Gitmo Show Trials Archives - Page 17 of 32

If We’re Eliminating Symbols Used for Recruitment, Why Not Drones?

December 23, 2010/26 Comments/in Drones, Gitmo Show Trials /by emptywheel

Here’s what Obama said in response to a question of whether and why he was going to close Gitmo.

Q But it makes me wonder where you are, sir, at about the two-year mark on Guantanamo, when closing it was one of your initial priorities, sir?

THE PRESIDENT: Obviously, we haven’t gotten it closed. And let me just step back and explain that the reason for wanting to close Guantanamo was because my number one priority is keeping the American people safe. One of the most powerful tools we have to keep the American people safe is not providing al Qaeda and jihadists recruiting tools for fledgling terrorist.

And Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations. And we see it in the websites that they put up. We see it in the messages that they’re delivering.

And so my belief is that we can keep the American people safe, go after those who would engage in terrorism. And my administration has been as aggressive in going after al Qaeda as any administration out there. And we’ve seen progress, as I noted during the Afghan review.

Every intelligence report that we’re seeing shows that al Qaeda is more hunkered down than they have been since the original invasion of Afghanistan in 2001, that they have reduced financing capacity, reduced operational capacity. It is much more difficult for their top folks to communicate, and a lot of those top folks can’t communicate because they’re underground now.

But it is important for us, even as we’re going aggressively after the bad guys, to make sure that we’re also living up to our values and our ideals and our principles. And that’s what closing Guantanamo is about — not because I think that the people who are running Guantanamo are doing a bad job, but rather because it’s become a symbol. [my emphasis]

Now, I actually think this is not a bad answer. I’d love to see Obama go out and repeatedly talk about how important it is for our national security to close Gitmo. I’d love for Obama to criticize those who are preventing the closure of Gitmo for making our country less safe. And I don’t doubt that Gitmo is still a dangerous symbol.

But I wonder whether it is the symbol anymore. I question whether Gitmo is the most potent recruiting story for al Qaeda.

After all, almost everyone of the people who have recently attacked us–people like Faisal Shahzad–have cited not Gitmo, but our drone strikes in Pakistan, our attacks that have killed so many civilians, as the reason they’ve attacked the United States.

Now maybe it’s the case that the US claims to oppose torture, but doesn’t claim to oppose collateral damage in its pursuit of empire. Maybe dropping drones in Pakistan and elsewhere doesn’t–as Gitmo does–violate “our values and our ideals and our principles.”

And maybe the whole question is moot, since Obama’s not going to close Gitmo anytime soon anyway.

But if Obama thinks it important to eliminate the symbols al Qaeda uses to recruit people to attack America, shouldn’t he be considering ending drone strikes, too?

Obama Formalizes His Indefinite Detention Black Hole

December 21, 2010/21 Comments/in Democrats, Department of Justice, Gitmo Show Trials, Law, Obama Administration, Terrorism /by emptywheel

Hot on the heels of the big DADT victory in Congress, which pretty much got passed in spite of Obama instead of because of him, comes this giant lump of coal for the Christmas stockings all those who believe in human rights, due process, the Constitution, and moral and legal obligations under international treaties and norms. From the Washington Post:

The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.

The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.

This is certainly not shocking, as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission. This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it. That is what happens when a country becomes that which it once stood against.

Pro Publica fills in some of the details:

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

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

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
….
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

Unfortunately, it does not appear as if this ballyhooed “review” amounts to anthing meaningful to the detainee. Although the detainee would have access to an attorney, it would obviously not be unfettered access, completely on the government’s self serving terms, there would be only limited access to evidence, and, most critically, the “review” would only weigh the necessity of the detention, not its lawfulness. In short, it is a joke.

So, the next time you hear Mr. Obama, or some spokesperson for his Administrations decrying the horrible Congress for placing a provision in legislation prohibiting the transfer of detainees to the US for civilian trial, keep in mind how quickly Mr. Obama rose up to take advantage of it – before the measure was even signed – and also keep in mind how Obama stood mute when he could have threatened a veto of such an inappropriate invasion of Executive Branch power by the Legislative Branch. Keep in mind that this is likely exactly what the Obama Administration wants to cover feckless and cowardly indecision and so they do not have to make the difficult political choice of actually protecting the Constitution and due process of law.

