Archive for category: emptywheel

Whitehouse: SASC report. Great deal of disagreement with OLC analysis. Mora called 2003 OLC memo profoundly in error. To extent that it relied on memo, did not include fair analysis. Chart based on OLC opinion. Green means go column. Read Admiral Dalton, that green column was wrong legally, embarrassing. At Haynes’ direction, directed that OLC opinion supplant opinions of working group. Zelikow, you heard that copies of your memo should be collected and destroyed. What does that say?

Zelikow: Lawyers did not welcome peer review. Would shut down challenges even inside the govt. 

Whitehouse: It’s our nature to quarrel with each other. Is there any suggestion you would draw that they were less than perfectly confident with their views?

Zelikow: Arguments I was making were pretty profound, their whole interpretation of CID standard raises grave consequences. They had options. Let’s take another look at this. Or, Zelikow, boy, this shows how rusty you are in practicing law. They didn’t do either of those things, C, we don’t want to talk about it.

Whitehouse: Luban. Lee decision. Texas decision. Addicott didn’t cite it. Lee describes waterboarding as torture. In 93 pages, where they dig out medicare reimbursement, they don’t find a case on point, in which the 5th circuit, calls it repeatedly torture. I’ve pressed the DOJ on this, bc I think it’s unimaginable. AG Mukasey’s response was that it wasn’t relevant under Civil Rights Act, doesn’t relate under CAT. At that time I was out of time. Civil RIghts Act has no substantive elements of its own. Vehicle for enforcing Constitutional violations. Leads directly to Constitutional standards on torture. What OLC said about it–definition also founded on Constitutional standards of US. Impossible by Congress by statute, the statute criminalizing torture cannot create a definition of torture that narrows Constitutional definition. Distinction is yet another false device. They either missed case on point. I guess we’ll find out from OPR which it was. 

Luban: Lee case decided in 1983, before CAT and torture statutes. Not surprising that it didn’t exist yet. 

Graham: Would it be torture to put a spider inside a jail cell who was afraid of spiders. 

Luban: Conceivably.

Graham: Would you say if we put a spider in the jail cell we were torturing them.

Luban: If we knew that spiders are deadly. An ordinary person.

Graham: Mr. Addicott has a different view about torture. Do you think he is unethical.

Luban: I think he would be unethical if Read more →

graphic by twolf

The GOP squeals and Obama greases their detainee wheel. On May 1st, the New York Times warned that President Obama was contemplating reinstating the tyrannical Bush/Cheney military tribunals for Gitmo detainees.

Yes, the same Barack Obama that forcefully pronounced to the American public during the election:

By any measure our system of trying detainees has been an enormous failure,

Not to mention declaring that as President he would:

reject the Military Commissions Act.

That was then, this is now. And now, today, it is seems nearly confirmed that military commissions will be back. From Peter Finn at the Washington Post:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.
…
Officials said yesterday that the Obama administration will seek a 90-day extension of the suspension as early as next week. It would subsequently restart the commissions on American soil, probably at military bases, according to a lawyer briefed on the plan.

To be clear, the Administration indicates that Obama has not given the final sign off on the plan, and the ACLU has already sworn to fight any such plan. One thing is for certain, however, Obama is not contemplating this move in order to give the detainees so tried the equivalent level of due process and justice that would be afforded by American courts, else he would simply use American courts as he stated was his intention while campaigning for votes.

No, you can safely bet that the idea is to use evidence and restrict rights in order to obtain convictions and severity of sentences that would be less likely with traditional due process and fundamental fairness. Not that the original iteration of the tribunals produced particularly good results as a mere three convictions have been produced out of a known total of 779 detainees since the inception of Gitmo. One area clearly in play to obtain the desired easier convictions under Obama’s tribunals would be allowance of hearsay evidence:

Under the administration’s rule changes, hearsay evidence would be admissible if a judge determines it is reliable, officials said. Read more →