Abdul Rahim Mohammed Uthman, and it is a testament of what it looks like when a legitimate court encounters the unconscionable torture and innuendo evidence the US Government, under both the Bush and Obama Administrations, has been relying on to hold the detainees at Gitmo.

Uthman had been captured in the Afganistan/Pakistan border region (allegedly in the general area of Tora Bora, although that was never established) with a large group of others all rounded up en masse. Uthman claims he was a teacher innocently traveling, the DOJ asserted he was a key bodyguard for bin Laden. The evidence proffered against Uthman came almost exclusively from two other detainees, Sharqwi Abdu Ali AI-Hajj and Sanad Yislam Ali Al Kazimi, who both assert they fabricated the statements in response to severe torture.

Here is how the handling of Hajj and Kazimi was described by Uthman, and found credible by the court:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj’s description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj “was regularly beaten and threatened with electrocution and molestation,” and he eventually “manufactured facts” and confessed to his interrogators’ allegations “in order to make the torture stop.” After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly “kept in complete darkness and was subject to continuous loud music.”

Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi’s description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say’ Yes’ to anything the interrogators said to avoid further torture.” According to Rayner’s declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized “he could mitigate the torture by telling the interrogators what they wanted to hear.” Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, “psychologically tortured and traumatized by guards’ desecration of the Koran” and interrogated “day and night, and very frequently.” Kazimi told Rayner that he “tried very hard” to tell his interrogators at Bagram the same information he had told his previous interrogators “so they would not hurt him.” (citations omitted)

The DOJ shamelessly attempted all types of circuitous and bootstrapped argument to try to buck up the tortured proof they were passing and the court properly called them on it at every turn. The decision is only twenty pages long and is a quick read; it is worth it to see just how many layers of unsupported and flimsy innuendo the government, through those beacons of ethical virtue at the Obama DOJ, will ply a court with and maintain a presumably straight face. It is stunning.

In order to give you an idea of the soundness of Judge Kennedy’s ruling, I will leave the legal citations in the quote from his discussion of the applicable law and his conclusion thereon:

Uthman asserts that the proximity in time between the torture Hajj and Kamizi described and their interrogations by the CITF investigator, however cordial, renders their statements unreliable. In general, “resort to coercive tactics by an interrogator renders the information less likely to be true.” Mohammedv. Obama, 2009 WL 4884194, at 23 (D.D.C. Dec. 16,2009) (citing Linkletter v. Walker, 381 U.S. 618, 638 (1965)). To determine admissibility in analogous situations criminal cases, courts assess the voluntariness of statements made after the application of coercive techniques based on a totality of the circumstances test. ld. (citing United States v. Karake, 443 F. Supp. 2d 8, 87 (D.D.C. 2006)); see also Schneckloth v. Bustamante, 412 U.S. 218,226 (1973) (“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances. “). Judges of this Court have adopted this test in the cases of other Guantanamo Bay detainees seeking release. See, e.g., Mohammed, 2009 WL 4884194, at 23; Anam v. Obama, – F. Supp. 2d -,2010 WL 58965, at 4 (D.D.C. Jan. 6, 2010). The test calls for considering, inter alia, “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators.” Mohammed, 2009 WL 4884194, at 23 (quoting Oregon v. Elstad, 470 U.S. 298, 310 (1985)) (internal quotation mark omitted).

Respondents do not argue that the alleged torture of Hajj and Kazimi is sufficiently attenuated from the interviews at which they gave the relevant statements to support a conclusion that despite the coercion, the statements are nonetheless reliable. The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier. Therefore, the Court concludes that there has been no “break in the stream of events … sufficient to insulate the statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 71 0 (1967). Accordingly, the Court will not treat Hajj and Kazimi’ s statements as true.

Again, the full decision is worth a read. As you do, keep in mind that the standard in evaluating the lawfulness of the detention of the individuals held at Guantanamo Bay is the government may detain only “those who are ‘part of’ the ‘Taliban or al Qaida forces,'” and the key question is whether an individual ‘receive[s] and execute[s] orders’ from the enemy force’s combat apparatus”. It is not a hard standard, but there does have to be some credible evidence.