John Bellinger: If the War Is Illegal, Just Change the Law

November 27, 2010/in Drones, Gitmo Show Trials, Terrorism, Torture /by emptywheel

John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

We Convicted a Guy the Bush Administration Tortured

November 18, 2010/in Gitmo Show Trials, Torture /by emptywheel

Will a Role in Afghan Peace Negotiations Trump Indefinite Detention?

November 15, 2010/in Gitmo Show Trials /by emptywheel

The Telegraph reports that a High Peace Council convened by Hamid Karzai may request that some Gitmo detainees be freed so they can participate in peace talks. (h/t Carol Rosenberg)

Taliban prisoners would be freed from Guantánamo Bay to potentially join peace negotiations under a proposal from the Afghan council appointed to find a settlement to the insurgency.

[snip]

The 68-strong High Peace Council was inaugurated by Hamid Karzai last month to pursue a twin-track strategy of reaching out to Taliban leaders while coaxing foot soldiers from the fight.

Mullah Rahmani, an education minister in the Taliban regime, heads a group of former Taliban on the council and chairs a subcommittee on political prisoners.

[snip]Mullah Rahmani said he wanted influential prisoners freed from American and Pakistani custody as a confidence-building gesture and potentially to join talks.

[snip]

He said: “We could use these people in negotiation. They have good contacts and are trusted by the Taliban.” Khairullah Khairkhwa, Taliban governor of Herat province until 2001, and Mullah Mohammad Fazl, deputy chief of staff in the Taliban army, were among those who should be freed from Guantánamo he said.

Khairkhwa is “a hardliner in terms of Taliban philosophy”, with “close ties to Osama bin Laden” according to his Guantánamo case file. Fazl was second-in-command of the Taliban’s army at the time of the United States’ invasion.

As these peace talks have developed, I’ve been suspecting something like this would happen. In particular, I’m curious whether this request would need to — and would — trump the US government’s decision that Khairkhwa and Fazl needed to be indefinitely detained.

I asked Rosenberg whether she knew if Khairkhwa was among the 40-some detainees slotted for indefinite detention, and she responded that she did not recall his name submitted for trial.

I asked that question because the Gitmo Task Force Report (pdf) had included top Taliban leaders among those who had been picked for indefinite detention.

In contrast to the majority of detainees held at Guantanamo, many of the detainees approved for detention held a leadership or other specialized role within al-Qaida, the Taliban, or associated forces.

[snip]

Others were Taliban military commanders or senior officials, or played significant roles in insurgent groups in Afghanistan allied with the Taliban, such as Hezb-e-Islami Gulbuddin.

Khairkhwa and Fazl would certainly qualify as “military commanders or senior officials.”

Now, if Khairkhwa and Fazl are senior enough members of the Taliban and legitimate and necessary peace partners, doesn’t that suggest they were not illegal combatants, but rather legitimate political leaders? And doesn’t that mean they should have been treated as POWs from the start?

Khalid Sheikh Mohammed and the Forever War

November 14, 2010/in Gitmo Show Trials, Unitary Executive /by emptywheel

There are a lot of things wrong with Obama’s apparently imminent decision to just let Khalid Sheikh Mohammed rot in jail without a formal trial.

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

Obviously, it’s a further spineless capitulation on Obama’s part. It’s a concession, too, that all you have to do to eliminate the rule of law in this country is squawk in Congress and on Fox News.

It also serves as a guarantee that the 2001 AUMF declaring war against the now-50 al Qaeda members who had something to do with 9/11 will last forever–or at least for the rest of Khalid Sheikh Mohammed’s life.

Mind you, the government has been planning on making this a forever war since 2001, precisely so it could hold people like KSM forever.

Now, with the decision to just let KSM rot, it seems to me, that plan gains a new anchor (and none too soon! given that only a handful of al Qaeda members remain in Afghanistan, that justification was getting rather dicey). After all, the very decision not to try KSM in a military commission is an admission that it would not work for him–it might rule out the death penalty for him in any case, but a military commission judge actually has leeway to adjust any sentence on account of the extreme torture KSM underwent, meaning our torture of KSM might become a central issue in a military commission.

But any further delay in charging KSM in civilian court make it less likely they’ll be able to charge him in the future, because this current delay almost certainly violates any interpretation of speedy trial rights. You can’t just wait to charge someone until such a time as the political winds make it easier to do.

Mind you, I agree that KSM is precisely the kind of person you do need to hold for the safety of the country (unlike many of the other detainees slotted for indefinite detention).

And that’s why this decision almost guarantees that the AUMF just became a forever war–at least one lasting the next twenty to forty years of KSM’s life. Because the government has apparently decided to hold KSM with no more solid legal justification than the war, which judges have interpreted to be the AUMF. Which means the government is going to have to sustain some claim that that AUMF remains in effect, even if we go broke and withdraw from Afghanistan as a result (that seems to be the only thing that will make us withdraw, in spite of the fact that we’re not going to do any good there).

Nine years ago, a British Embassy employee wrote,

As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.

The decision to hold KSM indefinitely has now flipped that equation: so long as the only justification for holding KSM is the claim we’re at war, we’ll have to remain at war.

And all those bonus powers a President gets with the claim that we’re at war? They’re all wrapped up now, in the necessity to hold KSM forever.

“The President Ultimately Made the Call”

November 12, 2010/in Gitmo Show Trials, state secrets, Torture /by emptywheel

GQ has another of those articles describing Eric Holder’s failed efforts to restore DOJ’s independence and sustain rule of law as Attorney General. There are a few new details in there — such as details of what torture was described in the CIA IG Report but must be among the redactions (notably, strangling of one prisoner).

As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with “a combination of disgust and sadness.”

The piece is more rich in capturing Holder’s self-denial, his attempts to ignore that his actions directly violate principles he laid out before he became Attorney General.

“But before the inauguration,” I said, “both you and the president said that habeas should apply to enemy combatants.”

“I’m not sure I ever opined on that,” Holder said.

“I could read you a quote.”

Holder laughed uncomfortably.

“Here’s the quote: ‘Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,’ and a few other things.”

Holder was silent. “But I was talking about Guantánamo,” he said. “I’m pretty sure I was talking about Guantánamo.”

But I’m most interested in a fairly subtle moment, when a former White House official (it might be someone like Greg Craig) made it clear that Obama, not Rahm, made the decision to have the White House pick the venue for Khalid Sheikh Mohammed’s trial.

“It was wildly unfortunate,” says David Ogden, Holder’s former deputy attorney general. “The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable.” Others are less forgiving, calling Obama’s capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. “There is an important principle at stake here,” Holder told me. “You don’t shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don’t stand for the rule of law when it comes to a case that is politically difficult to bring.” Among Holder’s political allies, the blame for KSM lay not with Rahm but Obama. “Rahm was critical,” says one former White House official. “But the president ultimately made the call.”

The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

The Boys of War

October 28, 2010/in Gitmo Show Trials, Terrorism /by emptywheel

One more boy got dragged into the horror of our country’s war on terror today: Tanner Speer, the 8 or 9 year old son of Christopher Speer, whose death Omar Khadr confessed to. Tanner’s mother read a note the boy wrote for (I think) Memorial Day.

“Omar Khadr should go to jail because of the open hole he made in my family,” wrote Tanner. “Army rocks. Bad guys stink.”

Shortly thereafter, Khadr made an unsworn statement, confessing to killing Speer, but spending time too talking about his biggest dream, to get out of Gitmo, describing how he wanted to be a doctor to help heal the pain of others. He turned to Speer’s widow and apologized for the pain he caused her family; the widow shook her head no in response.

“I’m really, really sorry for the pain I’ve caused you and your family. I wish I could do something that would take this pain away from you,” he said, standing in the witness box and looking at the widow of U.S. Delta Force soldier Christopher Speer.

Also today, Josh Rogin got a copy of the memo the State Department wrote explaining why the US needed to tolerate Yemen’s recruitment of 15 year old boys–the same age Khadr was when we captured him.

Imposing the section 404(a) prohibition against Yemen at this time would harm the cooperative relationship we have begun to rebuild with Yemen at a pivotal point in the fight against terrorism and have a negative impact on U.S. national security.

[snip]

Cutting off assistance would seriously jeopardize the Yemeni Government’s capability to conduct special operations and counterterrorism missions, and create a dangerous level of instability in the country and the region.

It’s not enough for the Speers apparently, for Khadr to apologize. Because that won’t fix the hole in the Speer family.

I believe that, and I am sorry for their loss.

But these boys conscripted by all sides into the war on terror are not the ones putting the holes in families.

“Profound Equities with Yemen in Terms of Counter-Terrorism” Justify Child Soldiers?

October 28, 2010/in Gitmo Show Trials, Terrorism, Unitary Executive /by emptywheel

As the prosecutors in Omar Khadr’s sentencing hearing try to undercut the testimony of a defense witness who believes Khadr can be rehabilitated, not least because of his age, an anonymous White House official justifies to Josh Rogin Obama’s decision to undercut a law prohibiting the government from funding countries that use child soldiers.