Also critical to keep in mind is the fact that the burden of proof in a Habeas proceeding is only a civil one of “preponderance of the evidence”; commonly accepted to mean anything at all more than 50%, i.e. anything that makes the asserted proposition more likely than not. It is the lowest possible burden of proof. Judge Kennedy couldn’t find the government was even close to the mark on the lowest possible scale in a civil case. Just think what this says about the ability of the government to meet any criminal burden of proof such as “beyond a reasonable doubt”.

Uthman Abdul Rahim Mohammed Uthman has been being held by the US government in brutal captivity at Gitmo since January of 2002 – over eight years – based on evidence that would not be sufficient to convict him of a parking ticket. And then remember that, as one of the far less than 200 detainees remaining at Guantanamo, Uthman is supposed to be one of the worst of the worst and that the government has a solid case on. Thanks to the Bush and Obama Administrations, this is who we are now as a country. Any more questions as to why Lindsay Graham and the Obama Administration are fighting for military commissions?

(Graphic by the one and only Darkblack)

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure.

To date, the only journalist I have seen to even come close to being accurate about Ben Nelson’s status on Johnsen’s nomination is Charlie Savage at the New York Times, who yesterday briefly noted:

And it was not clear whether Mr. Nelson would join Republicans in trying to block a vote on Ms. Johnsen with a filibuster.

And that is the only germane question. It matters not whether Ben Nelson likes Johnsen, nor even if he would vote for her on the floor; the only salient issue is whether Nelson would vote for cloture and permit a floor vote. Ben Nelson never said he would block cloture. Never. And when questioned by the Indianapolis Star, he said the WH had never even discussed the subject with him.

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

There is no evidence whatsoever Nelson would have voted against allowing the nominee of Barack Obama, the sitting President of his own party, to have an up or down vote. None. How Nelson would have voted on the up or down floor vote is irrelevant as there were far more than the 51 votes for confirmation in an up or down vote. Ben Nelson was not the problem.

Arlen Specter was not the problem either. Specter’s office directly confirmed to me that he was, and has been, willing to allow cloture on the up or down floor vote for Johnsen, and likely willing to support her in said up or down vote, ever since his second face to face meeting with Johnsen on May 12, 2009 and Specter confirmed the same to Marcy Wheeler in late February. The failure of the Johnsen nomination cannot be laid at the feet of Arlen Specter.

Oh, and one other thing should also be kept in mind, there is a very good chance that, if it ever came down to them, either or both of the Maine twins, Olympia Snowe and Susan Collins, would have permitted cloture on a floor vote too. They have a record of not blocking votes on Democratic Presidential nominees going back to the Clinton era and leading Maine women’s groups were very optimistic they would allow it on Johnsen if it came down to them (which I also separately confirmed with the groups).

So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.

You want to know why the Obama White House killed their own nomination of Dawn Johnsen? Glenn Greenwald put it so well that I cannot improve on it and will just adopt and incorporate his spot on words:

virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

There is your answer. In brutal black and white. And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.

Central to the prosecutorial misconduct directly resulting in the criminal charges against former Alaska Senator Ted Stevens being dismissed was Brenda Morris, the Principal Deputy Chief of the DOJ Public Integrity Section (PIN). The misconduct was so egregious, and the Office of Professional Responsibility (OPR) so infirm, the trial judge, Emmet Sullivan, appointed a special court investigator to handle a criminal contempt probe.

Has the DOJ itself taken any action in light of the heinous conduct? No, of course not, they never do at the Roach Motel that is the OPR. Instead, the DOJ banished Morris to the Atlanta USA office apparently still as some kind of functioning authority in the Public Integrity (PIN) section. The DOJ is nothing if not consistent, whether under Bush or Obama.

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

You also have to wonder how exactly it is the Obama Administration has seen fit to leave Leura Canary, the Karl Rove acolyte who persecuted Don Siegelman, in office as the US Attorney for the Middle District of Alabama. Local blogs are not amused; from Legal Schnauzer:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.
….
Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

I honestly do not know enough to make the call on the underlying electronic bingo investigation, but the locals sure look to be raising a lot of very good questions about how it is being used to manipulate the local political landscape. Irrespective of the merits of the underlying investigation, leaving tainted authorities, of questionable ethics, like Leura Canary and Brenda Morris to be the face of this unusual and politically charged matter is simply inexcusable.