As I suspected, the Administration rationale for exempting Yemen from sanction explicitly has to do with our counter-terrorism efforts there.

Yemen is a recipient of significant direct U.S. military assistance, having received $155 million in fiscal 2010 with a possible $1.2 billion coming over the next five years. Yemen is also a much needed ally for counterterrorism operations. The government is engaged in a bloody fight with al Qaeda (among other separatist and terrorist groups), and estimates put the ratio of child soldiers among all the groups there at more than half. Nevertheless, “the president believes there are profound equities with Yemen in terms of counterterrorism that we need to continue to work on,” the official told The Cable.

It’s bad enough that our assistance in Yemen will contribute to a war in which half the soldiers are boys.

But I really am saddened by the coincidence in this timing. At this very moment, we’re going to great lengths in Gitmo to villainize Khadr, at least partly to dismiss all the criticism about trying a child soldier (for a crime that is not a crime). It’s as if those involved are trying to convince themselves that their war on terror trumps international norms of decency.

And even as we’re doing that, the President is taking affirmative steps to make it more likely that another boy, like Khadr, will be put in the same situation as him, attacked for following the orders of the adults around him.

Khadr Prosecutors Trying Desperately to Hide Bigoted Article

October 27, 2010/in Gitmo Show Trials /by emptywheel

I eagerly await Jeff Kaye’s take on the defense cross-examination of Dr. Michael Welner, whose anti-Muslim bias Jeff laid out here. Thus far, the defense has shown Welner didn’t read one of the studies he relied on for his Khadr profile, shown his work was not peer reviewed, and challenged Welner on his research methods: “Your sample size was Omar Khadr?”

But in the meantime, I wanted to point out something about this interview the prosecution is “fiercely” trying to prevent coming in as evidence. It reveals the anti-Muslim views of Nicolai Sennels, a Danish psychologist on whose work Welner relies. The interview as a whole is a pretty repulsive demonstration of bigotry. But I was particularly interested in the claims Sennels made about differences between “Western” and Muslim approach to anger.

Sennels: The most important characteristics that I found concerns aggression, self-confidence, individual responsibility and identity.

Concerning anger, it quickly becomes clear that Muslims in general have a different view on aggression, anger and threatening behaviour than Danes and probably most of our Western world.

For most Westerners, it is an embarrassing sign of weakness if people become angry. This view on anger is probably consolidated already in early childhood. I have been working as a school psychologist for several years and bullying is a continuous problem at the schools that I work in. The interesting thing is that the children who are most likely to be the target of being bullied are the children that get angry the easiest. If people get angry we have a tendency to lose respect for them and in many cases we try to tease them to provoke them even more – with the pedagogical aim of helping the person to realize the childishness of his or her behaviour. Trying to get one’s will by acting aggressively or using threats is seen as immature and our reaction is often to ridicule or simply ignore them. Thus, the shortest way to lose face in our Western culture is to show anger.

It is completely opposite in the Muslim culture. While most of my Danish clients who had problems with anger felt embarrassed about it, none of my Muslim clients ever seemed to understand our view on anger. I spent countless hours doing Anger Management therapy with both Danish and Muslim clients and hence I had very good opportunities to experience the cultural differences concerning this specific emotion, ways of handling it and reacting to it.

In Muslim culture, it is expected that one should show anger and threatening behaviour if one is criticized or teased. If a Muslim does not react aggressively when criticized he is seen as weak, not worth trusting and he thus loses social status immediately.

This cocktail of cultural differences has sparked the ongoing debate on free speech all over the world. [my emphasis]

Sennels claims to be making an observation about a distinctly Muslim approach to anger. But it seems laughable, reading it even as the right comes out in support of Rand Paul’s supporter’s attack. Not to mention so shortly after eight years during which George Bush sustained respect from his supporters by carefully performing anger.

If a willingness to express anger is a sign of dangerous anti-social behavior, then Sennels might as well be condemning a great number of angry Americans. If respect for those who become angry makes one Muslim, then I guess we’ve got a lot more sleeper Muslims in the states than even the fearmongers claim!

And given that much of our insistence on military commissions comes out of an anger-driven desire to humiliate our opponents, I can see why Khadr’s prosecutors want to prevent it from being introduced as evidence.

For more on this cross-examination, follow Carol Rosenberg, Muna Shikaki, and Michelle Shephard.